Document ZJ1v7b68ByzGGx2npw6gn8Ke0

Worker injuries--Applications ofcriminal liability by George A- Peters t is a common belief that safety specialists have as their Ipnmarv work objective the prevention of incidents that could result in personal injury and property damage. However, despite the efforts of safety specialists, we know that injuries and losses do occur. The question then arises: "Could the safety specialist be held personally liable for those injuries and losses?" Obviously; this is an issue of considerable importance to the safety specialist, since no one wishes to face even a remote threat of per sonal legal entanglement The answer is that safety specialists can be held liable in several different ways, just as other professionals (such as lawyers, physicians, and accountants) can be held legally accountable for their actions or failure to act For the safety specialist there are several key hazards, but the kiltimate nsk is low for most persons and almost non existent for those who take the time to engage in the "self-protective practice" of tneir occupational specialty. We will now discuss these possible threats to the safety specialist and how he or she might avoid trouble by relevant forethought and appropriate liability avoidance behavior. Some examples In California, the Sylmar tunnel methane gas explosion, whicn cost the lives of 17 workers, resulted in State prosecution and the sentencing of the project manager to imprisonment for 20 years and the project safety engineer to a term of 18 months. That is, the trial court found the satetv director criminally liable. .As in most cases of cnminal conviction for safety of fenses whetner in administrative law courts or in tne criminal courts, there are frequent reversals of the convic tion reductions in the initial sentence, or a substitution of a suspended sentence. After civil actions against safety engineers, the insur ance industry and manufacturers' lobbyists have been very successful in negotiating state code or legislative 34 September 1985 Professional Safety CTL026548 r'.c'.ac: :~r serve to Droier c* i: Jtt :ri< c:. sr>e- c;e.:c' :ir:cr.s:o. oasec o' djo;:: no.r connot-ranm* anc. :m reocnes.- o: tne profession to acc.?o: tris: tone. o: responsioiltry,. Tms nad leo to some complacency among saiety specialists who have been quick to ate tne rever sals. reductions, and changes in the law. However, it is more prudent to remember the basic pnnaple of criminal law. that is. that there must be some advance notice of what constitutes a criminal offense. The law must be prospective, not retrospective, with ample warning of the threatened punishment for proscribed be havior. Since the Sylmar tunnel disaster occurred in 1971, some 13 years ago, there can be no surprise today; the basic concept of cnminal sanctions under state law is cleariv established by that case and many others. In fact, cnminal sanctions have been discussed for nearly two decades and most recent federal safety legisla tion has included some criminal or penal provisions. For example, the 1971 OSHA cnminal penalty provision under Section 17(e) for willful violation of a standard or regulation resulting in death, Section 17(f) for advance notice of an inspection, Section 17(g) for making false statements and reports, and Section 17(h) for killing an OSHA inspector. These provisions may seem to have been sporadically or weakly implemented, hence no real cause foT concern. Again, it is better to perceive this situation as an advance warning. The machinery of law is in place, there has been advance warning, there is public acceptance, and en forcement could quickly and easily change. imagine what might happen if there were a sudden change in political philosophy or perceived self-interest among some of our major elected or appointed officials. Assume for a moment that there is a special fact situation, to a safety problem, given special focus and pubbe inter est under the limelight of intensive media coverage. Think what might happen with an increasing knowledge and competency among regulatory and enforcement person nel. Don't underestimate the influence of pubbe expecta tions. The caveat is: Don't use examples of past implementa tion of existing criminal sanctions as a guide to govern your behavior use it as a warning of what could happen if the pitfalls are not avoided in the future. -- Remind corporate management that good safety prac tices can avoid situations such as the 1983 Cook County (Illinois) Grand Jury indictment of five corporate officials on charges of murder and involuntary manslaughter. Cyanide poisoning of ~wotkCfS~and charges'~that~poisoiT warnings were removed from shipping drums, among other unsafe conditions and practices, can result in unfa vorable publicity and possible criminal convictions.____ Generally, in such cases, there has been a history of violations-suffident rn riomon-qrato-lmomlongg or imt>nt and those held accountable are those who had the power to stop the violations. The basic caveat to remember is 'thSVtfie-threat of cnminal or penal sanctions is far more effective, than avil or monetary sanctions, in motivating some reluctant members of corporate management to establish a meaningful safety program. Do not forget that civil actions invanably follow cnminal charges and require farHess-un--terms^oT proofiorTvidence. It is a double- barreled penalty. An interesting example about which to speculate is the stockholder's denvative lawsuit against a major automo bile manufacturer, rglative-to-ailegecTaefective brakes m ovc- f. miliio- vem^. ~-u cu &i.e?ec rrauc an; z--mna oenav.p- an; :z~ re: .-: oanaoe' acz'rr tnret- currer.: anc tnreo tome* executive? c tne corooro- non Tneir liability is oasea ori claims tna: tney permitted production of tne vehicles. aheT Knowieooe of the saiety delects, and fumisned incomplete or false data to federal agencies. This lawsuit is an attempt to shift the corporate losses, due to product liability and recalls, to the respon sible executives, so they will have to repay the losses to tne corporation with the ultimate result that the stock holders will not suffer diminished dividends. ... injuries and losses do occur ... Could the safety specialist be held personally liable? Query: Does this mean that anyone injured from such alleged vehicular defects could claim that the injury was caused by an intentional act of a company official? Such intentional or criminal acts may seem outside customary insurance coverage and outside the legal protection af forded by the corporation. Does this presage another Pinto-type trial? The caveat to remember is that any local prosecutors, under existing statute or common law, could institute near criminal or cnminal actions if they have the courage, ambition, facts, and financial resources to do so. Thus, we need to understand some fundamental concepts regard ing the common law before we start to outline your counterattack or personal precautions to such threats. Basic concepts Those who may get into trouble often seem characterized by certain identifiable attitudes such as the following: First: Indifference, obliviousness, and unawaren These are the people, when trouble finally surfaces, who say "1 didn't Iciow" when everyone knows that the law clearly holds that "ignorance of the law is no excuse." Obviously, ignorance of the law is to court disaster. The initial remedy is simple: Gain some basic under standing by reading introductory publications (such as the ASSE publication, Safety Law'), then open up channels of communication with your company lawyer or other lawyers, and then try to get some practical experience from claims handling and relevant lawsuits. You need not become a "jailhouse lawyer" to become suffiaently aware, informed, and sensitized to know what to avoid and what to do. 1 would suggest that safety managers will learn they cannot hope to have suffiaent technical knowledge inhouse once they learn the legal requirements of their position. Thus, the second remedy is to utilize the re^ sources of vaned safety consultants, on some retainer \ oasis, both for access to this speaalued knowledge and '< (or some proof that the safety manager exercised reason able diligence in attempting to obtain all the pertinent life-saving information that was then available for use Salesmen and insurance loss control personnel have CTL026549 Professional Safetv September 1985 35 X* mucn to otic* ny tne c?"" c " c via' ; . ... - - -- .---i.- :-n.''v.-.- -- --ijre-: -- vp --- s~ intOTnec. saten cm*- :*" cr : - r' r---- rv ce*<? w. n.- :>o'.'v tnf saien manage: T.-.u. ::k .`.airr. rocciatir srtouii s:a:.ca*: c ccccrtaou concur: ir term.- o w.na: l tec sacrifice a little ego anc no: Temair, oouvious o' wna: e sonaoi.' Druoen: person wouic oo unocr similar circum company iawver or an inoepenaent safety' consultant can stances h you are uncertain wnat mignt oe ` reasonable' do to heip him do a better 10b and avoid possible liability. o: ' pruaen: you can always asK your professional Deers Second: Passivity, compliance, and aependency or c lawyer Conduct tna: is unreasonable may suoiec: There arc some people wno seek to avoid responsibility you and your employer to civil liability, that is. expose by saying "I only do what they teli me to do " Yet. we ail you to the remedy of compensatory or monetary dam know that the Nuremberg war criminals mals. more tnan ages. 35 years ago (m 1946 and 1949). clearly established the fact that each individual is responsible and accountable for his own actons, despite any claim of actng under the orders of higher authonry. However, the standard of behavior that could result in cnminal or penal sanctions is much more deviant or extreme because impnsonment is a more severe form of social punishment. The standard of behavior is expressed A war cnminal may blindly follow orders or fail to assume responsibility when the logical consequence is the loss of human life or incapacitating injunes to others. Acquiescence by silence and inaction, when others would in terms of gross and reckless conduct, wanton and inten tional Tiarra. a degree of carelessness that amounts to~tKe willful or indifferent disregard of the nghts of others, obstinate foolhardy rashness, a culpable disregard of the harmful consequences to human life substantially certain to occurTacts of a wicked and corrupt nature with the intention to do evil, doing forbidden acts deliberately and Can there be ci\il with knowledge, and behavior of such a flagrant nature as to show utter disregard for the safety of others *In or criminal liability for the safety professional? other words, this is an extreme form of negligence. Since the punishment is severe, a higher standard of proof is required and a unanimous jury verdict must be achieved by the prosecutor. Obviously, the penal codes of all 50 states vary and there is a universe of legislative statutes and derivative speak out or take action, is a form of voluntary partiapaton in what might be considered wrongful and blame worthy behavior. Under the law, it might be difficult to shift the blame to others, be they top management or line supervisors, when reasonably precautionary measures that could have avoided foreseeable harm could have been insti agency regulations at the local, state and federal levels. Theje may be more exposure to the criminal law of foreign countries that you suspect4,5 Thus, it is a funda mental caveat that we conform our behavior to general pnnctples of law rather than the letter of the law for one state or federal agency. Don't walk the thin line. It may be Illusory! tuted by the safety specialist. This assumes, for purposes Recapitulation of argument, that the designated safety specialist is sup Let me summarize what has been mentioned or implied posed to be the expert in his field, that he is the implied custodian of the life and health of other workers, and that he is the person upon whom all others rely, to some degree, for appropriate safety information and guidance. In other words, how would such arguments and legal theories influence a jury. as contrasted with some safety specialist's testimony that he only did what he was told to do and that he did not propose, in writing, any other course of action to the managers controlling his activity. The remedy is simple The safety specialist should as sume a role of professional responsibility. Heshould in- form management of what should be happening, why, and how, in terms that are meaningful to_them. effective in terms of safety performance and liability prevention for him and the company. and~tHat~TulfiIls~his' legal obliga tions. He~shouIa~avoid blameworthy passivity, a compli so far 1. Your personal attitude is most important You should perceive that the law consists of soaal rules designed to protect you and others from unreasonable risks of harm. Attitudes that lead to a disregard f those laws, deviant social behavior, and harm to others may result in legal action to punish you ot compensate those--' harmed. Conversely, attitudes of attempted confor mance. assumption of social responsibility, and gen eral good faith are meritorious, mitigating, and the hallmark of those who need not worry about liability__ or litigation. v 2. Can there be civil or cnminal liability for the safety professional? Yes. all the laws are in place. Have there been verdicts against safety specialists? Yes. Does it ance rnentali'tyTor excessive'depervdency on othersin the dischafge~of~his professional responsibilities. A jury will not demand the impossible, but they will "The following jury instruction is now used m Californio to aehne tne term culpable negligence seek to determine if the safety specialist's acts or failure to act were reasonable under the circumstances. Simply stated, all that is required is reasonable behavior in the kyes of other citizens and there will be no finding of legal The term "culpable negligence" means conduct which is more mar ordinoni negligence. Mere inattention or misuse in juagment u no: culpable negligence. Culpaoie negligence means conduct which is aggravated c reerjes /[ must be such o departure from what would be the conaua o' a- culpability, legal fault, or Lability under the reasonable man standard or conduct. Third: Obstinacy, culpability. and_recklessness. These attnoutes seem to make-tne difference between those orvinoniy pruaent person unaer the same circumstances as io oe in compatible with a proper regard lor human life It reauires knowieage aaual or imputed, that the act tends to endanger anotner s life W/net nr or not an aa constitutes culpable negligence must be aetermmea nom the aa aselj. not from tne consequences of the oa. 36 September 1985 Professional Safetv CtI<026 550 r.^~:c' .'~ iC5 c.'.:' z'O'-mi.-'-- * :~zz~iz'' ^ 'i ei eve: c sriid.. nsr o' uniixeiv even- oecome' important to someone wnose nsr. materializes into unexpected actuality. Wnat about the immediate future7 The nsk will increase. When? That depends on uncertain and un predictable"factors such as changes in national political philosophy relative to enforcement policies and pro cedures; media coverage including the depth and ,,quality of investigative reporting: general public awareness, interest, and agitation regarding perceived , safety issues and events, whether some local criminal prosecutor hopes to make a name for himself: or whether an enterpnsmg plaintiff attorney believes there is some advantage or need in naming individuals as party defendants under novel theories of law. Who will be caught up in litigation? Very few safety professionals, since most have minimal or virtually non-existent risk. There are some moderate risk safety professionals, by virtue of their unique circumstances, but they can and should take timely defensive precau tions to minimize their risk. There are a few high risk individuals who create their exposure by their attitudes or ignorance. We know that ignorance can be quickly cured by appro priate and sufficient information that is acted upon. The attitude problem is more difficult, like the au tomobile driver who often runs red lights at intersec- bons without receiving citations or getting involved in a serious accident . . . until the seemingly unlikely event occurs to him. 3. The safety professional cannot avoid liability by inac tion, evasion of responsibility, or passive conformance to the direction of his work supervisor or printed safety regulations. An affirmative role may be demanded by the reasonable expectations ot tnose wno'justifiably rely upon the proper job performance of the safety professional. 4. It. is the safety professional's personal responsibility to becomejniormed jsZtPjhe_nature_pf_His. duties,"the character of his obligations, and the kind of knowl edge that is required to discharge those duties and obligations. If he does not know, he should ask someone_TheTe should be reasona615"a3ige'rifce-iri"his in quiry or search for knowledge. He should seek assis tance, where necessary, from inside and outside his company, from unbiased independent safety consul tants and impartial lawyers. Closed shop bias can be dangerous, so listen to all sides of an issue before choosing a wise course of action. Information should be acquired as a preventive measure, not just as a corrective acton after initial harm has been identified.5 5. The safety professional should consciously attempt to keep abreast ot ms legai'dupes-as they are defined in tne courts . . . not just the administrative courts, but the civil and cnminal courts. While pnor notice is re quired for penal sanctions, civil actions are determined by "tomorrow's law" or law in effect at the time of tnal. so the trend of law may be important If your services, products, or company relate to a foreign country', their law may be quite different and far more severe or harsh than the laws in the United States. Obviously, the safety professional cannot spend too Have there been verdicts against safety specialists? .. Does it happen frequent!v? much time trying to learn about the law. but he can establish good communication with lawyers in order to get a correct general picture of where the legal minefields may be located. He can read the lawrelated articles published in safety journals and publi cations during the past 20 years so that he can better, communicate with lawyers by asking the naht ques tions and comprehending the legai advice that they are giving. Some legal books or a law-oriented file in your office, work station, or at home could provide the ready reference needed when quick decisions must be made. 6. The safety professional may be committing a form of professional malpractice or lack of professional re sponsibility if he attempts to fight against or refuses to accept the reality of legal concepts; such as, foresee able human misuse, abuse, and improper repair or maintenance. Why? Because those human error con cepts vitally affect the way a safety professional con ceptualizes accident investigation, accident causation, and the techniques by which accidents may be pre vented in the future. Similarly, legal concepts of informed consent are important when determining the adequacy and suffi ciency of warnings, safety instructions, worker train ing, hazard communication, and the worker's right to know of safety and health risks that he may en counter. The legal concepts of acceptable risk, unrea- \ sonable danger, risk-benefit criteria, consumer ex- ' pecations, and excessive prevenable danger are es- ' sential in making a determination whether something/ is legally safe or unsafe. Thus, safety and the law are intertwined in the area , in which they overlap and interact. Therefore, the ' safety professional has a unique responsibility to be come familiar with safety law since it helps him in making daily decisions as well as helping him avoid legal entanglements. 7. Let s assume the worst does happen and you do become involved in the world of lawyers, lawsuits, and courtrooms. Have you prepared yourself? Did you get any prior experience as an expert witness so that you are better able to handle yourself in those strange surroundings and procedures? Did you achieve some type of state registration (P.E.) or board certification (CSP) that wouia suggest" to the jury that your basic qualifications to practice have been evaluated by an independent recognized entity? Can you demonstrate that you understand the basic concepts, principles, and techniques of the safety profession so that you sound credible or believ able to a jury? Did you institute or implement a detailed, all- P'nt'm-nnr1 'O5* - ' ^ CTL026551 Your Next Move is to a CSP. The Professional practice of Safety requires the application of many disciplines ineluding the fundamentals of: Applied Sciences Fire Prevention Environmental Controls Product and System Safety Program Management Facilities and Equipment Design The Certified Safety Professionals designa tion, the recognized measure of a profes sional's qualifications, allows You to make a personal statement about your specialized experience and education. Prepare Yourself Plow For Your Next Move! '.v.cr.ec scic: croc-s r.oi a it1 *p*ri*m*e oo.ectivc tnt Drever.ao:. o: iruur, 0: namv Do_y,ou nave some wnner. or otner objective evidence ol tnat saiery program.. anclh'e'aufhoriar^ corporate saiwy pdicC~sta(emen: nr guidelines, arid exactiy~how"lhey'werc'punrilo action9 Do"vou have a sa(etC~Tibrar\ and othersources of tecnnical safety information so that you could keep informed and quickly locate appropnate reference information? Are you a member of the appropnate safetvjprofessionaTassoaaOons that keep you abreast ofThe latest developments' arid TliscoverierMrryour"Tie1d oT~endeavor? Do you keep a list of safety conferences and professional meetings that you attend? Do you keep a record of whom. when, and where you" cohsuH~ahd~ tf^mahefs~aialt~~with relative to critical safety decisions or actions so that you will have proof of the reasonableness of your actions years later? Do you keep a permanent record, in your home or safe deposit box. of critical safety problems where i your efforts or recommendations, made with reasonable_dipl6matic_persistence. were ignored or oveil. ridden by othees? In other words, if litigation does develop some time in the future, will you have access to some records and, therefore, demonstrate a good memory of the events? If you do not have appropriate records, will you appear to have memory gaps, lack of pertinent knowledge, or show such confounding of the facts that you do not seem believable or truthful? Will the absence of records seem to the jury to be a conceal ment or a destruction of evidence? Will the members of a jury or the judge perceive your responses and demeanor to be less than forthright, uncertain, or even incompetent?*-7 Do not depend upon others in terms of your de fense; the lawyers can only do so much; they must depend upon you for the ammunition and convincing testimony! Thus, you can be your own worst enemy or your own best fnend in anticipating your role in future litigation. Therefore, my message is to be forewarned and arm yourself by adherence to a de fined, delineated, and socially acceptable sense of professional responsibility. Your future is in your hands and with forethought there should be no signifi cant risk of civil or aminal liability. O CTL026552 I enclosed i* check for _________ CSP Refresher Ouidcis). I f Please bill my VISA 3 MASTS* CARO 3 forGuides 1 I | Account number ______________________ I I expiration Date ____________________________ I ^ Signature ______________________________ I j name (please pnnt) ________________________ t I Title I J Company _________________________________ I l Address ___________________________________ 1 I I City/Statc/ZIp Code 1 l --- ------------------------------------------------------- i *140 ea. (member) $170 ca. (non-member) I I 1 1 C order (U.S. ruods only) to: I 0 Department F AMERfCAn SOCIETY OP SAPETY EnCinEERS 850 Buaac Highway. Park Ridge. It. 60068 l l I References 1. Peters. G. A and F.wi D R Safety Law. Park Ridge, 111.: ^-American Society of Safety Eng>neers7l9tJ3. ------- ^ 2. People v Peabody, 46 Cal. App.3d 43, 119 Cal Rptr. 780 / (March 1975). 3. People v. Brucker. 148 Cal. App.3d 230.195 Cal. Rptr. 808 '-- ---------------------- ---------------------- ----- 4. Morgenstem, F. Deterrence and Compensation: Legal Lia bility m Occupational Safety and Health Geneva: Interna tional Labour Office. 1982. 5 Crosland. G. "Anomalies in Employers Liability Insurance." The Safety Practitioner. May 1984, pgs. 18-19. 6. Peters. G. A "Preparation for Your Coun Appearance " Professional Safety. Jan. 1980, pgs. 37-40. 7. Peters. B J. "Expert testimony by engineers." Peters. G A and Peters, B. J. (Eds). Automooue Engineenng and Lingo- non, New York Gariand Publishing. 1984, pgs. 735-746. Repnnied from tfie ASSE Professional Development Conference Pro ceedings. Boston. HA. June 1984. 38 Seoremhe- . c>.