Dukane Precast, Inc. v. Perez

• Citation: 785 F.3d 252
• Decision Date: 04 May 2015
• Docket Number: No. 14–3156.,14–3156.
• Parties: DUKANE PRECAST, INC., Petitioner, v. Thomas E. PEREZ, Secretary of Labor, and the Occupational Safety and Health Administration, Respondents.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

785 F.3d 252

DUKANE PRECAST, INC., Petitioner

v.Thomas E. PEREZ, Secretary of Labor, and the Occupational Safety and Health Administration, Respondents.

No. 14–3156.

United States Court of Appeals, Seventh Circuit.

Argued April 2, 2015.

Decided May 4, 2015.

Paul J. Waters, Waters Law Group, LLC, Clearwater, FL, for Petitioner.

Amy S. Tryon, Department of Labor Office of the Solicitor, John X. Cerveny, Occupational Safety & Health Review Commission, M. Patricia Smith, Attorney, Department of Labor Office of the Solicitor, Washington, DC, for Respondents.

Before BAUER, POSNER, and MANION, Circuit Judges.

Opinion

POSNER, Circuit Judge.

The petitioner, Dukane, manufactures concrete building products in a plant in Naperville, Illinois, a suburb of Chicago. At the time of the accident that gave rise to this case (February 2012), the plant had 50 employees. The accident occurred in a bin, some ten feet in width at the top and tapering to a cone shape at the bottom (eighteen feet down), for storing sand. The accident victim was a worker named William Ortiz. While he was standing in the bin trying to scrape sand from its inside wall, the sand beneath his feet gave way, causing him to sink and to be engulfed by sand flowing into the space created by his fall. Buried up to his neck in the sand he screamed, and several workers, hearing his screams, ran to the bin and began trying to dig him out. They were able to remove the sand pressing on him above his waist but not the sand pressing on the lower part of his body, so he remained trapped.

The plant's manager, Don MacKenzie, was told about the accident within about 10 minutes after it happened; a supervisor had found out about it by asking where all the workers were and he informed MacKenzie, who arrived at the bin a few minutes later. He decided there was no emergency—that Ortiz was in no danger—and, told by the attempting rescuers that they thought they could dig Ortiz out, left the accident scene. The would-be rescuers, though well intentioned and indeed courageous—for they could have been engulfed by the sand as well—were not trained or equipped to rescue a person trapped in a bin of sand, and their efforts at digging away the sand pressing on Ortiz created a space for other loose sand to press in on him, impeding their rescue efforts. He asked them to call 911 to summon professional assistance, but for unexplained reasons no one did. Eventually, however, MacKenzie was told by an employee of Ortiz's wish, and upon asking the employee whether he was confident that the workers who were trying to rescue Ortiz would succeed, and receiving an answer that must have been less than reassuring, MacKenzie called 911. The Naperville Fire Department's Technical Rescue Team, which has specialized training and equipment for dealing with accidents of the kind that befell Ortiz, arrived within a few minutes. By this time Ortiz had been trapped in the bin for an hour and a half.

We would have liked the parties to tell us exactly how long it took for the rescue team to arrive, because the longer it was expected to take, the stronger the excuse for letting Ortiz's coworkers try to save him despite the danger to themselves. We have discovered on our own, however, that it was the Technical Rescue Team at Fire Station # 1 that was summoned. See Naperville Fire Department, 2012 Annual Report 15, www.naperville.il.us/emplibrary/NFDAnnual Report2012.pdf (visited on May 1, 2015). Google Maps tells us that it's about a 3.3 mile drive from Station # 1 to the Dukane plant and takes only about 6 minutes if there is no traffic—fewer surely for an emergency vehicle that can ignore speed limits and run through red lights.

Using a vacuum truck (a tank truck equipped with a powerful suction pump) to remove the sand in which Ortiz was trapped, the rescue team (with help from firefighters from other fire stations in or near Naperville) was able to remove him from the bin—though it took between three and a half and four hours. Ortiz had thus been trapped in the sand for more than five hours before he was rescued. He sustained serious injuries to his lower body from being squeezed by a large mass of sand for such a long time. For a detailed description of the accident and rescue, see “Man Trapped in Cement Auger at Dukane Precast,” CHICAGOFIREMAP.NET, Oct. 9, 2012, www.chicagofiremap. net/2012/10/man-trapped-in-cement-auger-at-dukane.html (also visited on May 1).

The bin that Ortiz had entered is, in OSHA-speak, a PRCS, which is an acronym for “permit-required confined space.” OSHA requires that a facility that has such spaces “develop and implement procedures for summoning rescue and emergency services, for rescuing entrants from permit spaces, for providing necessary emergency services to rescued employees, and for preventing unauthorized personnel from attempting a rescue.” 29 C.F.R. § 1910.146(d)(9). The facility's rescue plan must specify that in the event of an accident, rescue and emergency services are to be summoned immediately, and must forbid anyone not employed by those services to attempt a rescue. Another OSHA regulation requires the posting of danger signs on the bins, such as DANGER–PERMIT–REQUIRED CONFINED SPACE, DO NOT ENTER. 29 C.F.R. § 1910.146(c)(2). Also mandatory is a protective railing or other barrier around the bin, which must be at least 42 inches high and warn of “dangerous equipment” and “similar hazards.” 29 C.F.R. §§ 1910.23(c)(3), (e)(1).

An OSHA inspector examined the bin and other relevant portions of Dukane's plant the day after the accident and on the basis of the inspection the agency cited Dukane for three “serious” violations of OSHA regulations and one “willful” one. See 29 U.S.C. §§ 666(a), (b), (k). The serious violations were that the barrier, which consisted of the bin's wall, was only 27 inches above the platform abutting the wall; that Dukane had failed to take measures to prevent unauthorized entry into the bin (and also into another bin—the Dukane plant has five bins altogether); and that the company had failed to post warnings that a permit was required to enter a bin. The “willful” violation was Dukane's failure to summon emergency services (that is, the fire department) immediately upon discovering the accident, and to prevent Ortiz's coworkers from trying to rescue him, which they were forbidden to do because of the danger to themselves and because they might also endanger the person they were trying to rescue.

OSHA proposed, and an administrative law judge of the agency imposed, a penalty on Dukane of $70,000 for the four violations. The company's petition for review challenges the finding of the willful violation and the finding of one of the serious violations—the violation of the requirement of a 42–inch railing or equivalent barrier.

Regarding the willful violation Dukane argues that the applicable regulation, 29 C.F.R. § 1910.146(d)(9), doesn't require that the employer actually call 911 immediately or prevent coworkers from attempting a rescue, but requires merely that it have adopted such procedures. The regulation instructs the employer to “develop and implement” the procedures, and Dukane argues that to develop is to devise and that to implement is to adopt rather than to apply. That may be a permissible literal interpretation, but it is neither inevitable nor sensible, as it would allow the employer to do nothing at all to rescue a worker injured or endangered at work—not even call 911. Literalism frequently, and in this instance, leads to absurd results.

A more difficult question is whether the violation of the regulation was “willful.” The term is not defined in the statute or in a regulation; and in the common law, to which one might look for guidance, it has no standard definition. Often bracketed with “wanton” or “malicious” (which is no help at all, as these terms too have no standard definition in the law), willfulness can be a synonym for recklessness or denote a heightened form of negligence, similar to gross negligence and thus falling short of recklessness. See, e.g., Nightingale Home Healthcare, Inc. v. Anodyne Therapy, LLC, 626 F.3d 958 (7th Cir.2010) ; Fagocki v. Algonquin/Lake–In–The–Hills Fire Protection District, 496 F.3d 623 (7th Cir.2007) ; Wassell v. Adams, 865 F.2d 849, 853–54 (7th Cir.1989).

We may have muddied the waters by saying in Lakeland Enterprises of Rhinelander, Inc. v. Chao, 402 F.3d 739, 747 (7th Cir.2005), that “an OSHA violation is willful if it is committed with intentional disregard of, or plain indifference to, the requirements of the statute.” See also Globe Contractors, Inc. v. Herman, 132 F.3d 367, 372–73 (7th Cir.1997) ; Caterpillar Inc. v. OSHRC, 122 F.3d 437, 440 (7th Cir.1997). (Other courts have used similar formulas. See Ann K. Wooster, “What Constitutes ‘Willful’ Violation for Purposes of §§ 17(a) or (e) of Occupational Safety and Health Act of 1970,” 161 A.L.R. Fed. 561 (2000).) The first alternative in this test (intentional disregard) corresponds to recklessness: you know there's a danger, you could prevent it, but you do...