Trial against Dynegy over man's fall from bulldozer to begin

Steve Gonzalez Oct. 2, 2008, 7:39am



A trial against Dynegy Midwest Generation is scheduled to begin at 9 a.m. on Oct. 6, in Madison County Circuit Judge Barbara Crowder's courtroom.

The plaintiff, Donald Breitweiser, an employee for Fire Safety, Inc., filed suit in January 2006, alleging he was injured while working on a bulldozer at the Dynegy Midwest Generation plant in Alton on May 11, 2005.

Breitweiser claims that while attempting to gain access to the engine compartment on a D9 Caterpillar bulldozer, a pin broke, causing the shield to become dislodged which caused him to lose his balance and fall of the bulldozer.

He claims Dynegy allowed the pin to become rusty, corroded and in a state of disrepair.

Dynegy Midwest Generation is a power plant that uses coal to generate electricity.

According to Breitweiser, the bones, nerves, ligaments, muscles and tendons of his right arm and shoulder were greatly bruised, broken, crushed and displaced due to falling of the bulldozer.

He also claims he was hindered and prevented from his usual duties and affairs, lost wages and has become liable for medical expenses associated with his injuries.

Breitweiser is represented by Roy Dripps of the Lakin Law Firm in Wood River. He is seeking damages in excess of $50,000.

Dynegy has recently filed a motion for summary judgment trying to avoid the trial altogether.

Represented by Stephen Beimdiek of St. Louis, Dynegy argues they are entitled to a summary judgment because Breitweiser cannot present sufficient evidence to prove his common law negligence claim.

According to Dynegy, there is no evidence that they had actual knowledge of the condition of the pin, therefore Breitweiser must present evidence that they had constructive knowledge of the condition of the hinge pin.

Dynegy argues the "evidence overwhelmingly favors" them and established that the condition of the pin was so inconspicuous that it could not have been discovered through the exercise of reasonable care.

Dynegy also argues Breitweiser cannot establish they knew, or should have known, that the condition of the pin posed an unreasonable risk of harm, which is an essential element of a common law negligence claim, therefore are entitled to a summary judgment.

Breitweiser counters Dynegy's argument alleging he has "an ample basis" for the jury to conclude Dynegy had actual notice of the broken hinge pin before his injury and that they failed to warn him or repair the pin before the accident.

He also argues that summary judgment is a "drastic remedy" and that is must be granted with caution on order to "avoid preempting a litigant's right to trial by jury."

Crowder has set a final pre-trial hearing for Oct. 3.

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