Dukane Precast, Inc. v. Thomas E. Perez , 785 F.3d 252 ( 2015 )

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3156
DUKANE PRECAST, INC.,
Petitioner,
v.
THOMAS E. PEREZ, Secretary of Labor, and the OCCUPATIONAL
SAFETY AND HEALTH ADMINISTRATION,
Respondents.
____________________
Petition for Review of an Order of the
Occupational Safety & Health Review Commission.
No. 1:12-1646.
.____________________
ARGUED APRIL 2, 2015 — DECIDED MAY 4, 2015
____________________
Before BAUER, POSNER, and MANION, Circuit Judges.
POSNER, Circuit Judge. The petitioner, Dukane, manufac-
tures concrete building products in a plant in Naperville, Il-
linois, a suburb of Chicago. At the time of the accident that
gave rise to this case (February 2012), the plant had 50 em-
ployees. 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
2 No. 14-3156
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 en-
gulfed 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 try-
ing to dig him out. They were able to remove the sand press-
ing 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 super-
visor 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 inten-
tioned 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 res-
cue efforts. He asked them to call 911 to summon profes-
sional 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 ac-
cidents of the kind that befell Ortiz, arrived within a few
No. 14-3156 3
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/NFDAnnualRep
ort2012.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,” CHICAGO
FIREMAP.NET, Oct. 9, 2012, www.chicagofiremap.net/2012/
10/man-trapped-in-cement-auger-at-dukane.html (also visit-
ed on May 1).
The bin that Ortiz had entered is, in OSHA-speak, a
PRCS, which is an acronym for “permit-required confined
4 No. 14-3156
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 res-
cued 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 ac-
cident, 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) immediate-
ly upon discovering the accident, and to prevent Ortiz’s
coworkers from trying to rescue him, which they were for-
No. 14-3156 5
bidden to do because of the danger to themselves and be-
cause 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 re-
quire 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 pro-
cedures, 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 inevi-
table 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 stat-
ute 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 de-
note a heightened form of negligence, similar to gross negli-
gence and thus falling short of recklessness. See, e.g., Night-
6 No. 14-3156
ingale 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. Ad-
ams, 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 commit-
ted 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 nothing. (In con-
trast, negligence requires only that there be a danger of
which a reasonable person would be aware, not that the par-
ticular defendant, who may not be a reasonable person, have
been aware of it.) But OSHA based its determination that
Dukane’s violation had been willful on the second formu-
la—“plain indifference”—and it’s unclear what that term
means. The Lakeland decision says that “ignoring obvious
violations of OSHA safety standards amounts to ‘plain indif-
ference.’” Lakeland Enterprises of Rhinelander, Inc. v. Chao, su-
pra, 402 F.3d at 747–78. But that sounds either like negligence
(if “ignore” can just mean “doesn’t notice”), or like reckless-
ness (the violation was obvious to you, meaning that you
knew it without having to conduct an investigation, but you
decided to do nothing about it). It therefore duplicates the
first alternative in the Lakeland test.
No. 14-3156 7
We tried to clarify the meaning of willfulness in Redman
v. RadioShack Corp., 768 F.3d 622, 627 (7th Cir. 2014), where
we said that
to act “willfully” is, for purposes of civil law, to engage
in conduct that creates “an unjustifiably high risk of
harm that is either known or so obvious that it should
be known,” Farmer v. Brennan, 511 U.S. 825, 836
(1994)—reckless conduct, in other words, as held in
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 56–60
(2007), but reckless conduct in the civil sense. Criminal
recklessness is generally held to require “knowledge of
a serious risk to another person, coupled with failure to
avert the risk though it could easily have been averted,
… whereas in civil cases at common law it is enough
that the risk, besides being serious and eminently
avoidable, is obvious; it need not be known to the de-
fendant.” Slade v. Board of School Directors, 702 F.3d
1027, 1029 (7th Cir.2012).
Our attempt at clarification may not have been entirely
successful. To ignore a risk that is “obvious” to a reasonable
person but not to the particular defendant is to be negligent,
not reckless, though the formula “either known or so obvi-
ous that it should be known” was from the Supreme Court’s
decision in Farmer v. Brennan, rather than our own invention.
Further complicating the analysis, in United States v. Ladish
Malting Co., 135 F.3d 484, 490 (7th Cir. 1998), we had said
that a “serious” violation of the Occupational Safety and
Health Act or its regulations is a violation caused by negli-
gence, while a willful violation for which 29 U.S.C. § 666(e)
decrees imposition of criminal penalties if the violation
causes death requires proof not only that the risk was known
to the defendant but also that he knew he was violating the
8 No. 14-3156
law. Id. at 487–90; United States v. L.E. Myers Co., 562 F.3d
845, 853 (7th Cir. 2009). And this formula also appears in
Safeco Ins. Co. of America v. Burr, 551 U.S. 47, 57 n. 9 (2007)
But proof of willfulness in 29 U.S.C. § 666(a)—the subsection
that is at issue in this case and provides just for civil penal-
ties—requires proof only that the defendant was aware of
the risk, knew that it was serious, and knew that he could
take effective measures to avoid it, but did not—in short,
that he was reckless in the most commonly understood sense
of the word. See AJP Construction, Inc. v. Secretary of Labor,
357 F.3d 70, 74 (D.C. Cir. 2004); Valdak Corp. v. OSHRC, 73
F.3d 1466, 1468–69 (8th Cir. 1996).
There is no doubt that MacKenzie acted recklessly and
therefore willfully within the meaning of section 666(a) and
that his reckless behavior must be imputed to Dukane
(Dukane doesn’t contest the second proposition). As plant
manager he had to know that the bins were permit-required
confined spaces (he testified that he didn’t know, but the
administrative law judge disbelieved him, as she was enti-
tled to do), yet if he didn’t, he had at least to know that Ortiz
was in danger, for when he arrived at the scene Ortiz was
buried up to his waist in the sand. MacKenzie testified that
he didn’t realize that Ortiz was in any danger, but again the
administrative law judge disbelieved his testimony.
The plant’s safety director, Tom Gorman, was the author
of the plant’s OSHA-required plan for dealing with emer-
gencies in permit-required confined spaces. He believed he
had instructed MacKenzie about the plan but couldn’t recall
when. It may have been years before the accident and in the
interim MacKenzie may have forgotten. Or maybe, since
there were no signs designating the bins as PRCS, he didn’t
No. 14-3156 9
realize that the bins were permit-required confined spaces to
which the plan therefore applied. But the potential danger to
worker safety posed by these huge bins must have been ob-
vious to him, and likewise his duty as plant manager to take
charge of the response to any emergency. His ignorance of
safety procedures, if indeed he was ignorant of them rather
than determined to ignore them, was itself willful. For he
had to know that there was a risk of accidents and that if he
hadn’t a clue to how to respond the consequences could be
disastrous.
MacKenzie wasn’t the only Dukane employee who dis-
regarded the regulation. Gorman, although he had coordi-
nated with local fire departments regarding rescue proce-
dures in 2002 and 2004, had trained Dukane employees in
groups before 2007, and afterward had conducted individual
training of employees who were to enter permit-required
confined spaces, testified that of the employees involved in
the accident only Ortiz and MacKenzie had received PRCS
training. Yet the training records reveal that two of the
workers who participated in the attempt to rescue Ortiz had
also received confined-space training. There is no evidence
that the workers who had received such training communi-
cated what they had learned to workers who hadn’t.
The railing regulation that Dukane was held to have vio-
lated (one of the “serious” violations, as distinct from the
“willful” violation, that it challenges) states that “regardless
of height, open-sided floors, walkways, platforms, or run-
ways above or adjacent to dangerous equipment, pickling or
galvanizing tanks, degreasing units, and similar hazards
shall be guarded with a standard railing and toe board.” 29
C.F.R. § 1910.23(c)(3). And a standard railing is, as noted ear-
10 No. 14-3156
lier, required to be at least 42 inches in height,
§ 1910.23(e)(1), in order “to prevent falls of persons.”
§ 1910.21(a)(6). Dukane’s arguments that it didn’t violate
these regulations are terrible. One argument is that a sand
bin is not as dangerous as a galvanizing tank, which contains
lethal liquids, such as liquid zinc. And that’s true; it isn’t as
dangerous. But a fall into an eighteen-foot-deep sand bin is a
good deal more dangerous than a short fall onto regular
flooring, as indicated by the serious injuries that Ortiz sus-
tained. No more is required to trigger the requirement of a
42-inch guardrail (or its equivalent). Dukane’s further argu-
ment that the danger is “de minimis” (misspelled in Dukane’s
brief as “de minimus”) is refuted by Ortiz’s accident—had he
dropped a few inches deeper into the sand he would have
been asphyxiated by it. The fact that OSHA’s regulations
make special provision for assuring safety in permit-
required confined spaces is a further indication that they are
indeed dangerous.
The company’s final argument is that the platform next
to the bin was not “open-sided,” because of its 27-inch wall.
If accepted, the argument would gut the regulation, for the
logic of the argument is that an inch-high railing would, by
making the failed area no longer “open-sided,” excuse the
employer from compliance with the guardrail regulations.
The petition for review is
DENIED.