By Marjorie Johnson, J.D.
In a criminal action against the employer of a construction worker who was not using fall-protection equipment when he fell 36 feet to his death, the evidence was sufficient to support the company’s conviction of a Class B misdemeanor for willfully violating two safety regulations and causing the worker’s death. Affirming the conviction, the Eighth Circuit ruled that “other-acts” evidence of similar violations by the employer was relevant to its knowledge of the regulations, whether it knew the employee wasn’t using the equipment, and whether its failure to ensure that he did was willful or accidental. The court also did not act unreasonably by imposing the maximum fine of $500,000, despite the known likelihood that the employer would be unable to pay a substantial fine since it had ceased operations (United States v. DNRB, Inc. dba Fastrack Erectors, July 17, 2018, Gruender, R.).
Evidence supported the verdict. In arguing that the government did not present sufficient evidence to sustain the guilty verdict, the employer first contended that it did not violate an applicable standard. Specifically, the federal statute at issue imposed criminal liability on any employer who willfully violates an applicable standard when that violation causes death to any employee. Here, the applicable standard required the employer to protect its employees from fall hazards. In particular, the regulations provided that employees who erect steel “shall be protected from fall hazards” by personal fall-arrest systems or certain other means. A personal fall-arrest system consists of a harness and connectors used to secure a worker to an anchorage point.
Providing the equipment wasn’t enough. The employer maintained that it did not violate these regulations because the employee had a personal fall-arrest harness and connectors, even though he was not using them to secure himself to an anchorage point on the warehouse’s frame. However, the regulations stated that employees “shall be protected” by appropriate equipment, not that they merely be provided with or possess such equipment. Because the employee was not connected to an anchorage point, there was sufficient evidence that the employer violated these applicable standards.
Supervisor’s knowledge can show willfulness. The employer also argued that the government failed to prove it acted willfully by having “intentionally disregarded” or being “plainly indifferent” to the criminal statute’s requirements. Noting that the company had a previous citation, the district court concluded that it was aware of its requirements. Moreover, a supervisor’s knowledge can be imputed to his employer, and there was sufficient evidence supporting the district court’s conclusion that the employee’s supervisor intentionally disregarded the safety requirements here.
The supervisor testified that it was his job to know and enforce the applicable safety regulations and evidence was presented that he saw the employee walking along the trusses of the warehouse without being connected to an anchorage point. Additionally, several witnesses testified that they saw the employee doing so and a crane operator said that he expressly warned the supervisor about the employee’s failure to use fall-protection equipment. A coworker also testified that the supervisor observed him and the employee working without the equipment. On this record, the district court reasonably chose to discredit the supervisor’s testimony that he was unaware the employee was not using fall-protection equipment.
Causal connection. The employer also failed to convince the Eighth Circuit that the government failed to prove causation. To prove actual causation, the government needed to show that the employee’s death would not have occurred “but-for” the employer’s conduct. Legal causation required showing that there was “some direct relation” between the injury and the injurious conduct, and is often analyzed in terms of foreseeability.
Here, the district court properly found that the employee would not have fallen to his death had he been connected to an anchorage point and that the employer’s failure to make him use required fall-protection equipment was thus a “but-for” cause of his death. The court also correctly determined that his fall was “a foreseeable and natural result” of working more than 30 feet above the ground without using fall-protection equipment thereby satisfying legal causation. Accordingly, because a reasonable factfinder could conclude that the government proved each of the challenged elements of the crime beyond a reasonable doubt, the employer’s challenge to the sufficiency of the evidence failed.
Other violations properly considered. The Eighth Circuit also rejected the employer’s assertion that the district court improperly admitted irrelevant and prejudicial “other-acts” evidence, including evidence of other violations it committed at the employee’s construction site, as well as violations from 2007 and 2015 that occurred at other sites. This other-acts evidence was relevant to the material issue of the employer’s knowledge and intent and further suggested that the employer’s failure to ensure that the employee used his equipment properly was knowing rather than accidental. Moreover, the other-acts evidence was “sufficiently similar to support an inference of criminal intent” and not “too remote in time.” Finally, the admission of this evidence was not unduly prejudicial but corroborated other evidence concerning the employer’s intent.
Maximum fine not unreasonable. Finally, the appeals court refused to overturn the sentence against the employer. The district court had clearly considered all of the statutory factors and the fine was within the statutory range. Moreover, though the employer challenged the imposition of the maximum fine given the presentence report’s conclusion it would be unable to pay since it had ceased operations, it was not “plainly unreasonable” to impose the maximum fine authorized by law.
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