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Why the Homicide Conviction in California for Trenching Violations Could Contribute to Workplace Safety

Why the Homicide Conviction in California for Trenching Violations Could Contribute to Workplace Safety

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The case of 39-year-old Raul Zapata, who died in 2012 in a trench during construction of large home in California, now may have ended with some justice (the defendants could appeal). Zapata died three days after city inspectors red-tagged the construction site where he worked because of heavy rains.

The city’s red tag did not discourage the company owner Richard Liu, 53, and project manager Dan Luo, 37, from continuing the work without proper safety measures. Consequently, Zapata was buried alive as the nearby dirt and rock fell on him.

The Santa Clara County District Attorney's Office saw the death as something more than an accident.  The DA charged Liu and Luo with involuntary manslaughter. (In some states, this would be considered negligent homicide).  Liu and Luo were convicted and sentenced July 31 to two years in jail.

Tracey Kaplan of the San Jose Mercury News opened her report on this with, “In a rare criminal case that sends a stern warning to the Bay Area's booming construction industry…”  What troubles me is that Kaplan is right in characterizing this as a rare criminal case.

Some forms of work involve the risk of injury.  And employers and workers are morally and legally obliged to minimize the risk of serious harm and death.  This is not a new idea.

In this day and age, how can any employer digging trenches or operating grain silos not know that these environments can kill workers?  Yet, workers continue to get killed in trenches and silos.  Why? 

When Liu and Luo were convicted in May this year, Santa Clara County Prosecutor Bud Porter said, “By cutting corners on worker safety, the defendants gambled with the lives of other human beings.” This brings to mind a call I got at OSHA from a contractor. He complained that his subcontractor (the lowest bidder) was ignoring safe practices to save money.

 If employers are willing to risk the lives of workers to save money, then those employers should expect that they will go to jail for the deaths of those workers. I wish I would not see another story of a worker killed in a trench or grain silo.  But when it happens again in California, I would like to see Tracey Kaplan open her story with “Once again, the district attorney has sent a message to employers who recklessly or negligently cause the death of workers.” 

An eminent defense attorney told me, “People don’t like to pay fines, but they hate going to jail.”  Five or six convictions a year for negligent homicide, around the country, should lead to safer workplaces.

Edward Stern served the U.S. Department of Labor for 40+ years as a senior economist and policy/program analyst. He developed regulations, analyzed enforcement strategies and innovated methods of compliance assistance. For the last 27 years, in OSHA, he examined health and safety risks and regulatory feasibility. He also led teams of scientists, IH’s, engineers, doctors, nurses, systems analysts and attorneys from the Department of Labor and the public sector to develop interactive, diagnostic “Expert Advisors” to answer which, whether and how OSHA rules applied to situations.

TAGS: Safety
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