By Clair McFarland, General Assignment Reporter
A construction worker whose co-worker ran over him with a concrete truck at the F.E. Warren Air Force base cannot sue the co-worker, the Wyoming Supreme Court has determined.
Augustine Lovato, the victim of the cement truck collision, asked the state’s Supreme Court to give him permission to sue the truck’s driver, Tim Case, after a state district court denied Lovato that opportunity.
The high court sided with the district court, noting that Lovato already had received compensation under Wyoming’s worker’s compensation laws. The court’s order also says that Case did not behave with the “willful and wanton” behavior that would have merited a lawsuit directly against him.
‘Possibly His Girlfriend’
According to the Supreme Court’s order, Lovato, Case and a foreman identified as Mr. Bustos worked on a job site at the Air Force base on June 19, 2017.
Bustos waved Case, who was driving the cement truck, to a new pour site, as Bustos and Lovato crossed in front of the truck, the order says.
The document says Case drove ahead and soon felt a bump, thinking he’d hit a curb or concrete form.
“In fact, he had run over Mr. Lovato, injuring his foot, leg, back and shoulder,” says the order, adding that Case did not see Lovato in his truck’s path. “And he admitted to using his cellphone to call the concrete or ‘batch’ plant and possibly his girlfriend ‘around the time’ of the incident.”
Lovato in his earlier argument in district court suggested that he thought Case’s collision was beyond accidental.
“Someone run (sic) over me in a 52,000-pound truck and they (sic) could see me,” said Lovato. “I have my hard hat with the shovel over my shoulder and a vest on… How does this dude hit someone that’s six foot (tall)?”
Lovato received worker’s compensation benefits.
The order says Lovato then sued both Bustos and Case. Bustos settled his case with Lovato.
Case, however, contended that because he was a co-worker he did not bear the same responsibility for Lovato’s safety as a superior would. He also contended that he hadn’t acted wantonly and willfully, so Lovato could not sue him in addition to getting worker’s compensation, according to the order.
The district court dismissed the case, agreeing with Case on those points.
Duty To Safety
The Wyoming Supreme Court agreed with the district court’s decision to dismiss the case, saying that Case had been negligent, but not “willful and wanton.”
Though the high court upheld the lower court’s dismissal. But, its decision states, the high court disagrees with the district court that Case was not responsible for Lovato’s safety as a co-worker.
“The district court was mistaken about Mr. Case’s duty to Mr. Lovato, but summary judgment was still appropriate,” the document reads.