Here’s a nightmare scenario for any environment, health, and safety (EHS) manager: A project manager at a California construction site where an unsupported excavation caved in and killed a worker is going to jail. Let’s take a look at what happened and how the death and the jail sentence could have been avoided.
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What Happened?
The California Court of Appeals for the 6th District recently upheld the involuntary manslaughter conviction of a project manager in the death of a construction worker in a trench collapse at a residential site in Milpitas.
Dan Luo worked for Richard Liu, a real estate agent and licensed general contractor who had completed a number of residential construction projects. Luo was neither a licensed realtor nor a contractor, but he acted as Liu’s assistant, tending to administrative matters and showing properties to potential buyers.
Note: Liu was also convicted of involuntary manslaughter, but dropped his appeal.
In this case, Liu hired a licensed contractor with whom he had worked on past projects to do the foundation and framing work for a house, the design for which required significant excavation to dig out areas for walls and the foundation.
Luo, who described himself as the project manager, was on-site every week observing the work. He is the one who oversaw construction and dealt with the property owner and workers.
The contractor walked off the job, and Luo had to find new workers to complete the job, which was by then behind schedule. The person Luo hired to finish the work was not a licensed contractor but a union carpenter who would sometimes independently take on side construction projects. He was hired to complete the foundation work, and understood that he was being hired as an employee of Liu’s company. He considered himself a worker under Luo’s supervision and not responsible for the safety of the jobsite. In addition to the carpenter, several other workers were hired to complete the job.
A city inspector came to the jobsite and handed Luo a Stop Work Notice because excavation was being done without required shoring. Luo was ordered to stop the work until the site was approved by the city.
Luo did not did not tell any of the workers about the notice, and he did not direct anyone to stop work. He took the notice to the engineer who had prepared the initial soils report for the project and told him the city was requiring a shoring system for the excavation. They discussed fashioning a rudimentary shoring system out of plywood, but the engineer did not visit the site nor provide recommendations specific to the hallway excavation area. Luo never sought approval from the city to continue the construction.
Three days after the Stop Work Notice was given, an excavation wall collapsed directly on top of a worker, crushing his skull and killing him.
Luo was convicted of involuntary manslaughter and sentenced to 2 years in jail.
On appeal, Luo contended, in part, that there was insufficient evidence to support his conviction for involuntary manslaughter because the prosecution did not present expert witness testimony to establish he owed a duty to the victim or that he breached a duty.
Appeals Court: Expert Testimony Not Required
Luo asserted that expert testimony was required to establish the duty, or standard of care, with which he was required to act, and whether his conduct amounted to a breach of that duty. But, according to the Appeals Court, expert testimony is only appropriate where the subject of the testimony is “beyond the common experience.” Whether a person of ordinary prudence would foresee a risk of death or bodily harm in certain conduct is not beyond common experience––it is necessarily within it. Expert testimony is not required where the question is what a reasonable person would do.
Luo also claimed the prosecution was required to present evidence as to the standard of care owed by defendant “in his capacity as an unlicensed person and assistant to a general contractor.” But, according to the court, the issue here is whether Luo acted without the same regard for human life that an ordinary person—without regard to occupation––would have observed.
The Court said that Luo was not being held to any heightened standard of care, only an ordinary standard: to avoid acting in a manner that creates an objectively foreseeable risk of death or bodily harm. Therefore, no expert testimony was needed.
The Court also agreed with the prosecution that Luo was in a supervisory position at the construction site, took no action to enhance the safety of the workplace, violated several applicable safety regulations, did not inform the workers that he had been ordered by the city to stop work because of a dangerous condition, and directed the victim to work in the dangerous area even after receiving the Stop Work Notice.
Takeaway for EHS Managers
It was made clear in this case that Luo was rushing the job because it was behind schedule. He was not clear in the communication with the carpenter about responsibility for on-site safety. Most important, Luo ignored a Stop Work Notice and also carried out the conditions of the order haphazardly.