Butler Kahn recently obtained a confidential settlement on behalf of the family of a commercial diver whose life was tragically cut short during a routine dive at a hydroelectric dam. Georgia Power, which owned and operated the dam, admitted that it violated its own lockout-tagout (“LOTO”) procedures in connection with the diving accident. The case was principally handled by Jeb Butler and Tom Giannotti, with Matt Kahn pitching in down the stretch and Naveen Ramachandrappa of Bondurant, Mixson & Elmore joining on certain important legal issues.
Facts of the Lockout-Tagout (“LOTO”) and Diving Accident
Here’s the short version. Alex Paxton was a commercial diver doing work inside of Oliver Dam, a dam on the Chattahoochee River in Columbus, Georgia that is owned and operated by Georgia Power Company. Before allowing anyone to dive into the water inside the dam, Georgia Power was supposed to close all the valves so no water was passing through the dam. Georgia Power didn’t do that – instead, Georgia Power left a valve open. Because the valve was open and water was running through the dam, Paxton’s arm got sucked into a pipe. Paxton suffocated there, with his arm stuck inside the pipe, because the pressure was so tremendous that he could not inflate his chest.
Here are the details . . .
October 27, 2020 began like any other workday for our clients’ 31-year-old son, Alex Paxton. Alex and his fellow dive team members had been hired to dive inside the dam structure and look for suspected damage to an underwater chain that Georgia Power had broken when they attempted to open the dam’s headgate. Before starting the dive, Georgia Power conducted a safety meeting in which they advised the dive team that all LOTO was complete, meaning that all potential sources of hazardous energy had been closed, locked, and tagged out. Georgia Power employees also showed the dive team written documentation of the LOTO having been “active,” meaning that it was safe to begin work.
This photograph taken on the top of Oliver Dam shows the opening into which Paxton descended to make his dive.
This photograph looks down into the interior of Oliver Dam where Paxton made his dive.
There were two valves in the dive area which, if left open, could create “differential pressure”—i.e., suction—that could endanger a diver. Both valves served the purpose of allowing water from the lake to enter the “penstock”—a large pipe feeding water into the turbine—in preparation for putting the turbine into operation. The process of filling the penstock with water was known as “priming” or “watering up” the penstock. One of the two valves that primed the penstock was a flapper-type valve like one might find in the back of a common toilet, and the other priming valve was a gate-type valve that is closed with a wheel like one might find on a common water spigot.
Unbeknownst to Alex and his dive team, Georgia Power had accidentally left one of those valves open, but nonetheless told the dive team that all such valves were closed, locked, and tagged out. As a result, when Alex Paxton descended into the water, the differential pressure sucked Alex’s arm into the pipe with tremendous force – 850 pounds of force, according to the report of expert John Hamilton. Paxton could not free himself. He died there, underwater with his arm stuck inside the pipe. Alex’s cause of death was “mechanical asphyxia” because the force from the differential pressure was so great that, after a few minutes, he could no longer inflate his chest to breathe.
In this clip from a deposition, Georgia Power’s corporate representative admits that the valve was open. (Because of Georgia Power’s designations of confidentiality, we are unable to post the entire deposition online.)
In this clip from a deposition, Georgia Power’s corporate representative admits that “there were mistakes made” in his company’s lockout-tagout procedures. (Because of Georgia Power’s designations of confidentiality, we are unable to post the entire deposition online.)
Alex and his dive team checked behind Georgia Power’s LOTO by lowering a flow meter, a device used to detect water flow or suction, in the dive area before determining that it was safe to dive. Alex was an experienced diver, with over 10 years in the industry. He was widely respected and admired by his fellow divers. Unfortunately, the dive team could not verify that Georgia Power had closed the subject valve because they didn’t know it existed.
This stillshot from the camera mounted to Paxton’s dive helmet shows him pointing to the cable that controlled the flapper-style priming valve.
During the pre-job safety meeting, Georgia Power told the dive team about the flapper-type valve and showed the divers LOTO documentation that listed only one valve, which was labeled “penstock priming valve.” The dive supervisor testified that if he had known that the other, gate-type valve existed, he would have verified that it was closed before allowing Paxton to enter the water. Georgia Power later admitted that it should have disclosed that the existence of the additional, gate-type valve. Georgia Power has since updated the LOTO form to include both valves.
This is the LOTO form that Georgia Power was using at the time that Paxton died. It has four items.
This is the LOTO form that Georgia Power started using after Paxton died. It has five items.
In this clip from a deposition, Georgia Power’s corporate manager admits that the lockout-tagout form that his company was using at the time of Paxton’s death was not complete. (Because of Georgia Power’s designations of confidentiality, we are unable to post the entire deposition online.)
Crucially, Georgia Power possessed a diagram of the dam that showed this additional, gate-style priming valve, but incorrectly told the dive team that no diagrams were available. It was only after Paxton’s death that Georgia Power located a diagram that showed the valve that had been left open.
Proving Fault for the Lockout-Tagout (“LOTO”) and Diving Accident
Our clients initially suspected that Georgia Power had some responsibility for their son’s death, but it was not until the discovery process in litigation that the full extent of Georgia Power’s responsibility became known. Before filing the lawsuit, much of the information about the incident was only available through OSHA’s investigative documents, which were heavily redacted because OSHA believed they contained trade secrets. As part of the litigation process, Butler Kahn uncovered internal documents that showed Georgia Power had acknowledged its employees made serious mistakes in connection with Paxton’s death. Butler Kahn also met with a former Georgia Power employee who provided a sworn affidavit explaining what happened from his perspective.
This is an excerpt from a sworn affidavit that we obtained from a former employee of Georgia Power.
Due to the unique nature of this case, Butler Kahn hired several expert witnesses who could explain to a jury how the hydroelectric dam, LOTO system, and commercial diving protocols worked. Dr. Ross Saxon, a retired naval officer and former president of the Association of Diving Contractors International (ADCI) who developed industry-wide safety standards for divers, testified that Paxton had acted reasonably. John Hamilton, a mechanical engineer and industrial safety professor, explained how the actions of Georgia Power employees violated industry standards, including OSHA regulations relating to LOTO. Austin Marshall, a professor of civil engineering with experience in hydroelectric dam construction, explained how the various parts of the dam worked and how Georgia Power did not follow sound engineering practices in connection with the incident. Butler Kahn also worked with the experts and a computer graphics company to create an animation showing how the dam components worked.
Notably, Georgia Power only hired one testifying expert, who attempted to fault the dive team for not discovering the second valve before Paxton’s dive. Not a single expert defended Georgia Power’s actions.
Confidential Estate & Wrongful Death Settlement
As more information became known in depositions of Georgia Power employees, particularly those at the management level, Georgia Power’s attorneys pushed for settlement talks. It was clear that our clients had a strong case, and Butler Kahn’s tenacious workup of the case proved it. Our clients agreed to attend mediation, where after multiple days of negotiation, the parties reached a confidential settlement.
In many cases involving employees who suffer personal injuries or wrongful death on the job, the Georgia Workers’ Compensation Act provides the exclusive remedy for claims against the employer. Employers are immune from other lawsuits or claims in return for providing workers’ compensation coverage to their employees, even if the employee’s injury is the employer’s fault. This means that unless a third party was responsible for the employee’s injury or death, the victim or victim’s family cannot recover damages for pain and suffering or for the “full value of the life of the decedent.” In this case, because Georgia Power was responsible for Paxton’s death, the workers compensation bar did not apply.
Primary Documents related to Wrongful Death Litigation against Georgia Power
- Plaintiffs’ First Amended Complaint
- Video from Alex Paxton’s Dive Camera
- LOTO Form at time of Paxton’s death (four items) (Plaintiffs’ Exhibit 8)
- LOTO Form after Paxton’s death (five items) (Plaintiffs’ Exhibit 210)
- OSHA photo showing dam from a distance (Plaintiffs’ Exhibit 154)
- OSHA photo from top of dam (Plaintiffs’ Exhibit 147)
- OSHA photo looking into dam, labeled by our firm (Plaintiffs’ Exhibit 151.1)
- OSHA photo looking down at door to gate-type penstock priming valve (Plaintiffs’ Exhibit 164)
- OSHA photo of gate-type penstock priming valve (Plaintiffs’ Exhibit 166)
- Death Certificate