State v. Shoreline Support Corp., 88-0297-CR

• Decision Date: 07 February 1989
• Docket Number: No. 88-0297-CR,88-0297-CR
• Parties: NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. STATE of Wisconsin, Plaintiff-Respondent, v. SHORELINE SUPPORT CORPORATION, Defendant-Appellant.
• Court: Wisconsin Court of Appeals

Page 644

439 N.W.2d 644

149 Wis.2d 398

NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES.

STATE of Wisconsin, Plaintiff-Respondent, v. SHORELINE SUPPORT CORPORATION, Defendant-Appellant.

No. 88-0297-CR.

Court of Appeals of Wisconsin.

Feb. 7, 1989. ^d

Circuit Court, Milwaukee County.

AFFIRMED.

Appeal from a judgment of the circuit court for Milwaukee county: MICHAEL J. SKWIERAWSKI, Judge.

Before MOSER, P.J., and SULLIVAN and FINE, JJ.

PER CURIAM.

Shoreline Support Corporation (Shoreline) appeals from a judgment affirming a jury verdict which convicted Shoreline of homicide by reckless conduct, in violation of sec. 940.06, Stats. We conclude that the triers of fact could reasonably have been convinced from the evidence presented at trial that Shoreline caused the death of Dale A. Slabik (Slabik) by its reckless conduct. We therefore affirm the judgment of conviction.

This case stems from the tragic death of Slabik, a recent high school graduate employed by Shoreline. Slabik died as a result of falling from a cliff while operating a bulldozer for his employer on June 17, 1986.

At the time of Slabik's death, Shoreline's sole shareholders were Thomas M. Barrett (Barrett) and Anton J. Matuszczak (Matuszczak). In 1986, Shoreline was engaged in a Lake Michigan shoreline reclamation project along a 270 foot strip of bluffs overlooking Lake Michigan, and located in St. Francis, Wisconsin. This long-term project was to be accomplished by depositing concrete and other earthen rubble at the base of the bluffs. A Komatsu bulldozer ¹ was used to move the rubble. The bulldozer, which was eight feet wide and twenty feet long, was navigated along the strip atop the bluffs. The strip measured between sixteen and seventy-five feet in width, and was bordered by the cliff's edge on the east, and piles of rubble on the west. ² In short, its operator maneuvered the bulldozer to scoop rubble into its shovel, make a 180 degree turn, and dump the rubble over the cliff's edge. Uncontested testimony elicited at trial established that operating the bulldozer under these conditions was dangerous, and inappropriate for an inexperienced bulldozer operator.

Matuszczak met Slabik in 1983. Slabik was dating Matuszczak's daughter, and was continuing to do so at the time of his death. Matuszczak knew that Slabik was an epileptic. Slabik had been under the care of Dr. James J. Homsey (Homsey) since May of 1978. Slabik first was treated for epileptic seizures in January of 1983. From December of 1983 to March of 1986, Slabik's epilepsy was apparently controlled by anti-seizure medication. Slabik was allowed to obtain his driver's license in 1985, and had operated both a motorcycle and an automobile. However, unknown to Shoreline, Slabik experienced seizure activity in March and May of 1986. Homsey altered Slabik's medication. From Slabik's physiological test results of June 10, and as of their conversation on June 13, Slabik had responded well. Homsey had informed Slabik's father at the end of May that Slabik should not drive a motor vehicle. We also note that Matuszczak had a stepson who was an epileptic, and who controlled his disability with anti-seizure medication.

Slabik began working for Matuszczak at the St. Francis site on June 6, 1986, just after Slabik's high school graduation. Slabik had been to the site on a few occasions prior to June 6, and watched Matuszczak operate the bulldozer, but did not operate the bulldozer himself. Between June 6 and June 17, Slabik worked approximately forty-nine hours for Shoreline, forty-three of which were devoted to operating the bulldozer. Matuszczak testified that he trained Slabik in the operation of the bulldozer, and supervised him from one to seven hours every day of Slabik's first full week of employment. Matuszczak also testified that he had seen Slabik operate a backhoe loader on Matuszczak's farm on four to six occasions, however he knew from Slabik's handwritten resume that Slabik had no experience with heavy equipment such as a bulldozer.

Expert testimony established that the medical history of a person with epilepsy would normally be investigated to determine if the handicap would impair the person's ability to safely operate and control large machinery. Furthermore, a person operating a machine such as a bulldozer in a site as dangerous as the St. Francis site generally has had "significant" training and supervision. "Significant" in this case was estimated at some 1,500 hours of supervised machine operation. Shoreline did not investigate Slabik's epilepsy, nor did it provide him with the significant training and supervision necessary to perform the tasks required of him at the St. Francis site.

At approximately 10 a.m. on June 17, 1986, Slabik's body and the bulldozer were found some ten feet apart at the base of the bluffs. The width of the area Slabik had been working in was twenty-eight feet between the edge of the cliff and the rubble he was attempting to move. There was no "berm" or raised curb of earth, indicating the edge of that particular section of the cliff. No one witnessed Slabik's fatal accident.

After a trial, the jury found Shoreline guilty of violating sec. 940.06(2), Stats., and the court entered judgment accordingly. It is from this judgment that Shoreline appeals. Shoreline argues that the judgment must be reversed because there is no evidence to support the jury's conclusion that its conduct was causally related to the death of Slabik. In the alternative, Shoreline argues that the judgment is null and void because action instituted against it under the Occupational Safety and Health Act (OSHA) precludes state criminal prosecution for the incident.

OSHA PREEMPTION

This court has previously held that OSHA regulations do not preempt criminal prosecutions in Wisconsin for homicide by reckless conduct. ³ All Wisconsin courts are bound by published decisions of the court of appeals unless they are reversed by a higher court. ⁴ Therefore, we conclude that state criminal prosecution of Shoreline for the death of Slabik is not precluded by any OSHA proceedings which stemmed from Slabik's death.

SUFFICIENCY OF EVIDENCE

Where the sufficiency of evidence in a criminal case tried before a jury is in issue, our standard of review is as follows:

"The burden of proof is upon the state to prove every essential element of the crime charged beyond reasonable doubt. The test is not whether this court or any of the members thereof are convinced beyond reasonable doubt, but whether this court can conclude the trier of facts could, acting reasonably, be so convinced by evidence it had a right to believe and accept as true. A criminal conviction can stand based in whole or in part upon circumstantial evidence. The credibility of the witnesses and the weight of the evidence is for the trier of fact. In reviewing the evidence to challenge a finding of fact, we view the evidence in the light most favorable to the finding. Reasonable inferences drawn from the evidence can support a finding of fact and, if more than one reasonable inference can be drawn from the evidence, the inference which supports the finding is the one that must be adopted. Our review of the record in response to a challenge to the sufficiency of the evidence is so limited by these rules." ⁵

Furthermore, a jury verdict will be overturned where the proof is patently incredible or so lacking in probative value that no jury could have found guilt beyond a reasonable doubt. ⁶ The same tests are called for whether the criminal proof is testimonial or circumstantial. ⁷

Section 940.06, Stats., provides that

(1) Whoever causes the...