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Authored by: Charles Jackson Parker
Editor in Chief, American Journal of Trial Advocacy
For the first time in the state of Washington, a contractor has been sentenced to serve 45 days in jail after a trench collapse caused the death of employee Harold Felton in 2016.[i] The Occupational Safety and Health Administration (“OSHA”) regulates workplace safety across the nation.[ii] There are construction sites covering every city in the country, so OSHA rarely visits every site in the agent’s region and operates by violation tips and periodic random inspections.[iii] Construction sites provide for a high-risk workplace with incomplete buildings, elevated work surfaces, heavy equipment, saws, high-powered tools, and chemicals, and with these risks come the high responsibility of a contractor to monitor the site and ensure OSHA standards are being implemented and followed.[iv] The penalty for an OSHA violation can be a warning for a violation that does not directly affect a worker’s health and safety and for other violations penalties can increase up to $132,598.[v] OSHA defines a “willful violation” as “a complete disregard for the health and safety of employees.”[vi] There is very little talk on job sites about what happens if the unthinkable occurs, an employee is fatally injured, and a violation is found.
In the construction industry, some projects, especially public projects, require competitive bidding to ensure the correct and fair use of tax dollars to fund the projects.[viii] Price alone is not the only factor that the state actors are allowed to use when picking the qualified contractor.[ix] The state actors or private owners will also look at the project history to ensure that the contractor has a history of successful projects and, more importantly, the safety record the company has. A fine alone will hurt a contractor, but a willful violation could prevent the contractor from getting any work for several years.
Following the start of the COVID-19 pandemic, the government reminded employers that the penalties for workplace safety violations are not simply limited to civil liability and fines against the company.[xi] Throughout the past years, criminal penalties have been filed due to alleged violations of trench hazards, including a recent case in the state of Pennsylvania.[xii] In that case, the criminal charges were filed while the OSHA citation determining the “willfulness” of the violation was still in progress.[xiii] This begs the question of whether OSHA’s determination will be necessary for a jury to convict a contractor for criminal charges. The OSH Act adds to the initial fine that the employer can receive with a criminal penalty if they willfully violate a standard, and the result is the death of an employer.[xiv] While it is not clear whether a jury can convict the contractor without the determination by OSHA of a “willful” violation, the determination by OSHA alone is not enough to convict without proof beyond a reasonable doubt.[xv] The next question is whether a contractor is only liable to the extent that OSHA’s penalties allow or if the willful violations can be so egregious as to invite prosecution under criminal law?
The most recent conviction was in State v. Numrich, where Numrich, the owner and operator of Alki Construction L.L.C., was sentenced to 45 days in jail and to pay a $25,000 fine for the death of employee Harold Felton.[xvi] This is the first time in the state of Washington that an employer has been sentenced to jail for a workplace death.[xvii] Here, the issue before the court was “whether the general-specific rule applies to a second degree manslaughter charge stemming from a workplace death.[xviii] The State applied the Washington equivalent of OSHA, the Washington Industrial Safety and Health Act of 1973 (“WISHA”).[xix] The employer filed a motion to dismiss based on the general-specific rule, and the ruling was appealed to the Supreme Court of Washington.[xx] The State moved to add an alternative charge of first degree manslaughter while the appeal was pending.[xxi] The State received sanctions for the timing, but the alternative charge was granted.[xxii] This alternative charge would mean that the prosecutor was seeking criminal penalties outside the bounds of what WISHA provides.
Numrich is the owner of Alki Construction L.L.C. and Harold Felton was his employee.[xxiii] In 2016, while Alkin Construction was replacing a sewer line, the trench they dug to expose the old pipe and install the new pipe collapsed, killing Felton.[xxiv] Trenches are an area heavily regulated by OSHA and WISHA and require the sides of the trench either be dug back at an angle that prevents the sides from being able to cave in, which can create a very wide opening that is sometimes impossible in tight construction sites, or the contractor must use a steel box with two sides, and two open ends for the pipe called a trench box.[xxv] On this day, the contractor did not implement either of these techniques, the hole had been exposed for over ten days, and then Felton’s use of a saw in the trench vibrated the ground and potentially caused the collapse.[xxvi] The contractor was present, and no action was taken to stop Felton or remediate the trench’s condition.
The contractor’s argument was based upon the general-specific rule that is a “well established rule of statutory construction that ‘[if] a special statute punishes the same conduct [that] is punished under a general statute, the special statute applies, and the accused can only be charged under that statute.[xxviii] The “determining factor is whether the statutes are concurrent in the sense that the general statute will be violated in each instance where the special statute has been violated.”[xxix] The manslaughter statute in Washington makes a person guilty of second degree manslaughter when their criminal negligence causes the death of another person.[xxx] Further, the person is “criminally negligent” when they were aware of the risk.[xxxi] The WISHA provision states that the “employer who willfully . . . violates the requirements of . . . any safety or health standard . . . and that violation caused death to any employee shall, upon conviction of a gross misdemeanor be punished by a fine of not more than one hundred thousand dollars or by imprisonment for not more than six months or both.”[xxxii] The contractor argued that he could only be charged under the WISHA provision, but the federal analogous, OSHA, has been addressed by Congress as to “[not] preempt enforcement of State criminal laws of general application, such as murder, manslaughter, or assault.”[xxxiii] The Supreme Court of Washington held that the state general-specific rule did not apply and allowed for the state criminal statute to preempt the WISHA penalty and allowed the state to provide sentencing for both first and second degree manslaughter as opposed to a misdemeanor under WISHA.
Other states have upheld the application of criminal laws in workplace deaths, all where the federal act, OSHA, sure is to be reaching.[xxxv] This further shows that the risk of an OSHA violation is not only the civil penalties, and the damage to the contractor’s reputation in the industry but that the state is not precluded from bringing criminal charges under OSHA or the analogous state act, but they may also be able to convict under more stringent and harsher penalties provided by state criminal statute. Contractors must keep this in mind when enforcing and training the employees on the importance of safety and OSHA regulations. Most importantly, employers must inform their employees to say something when they know there is a violation because the awareness and no action could be construed as a “willful violation” and criminal charges.
[i] Don McLoud, Contractor Sentenced to Jail after Trench Death – A First in State’s History. EquipmentWorld. (Mar. 7, 2022), https://www.equipmentworld.com/regulations/safety-compliance/article/15289330/seattle-contractor-sentenced-to-45-days-after-trench-death.
[ii] What Are the Penalties for Violations of OSHA Safety Standards for Construction Sites? CassidyLawFirm. (Dec. 5, 2019), https://www.thecassidylawfirm.com/lawyer/2019/12/05/Construction-Accidents/-What-Are-the-Penalties-for-Violations-of-OSHA-Safety-Standards-for-Construction-Sites_bl39084.htm.
[viii] What Are the Penalties for Violations of OSHA Safety Standards for Construction Sites? CassidyLawFirm. (Dec. 5, 2019), https://www.thecassidylawfirm.com/lawyer/2019/12/05/Construction-Accidents/-What-Are-the-Penalties-for-Violations-of-OSHA-Safety-Standards-for-Construction-Sites_bl39084.htm.
[xi] Construction Industry Employers, Take Heed: “Willful” OSHA Violations May Lead to Criminal Penalties. National Law Review. (Dec. 14, 2020), https://www.natlawreview.com/article/construction-industry-employers-take-heed-willful-osha-violations-may-lead-to.
[xvi] Don McLoud, Contractor Sentenced to Jail after Trench Death – A First in State’s History. EquipmentWorld. (Mar. 7, 2022), https://www.equipmentworld.com/regulations/safety-compliance/article/15289330/seattle-contractor-sentenced-to-45-days-after-trench-death.
[xviii] State v. Numrich, No. 96365-7 (Wash. Feb. 4, 2021).
[xxiv] State v. Numrich, No. 96365-7 (Wash. Feb. 4, 2021).
[xxviii] State v. Shriner, 101 Wn.2d 576, 580 (1984) (quoting State v. Cann, 92 Wn.2d 193, 197 (1979)).
[xxx] RCW 9A.32.070.
[xxxi] RCW 9A.08.010(1)(d).
[xxxii] RCW 49.17.190(3) (emphasis added).
[xxxiii] H.R. Rep. No. 100-1051, at 9 (1988).
[xxxv] See State v. Far W. Water & Sewer Inc., 224 Ariz. 173, 184 (Ariz. Ct. App. 2010), Sabine Consol., Inc. v. State, 806 S.W.2d 553, 557 (Tex. Crim. App. 1991), People v. Chicago Magnet Wire Corp., 126 Ill. 2d 356, 367-68 (Ill. 1989), People v. Pymm, 76 N.Y.2d 511, 521 (1990), State ex rel. Cornellier v. Black, 144 Wis. 2d 745, 755 (Wis. Ct. App. 1988).