Wednesday, July 11, 2012

Rotert Construction has asked a judge to dismiss part of the lawsuit it faces from the widow of an employee who died of carbon-monoxide poisoning on a construction site because the widow didn’t witness the moment the worker was overcome by exhaust fumes, according to court records.

The fact that Janet Weeks, 53, of Carroll, found her husband Steve unconscious at the construction site in December 2010 is irrelevant, Rotert’s attorney, Mark Thomas, of Des Moines, wrote in court documents filed last week.

Janet Weeks sued Rotert, a Halbur construction company, under a narrow provision in Iowa law that allows lawsuits for workplace deaths if someone is an innocent bystander to a death. Spouses and children of victims are typically restricted to workers’ compensation disability benefits for workplace deaths and cannot file suit against an employer.

Steve Weeks, 55, was the fifth and final Rotert employee to refuel a set of gasoline-powered generators on Dec. 12, 2010, inside of an apartment building site near the corner of U.S. Highway 71 and Ely Drive in Carroll, about 1/2 mile from Weeks’ house.

The generators powered heaters in the building to keep the concrete floor from cracking. Dean Pottebaum, a co-owner of the company, has said they kept the generators inside over that weekend to keep them safe from thieves.

Steve Weeks left his home at about 7 p.m. to refuel the two generators. Janet Weeks found him about 8 p.m. unconscious on the concrete floor after he didn’t respond to multiple cellphone calls. He died later at a hospital.

In May, District Judge Joel Swanson ruled that Rotert was not exempt from the lawsuit because Janet Weeks was an innocent bystander when she saw her husband in his dying moments.

But Thomas argues that “Janet Weeks did not observe her husband’s accident” and therefore was not a bystander under Iowa law, court records show.

“He had already been overcome by the fumes and was unresponsive on the ground,” he wrote. “The time lapsed between Steven Weeks being overcome by the fumes and his wife discovering his body was too remote for her to contemporaneously observe the accident.”

It’s unclear when a judge will rule on the matter.

The lawsuit is set for a jury trial on July 16, 2013.