Appeals Court reinstates suit in Camp Randall death case

Kevin Murphy
Correspondent for The Capital Times
 —  6/26/2008 3:10 pm

A state appeals court Thursday restored the wrongful death lawsuit against a state employee brought after an ABC cameraman died from a fall at Camp Randall stadium while preparing for a Nov. 22, 2003 telecast of a Badger-Iowa football game.

The District 4 Court of Appeals opinion reverses a ruling by Dane County Circuit Judge John Albert, who dismissed the suit brought by the estate of Richard Umansky against Barry Fox, director of facilities at the stadium.

Albert had concluded that state employee immunity prevented Fox from being sued, but the Appeals Court found that Fox could be negligent because Umansky fell from a platform from which a railing had been removed. As a result, the suit can now be heard in Dane County Circuit Court.

State employees enjoy broad immunity from lawsuits when they use reasonable discretion in performing their jobs, but that immunity doesn't shield them from liability when they fail to perform their ministerial duties as proscribed by rule or regulation, said Jason Knutson, one of the attorneys representing Umanksy's parents, Harold and Thelma Umansky.

"This platform was built for camera operators, but the state took down a railing on the platform in 1999 and OSHA requires railings on these types of platforms including the missing one," Knutson said.

The 38-page opinion written by Judge Margaret Vergeront states that Fox was responsible for complying with state and federal safety regulations and with at least one side of the platform open, Fox had a ministerial duty to follow applicable safety standards.

"Fox's own testimony establishes that he had 'the day-to-day single responsibility' for the safety of the Camp Randall facility and that 'ultimately' it was his decision whether the platform met the OSHA requirements. Fox's supervisory role no doubt gave him the authority to delegate tasks, but he remained responsible for compliance with" safety standards, Vergeront wrote.

Bill Koch, a spokesman for Attorney General J.B. Van Hollen, had no comment on the decision.

Knutson said the immunity state employees have makes it "nearly impossible" to successfully sue the state. He cited a failed suit that several students brought in the mid-1990s after dozens were injured when fans rushed the field after a game against Michigan.

On the evening before the November 2003 game, Umansky, 48, fell about eight feet from the camera platform onto a concrete walkway while setting up equipment. He was found at about 11 p.m. and taken to a local hospital where he died two days later from head and back injuries, Knutson said.

Umansky, of Davies, Fla. had worked sporting events thoroughout his 20-plus-year career in television, said Knutson, although he didn't know if Umansky had previously worked at Camp Randall.

OSHA fined ABC, Inc. $7,000 in connection with the incident, which ABC resolved in a $4,200 settlement.

In the OSHA settlement, ABC agreed that standard railings would be in place the next time it used the platform or if they interfered with the cameras, their operator would wear a safety harness.

While the Appeals Court noted ABC's settlement with OSHA, it only reinforced the fact that a railing was missing and that a safety violation occurred, which didn't relieve Fox of his ministerial duties, Vergeront wrote.

Knutson said the appeal will allow the suit to proceed, but admitted that today's decision was written with "enough wiggle room" that still gives the state a good chance to prevail in this and future suits.

Kevin Murphy
Correspondent for The Capital Times
 —  6/26/2008 3:10 pm