The opinion of the court was delivered by: Judge James B. Zagel
MEMORANDUM OPINION AND ORDER
The L.E. Myers Company, founded in 1891, is now one of the largest electrical contracting companies in the United States, employing over 3,000 union workers -- over a thousand of whom work as linemen, maintaining and repairing electrical power systems for the nation's utilities. Two of Defendant's employees were killed while performing maintenance on electrical transmission towers owned and operated by Commonwealth Edison Company ("ComEd"). Twenty-year-old Blake Lane, an apprentice lineman, died by electrocution on December 28, 1999, when he came into contact with an energized electric distribution line in Mt. Prospect. Wade Cumpston, a journeyman lineman for Defendant, died by electrocution less than three months later, on March 25, 2000, while changing insulators on de-energized transmission wires. In that same incident, another lineman was injured, but not fatally, by electrocution.
L.E. Myers was charged with two counts of the misdemeanor of wilfully violating OSHA regulations, causing the death of an employee. For better or worse, such criminal charges are not common in industrial America -- perhaps because of the burden of proving a wilful violation, as opposed to negligence. A jury found the company guilty of the Blake Lane charge (Count One) and not guilty of the Wade Cumpston charge (Count Two). Misdemeanors such as these are triable before Magistrate Judges, and appeal lies within the District Court. Fed. R. Crim. P. 58(g)(2)(D).
Defendant contracts with utilities to maintain and repair transmission lines, which carry very high voltage electricity from generating plants to networks that distribute the power to consumers. Defendant had a comprehensive service contract with ComEd to do the maintenance work on ComEd's electrical transmission network. The estimated value of the contract was $750,000. Defendant received work assignments from ComEd on an ongoing basis under the contract.
Defendant does a lot of maintenance work -- millions of work hours at different utility sites each year. The work is patently dangerous, scores of workers are killed by electrocution each year, and the OSHA regulations exist to address (and reduce) this danger.
Defendant was not new to ComEd. In securing its contract in early December of 1999, Defendant represented to ComEd that it was familiar with ComEd's electrical transmission network, and experienced in handling work projects for ComEd.
The ComEd contract obligated Defendant to provide qualified personnel to perform requested maintenance work. It also required Defendant to complete assignments in a workmanlike manner and in conformity with ComEd's construction standards. ComEd provided Defendant with its specifications of the construction standards. Under the express terms of the contract, Defendant also had the sole responsibility for compliance with Occupational Safety and Health Administration ("OSHA") safety standards.*fn1 Defendant had the responsibility to determine the manpower, equipment, and time needed to complete work assignments. Accordingly, ComEd policy was not to instruct Defendant or its employees on how to perform any maintenance work. This is a common practice in industry because the company contracting work out fears that, despite its contract with a provider, it might assume some risk of liability by giving advice or direction. ComEd followed its policy in this case.
ComEd would have an inspector visit the worksite to report the progress of maintenance work and certify the completion of requested assignments. This was required by contract, presumably to avoid later disputes about the performance of the work when the time came to pay invoices for services and to assure ComEd that its specifications were being met during the progress of the work. The inspector was not responsible for work site safety or for instructing Defendant's employees about how to perform a particular job -- this was left up to Defendant.
Under the contract, Defendant was within its rights to ask ComEd for more information regarding work assignments if Defendant or its employees felt that more information was necessary. There was no evidence of Defendant ever failing to receive requested information from ComEd.
Blake Lane died on Tower 97 at the Mt. Prospect facility. He came into contact with what should have been a static wire -- static because its function is not to transmit electricity and therefore it is not usually energized.
Transmission towers may support six energized power lines, with three running on each side of the tower. Each power line is energized with hundreds of thousands of volts of electrical power. Above the three power lines on each side is a "static wire." "Static wires" act as lightning rods to protect the transmission power lines which run below it. Metal hardware bonds the static wire to the steel tower. When lightning strikes, it is drawn to the static wire and flows to the ground through the steel tower, bypassing and protecting the transmission lines. In contrast, the power lines themselves are connected to the tower by "insulators" so that the electrical current is not interrupted at the point of connection. By industry definition, a "static wire" is designed to be a "dead wire" -- a grounded lightning rod designed to protect the power lines which run below it.*fn2 The union-industry training program instructed that static wires are grounded lightning rods, which did not require testing or inspection before working on them. The evidence was that static wires are routinely worked on without testing or other precaution.
When the L.E. Myers crew worked on ComEd Tower 97, one of the "static wires" was no longer static. In 1968, ComEd had altered the design and function of the west-side "static wire" by converting it into an electric power line. A near collision between an aircraft and a ComEd transmission tower, or its lines, led the Federal Aviation Administration to require ComEd to install red flashing warning lights on top of certain transmission towers which were in the flight pattern for O'Hare Airport. To provide a source of power for those warning lights, ComEd converted some portion of the west-side static wire over the transmission lines in Mt. Prospect to an actual power line -- by adding small insulators to that conductor, energizing it to the tune of 2400 volts, and connecting that new power source to the aircraft warning lights. Tower 97 was one of those towers, although 97 itself did not have any aircraft warning lights on top of it and was not in the flight path of the airplanes. The east-side static wire was not changed.
ComEd did not post warnings that it had altered the grounded static wire into an actual energized power line, nor did it put cautionary signs on the tower itself, although it routinely did so for similar hazards. It included no warnings in the written materials it provided to its contractors and no oral alert was given to linemen.*fn3
C. The Blake Lane Fatality
Blake Lane started working for Defendant in December of 1999. Lane had recently attended the well-known (and hard to get into) International Brotherhood of Electrical Workers training school in September of 1999 to become an apprentice lineman. "Apprentice lineman" is an IBEW classification for beginning linemen whose work is restricted in various ways until apprentices have logged a sufficient number of work hours under the supervision of more experienced "journeyman linemen." The specific training Lane had was a three-week training program of basic instruction in climbing, tying knots, working with materials of the electrical trade, and understanding elementary electrical theory concepts, e.g., if an electrical line is not grounded, then that line is not dead. Lane was just beginning a seven-step, three-and-one-half-year apprenticeship program to become a journeyman lineman.
As an apprentice, Lane went to work in Indiana stringing fiber optic phone cable on structures 18 to 20 feet off the ground. He did not deal with "transmission" lines (69,000 volts) or "distribution" lines (12,000- volts). Both kinds of lines -- conductors -- are connected to towers by "insulators" that prevent electric current from being diverted from the power lines through the tower and into the ground. Apprentice linemen are prohibited from working on or near energized transmission and distribution lines.
On December 27, 1999, Lane worked on a job in Streator grounding wooden poles by running a wire from the top of the pole to the ground. The transmission lines on these poles were de-energized while he worked. He worked with an apprentice, Robert Huchel, who had been his roommate and friend at training school.
That day, ComEd called Defendant about an emergency job repairing the east-side static wire on Tower 97, because inspection had disclosed it was coming loose. Photographs showed a pin had partially backed out of the hardware connecting that wire to the tower. Should the pin disengage entirely, the static wire would fall into the power line, likely causing a service outage.
That same day, Lane and Huchel's supervising foreman, Darrin West, told the men they would be traveling with him to the ComEd job the next day. It would be their second assignment for Defendant. West, a journeyman lineman since February of 1999, was a relatively new foreman for Defendant himself, on the job for a total of three or four months. Foremen supervise the assigned work crew and have a duty to advise that crew of safety hazards and ensure compliance with OSHA safety standards and all safety procedures for the duration of the assigned work. The foreman makes the final decision of whether a crew may safely perform a particular job and has the authority to instantly halt unsafe practices and violations of OSHA standards. For all practical purposes, Defendant's foremen are its managers on the job.
Tower 97 was a steel construction high-voltage transmission tower with two 345,000 volt circuits, one on each side (west and east) of the tower. Each circuit consisted of three transmission lines. The uppermost portion of a steel transmission tower is often called a "goat head." The static wires were grounded to the tower arms on each side of the goat head and connected directly to it by a "suspension shoe." A metal pin held in place by a "cotter key" connects the suspension shoe to the goat head.
The west side of tower 97's goat head actually held a live electric distribution line where the static line would ordinarily be. ComEd turned what had previously been a static wire into an electric distribution line by suspending the line from the tower arm on insulators and energizing it. The tower obstruction warning light nearest to tower 97 was located on tower 99. (Trial Tr. 772).
Defendant assigned a general foreman (who is one step above a foreman like West), Roger Nelson, to the job. West and his two apprentices arrived early in the morning and met Nelson, who led them to Tower 97. At the site, West held a pre-job briefing, telling Lane and Huchel that the transmission lines were hot and telling Lane to walk softly on the tower to avoid causing the pin on the east-side suspension shoe to fall out. He told Huchel to be careful with the hand line (a rope and pulley device) they would use to hoist and lower equipment up and down the tower. The rope had to be taut so it would not blow into the hot lines. The briefing did not mention the west-side of the tower.
Foreman West, followed by Lane, climbed the tower. At the top of the tower, West hung the hand line in the middle of the tower. Huchel sent up a chain hoist (a tool used for holding up a string of wire) along with some extra cotter keys. Then West climbed out to the east side of the goat head and found the pin was partly out from the suspension shoe. West placed a safety apparatus on the east side static wire to keep it from falling. Then Lane climbed out to the east side of the tower where he and West and Lane replaced the pin, which is a routine and brief task. Then they climbed back to the center of the goat head where West began lowering the hoist down the hand line.
General foreman Nelson yelled up at West to have him check the west side of the goat head. Nelson had examined the east side of tower 97 with binoculars from the ground but made no other visual inspection of the west side of the tower. Nelson later testified that he was able to see the insulator from the ground without the aid of binoculars, but this observation was made only after Lane had already been electrocuted.
West sent Lane to examine the west side suspension shoe by himself. West looked at what he believed was the west side static wire, but from his vantage point at the center of the goat head he could not see the hardware, including the insulator. Based on what he could see, he assumed the line was not energized -- though he knew that OSHA regulations require all electric lines and equipment to be treated as energized until proven otherwise.
Before sending him to inspect the west side suspension shoe, West told Lane not to touch the wire because West was concerned that doing so could cause the pin to fall out of the suspension shoe. But Lane did touch the wire and this killed him. Huchel, on the ground, heard a pop and saw Lane roll off the tower and hung there by his safety belt. West, lowering equipment to the ground, did not apprehend Lane's electrocution until Nelson yelled up at him. Huchel climbed the tower to aid Lane, but when he reached the top of the tower he saw that Lane was dead. Huchel and West removed Lane's body from the tower arm.
There is no dispute about any of this and little dispute about the rest of the fact -- only about the inferences that should be drawn from them. However, the few facts in dispute were quite significant. The principal issues at trial revolved around the soundness of Defendant's foremen's practices and what Defendant's foremen knew or should have known. The evidence on these points was the following:
(A) Norman Streseman, a ComEd inspector and former lineman himself, was present at the worksite on the day Lane was killed. Streseman's sole job was to make sure contractors like Defendant completed the assigned work. He did not supervise the work or the workers.
Streseman had arrived at the worksite at 8:00 a.m and noticed an insulator holding the west side static wire to the tower while he was waiting for Defendant's crew to arrive. He became concerned that the west side static wire was not grounded to the tower and could be energized by "induction" electricity. Induction occurs where electricity being transmitted at high voltages flows through the air to energize nearby ungrounded lines, even if those lines are de-energized. Streseman feared that the energized 345,000 volt transmission lines on tower 97 could energize the ungrounded west side wire through induction. Streseman testified that he told general foreman Nelson about the insulator, and that he told Nelson, and that no one should touch the west side wire. He asked Nelson if he had any grounding cables to help protect the workers. Nelson denied ever hearing this from Streseman and no other member of Defendant's crew heard it. None of them ever saw the insulator, which was a little larger than six inches and was 115 feet above the ground. There was evidence that it was Streseman who asked Nelson to have his crew check the west side of the tower, but this testimony was disputed.
(B) Defendant's crew stopped to pick up materials for the job. West never bothered to open the box of materials or check the materials against the work order.
The work order provided by ComEd indicated that Defendant's crew would be performing maintenance work on both sides of tower 97. Foreman West received a copy of this work order in advance of the job. However, he never read the work order prior to Lane's death, and so never saw the ComEd construction specifications (required by Defendant's contract with ComEd) described in that work order.
West's pre-job "tailgate meeting" with apprentice linemen Lane and Huchel lasted about five minutes. West knew that Lane and Huchel were both starting apprentices and that they required a more extensive safety discussion. West was aware that neither one had climbed a steel tower before or worked near energized transmission lines approaching 345,000 volts. Defendant did not give these apprentice linemen any training ...