Commonwealth v. Otto
| Decision Date | 22 March 2022 |
| Docket Number | 20-P-1033 |
| Parties | COMMONWEALTH v. KEVIN OTTO. |
| Court | Appeals Court of Massachusetts |
Summary decisions issued by the Appeals Court pursuant to M.A.C. Rule 23.0, as appearing in 97 Mass.App.Ct. 1017 (2020) (), are primarily directed to the parties and therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore represent only the views of the panel that decided the case. A summary decision pursuant to rule 23.0 or rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass.App.Ct. 258, 260 n.4 (2008).
This case arises from the tragic deaths of Calvin Mattocks and Robert Higgins following the collapse of a trench in which they were working on Dartmouth Street in Boston. The defendant was convicted of two charges of manslaughter in violation of G. L. c. 265, § 13, and one count of witness intimidation in violation of G. L. c. 268, § 13B. His motion at trial for a required finding under Mass R. Crim. P. 25, as amended, 420 Mass. 1502 (1995), was denied. After trial, the defendant filed a motion to reconsider that ruling, which was also denied. He now appeals. We affirm.
The case was tried, jury waived, before a judge of the Superior Court. Viewing the evidence in the light most favorable to the Commonwealth, as we are required to do, see Commonwealth v. Latimore, 378 Mass. 671, 677 (1979), the finder of fact, in this case the judge, could have found the following: The defendant and the company of which he was president, Atlantic Drain Services Company, were hired to excavate the street and sidewalk outside 12 Dartmouth Street to install a new sewer line to the building. On the sidewalk above the trench was a fire hydrant. Below the hydrant, a pipe extended vertically approximately six or seven feet down into the ground where it met an elbow joint. The elbow joint made a forty-five degree turn into a lateral pipe which ran parallel to the sidewalk for approximately eight feet where it then connected to the water main. The connection to the main was made by a mechanical joint.
Prior to the day of the accident, the trench had been excavated to a point two or three bricks' width away from the hydrant. On all the days of excavation prior to the day of the accident, Kristopher Barahona was the foreperson on the site. On the day of the accident, however, the defendant directed the excavation work and operated a "boom" (also known as a "vactor"), an industrial vacuum attached to a truck above the trench. The boom sucked the dirt out of the trench. On the morning of the accident, the defendant instructed a worker to remove all the bricks near the hydrant. He had workers widen the trench and remove the dirt from underneath the hydrant. Although there was evidence in the record that when installed the hydrant might have been required to include features called tie rods, metal arms anchoring the hydrant water pipe to the water main, and a thrust block, granite or concrete block propping the hydrant up in the soil, it would have been clear to anyone excavating that these elements were absent. The Commonwealth's expert, Francis Leathers, also opined that neither tie rods nor a thrust block would have prevented the hydrant pipe failure in this case.
At the defendant's direction, the workers dug all the way over and removed the dirt from underneath the hydrant, which weighed 1, 120 pounds. They had removed enough dirt underneath the elbow pipe, which was exposed, that a five-foot nine-inch worker could walk underneath it. Despite Occupational Safety and Health Administration (OSHA) regulations, the defendant had not used any cave-in protection, nor had he supported the hydrant, an appurtenant structure that, under the regulations, must be supported.
While Higgins and Mattocks were in the trench and the defendant operating the boom, soil from near the bottom of the hydrant collapsed down and covered them to their waist. Seconds later the top piece of the hydrant dropped down. The hydrant fell towards the open trench, the pipe came away from the trench wall and burst, and within seconds water filled the entire trench. Despite efforts by several workers and the defendant, Higgins and Mattocks could not be rescued. They both died of asphyxia at the scene.
Discussion.
The defendant argues that there was insufficient evidence to establish that his actions were the proximate cause of the victims' deaths, or that his actions were wanton and reckless. We disagree. We see no error in the trial judge's conclusion in his postjudgment order on the defendant's motion to reconsider his motion for a required finding under Mass. R. Crim. P. 25 that the evidence was sufficient to support a conclusion by the finder of fact
This conclusion, that the accident was proximately caused by the undermining of the hydrant by the defendant without providing support for it, was supported not only by evidence of the OSHA regulation prohibiting the undermining of such appurtenant structures without support, 29 C.F.R. § 1926.651(i)(3) (1994), but also by the testimony of the Commonwealth's expert that the factor of safety was reduced to zero by the removal of soil, which had reduced the effective strength and lateral confinement on the soil that remained, and that the vertical bearing capacity resistance of the soil too had been reduced to zero. Indeed, he opined that the result of the removal of the soil would be "a failure." In particular, he...
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