In May of 2014, a tractor-trailer transporting over two million bees overturned and the bees escaped. Plaintiff, a professional beekeeper, was sent to the accident scene to salvage the bees. It turns out, the bees did not want to be salvaged. They continuously stung Plaintiff while he worked. As a result, Plaintiff developed a permanent venom allergy.

Plaintiff filed suit against Defendants alleging negligence related to the loading and transporting of the bees. Defendants moved for summary judgment contending that such claims were barred by the doctrine of primary assumption of risk.

The Delaware Superior Court reviewed prior precedent that indicated a primary assumption of risk is implicated when a plaintiff “expressly consents to relieve the defendant of an obligation and takes his chances of injury from a known risk arising from what the defendant is to do or leave undone.” Such, ‘express consent’ can be manifested through conduct. In finding for the Defendants, the Court noted Plaintiff’s professional status and experience as a beekeeper, use of protective clothing and precautions, and testimony that he continued to work after being stung numerus times. The Court further concluded bee stings were an inherent risk associated with the salvage operation.

Of particular note, Plaintiff argued that knowledge of the risk does not necessarily constitute primary assumption of risk. In support, Plaintiff cited premise liability cases based on an unsafe condition (i.e. slip and falls, inadequate security). The Court distinguished such cases as they did not involve professionals hired to deal with the risk that ultimately cause their injuries, nor was there an agreed upon shifting of such risk.

For more information on this matter or other legal questions, feel free to contact Michael W. Mitchell or any attorney in our Liability Department.

Sanders v. Odilia’s Express, Inc., 2017 Del Super. LEXIS 317 (June 23, 2017).

The Hand Bone Is Not Connected

To The Back Bone:

Employer accepted right thumb and ulnar nerve injuries as compensable, including a right thumb surgery. Following the surgery, claimant underwent compensable physical therapy and work hardening.

Claimant then filed a Petition with the Industrial Accident Board alleging that she injured her low back during post-operative work hardening. She alleged that there was no acute injury in work hardening, rather, the cumulative effect of multiple different exercises caused an aggravation of pre-existing back problems. She also sought payment for a three level lumbar fusion surgery, which Dr. Rudin had recommended and then performed after seeing Claimant on only two occasions following her alleged onset of low back pain.

The Board rejected Claimant’s Petition, finding that the ordinary stress and strain of work hardening had not aggravated claimant’s pre-existing back problems. Claimant had treated for low back pain for several years prior to the work hardening activities without resolution of her symptoms. When claimant first saw Dr. Rudin, she did not reference what she thought had caused her symptoms. There was no history in the actual work hardening records of any particular activity causing back pain. Claimant testified that she stopped going to work hardening because it hurt her back, but records from work hardening and her hand surgeon did not support this history. Claimant conceded to the Board that her activities in therapy/work hardening were mostly limited to the right arm and hand – activities that would not impact the back. Both medical experts agreed that Claimant’s MRI studies did not show any acute pathology to the lumbar spine following work hardening. All things considered, the Board held that Claimant failed to meet her burden of proof to establish a causal connection between the hand injury post-surgery therapy, and the three level lumbar spine fusion surgery.

For questions regarding this Decision, please contact John Gilbert, or any other attorney in our Workers’ Compensation Department.

Kuykendall v. Walgreens, IAB Hrg. No. 1427460 (June 28, 2017)