Document Kz7kJmwbqrnmgVr9QNp4oGbVr

Occidental Chemical Corporation PVC Products Robert D. Luss G'Ouo Counsel September 25, 1986 TO: Vinyl Institute Legal Committee FROM: R. D. Luss RE: Criminal Responsibility for Employment Fatalities As we discussed at our last meeting, attached is a copy of a speech prepared by Bruce Harrison concerning criminal capability for employment fatalities. I found the article interesting and informative. Please feel free to disseminate the article in your organization. RD^/fm Attachment OXY CTL026523 . LAW OFFICES Capehart 5c Scatchard. PA. A PROFESSIONAL CORPORATION BLAINE E. CAPEHART WILLIAM B. SCATCHARD, JR.iauo o.c. Bari WILLIAM E. REITSTECK JOSEPH S. OEOHOIANA ALAN R. SCMMOLL THOMAS H. MORGAN 'auo h. r, ban) RICHARD T. DcCOU (also fla. nan) THOMAS J. MANSION, JR. BRUCE L. HARRISON ROBERT A. BAXTER CHARLES A. RIZ2I, JR. C. S. 1041 304 HARPER DRIVE MOORESTOWN, N. J. 00007 CERTIFIED CIVIL TNIAL ATTONNBY September 9, 1986 STEPHEN T. FANNON PETER S. BEJSIUK BETSY O SHAIN JOHN H OEANEY JOHN SCOTT BOYER JOSEPH F. BETLEY DANIEL M REPLOOLE. m PATRICIA A. DEE BRYAN D. FELDSCHER (8001 234-3300 (213) 327-7070 TELECOPIER 600) 233-2703 Robert D. Luss, Esq. Occidental Chemical Corporation Armand Hammer Blvd. Box 699 Pottstown, Pa. 19464 Dear Bob: I am enclosing a copy of my formal presentation to the New Jersey Occupational Safety Conference entitled "New Risk for the Safety Professional: The Emerging Doctrine of Criminal Cul pability for Employment Fatalities". My research suggests, and I believe my paper does as well, that the likelihood of any criminal initiatives following the death of Mr. Brogan is small. If you wish to discuss either the Brogan matter or my pre sentation with me, please feel free to call. Best regards. Very truly yours, CAPEHART & SCATCHARD, P.A. BLH:bh Enclosure t .- Bruce L. Harrison CTL026524 CaPEHART & SCATCHARD P. A. NEW RISK FOR THE SAFETY PROFESSIONAL: THE EMERGING DOCTRINE OF CRIMINAL CULPABILITY FOR EMPLOYMENT FATALITIES By Bruce L. Harrison^/ When I graduated from law school in 1972, I went to work for the Occupational Safety and Health Review Commission, the quasi-judical body which interprets the Occupational Safety and Health Act of 1970. I learned, shortly after starting, that the Act had what at the time was a most unusual provision. Specifically, 17(e) of the Act provides, in part, that: any employer who willfully violates any standard ... or any regulations prescribed pursuant to this chap ter, and that violation caused death to any employee, shall, upon conviction, be punished by a fine of not more than $10,000 or by imprisonment for not more than six months, or by both ... 29 U.S.C. 666(e). This provision was rather novel because it incorporated into federal legislation the concept that corpora tions and their officials could commit a criminal offense for failing to heed safety standards and further, that the conse quence of such behavior could be imprisonment, something usu ally reserved to a very different group of people than corporate managers. 1/ The writer wishes to acknowledge the able assistance of William Houser who provided needed research and insight. CTL026525 Capehart 8c Scatchard P. A. My research for this presentation demonstrates that in part, the historical antecedents for 17(e) are quite remote in time. Illustrative, as long ago as 1917, the New Jersey Su preme Court held that a company, in this case a railroad, could be indicted for manslaughter. State v. Lehigh Valley RR Co., 90 N.J.L. 372 (1917). There, the indictment followed a by stander's death when railcars overloaded with dynamite ex ploded . However, prior to the passage of the Williams-Steiger Act in 1970, no other state court had followed the lead of New Jersey in permitting companies to be indicted. Further, since the OSHA Act permits criminal sanctions against individuals, as well as their employers, one can see that 517(e) was rather revolutionary for its time. What was rather revolutionary in 1970 cannot be so classi fied in 1986. Illustrative, in the federal legislative con text, the failure to give required notice to the National Re sponse Center of a hazardous substance spill can yield pre cisely the same criminal penalty as in OSHA $17(e). See 42 U.S.C. $9603. More pertinent for our purposes, however, is the applica tion in state courts of traditional theories of criminal law. -2- CTL026526 Capehart & Scatchahd P. A. Parenthetically, applying traditional common law theories in novel contexts has become very much in vogue in recent years. For example, traditional theories of tort and contract law have limited, perhaps substantially, an employer's once unfettered right to discharge an employee-at-will. In an academic sense, at least, it is interesting to see the variety of different circumstances raising the general issue of corporate and/or managerial criminal culpability. Some of these cases strike very close to home, at least geo graphically. Illustrative, in a case presenting somewhat simi lar issues as in the 1917 railroad case. Six Flaggs/Great Ad venture and two corporate executives were indicted by a New Jersey grand jury for "aggravated manslaughter" in 1984 after a tragic fire in a park amusement killed eight youths. Last week, trial commenced in Los Angeles in the so-called "Twilight zone case" where a film director and several production crew members are charged with manslaughter in the death of actor Vic Morrow and two youths. People v. Landis. In Texas, a nursing home and five employees were recently charged with murder by neglect in the death of an elderly patient. State v. Autumn Hills Convalescent Home. And late last year, Ciba-Geigy Corp. and four corporate officials were indicted on numerous'charges -3- CTL026527 including fraud, theft by deception, conspiracy, tampering with public records, unlawful release of hazardous waste and the like. The Ciba-Geigy case includes a 35 count, 71 page indict ment generally dealing with allegedly unlawful disposal of chemical wastes and attendant conspiracies to deceive and de fraud government agencies. None of these cases deal with state criminal charges being leveled at corporate managers as the result of the death of an employee. The most important such case arose in Chicago in 1983 when Film Recovery Systems, Inc. and five corporate managers were indicted for murder, manslaughter and criminally reckless conduct. See, Corporations Can Kill Too, After Film Recovery, Are Individuals Accountable for Corporate Crimes, 19 Loyola of Los Angeles Law Review 1411 (1986). The facts of this case should be examined. Film Recovery Systems reclaimed silver from used photo graphic film using a process known as cyanide-leaching. This process involved the dipping of film chips into large vats filled with a solution of sodium cyanide and water. Doing the dipping were low paid, hourly employees, most of whom were il legal hispanic or Polish aliens who could not speak English. -4- CTL026528 CAPEHART & SCATCHARD P. A. The raw sodium cyanide was received by Film Recovery in bags with labels warning of all the hazards presented by the handling, use or exposure to sodium cyanide. Among other things, the warning label stated that contact with acid or weak alkalies, such as water, causes emission of poisonous gas. This fact notwithstanding, the company did not place hooded vents over the vats. Insurance inspectors warned the company of potential safety risk yet only particulate respirators were made available to the employee. When in the work area, a non-employee first-aid inspector was nearly overcome by fumes and experienced nausea and a burning sensation in the eyes, nose and throat. Notwithstanding these facts, the company took no steps to minimize the cyanide risk. The decedent was a Polish immigrant who had complained of nausea and headaches after working at the vats. Through an in terpreter, Mr. Golab asked for a transfer because of his symp toms. The company did not accommodate him and some days later, he was overcome by fumes and died. Not only were the criminal charges against the company sustained* the individual defendants were likewise found guilty. Each was sentenced to twenty-five years in prison for his role in "the murder". These convictions are currently on appeal. -5d'L026529 CAPEHART & SCATCHARD P. A. It is well to pause and ask what has been the practical significance of sixteen years experience under 517(e) and the many state court cases, most significantly the Film Recovery decision. The answer, I believe, is a radical increase in local governmental attention and concern for workplace fatalities. Many cities/counties, such as Chicago (Cook Coun ty) and Los Angeles (Los Angeles County) have special units in the District Attorneys' offices whose role is to investigate and prosecute in the event of workplace fatalities. In New Jersey, an "Environmental Prosecutions Section" has been established in Trenton to investigate and, in some cases, seek indictments for perceived ecological or workplace crimes. It was this section which sought and obtained the indictments against Ciba-Geigy and its manager. It is, likewise, this sec tion which is prosecuting Aero Plating, Inc. of Woodbury, New Jersey, and its plant manager for second degree manslaughter in the 1985 death of a sewer plant employee who was overcome by chemical fumes. Before speaking about Aero Plating, it is appropriate not only to note that public and governmental concern for workplace fatalities has heightened considerably in the past few years but to address briefly the cause for this increased concern. -6- CTL026530 Capehart 8c Scatchahd P. A. This is a subject recently treated, and I believe competently so, in BNA's Labor Relations Reporter, 121 LRR at p. 280. BNA opines, correctly I believe, that state and local governmental agencies are far more susceptible to pressure than is the fed eral government. Illustrative, while organized labor may have little clout in Washington, D.C., the opposite is the case in the greater Philadelphia area as evidenced by the activist group PHILIPOSH. Turning to the Aero Plating matter, to the extent the facts are publicly known, they are quite simple. However, the significance of the case cannot be overstated because this is the first case where New Jersey has indicted a corporation and a corporate official for homicide or injury to persons. According to the one count indictment which names both the company and plant manager as defendants. Aero, on September 4, 1985, had an accidental spill of 1-1-1 Trichloroethane into the sewer system of Woodbury City. The indictment also alleges that, in violation of the company's sewer use permit. Aero and its plant manager failed to notify the Gloucester County Utilities Authority of the accidental spill. On September 5, 1985, employees of the City of Woodbury entered a pump station to perform regularly scheduled cleaning work. Because of the -7- CTL026531 CAPEHART & SCATCHARD P. A. spill, lethal fumes were present. Two employees were overcome, one of whom died. Attached to this write-up is a copy of the indictment and fact sheet for the Aero Plating case. Note should be taken that the indictment is predicated on the alleged violation of N.J.S.A. 2C:ll-4 (second degree manslaughter). Conviction on this indictment allows for a 5-10 year prison sentence as well as $100,000 fine. The statute involved simply reads: B. Criminal homicide constitutes manslaughter when: (1) it is committed recklessly. Manslaughter, as noted, is a crime of the second degree. Ag gravated manslaughter, where "the actor recklessly causes death under circumstances manifesting extreme indifference to human life", and which was charged in the Great Adventure case, is a crime of the first degree. Conviction of a first degree crime carries with it a presumption of incarceration for fifteen years, though twenty years imprisonment may be imposed. Since it appears that manslaughter or aggravated man slaughter are the New Jersey state charges most likely to be leveled against individual defendants arising out of workplace -8- CTL026532 Capehart Sc Scatchard P. A. fatalities, it is appropriate to briefly examine the elements of the two offenses. At the risk of oversimplification, there are two elements to the first degree offense (aggravated man slaughter) and one element to the second degree offense (man slaughter). To establish the first degree offense, the prose cutor must establish both reckless conduct causing death and circumstances manifesting extreme indifference to human life. The Courts tell us that the circumstances manifesting ex treme indifference to human life which permit elevation of a manslaughter charge to aggravated manslaughter are objective and do not depend on the defendant's state of mind. State v. Curtis, 195 N.J. Super. 354 (App. Div. 1984). Rather, the de gree of recklessness must be determined from all surrounding circumstances and the ultimate question is whether the homicide was committed under circumstances involving a possibility of death, in which case it is manslaughter, or a probability of death, in which case presented is the crime of aggravated man slaughter. Id. In short, the offenses are distinguished by the degree of risk inherent in employer behavior. As indicated, an element of both aggravated manslaughter and manslaughter is "reckless" conduct by the defendant. The term reckless is defined by statute as follows: -9- CTL026533 CAPEHART & SCATCHARD P. A. A person acts recklessly with respect to a material element of an offense when he consciously disregards a substantial and unjustifiable risk that the materi al element exists or will result from his conduct. The risk must be of such a nature and degree that, considering the nature and purpose of the actor's conduct and the circumstances known to him, its dis regard involves a gross deviation from the standard of conduct that a reasonable person would observe in the actor's situation. N.J.S.A. 2C:2-2b(3). The key elements in this definition are "conscious disregard" and "gross deviation" from normal stan dards of conduct. Since the prosecutor has the burden of proving all elements of the indictment beyond a reasonable doubt, one might think that safety professionals can rest easy, secure that they are insulated from potential criminal liabili ty. But such a sense of security would be folly. In the first place, ignorance is not bliss and I am sure the individual de fendants in the Film Recovery, Aero Plating and Ciba-Geigy cases, among others, never imagined they someday would be tried as murderers, conspirators, thiefs or the like. In the second place, there is at least a theoretical risk under the criminal section (17(e)) of OSHA, about which we will speak momemtarily. Finally, a sense of security is unwise because the standard of -10- CTL026534 Cape hart & Scatchard. P. A. proof for manslaughter, while demanding, is certainly not unattainable in a workplace fatality case. While Aero Plating is the first case of its kind in New Jersey, cases in similar contexts demonstrate the correctness of my last point. In State v. Winter, 96 N.J. 640 (1984), for example, the defendant was a registered nurse. She was charged with aggravated manslaughter when she transfused incompatible blood into a patient, thereby causing a fatal reaction. The nurse did not help her cause by attempting to conceal her error by failing to inform the victim's doctor of her mistake and by secreting and disposing of the remainder of the blood when her error became manifest. She was convicted of manslaughter, the "lesser included offense". In an older case, an architect was indicted and convicted for manslaughter when a building he had designed collapsed causing death. State v. Ireland, 126 N.J.L. 444 (1941) appeal dismissed 127 N.J.L. 558 (1941). The theory of liability in this case was that the architect designed the building negli gently and in violation of existing building codes.2/ 2/ Since negligence alone is not "recklessness", one must doubt whether the set of facts in Ireland would, under current statutes, give rise to conviction for manslaugh ter. -11- CTL026535 Cape hart 8c Scatchard P. A. I referred earlier to the risk of OSHA criminal sanction as "theoretical" and the choice of words was deliberate. Our research discloses only one reported decision where criminal sanctions were sought for violation of 17(e). U.S. v. Dye Construction., 510 F.2d 78 (10th Cir. 1975). The facts in Dye Construction are as follows. Employees were excavating to lay pipe. They dug a trench 9-12 feet deep with the width at the bottom being only 38-40 inches. The walls from bottom to the five foot level were shear and afterward, they widened to a width of 7*5 feet at the top. The decision to slope or shore the trench was delegated to a non-managerial backhoe operator. The supervisors who delegated were aware of OSHA trench regula tions. Tragically, the unshored and largely unsloped trench collapsed, killing a worker. Likely important to a finding of guilt with regard to the corporation, which was the only defendant in Dye Construction, was the fact that 10 or 11 days before the fatality, the compa ny had been written up for trench violations in the same area by the State of Colorado. Further, the Circuit Court found the jury was within its rights to disregard the testimony of the foreman and job superintendent who had inspected the trench be forehand and concluded that the material involved was hard rock as opposed to unstable soil. -12- CTL026536 CA.PEiiA.RT & SCATCHARD P. A. The Court also rejected the company position that to es tablish willfullness under 17(e), the government must prove an evil motive. Essentially, the Court took the position that the facts demonstrated a knowing violation of the pertinent regula tions, notwithstanding employer protestations to the contrary, and that such knowing violation is all the government must es tablish for a guilty finding. It is important to note the existence of a divergence of opinion between the Tenth Circuit and the Third Circuit, which encompasses Pennsylvania and New Jersey, regarding the defini tion of willfullness. I am happy to report that the Third Cir cuit requires more demanding proof. The Third Circuit treat ment of this issue appears in Frank Irey v. OSHA, 519 F.2d 1200 (3rd Cir. 1975) affirmed on other grounds, 430 U.S. 442 (1977). The Frank Irey Court took note of the fact that employer knowl edge of a violation is a constituent element of a "serious vio lation" where only a $1,000 fine may be imposed. They thus concluded, correctly I believe, that the legislature intended more demanding proof to establish a willful violation where the potential sanction is much greater. Thus, the Third Circuit held that willfulness connotes "defiance or such reckless disregard of consequences as to be -13- CTL026537 Cape hart & Scatchard P. A. equivalent to a knowing, conscious and deliberate flaunting of the Act". 519 F.2d at p. 1207. "Willful" concluded the Court, "means more than merely voluntary action or omission - it in volves an element of obstinate refusal to comply." 3/ It would appear that the test for willfulness under OSHA 17(e) is at least as demanding as the test for manslaughter in New Jersey. In fact, the Frank Irey test may be closer to the aggravated manslaughter standard. In any event, the extreme infrequency of criminal prosecutions under OSHA suggest that safety professionals should be much more concerned about state initiatives rather than federal. Of course, for the purpose of this presentation, the bot tom line concern for safety professionals is how to avoid being placed in the position of being a criminal defendant. My view is that avoidance, at least of being a convicted defendant, is a fairly simple matter. Dick Hofman was kind enough to send me an article from Safety Professional (September, 1985) entitled "Worker injuries - Applications of criminal liability", authored by George A. Peters, a much published authority on 3/ There is a split among the Circuit Courts on the correct definition of "willful" under 517(e). At some time in the future, an air clearing opinion by the Supreme Court is likely. -14- CTL026538 Capehart 5c Scat chard P. A. worker safety. In this article, a copy of which is attached, Mr. Peters offers many helpful, and I believe, insightful, sug gestions on both what not to do and what to do. Rather than repeat his suggestions, I want to add my thoughts and encourage a serious reading of the Peters' article. Firstly, my observation, as a non-technically trained in dividual, is that safety is a very common-sense oriented disci pline. One might possess multiple degrees in engineering and natural sciences and be a miserable safety professional if not likewise possessed of commonsense and sensitivity. This point being made, I would counsel never to ignore your instincts: believe in them and follow-up on your hunches. If your in stincts, your commonsense, tell you that a condition is unsafe, then investigation will often prove your instincts to be reli able. Secondly, cases pertinent to this presentation seem to follow a pattern and that pattern is the failure to act as opposed to acting in an incompetent manner. The law does not expect you to be supermen and women. Rather, it expects rea sonable prudence and concern. Consistently, employers have placed themselves at risk for ignoring obvious danger signals. If you see danger signals, let your instincts be your guide. -15- CTL026539 Capehart 8c Scatchard F. A.. Thirdly, I don't wish to appear to be naive about the na ture of your position. A safety professional is like an offen sive lineman in football. A lineman's number is called only when he is caught holding, clipping, tripping or going off-side. For better or worse, you like the offensive lineman, have cast your lot with a group of professionals who perform best when largely unnoticed. Fourthly, I strongly urge that you maintain your profes sional integrity regardless of any countervailing pressure. Maintenance of professional integrity is your personal first line of defense against criminal liability. If you make recom mendations which are not heeded, and the condition which gave rise to your recommendation also gives rise to a workplace fa tality, at least you should be insulated from liability. In the second place, most if not all of you, report to non-safety professionals who rely upon your expertise. You owe it to your boss, in whatever position he/she may stand, to provide accurate assessments. To do otherwise could put your boss at risk of criminal sanction. In conclusion, it is my belief that criminal charges, es pecially state, are likely to be filed more often than in the past against safety professionals. Practicing law teaches that -16- CTL026540 CAPEHART & SCATCHARD P. A. elements of our society naturally assume that unfortunate consequences are always the result of breaches of legal duty. Thus, the key is to define the duty owed by the safety profes sional. I suggest that, at least currently, the duty owed by the safety professional is not unduly demanding. He/she must maintain and update skills; attentiveness must not be lost; documentation must be thorough; commonsense must be followed; and intellectual courage and integrity never abandoned. For putting to one side the legal "mumbo jumbo" which at taches to the subject at hand, the qualities above mentioned are the touchstone to avoidance of potential criminal sanction. You, ladies and gentlemen, are professionals and acting as such should insulate you from possible liability. -17- CTL026541 Capehart 8c Scatchard P. A. About the authors and Capehart & Scatchard, P.A. Bruce Harrison graduated from Westminster College (Pennsylvania) (BA degree) in 1969 and Vanderbilt University School of Law (JD degree) in 1972. After graduation, he worked with the Occupational Safety and Health Review Commission until May, 1975. While with OSHA, Mr. Harrison pursued course work for a masters degree in labor law. Course work was completed in the spring of 1975. Mr. Harrison joined Capehart and Scatchard on June 1, 1975, and authored his masters' thesis while working with the firm. The topic for the thesis was OSHA intrusion into labor/management affairs. An LLM degree was awarded by George Washington University School of Law in February, 1976. William Houser received his BA and JD from George Washington. He completed his law degree in the spring of 1986. He started with the firm in August, 1986, and is awaiting bar exam results. Capehart & Scatchard, P.A. is a mid-sized general practice law firm located in Moorestown, New Jersey. The firm has six somewhat overlapping sections including litigation, labor and environmental, lending and recovery, estate planning and administration, real estate and business. -18- CTL026542 CaPEHART & SCATCHARD P. A. Periodically, the firm publishes a newsletter and a copy of the most recent newsletter is attached. On request, the firm will be pleased to add employers or individuals to its mailing list. Additionally, a firm brochure is available which more fully describes the firm and its members. -19- CTL026543 etati or ?.*ev: jrr.srv ) E7A7E CRA17 J7T.V 1 rjKEEf SGI 1E> T . ) 1777177? 7777 JOHN PERSIC } AND ) AERO PLATING, INC., ) a New Jersey Corporation ) The Granc Jurors of anc dor the State cf New Jersey upon their oaths, present that: COUNT ONE (Manslaughter - Second Decree) JOHN PERSIC AND AERO PLATING, INC., A New Jersey Corporation between on or about September 4, 19 8 5 and on or about Septeir.be 5, 19 85, at the Borough of Woodbury Heights and at the City cf Woodbury, all in the Count}- of Gloucester, did recklessly and unlawfully cause the death of David A. Lavertv, th said JOHN PERSIC and AERO PLATING, INC. , having a duty to give notice to the Gloucester County Utilities Authority in the event cf the accidental discharge of waste into a public sewer beyond the discharge limitations of the ''Industrial Sewer User Perr.it" issued to the said AERO PLATING, INC., the said JOHN PERSIC an AERO PLATING, IHC. did recklessly and unlawfully fail to net if the Gloucester County Utilities Authority that a substance not in accordance with the discharge limitations of the aforesaid CIL026544 *Tr.cur trial Sevtr User Prr.t, ' r.ar.i 1 y I-1-1 Tricr.lc -- oc-.ant # hac discharged intc the sever system c5 the City cf vioodburv, ir. conscious dirrecarc cf substantial and ur. ? urti f iahle risi from. such failure tc notify, such discharge ci l-l-I Tr i chi oroe thane causing the death of Davie 7.. L avert J 9 municipal employee cf the City of Woodbury, contrary he provisions cf K.J . .7.. 2C-.11-2 and K .2 . .A. 2C:11t4, anc against the peace cf this State, the ccvernment and cicr. the same. y cf A TRUE BILL: ASSISTANT ATTORNEY GEIfERAL AND DIRECTOR, DIVISIOK O? CRIMINAL JUSTICE Foreman *1 CTL026545