Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 02 CR 1205. James B. Zagel, Judge.
The opinion of the court was delivered by: Sykes, Circuit Judge.
Before KANNE, SYKES, and TINDER, Circuit Judges.
L.E. Myers Company, a large electrical contractor, was convicted of willfully violating Occupational Safety and Health Administration ("OSHA") regulations, causing the death of one of its employees. See 29 U.S.C. § 666(e). An apprentice linesman in the early stages of his training with L.E. Myers was killed while working on a repair assignment atop a transmission tower owned by Commonwealth Edison ("ComEd"). The "static" wire on the tower was not in fact "static" (i.e., a grounded "dead" wire) but instead was energized; the apprentice came into contact with it and was electrocuted.
On appeal L.E. Myers argues that the magistrate judge who presided at trial improperly instructed the jury on the issues of corporate knowledge and conscious avoidance. The company also argues that the judge erroneously excluded evidence of a 1979 fatality involving a ComEd linesman who was electrocuted by contact with an energized static wire. Finally, the company claims it is entitled to a new trial based on a proposed OSHA regulation creating new duties for "host employers" like ComEd regarding hazards at their transmission facilities. The proposed rule, published for notice and comment after the trial was concluded, was accompanied by an explanatory comment from OSHA describing energized static wires as one such hazard.
We reverse. The magistrate judge improperly instructed the jury on corporate knowledge and conscious avoidance. Corporate knowledge in this context includes knowledge of hazards acquired by the corporation's employees provided the employees in question are responsible for reporting such hazards to the corporate hierarchy. This important proviso was omitted from the jury instruction on corporate knowledge. Furthermore, there was insufficient evidentiary support for the conscious avoidance or "ostrich" instruction; it should not have been given. Because the statute's willfulness requirement was the central point of contention in this criminal OSHA case, we are not convinced that these instructional errors were harmless. Remand for retrial is required.
We reject L.E. Myers's evidentiary argument, however; the evidence of the 1979 ComEd fatality was properly excluded. Finally, because we are reversing for a new trial based on instructional error, we need not address whether L.E. Myers is entitled to a new trial based on the proposed OSHA regulation.
Electric transmission towers carry high-voltage electricity from generating plants to distribution networks for further distribution to the utility's customers. These towers typically have six energized power lines, three on each side of the tower. A "static wire" runs above the power lines on each side and acts as a lightning rod, directing strikes of lightning toward the towers and then to the ground, preserving the insulators and the wires. Energized power lines have 10-foot insulators connecting the lines to the tower. A static wire, however, usually will not have any insulator between itself and the tower; it is a grounded "dead" wire. In rare instances a static wire can become spontaneously energized by induction, depending on its proximity to and the level of voltage in the transmission lines.
L.E. Myers is one of the largest electrical contractors in the nation and contracts with electric utilities to provide maintenance and repair work on transmission lines.
L.E. Myers had a longstanding contractual relationship with ComEd to perform maintenance and repair work on ComEd's transmission network in the Chicago area and received regular work assignments from ComEd to service its transmission towers. Under the L.E. Myers/ComEd contract and L.E. Myers's collective bargaining agreement with its employees, L.E. Myers was responsible for compliance with OSHA safety standards on these service jobs.
In 1968 one of ComEd's transmission towers located in the flight path of O'Hare Airport in Chicago was nearly struck by a plane. As a result, the Federal Aviation Administration required ComEd to place lights on top of its transmission towers near airports in the Chicago area. To power the lights, ComEd energized the static wire on one side of the affected towers, making it an "energized static wire," which would otherwise be an oxymoron. The energized static wires on these towers had small six-inch insulators separating them from the towers.
A. The Blake Lane Fatality
On December 27, 1999, ComEd asked L.E. Myers to perform emergency service on Tower 97 in Mt. Prospect, Illinois. ComEd's visual inspection of the tower had revealed that the pin holding the static wire on the east side of the tower was loose. If the wire broke free, it could fall onto the transmission wires below, causing power outages. The next day L.E. Myers assembled a crew for this assignment: Roger Nelson, a general foreman; Darin West, a foreman; and apprentices Blake Lane and Robert Huchel. Lane and Huchel had recently graduated from the American Line Builders Joint Apprentice-ship and Training Program and had just that month started working at L.E. Myers as apprentice linesmen. Norman Streseman, a ComEd inspector, was present at the job site to ensure that the work was completed; in accordance with the contract and ComEd policy, however, he did not directly supervise the repair work.
The L.E. Myers crew arrived at Tower 97 and briefly discussed the work to be done, but West (the foreman) did not read the ComEd construction specifications included in the work order. Huchel stayed on the ground with Nelson to operate the "hand line"-a pulley used to send equipment up and down the tower. West and Lane climbed up the tower and successfully secured the east-side static wire. Nelson, the general foreman, then called up to them to check the west-side static wire to see if it was loose as well. Nelson had visually examined the east-side static wire with the aid of binoculars before West and Lane climbed the tower; he had not, however, visually inspected the west-side static wire and so did not notice the small insulator attached to it.
In response to Nelson's direction, West sent Lane to the other side of the tower to check the west-side static wire. West did not notice the insulator either. From his vantage point on the opposite side of the tower, he could not see the hardware connected to the west-side static wire. West told Lane not to touch the static wire- but not because he understood that it was energized.
Rather, he told Lane not to touch the wire because he thought the pin might break loose, causing the wire to fall onto the power lines. Lane accidentally touched the energized west-side static wire and was fatally electrocuted.
B. The Wade Cumpston Fatality
About three months later, on March 25, 2000, Wade Cumpston, a journeyman linesman with extensive experience working on electrical towers, was part of an L.E. Myers crew replacing insulators on another set of trans-mission lines. The wires on the side where the crew was working had been de-energized, but the wires on the other side had not. This left the possibility that the de-energized wires could become energized by induction from the high voltage in the energized wires. To ...