Judge: Family can sue Allen for worker's death

A judge ruled April 24 that the family of Herbert Mitchell, who was killed at the Allen's Hatchery in 2008, can sue Allen Family Foods for negligence and damages.

Mitchell was killed when tons of soybean meal fell on him while he worked in a silo. At the time, the hatchery was owned by Allen Family Foods, which was purchased out of bankruptcy last year by Harim, a South Korean poultry company.

In his ruling, Superior Court Judge Jerome Herlihy said in cases of workers' compensation, family members cannot pursue a lawsuit against a company they are receiving benefits from. In this case, Herlihy found Mitchell was solely employed by the hatchery and not by Allen Family Foods.

This allows the family to move forward and seek damages from Allen, Herlihy ruled.

Mitchell's children are pursuing the lawsuit, said the family's attorney Gary Nitsche of Weik, Nitsche and Dougherty in Wilmington.

On June 4, 2008, Herbert Mitchell was working at a silo owned by Allen's Hatchery in Delmar. When a blockage occurred, Mitchell entered the silo and attempted to manually remove the block, Nitsche said. While he was in the silo, soybean meal began pouring in, ultimately burying and killing him.

The children began receiving death benefits in November 2008, just five months after Mitchell's death, in the amount of $680 per month. They will now move forward to seek additional compensation, Nitsche said.

Nancy Chrissinger Cobb of Chrissinger and Baumberger in Wilmington, one of the attorneys for Allen Family Foods, said that she cannot comment on the case because it is still ongoing. Cobb said the April 24 Superior Court ruling was a not a final decision on the lawsuit.

The two other attorneys for Allen, Daniel McKenty and Katherine Hemming, both of Heckler and Frabizzio in Wilmington, did not return requests for comment.

A date for the trial has not yet been set.