People v. General Dynamics Land Systems, Inc., Docket No. 88066

• Decision Date: 28 April 1989
• Docket Number: Docket No. 88066
• Citation: 175 Mich.App. 701,438 N.W.2d 359
• Parties: , 13 O.S.H. Cas. (BNA) 2137, 1989 O.S.H.D. (CCH) P 28,467 PEOPLE of the State of Michigan, Plaintiff-Appellant, v. GENERAL DYNAMICS LAND SYSTEMS, INC., Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 359

438 N.W.2d 359

175 Mich.App. 701, 13 O.S.H. Cas. (BNA) 2137,

1989 O.S.H.D. (CCH) P 28,467

PEOPLE of the State of Michigan, Plaintiff-Appellant, v. GENERAL DYNAMICS LAND SYSTEMS, INC., Defendant-Appellee.

Docket No. 88066.

Court of Appeals of Michigan.

Submitted Jan. 20, 1987.

Decided March 20, 1989.

Released for Publication April 28, 1989.

Frank J. Kelley, Atty. Gen., Louis J. Caruso, Sol. Gen., and Theodore S. Klimaszewski, Asst. Atty. Gen., for the People.

Michael H. Golde, Farmington Hills, and Butzel, Long, Gust, Klein & Van Zile, P.C. by John P. Hancock, Jr., Detroit, for defendant-appellee.

Before SULLIVAN, P.J., and GRIBBS and PENZIEN, ^* JJ.

SULLIVAN, Presiding Judge.

Judge Penzien has laid out the facts in this matter, and they need not be recited here. We agree with his conclusion as to Count II, the MIOSHA count, which should have been dismissed. The manslaughter charge, however, is a different matter. He concludes that a corporation is not sufficiently a "person" to be the perpetrator of a manslaughter. As he correctly notes, the crime of manslaughter is not defined in our statutes but, rather, we are directed to use the common-law definition. People v. Richardson, 409 Mich. 126, 293 N.W.2d 332 (1980). Case law reveals, however, that the terms "of another" and "person" have been used interchangeably. For example, involuntary manslaughter is defined as the killing of another without malice and unintentionally. Richardson, supra, p. 136, 293 N.W.2d 332, quoting People v. Ryczek, 224 Mich. 106, 110, 194 N.W. 609 (1923). Similarly, in People v. Carter, 387 Mich. 397, 418, 197 N.W.2d 57 (1972), manslaughter is defined as the unlawful killing of another without malice, express or implied.

By contrast, the definition applied in People v. Stubenvoll, 62 Mich. 329, 331, 28 N.W. 883 (1886), uses the term "person" instead of "another":

"Any person who shall maim or injure any other person ... and if death ensue from such wounding or maiming, such person so offending shall be deemed guilty of the crime of manslaughter."

See also CJI 16:4:03 ("A person commits the crime of involuntary manslaughter if he kills an individual....")

So manslaughter may be defined in different ways, the killing of another or the killing of a person and the courts over the years have used either term.

Judge Penzien would limit himself to a definition in which the term "another" appears. However, if manslaughter may be defined in different ways, such as the killing of another or the killing of a person, and historically the courts have used either term, we do not believe that we should rely solely on a definition containing the term "another."

Our penal code defines "person," "accused," and similar words to include public and private corporations, unless a contrary intention appears. M.C.L. Sec. 750.10; M.S.A. Sec. 28.200. After examining the common-law definitions of manslaughter, we are unpersuaded that a contrary intention appears. Consequently, we cannot agree with the dissenting opinion in this respect and reach an opposite conclusion: that a corporation is sufficiently a "person" to be the perpetrator of a manslaughter.

In this case, the district court, affirmed by the circuit court, refused to bind defendant over on the manslaughter charge, finding insufficient evidence of gross negligence. On review, the magistrate's finding will be not disturbed unless there has been an abuse of discretion. People v. Talley, 410 Mich. 378, 385, 301 N.W.2d 809 (1981). Here, there was conflicting evidence on the issue of gross negligence which created a question of fact, properly resolved by the trier of fact and not the magistrate. People v. Doss, 406 Mich. 90, 276 N.W.2d 9 (1979).

In addition, the district court found that Franklin Bryan, Chief of Engineering Services at the Prototype Fabrication Shop, reviewed the safety bulletins covering the procedure involved here with his supervisor and instituted a procedure for flushing the tanks. This testimony was contradicted, however, by two subordinate employees who testified that they had not seen any safety bulletins nor had they received any training regarding the use of Gensolv-D. Therefore, there was a conflict on the issues of whether there was ever a procedure instituted for safely cleaning out the tanks and whether the safety bulletins were ever reviewed.

Similarly, there was also a conflict regarding the testimony of Dr. Spitz as to the cause of death. At one time, Dr. Spitz held that Lee had had an allergic reaction to a nonlethal exposure of Freon. However, Dr. Conolly, a toxicologist, contradicted the entire idea that the victim could have died from an allergic reaction to a nonlethal exposure of Freon.

Also, and most importantly, there was a conflict in the testimony as to whether Dr. Spitz had undertaken procedures to insure that Freon did not escape from the body tissues. The procedures were crucial because, if the specimens were placed in baby food jars, as testified to by Sergeant Bourgeois, an undeterminable amount of Freon may have escaped, thereby opening to challenge the finding of a nonlethal dosage of Freon in the victim's body. Because of the conflict in the evidence, the district court should have bound the defendant over for trial on the charge of involuntary manslaughter.

Reversed as to Count I, manslaughter, and remanded for trial. Affirmed as to Count II.

GRIBBS, J., concurs.

PENZIEN, Judge (dissenting in part).

The people appeal by leave granted from an order of the circuit court affirming the district court's refusal to bind over defendant on charges of involuntary manslaughter, M.C.L. Sec. 750.321; M.S.A. Sec. 28.553, and wilfully violating the Michigan Occupational Safety and Health Act (MIOSHA), M.C L. Sec. 408.1011(a); M.S.A. Sec. 17.50(11)(a) and M.C.L. Sec. 408.1035(5); M.S.A. Sec. 17.50(35)(5).

The charges arose out of an incident at defendant's Prototype Fabrication Shop in Center Line, Michigan, which resulted in the death of thirty-two-year-old driver/mechanic Harvey James Lee. The Prototype Fabrication Shop produces M-1 and M-60 main battle tanks for the United States Army. On November 15, 1983, Lee was driving one of the tanks inside when he was overcome by fumes from a cleaning solution, Gensolv-D, used to degrease the interior of the tanks. The medical examiner attributed Lee's death to cardiac arrhythmia caused by exposure to trichlorotrifluoroethane (Freon) fumes.

Gensolv-D is better known by its trade name, Freon. Freon is used by defendant near the end of the manufacturing process to degrease the interior of the completed tank. The tank is taken outdoors and parked on an incline. Freon is then sprayed over all interior surfaces and allowed to drain from the tank overnight. Approximately fifteen gallons of Freon were used to degrease the particular tank Lee drove. A subsequent simulation by the prosecution expert indicated that, although Freon is highly volatile, several gallons of the solvent remain in liquid form on the floor of the tank, even after the tank has sat overnight with all hatches open to provide maximum ventilation.

One of Lee's tasks was to drive degreased tanks, after they had sat overnight, to another part of the production facility. On the day in question, Lee climbed into the tank and positioned himself in such a manner that his head and shoulders remained outside the hatch cover. The engine was then started. The aforementioned simulation by the prosecution's expert indicated that solvent levels in the area of the operator's nose and mouth before starting the engine were in the range of five hundred parts per million. After starting the tank, the level rose to fifteen hundred parts per million.

In the particular tank Lee was driving an experimental nuclear, biological, chemical (NBC) system had been installed in the tank and wired to begin functioning as soon as the main engine was started. In a combat situation, the system would be hooked to protective suits worn by tank crewmen. In a noncombat setting, the system output hose was fastened to a fitting inside the tank, the effect of which was to pass air across the liquid Freon remaining on the tank floor. The expert's simulation indicated that, one minute after starting the tank, solvent levels in the area of the driver's mouth and nose rose to thirty thousand parts per million. A U.S. Department of Labor Occupational Safety and Health Administration material safety data sheet published in early 1983 indicated that Freon levels above one thousand parts per million could lead to light-headedness, giddiness, shortness of breath, possible narcosis, and possible cardiac arrhythmias at high concentrations. Plant safety bulletins containing this information had been prepared by the safety director but given only limited circulation to upper level management.

Defense witnesses indicated that, in several years of using Freon as a solvent, the only problems experienced had been light-headedness, giddiness, and shortness of breath, all of which disappeared within minutes of exposure to fresh air, and none of which resulted in long-term effects. No one at General Dynamics expected that overexposure to Freon would lead to fatal consequences. A number of grievances had been filed against defendant in another area plant over the use of Freon and the accompanying problems of light-headedness and shortness of breath.

Wayne County Coroner Dr. Werner V. Spitz conducted the autopsy of Lee and listed the cause of death as cardiac arrhythmia triggered by exposure to Freon-113. The report also listed Lee's obesity as possibly contributing to the accident and death. At the preliminary examination, Spitz reiterated that Lee died from cardiac arrhythmia. Additionally, he testified that the victim had an allergic reaction to a nonlethal exposure of Freon, stating that the amount of Freon found in Lee's body tissues was only one-tenth of the lethal exposure...