People v. Warner-Lambert Co.
| Decision Date | 20 November 1980 |
| Docket Number | WARNER-LAMBERT |
| Citation | 51 N.Y.2d 295,434 N.Y.S.2d 159 |
| Parties | , 414 N.E.2d 660 The PEOPLE of the State of New York, Respondent, v.COMPANY, Doing Business Under the Name of Warner-Lambert Co., American Chicle Division, Arthur Kraft, Ed Harris, James O'Mahoney and John O'Rourke, Appellants. |
| Court | New York Court of Appeals Court of Appeals |
Although they were aware that there was a broad, undifferentiated risk of an explosion in consequence of ambient magnesium stearate dust arising from the procedures employed in its manufacturing operations, the corporate and individual defendants may nonetheless not be held criminally liable, on the theory of either reckless or negligent conduct, for the deaths of employees occasioned when such an explosion occurred where the triggering cause thereof was neither foreseen nor foreseeable.
This case is before us on appeal from an order of the Appellate Division, 69 A.D.2d 265, 417 N.Y.S.2d 997, which reversed an order of Supreme Court granting defendants' motion to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient to establish the offenses charged or any lesser included offenses (CPL 210.20, subd. 1, par. (b)). On such a motion the standard of judicial scrutiny is whether there was "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant's commission thereof" (CPL 70.10, subd. 1). In the somewhat unusual circumstances of this case defendants introduced extensive evidence before the Grand Jury; for our purposes, however, the evidence must be viewed in the light most favorable to the People, and it may be legally sufficient "although it does not even provide 'reasonable cause' to believe that the defendant committed the crime charged" (Denzer, Practice Commentary, McKinney's Cons. Laws of N.Y., Book 11A, CPL 70.10, p. 348). We describe the factual context out of which this indictment arose from that standpoint, recognizing that in our description no note is taken of the considerable exculpatory evidence introduced on behalf of defendants.
Defendant Warner-Lambert Co. is a manufacturing corporation which produces, among other items, Freshen-Up chewing gum. The individual defendants were officers or employees of the corporation. Defendant Kraft was vice-president in charge of manufacturing; defendant Harris was the director of corporate safety and security; defendants O'Mahoney and O'Rourke were, respectively, plant manager and plant engineer of the Warner-Lambert facility located at 30-30 Thompson Avenue in Long Island City, New York, which was the situs of the events out of which this indictment arose. The indictment charges each defendant with six counts of manslaughter in the second degree in violation of section 125.15 of the Penal Law and six counts of criminally negligent homicide in violation of section 125.10 of the Penal Law in consequence of the deaths of six employees which resulted from a massive explosion and fire at the Long Island City Warner-Lambert plant about 2:30 a. m. on November 21, 1976.
On the day on which the explosion occurred, Freshen-Up gum, which is retailed in the shape of a square tablet with a jellylike center, was being produced at the Warner-Lambert plant by a process in which filled ropes of the gum were passed through a bed of magnesium stearate (MS), a dry, dustlike lubricant which was applied by hand, then into a die-cut punch (a Uniplast machine) which was sprayed with a cooling agent (liquid nitrogen), where the gum was formed into the square tablets. Both the MS (normally an inert, organic compound) and the liquid nitrogen were employed to prevent the chicle from adhering to the sizing and cutting machinery, the tendency to adhere being less if a dry lubricant was used and the punch was kept at a low temperature. The process produced a dispersal of MS dust in the air and an accumulation of it at the base of the Uniplast machine and on overhead pipes; some also remained ambient in the atmosphere in the surrounding area.
Both MS and liquid nitrogen are considered safe and are widely used in the industry. In bulk, MS will only burn or smoulder if ignited; however, like many substances, if suspended in the air in sufficient concentration the dust poses a substantial risk of explosion if ignited. The minimum concentration at which an explosion can occur is denominated the "lower explosion level" (LEL). Liquid nitrogen, with a boiling temperature of minus 422 degrees Fahrenheit, is an effective cryogenic which might play a part in the process of "liquefaction"-here, the production of liquid oxygen in the course of the condensation of air on its exposure to a source of intense cold. Liquid oxygen is highly volatile, is easily ignited and, if ignited, will explode. Among possible causes of such ignition of either liquid oxygen or ambient MS are electrical or mechanical sparks.
On November 21, 1976 defendant Warner-Lambert was operating six Uniplast machines in the production of Freshen-Up gum on the fourth floor of its Long Island City plant. The machines were in almost constant operation; however, at the time of the catastrophic explosion near the end of one of the work shifts only one machine (designated the "D" machine) was in operation and employees were engaged in removing settled MS dust from the base of that machine and from overhead pipes by broom sweeping and by the use of airhoses. Suddenly an explosion occurred in the area of the operating machine, followed almost immediately by a second, much larger explosion accompanied by flames which caused injuries to more than 50 workers in the area (six of whom did not survive) and extensive damage to the building and equipment, which was attributed to burning of ambient dust and explosion rather than general fire. Thorough postcatastrophe investigation eliminated intentional or "man-caused" ignition as the origin of the event. A New York City Fire Marshal and an investigator for the United States Occupational Safety and Health Administration, both of whom examined the scene, testified before the Grand Jury that a primary explosion had occurred at the "D" machine which dispersed added MS dust into the atmosphere and could have caused the second, greater explosion. There was testimony that the ceiling of the floor below the "D" machine had been covered with peeling paint, indicating that the temperature of that machine was colder than the others and that an examination of the machine itself after the explosion had shown that its base, made of cast iron, had cracked, perhaps by reason of the cold. An employee present at the time of the occurrence testified that he had observed a spark in the area of the "D" machine immediately prior to the event. Although there was no direct proof as to what had triggered the early morning disaster, the People introduced expert testimony hypothesizing that there might have been a mechanical sparking induced by a breakup of metal parts of the Uniplast machine. Also presented was testimony by one of the People's experts who theorized that liquid oxygen produced through liquefaction occurring in the Uniplast machine was ignited by the impact of a moving metal part and that this touched off the dispersed MS dust present.
With respect to the quantity of ambient MS dust in the area of the Uniplast machines (the presence of which was the basis for the People's submission to the Grand Jury of evidence against the defendants ultimately indicted), there was proof that an inspection of the plant by Warner-Lambert's insurance carrier in February, 1976 had resulted in advice to the insured that the dust condition in the Freshen-Up gum production area presented an explosion hazard and that the MS concentration was above the LEL, together with recommendations for installation of a dust exhaust system and modification of electrical equipment to meet standards for dust areas. Although a variety of proposals for altering the dust condition were considered by the individual defendants in consultations and communications with each other and some alterations in the MS application were made, both ambient and settled MS dust were still present on November 21, 1976, as the result of an executive decision to work toward the eventual elimination of MS entirely by modification of the Freshen-Up equipment. This modification had been accomplished with respect to only one Uniplast machine at the date of the explosion, when approximately 500 pounds of MS a day were still being used in Freshen-Up production. Employees were wearing face masks and goggles to protect their eyes and breathing passages, and just prior to the tragedy, when sweeping and airhosing of accumulated MS were in progress, there was rising dust and a "heavy fog" or "mist" all around.
The charges of manslaughter in the second degree and criminally negligent homicide laid against the corporate and individual defendants are each dependent on two interrelated provisions...
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