Publix Where working can be lethal

Five workers have died in Publix's Deerfield Beach warehouse in the past eight years. Has the workplace gotten safer? Apparently not.

It was just before nine in the morning on September 24, 1998, and Louis Gallart had a lot on his mind as he unloaded truck trailers on the dock of the Publix Supermarkets distribution warehouse in Deerfield Beach. He was concerned about getting home before Hurricane Georges hit. That wasn't the only thing bothering him. He and Katy, his wife of almost three years, had just decided to get a divorce. The handsome, longhaired 28-year-old was worried about how he would pay his bills on his $9-per-hour salary without his wife's income.

The Publix unloading job wasn't physically hard for a muscular young man like Gallart. His main responsibility was to remove the empty crates, pallets, and aluminum carts -- which the workers called birds -- from trucks that had returned from delivering food to the dozens of Publix stores in South Florida.

But the job had its challenges. To haul the heavy birds out of the trailers, Gallart had to use a small Barrett tow-tractor, also known as a tugger. The standard procedure was to back this vehicle into a trailer and attach birds to the rear hitch. Although a tugger resembles an oversized scooter, it's hardly a toy. A powerful 24-volt electric motor allows it to scoot along at eight miles per hour, pulling a load of several thousand pounds. Unlike a forklift, it has no protective bar or cage to shield the operator. So Gallart had to be careful as he zigzagged through the maze of darting tuggers and forklifts on the dock.

Leonard Pressley, Gallart's coworker, says he was surprised that Publix didn't take special safety measures after Gallart's fatal tugger accident
Sherri Cohen
Leonard Pressley, Gallart's coworker, says he was surprised that Publix didn't take special safety measures after Gallart's fatal tugger accident
After Louis Gallart's fatal accident in 1998, a handwritten log entry was found in his car indicating that his tugger had malfunctioned just two weeks before the accident
After Louis Gallart's fatal accident in 1998, a handwritten log entry was found in his car indicating that his tugger had malfunctioned just two weeks before the accident
JoAnn Marble, Louis Gallart's mother, says it was "outrageous" that, after her son died at the warehouse, nothing was done to prevent a similar accident
Sherri Cohen
JoAnn Marble, Louis Gallart's mother, says it was "outrageous" that, after her son died at the warehouse, nothing was done to prevent a similar accident
Fred Gallart remembers his son's complaints about how dangerous the Publix job was, and still berates himself for not persuading Louis to quit
Sherri Cohen
Fred Gallart remembers his son's complaints about how dangerous the Publix job was, and still berates himself for not persuading Louis to quit
Deja Brown was crushed to death against the control panel of this Barrett tugger. His chest was pinned against the exposed reverse button, which kept the machine pressing him backward into a bar.
Deja Brown was crushed to death against the control panel of this Barrett tugger. His chest was pinned against the exposed reverse button, which kept the machine pressing him backward into a bar.
Diagram depicts how Gallart was pinned between the hugger's control panel and the load bar
Diagram depicts how Gallart was pinned between the hugger's control panel and the load bar

Adding to the hazards, many of the tuggers were nearly a decade old and thus temperamental. Gallart had sent his to the repair shop a few weeks earlier because it was moving too slowly, according to a handwritten log found later in his car. Other workers reported tuggers that went too fast, didn't stop quickly enough, or got stuck in reverse. And the birds, which look like large double-decker shopping carts, were iffy, too. Many were so old and rusty that their wheels sometimes fell off.

The only light inside the 40-foot trailers spilled in thinly from the dock. Gallart had to watch out for the aluminum load bars that jutted from the inside walls of the trailer, about five feet above the floor. The four-foot bars were there to secure loads during transport. Unloaders were supposed to remove them from the tracks on the trailer wall before driving a tugger inside.

Leonard Pressley, a five-year Publix veteran, was working with Gallart on the north dock that morning. He had helped train Gallart, whom he considered his friend. "Louis was a cool guy, real mellow and easygoing," says Pressley, who was fired by Publix last March after an altercation with a coworker but who hopes to return to work there. "He was beyond safe in how he approached his job."

Both men wanted to knock off early so they could get home before the hurricane. Pressley commented that help would be arriving soon, which would enable them to finish faster. "OK, let's go," Gallart called out cheerily. Pressley watched his partner motor his tugger into a trailer at Bay 32. Pressley entered another trailer.

About three minutes later, Pressley was startled by the wailing of a tugger horn. He gunned his tugger toward the sound, which was coming from Gallart's trailer. Inside he saw Gallart bent forward over the tugger's control panel, bobbing up and down. Smoke was rising from the tugger's wheels as they spun on the trailer floor. The vehicle was stuck in reverse, pinning Gallart's torso between the control panel and a load bar, which caught him across his back. For some reason, Gallart had taken down one load bar, but not the other. No one knows why. Perhaps he didn't see it in the dimly lit trailer. Or maybe he was simply in a hurry.

"At first I thought he was fixing the horn," Pressley recalls with a shudder. Usually the dock was crowded with workers, but not that morning. Pressley ran to a phone and called for help. Two other employees rushed over. According to a Broward Sheriff's Office report, the three men struggled to free Gallart, whose chest was crushed against the reverse button on top of the control console. That kept the tugger pressing him backward into the load bar. The men couldn't release the bar from the track by hand, so one of them drove a forklift into the trailer to remove it.

"As God is my witness, I don't know how it happened," Pressley says. "But once your body is pressed on that reverse button, and there's something pinning you from behind, you'll rock back and forth, and you can't turn the tugger off." Pressley nearly had a similar accident himself. "If you accidentally lean forward, you'll hit the reverse button and take off going backwards. That happened to me once."

After Gallart was freed, paramedics rushed him to North Broward Medical Center. He was pronounced dead several hours later. The official cause: asphyxia from chest compression.

Pressley was traumatized. Unless you're a cop or a soldier, you don't expect to go to work in the morning and witness a colleague suffer a grisly death. Pressley took a week of vacation to recover. "I felt hurt," he says. "A guy dying in front of you, and there was nothing you could do to help him." He found himself crying a lot, so he went to a psychiatrist, who assured him that it wasn't his fault. On his first day back at work, he started weeping again and had to go home. After that, he felt OK. "It was in God's hands," he says now. "There was nothing I could do."

But there were some things that Publix, the U.S. Occupational Health and Safety Administration (OSHA), and Nissan Forklift Corp., the tugger's manufacturer, could have done after Gallart's accident. Common sense would dictate that when a worker dies, someone should take a close look at what went wrong -- and make sure it doesn't happen again.

But according to Pressley and other Publix workers, neither Publix nor Nissan made any safety modification to the tuggers or conducted any special training for tugger operators. A month after the accident, Angel Diaz, an OSHA compliance officer, concluded that there was no safety violation by the company. OSHA did not order Publix to take any safety precaution. "Nothing changed," Pressley says. "I was very surprised."

Jennifer Bush, a spokesperson for Lakeland-based Publix, which operates 600 stores in four states and employs 117,000 people, refused repeated requests to discuss safety conditions at the warehouse. She said the company would not comment on any accident. She also refused to say whether Publix had taken any safety measure in response to accidents.


The apparent lack of corrective action in the wake of Gallart's death proved fateful. At 9 p.m. on July 11, 1999 -- ten months after Gallart's fatal accident -- 25-year-old Deja Brown drove his Barrett tugger into a trailer at Bay 140 on the Publix warehouse dock to remove several empty birds. Just like Gallart, Brown got pinned between the tugger and a load bar, which he had failed to remove.

The scene was an eerie replay of Gallart's demise. Brown's chest was pressed forward onto the reverse button, which kept the tugger crushing him against the load bar. His chest also activated the horn, which brought several workers running to see what was wrong. The only way his rescuers could shut the tugger off was by unplugging the battery. Then they pushed the machine forward to free Brown, who fell to the floor. Paramedics arrived and rushed Brown to North Broward Medical Center, where he was soon pronounced dead from asphyxia due to chest compression.

"When I ran over to the trailer, I saw this guy looking like he was crucified, with blood coming from his nose and one of his eyes," says Carlos Herrera, one of the workers who freed Brown. "I couldn't even recognize him. It was awful."

"I firmly believe [Deja Brown's] accidental death could have been prevented had the tugger been equipped with some type of escape or fail-safe device," Broward Sheriff's Detective Michael Boles wrote in his investigative report dated August 20, 1999.

Brown, who was supporting a four-year-old son he had by his girlfriend, was the third man to die in a workplace accident at Publix's warehouse in 19 months and the fifth man to die at the facility since it opened in 1988. Four of the men died in machine-related accidents that might have been prevented with safety modifications on the equipment.


Publix workers insist these five deaths are part of a larger pattern at the 166,000-square-foot Deerfield warehouse, which employs 1500 people. Seven employees, who spoke on the condition that they not be identified, maintain that the company spends little time or effort on safety training. Employees receive only two days of instruction on using the tuggers. They view the manufacturer's instructional video, then take a written test, which requires them to answer true or false to statements such as, "Leave adequate space between yourself and another piece of equipment to stop safely." At the time of Brown's death, there was no exam question testing an employee's knowledge of how to operate a tugger inside a trailer properly.

"Publix might have a safety meeting for employees once a year that lasts 15 or 20 minutes," says Steve Marrs, a United Food and Commercial Workers Union organizer who's been trying to organize Publix workers throughout Florida for the past three years. "The managers just say, 'Don't get hurt.' And if you do, they're pissed off at you."

Making safety problems worse, many of the employees are temporaries hired through staffing agencies, who don't know their jobs or equipment well. Deja Brown had worked at Publix through an agency for just two weeks before his fatal accident. He was earning $7.85 an hour.

On top of that, workers contend that the tuggers often malfunction. The brakes on some machines don't work well and may take ten feet to stop. One worker recalls that the reverse button on the tugger Brown was driving had gotten stuck two months before Brown's accident, and that the machine had to be sent to the shop for repairs. This worker believes this broken reverse button, combined with bad brakes, may have caused Brown's death. "Deja was probably backing up and wanted to stop but couldn't," he says.

After the accident an OSHA compliance officer tested Brown's tugger and found it to be in working order. But the inspector noted that, when the reverse button was pressed, the machine accelerated quickly and took five feet to stop. "An operator inside a trailer when backing at this single speed who suddenly sees an obstruction such as a load bar…would have insufficient time and distance to stop the tugger safely," the inspector wrote.

Prior to Brown's death, Publix workers say, there was no formal training on the specific task of operating a tugger inside the trailers. But after the accident, managers held a safety meeting with workers. Tugger operators were instructed not to back their machines into the trailers unless they were pushing birds behind them, which would protect them from contact with load bars or other protruding objects.

The focus on safe operation of tuggers, however, was soon undermined by a new instruction. A manager told them that they had to back the tuggers into trailers even when the trailers were dark inside. "You can't question it," says one worker. "They say it, and you just do it."

And they had better do it fast. Two years ago Publix installed a computerized efficiency system, which sets a production quota for each of the workers who load the trailers with grocery items ordered by stores. These workers, called selectors, cruise the vast warehouse on tuggers, pick out order items from the towering shelves, load the heavy boxes on the birds, then drive to the dock and back the full birds into the trailers.

If selectors fail to meet the quota for the average number of grocery boxes they are supposed to load per hour, they suffer pay cuts and can eventually be fired. Workers blame the new EXE 2000 system for an increase in the number and severity of accidents. There have been four dozen mishaps among selectors in the warehouse's dairy unit alone in the last several months. At least nine men in the dairy and boxed-meat departments have recently suffered back injuries. No official statistic on total accidents at the warehouse is available, since OSHA does not require companies to disclose publicly the accident logs they are supposed to keep. "You don't even have time to go to the bathroom," complains one of the workers.

"It wouldn't surprise me if this productivity system exacerbated injuries and deaths," says Steven Field, an assistant professor of occupational medicine at the University of South Florida. "Any time you speed up the line, you're setting yourself up for potential accidents."

Jennifer Bush, the Publix spokesperson, refused to comment on the new system, which she classified as "proprietary information."


One thing that deeply disturbs Louis Gallart's parents is that their son's fatal accident did nothing to prevent the death of Deja Brown just ten months later. "I feel outraged that another young man died so shortly afterwards, under identical circumstances," says JoAnn Marble, who lives in Coral Springs with her second husband, Wally, in the same condo where she raised Louis and his younger sister, Gabrielle. "Too many people have died with this stupid machine."

Thirty years ago Congress created an agency to investigate accidents and to try to prevent recurrences. The logic was simple: too few companies do this on their own. The Occupational Safety and Health Administration is responsible for enforcing federal job safety rules in private workplaces in Florida and 26 other states, which have opted to give the feds that authority rather than fund a state agency to do the job.

After Gallart's death OSHA had the power to order, or at least suggest, changes at the Publix warehouse. The agency chose not to do so, which may well have cost Deja Brown his life.

One possible reason for OSHA's inaction has to do with budgetary constraints. Relentless business opposition has prompted Congress to cut OSHA's funding in the past five years, which has crippled the agency. OSHA's current enforcement budget of $142.2 million is actually less than it was five years ago. The agency doesn't have nearly enough inspectors to monitor the millions of job sites around the country routinely, and is hard-pressed just to investigate serious accidents and complaints. The OSHA regional office in Plantation, for instance, currently employs ten inspectors to cover all the private employers in ten South Florida counties, including Miami-Dade, Broward, and Palm Beach.

Labor experts say that staffing level is laughable. "OSHA has so few inspectors that it would take a century for the agency to visit every job site in the state," sneers Marilyn Lenard, president of the Florida AFL-CIO.

In addition to slashing the agency's funding, Congress has sharply limited the fines and other sanctions OSHA can impose on safety violators.

And OSHA isn't the only job-safety agency under fire. Prodded by business groups, the Florida legislature passed a law last year to shut down the Division of Safety of the Florida Department of Labor and Employment Security on July 1, 2000. The division, which is the only state agency addressing occupational health, provides safety training to employers who request its help. "It was a waste of money," says Mary Ann Stiles, a Tampa attorney who represents the Associated Industries of Florida, the main business lobby in Tallahassee. "They were totally worthless."

Labor experts beg to differ. They say the Florida safety division's training program has been crucial in supplementing OSHA's enforcement role and in helping businesses that want to do the right thing. "Florida has an extremely high incidence of death on the job," Lenard says. "Anything done to lessen health and safety coverage would be ironic."

Gallart's death was among 384 fatal workplace accidents in Florida -- 37 of which occurred in Broward County -- in 1998, the latest year for which data are available. That was a 5 percent increase from 1997. In contrast, workplace fatalities declined 3 percent in the rest of the country that year.

Jose Sanchez, the OSHA regional director for South Florida, admits that he has far too few compliance officers to enforce workplace safety properly, and needs the state's help. A stooped, sad-faced man in his late sixties, Sanchez reviews most inspection reports written by his officers and generally approves settlement agreements with employers when violations are found. He signed off on the inspection reports for all five of the fatal accidents at Publix. Besides Gallart's and Brown's deadly mishaps, these included:

• On January 31, 1998, Henry Yates, age 42, a 27-year Publix veteran, was crushed to death between a trailer door and a hydraulic loading ramp when the ramp descended on him. An OSHA report says Yates may have accidentally bumped the down button, which protruded from the face of the control panel. The agency found no safety violation. Yet the report notes that Publix subsequently modified the down button so it was flush with the panel and couldn't easily be pressed accidentally.

• On August 3, 1992, while removing overhead light fixtures, Kevin Miller slipped on debris and fell nine feet through an unprotected floor opening. He died five months later from head injuries. OSHA fined Publix $1000 for failure to install a guard rail.

• On August 27, 1988, Juan Ortega, age 38, got his foot caught on a pallet he was feeding into a pallet-loading machine. He was dragged off his forklift into the machine and badly mangled. A Jehovah's Witness, he refused blood transfusions and quickly died from his injuries. OSHA fined Publix $350 and ordered the company to install safety guards and an extra stop switch on the pallet machine.

Sanchez, who knew about the three previous deadly accidents at the warehouse, has no ready answer for why his office ordered no corrective action after Gallart's death. "Maybe we screwed up, who knows," he says with a shrug. "You can criticize me for making wrong decisions, but my wishes have nothing to do with anything. I could be a Monday-morning quarterback until the end of my life."

After Deja Brown's death, however, Sanchez' office did take some action. Two months ago it fined Publix $7000 for a "serious" violation and ordered the company to place operator-instruction and safety decals on all its tuggers. More important, OSHA recommended that the tuggers be retrofitted with a protective cage around the operator, and a safety guard over the reverse button. Those recommendations, however, went beyond federal safety standards, so OSHA had no authority to enforce them, Sanchez explains.

Steve Field, of the University of South Florida, says OSHA probably issued a serious violation after the second tugger death because the staff considered Publix remiss in not implementing safety measures after the first one. "You would expect the company's site safety committee to go over the cause and take immediate remedial action, so that it would never happen again," says Field, who reviewed the OSHA inspection reports on the two tugger deaths. "If it does happen again, that means no action was taken."

Remarkably Sanchez says his office has not checked to see if Publix complied with the order requiring safety markings. "Typically we rely on what the employer puts in writing," he explains. "The only time we follow up is when we have doubt that the employer will correct the condition." As far as the crucial retrofitting recommendations, Sanchez takes an even more laissez-faire stance. "I don't know if Publix agreed to do that," he says. "We can't enforce that. The employer can take it or leave it."

If Sanchez had bothered to dispatch an inspector, he would have found that his agency's orders and recommendations have had little impact. A tour of the warehouse last month revealed that Publix had not installed protective cages or bars on its tuggers. Workers at the plant report that the tuggers have not been retrofitted with guards on the reverse button, either. And even though Publix assured OSHA in writing in December that its tuggers now have operator-instruction decals and markings for the horn and reverse buttons, workers say only some of the machines currently have these.

The manufacturer of the tugger hasn't made any safety change either. Despite the two deaths, Nissan Forklift has not added a reverse button guard or a protective bar or cage to its latest line of tuggers, according to RVL Equipment in Hialeah, the company's South Florida dealership.

In other words virtually nothing has been done to prevent another worker from dying in a tugger accident at the warehouse. The lack of action by Publix, Nissan, and OSHA galls Gallart's mother, JoAnn Marble. "Publix pays their little insurance company, then OSHA washes it under the table," she says bitterly. "We're talking about people's lives. Seven thousand dollars is a slap on the wrist."


The government may not be doing much to make Publix a safer workplace. But some workers at the Deerfield Beach site are taking matters into their own hands. They'd like to be represented by a union, which could bring in its own safety engineers to examine working conditions, recommend moderation of the tough production quotas, and press for safety improvements.

These employees have been working with Steve Marrs of the United Food and Commercial Workers Union to win enough rank-and-file support to get a vote on unionizing. But Publix, Florida's largest employer, has made it clear it wants to keep the union out. "We've seen a decline in union activity, probably because of strong support from our associates [the term Publix uses to describe its employees]," insists Bush, the Publix spokesperson.

The seven employees interviewed by New Times, all of whom are involved in an effort to unionize the facility, fear that Publix will fire them if it knows that they spoke to a reporter or are union activists. Their fears seem justified.

"If they find out that you signed a [union] card, they drum up something to where they can get rid of you," says Flo Toalston, a 15-year Publix veteran who was fired last July at age 59, leaving her and her husband, Bob, without health insurance. She has an unfair labor practices complaint pending before the National Labor Relations Board, alleging that Publix terminated her because of her union activities. Her husband Bob and another Publix employee, Mario Eaton, were fired in 1997. They filed similar NLRB complaints, and the federal agency approved a settlement in 1998 under which Publix paid the two men back wages but did not admit any wrongdoing. At least four other Publix employees filed NLRB complaints against Publix in 1998 and 1999 claiming that the company fired or punished them for union organizing. Those cases are pending.

One likely reason that the 50-year-old grocery company opposes having its workers join the UFCW is because the union helped instigate several major race and sex discrimination cases against Publix. Last year a federal judge gave the go-ahead to a class-action race-bias suit, which charges that Publix discriminates against black employees and applicants in hiring, promotion, and termination. The nation's seventh-largest grocery chain also faces a separate sex-bias suit, involving charges that the company discriminated against women in warehouse and industrial jobs. These suits follow an $81.5 million sex-discrimination settlement in 1997, as well as a $3 million race-discrimination settlement that same year.

Marrs says Publix workers are receptive to his union pitch but are frightened. "What the company does is tell workers, 'If you get a union in here, we may have to close the warehouse or lay people off.' They mess with people's heads. This is a company that knows it's cheaper to break the law than to obey it."


Louis Gallart didn't know about any of this when his friend told him that the Publix warehouse was accepting job applications. He probably never thought about the sorry state of labor-management relations. His favorite pastimes were playing video games and tinkering with his souped-up 1970 Plymouth Barracuda. But as a young married man who wanted to have children, he was starting to think about the future. He realized he needed something better than his current gig -- an off-the-books job selling children's clothes at his father's booth at the Festival Flea Market Mall in Pompano Beach.

So he applied at Publix and in April 1998 got hired as a temporary employee. In July of that year, he was thrilled when Publix offered him a job on a permanent basis, with health benefits. Best of all, Publix gave employees stock options. He bragged to his father that if he worked at Publix for 20 years, he could accumulate a sizable nest egg.

Meanwhile Gallart was working evenings at the Quadrangle health club in Coral Springs. He had just earned his personal trainer's license and was starting to develop a clientele, according to his father, Fred. Building a successful business as a personal trainer was his dream.

Between quick mouthfuls of meat loaf at his Margate condo, Fred Gallart recalls that terrible September day 16 months ago when he received an urgent call from Publix. Gallart says that, when he arrived at the hospital, he immediately knew things were bad. Before saying a word, a female staffer handed him a glass of water and steered him into a private room, where he was informed that his son had expired two hours earlier.

Stunned and furious, he waited several days until Hurricane Georges passed, then drove to the warehouse and demanded to see the spot where his son had died. A foreman took him to a private room and tried to quiet him down. "I kept saying, 'There's something wrong here.' But they yessed the shit out of me and got rid of me," he says bitterly. "I don't know what I hoped to accomplish. But when you're in anger, you don't know what you're going to do."

At the funeral he received another shock. His daughter-in-law, Katy, told him that she and Louis had been planning to get divorced. Soon after the funeral, she collected a $100,000 death benefit from Publix's workers' compensation carrier and promptly moved to Georgia. On the wall across from his dining room table, Gallart points to a photo of his son. "I cut Katy out of that picture," he explains. "I don't talk to her no more."

The tears still come often for Gallart -- on weekends watching football without his son or just going to his flea market booth, where he last saw Louis, three days before his death. He berates himself when he remembers his son's complaints about the job and about how badly maintained the equipment was. "He told me it was hard work," he says. "If I only knew how hard and how dangerous it was, I would never have allowed him to work there."

Driving to and from work every day, Gallart passes the huge new Publix store on Atlantic Boulevard, around the corner from his home. The company's motto is posted on the front of the building in large green letters: Where shopping is a pleasure. Gallart scowls. "I wouldn't spit there," he says.


With so little in the way of effective regulation, you would think that the survivors of workers killed in job accidents could at least turn to the courts for help. But Publix has nothing to fear legally. It's shielded from lawsuits by the workers' compensation system. The Florida legislature established that system in 1935 to provide workers with a prompt means of collecting benefits to compensate them for losses associated with on-the-job injuries. At the same time, however, the system insulated employers from being sued.

Families cannot sue even when workers are killed on the job -- unless the employer deliberately set out to hurt the workers or place them at risk. Instead the employer's workers' compensation insurer is required to pay the spouse and minor children a death benefit, which currently is capped at $100,000, plus $5000 for funeral costs. The insurer may choose to pay that out over many years, and payments cease when the surviving spouse remarries or when the children turn age 18 (age 22 if they go to college). That means the full $100,000 benefit may never be paid.

Attorneys for the wives and children of Brown, Gallart, and Yates say that the survivors did receive death benefits. But Brown's young son and girlfriend will receive only half his modest wage -- about $700 a month -- until the payout reaches $100,000, according to Robert Gluck, a Plantation attorney who represented Brown's family on the workers' compensation claim.

With the $100,000 cap in place, workers' families and their attorneys frequently look for a way around the employer immunity provision. This has led to an increase in product-liability lawsuits against the manufacturers and distributors of equipment involved in fatal job accidents, who are not shielded by workers' compensation law, says Gerald Rosenthal, a labor attorney in West Palm Beach.

Last February, Katy Gallart filed suit in Palm Beach County Circuit Court against Nissan Forklift Corp., which manufactured the tugger on which her estranged husband died, and against Kelly Tractor Co., which sold the tugger to Publix. She is seeking damages on the grounds that the defendants were negligent in designing the tugger without a fail-safe stopping mechanism or adequate protection from objects intruding into the control area. West Palm Beach attorney Steve Calamusa, who represents Katy Gallart, says the manufacturer also was negligent in the placement of the reverse button.

Ironically this suit forces her attorney to play down the fault of the grocery chain. "Does Publix intend that its employees should get killed?" Calamusa asks. "I'd say no. OSHA found no wrongdoing. To be honest, I think it's a design problem." He refused to comment on whether he's discovered any other death or injury associated with Nissan Forklift tuggers.

Neither Nissan Forklift nor Kelly Tractor would comment on the lawsuit. But in a legal filing last June, Nissan noted that Gallart failed to remove the load bar before entering the trailer and also charged that he wasn't looking where he was going. The company also said that Publix may have been deficient in its training program. Kelly Tractor, in a filing last May, accused Publix of failing to inspect and maintain the tugger properly.

Henry Yates' widow and two minor children also filed a product-liability suit last year. Their suit, in Broward County Circuit Court, names Carrollton, Texas-based Serco Co., the maker of the Publix dock leveler that crushed Yates to death. It alleges that Serco was negligent in designing the device with a protruding button that could easily be pressed by accident and without a fail-safe stopping device or alarm warning that the ramp was descending.

Ed Rubinoff, a Miami attorney who is representing Susan Yates, notes that, while Yates had to keep his finger on a button to raise the dock leveler, lowering it required just one light touch on a second button. "This is a poorly designed machine that exposes workers to serious injury or death," Rubinoff argues. "Yates' death was very tragic, and the $100,000 death benefit to his wife and two children is grossly inadequate."

Several plaintiff attorneys contend that giving employers immunity from lawsuits reduces the financial incentive for companies to search out and modify unsafe equipment features -- like the tugger and dock leveler control buttons -- before accidents occur. "Publix' financial exposure is so small that it can have five deaths with no other consequences than its insurance rates going up a little," Gluck argues.

Richard Sicking, a labor attorney in Coral Gables, puts it even more strongly. "The workers' comp immunity law is a license to kill," he says.


Since her son's funeral, JoAnn Marble has been to the Forest Lawn cemetery in Pompano Beach to see her son's urn only once. "I don't have to go there to remember Louis," she says. "Not a day goes by that I don't think of him." There are constant painful reminders. Recently she received an invitation to Louis' ten-year high-school reunion.

But on a chilly afternoon last month, the 50-year-old Marble, a slender, attractive blonde, asked husband Wally to drive her to Forest Lawn. One question had been nagging at her. So they drove 20 minutes to the new, immaculately maintained cemetery and passed through the gates to a white concrete building. Walking past several corridors lined with drawers stacked 12 high, each containing an urn, they finally located a small plaque engraved with the words, "Louis John Gallart, in loving memory, 1970-1998." Someone had left a mysterious tribute on the ledge of the marker -- a neat pile of tiny white pebbles.

Marble paused only a minute, her face blank. "It's difficult to look at a drawer and realize that's all that's left of your son," she said. Last September, on the anniversary of Louis' death, Marble suffered a nervous breakdown and has been on antidepressant medication since then. "I keep thinking about how he died; that's what drives me crazy. He was crushed and asphyxiated, and there was no one there to help him." A devout Jehovah's Witness, Marble copes with her grief by reminding herself that she will meet her son again in the afterlife.

She and her husband get back into the car and drive a short distance to the cemetery office. She asks the staffer behind the counter the question that brought her here -- who paid for the urn, and is perpetual upkeep included? Before disclosing the information, the staffer, Sharon Shikany, who's about Marble's age, gently asks about her relationship to the deceased. "He was my son," Marble explains. "He was crushed to death in an accident at work."

Shikany shakes her head. "How awful," she says. "I have an 18-year-old son, and I worry about him all the time."

"My son had reached 28," Marble replies, "and I didn't think I had to worry about him anymore."

Shikany walks into another room, returns with a ledger book, and opens it to the page with Louis Gallart's account. It shows a photocopy of a Publix corporate check in the amount of $3092. "It's all paid for, including upkeep," she assures Marble.

Marble walks back to the car, shivering. Her husband takes off his jacket and wraps it around her bare shoulders. "It's a wasted life," she says tightly. "He had so much more living to do. I would love for Publix to understand how much pain goes on when they kill a young man. But they don't have a clue."

Contact Harris Meyer at his e-mail address:

harris.meyer@newtimesbpb.com

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