People v. Reagan ( 1998 )

—Appeal by the People, as limited by their brief, from so much of an order of the County Court, Orange County (Byrne, J.), dated December 17, 1997, as granted (1) those branches of the omnibus motion of the defendants Roger Reagan, Jr., a/k/a Bill Reagan and Westar Mechanical, Inc., which were to dismiss (a) counts one and two of the indictment charging them with manslaughter in the second degree, and (b) counts five and six of the indictment charging them with reckless endangerment in the second degree, and (2) those branches of the separate motion of the defendant 5L Enterprises, Inc., which were to dismiss counts five and six of the indictment charging it with reckless endangerment in the second degree.

Ordered that the order is affirmed insofar as appealed from, without costs or disbursements.

The charges here arose out of a tragic, fatal accident in which two workers drowned while digging a ditch when a water pipe burst, filling the ditch with water.

The proof before the Grand Jury established that the defendant Roger Reagan, Jr., a/k/a Bill Reagan was the president of the defendant Westar Mechanical, Inc. (hereinafter Westar), which was hired to install a water and sewer line on certain property in the City of Middletown (hereinafter the City). Reagan hired the defendant 5L Enterprises, Inc. (hereinafter 5L), to perform excavation work in connection with the installation. As workers from Westar and 5L were excavating the ditch, they unexpectedly encountered a water pipe. When informed of it, Reagan immediately ordered the work stopped. He then conferred, on location, with Richard Brannan, the plumbing inspector for the City, as to the best way to proceed. The plumbing inspector, acting on behalf of the City, did not stop the excavation, nor did he direct or require that the pipe be supported or the trench be shored, or that the water be shut off. On the contrary, the conference with Brannan, at the scene, resulted in Reagan telling the men to continue, but to avoid getting too close to the pipe. Thereafter, the accident occurred and, despite frantic efforts to save the two workers inside the ditch, the water level rose for approximately one-half hour, and the two workers drowned.

The defendants were charged in an indictment containing six counts. Counts one and two charged Reagan and Westar with manslaughter in the second degree (Penal Law § 125.15 [1]); counts three and four charged all of the defendants with criminally negligent homicide (Penal Law § 125.10); and counts five and six charged all of the defendants with reckless endangerment in the second degree (Penal Law § 120.20). In connection with the defendants’ omnibus motions, inter alia, to inspect the Grand Jury minutes and dismiss the indictment, the County Court distinguished between recklessness on the one hand, and criminal negligence on the other. It dismissed counts one, two, five, and six of the indictment that were premised on recklessness, and left intact, for trial, the two counts of criminally negligent homicide. We affirm. The evidence before the Grand Jury was insufficient to establish the element of recklessness. Furthermore, the proof failed to support a finding that the deaths of the two workers by drowning were foreseeable.

Reckless conduct, which is a primary component of both manslaughter (Penal Law § 125.15 [1]) and reckless endangerment in the second degree (Penal Law § 120.20), is defined in Penal Law § 15.05 (3): “A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation”.

The People have failed, as a matter of law, to present evidence to satisfy the above-quoted definition. The evidence revealed that when the defendants recognized a possible danger, Reagan himself halted the work, and nothing was done until after his discussion with the City plumbing inspector, Richard Brannan, at the site, as to the appropriate procedure to follow.

Contrary to the dissent’s position, the evidence before the Grand Jury established that the City plumbing inspector was both qualified and authorized to approve or disapprove continuation of the excavation, and to determine the issue of how to deal with the pipe. Indeed, Brannan testified that he had been the City’s plumbing inspector for over 14 years, and that he had been in the plumbing business for 17 years before that. He further testified that part of his official duties as City plumbing inspector involved visiting excavation sites. In this respect, the defendants’ reliance upon 16 NYCRR 753-4.9 (d) supports their position. That section (and its predecessor, 12 NYCRR former 53-4.11 [b], in effect at the time of the accident) provides that where, as here, an operator (here, the City) of an underground facility is notified that an unknown underground facility (here, the water pipe) has been discovered in the course of an excavator’s work, the operator shall “immediately determine whether or not such discovered facility is his or hers by means of records, on-site inspection or otherwise, and * * * (2) if such facility does belong to him or her, advise the excavator on how to proceed and of any special requirements the operator deems necessary”. The City plumbing inspector obviously superintended the excavation, over which he had unquestioned legal and official control, so as to comply with the regulation vis-avis the security and integrity of the pipe. We are not holding that tacit or express official approval will automatically absolve a defendant of criminal charges. Our holding is limited to the facts and circumstances of this case, and we note further that the County Court left intact the criminal negligence counts, which are not before us on this appeal.

There was no evidence presented that anyone at the scene, including the participants, contractors, plumbers, laborers, excavators, or the City, objected to the procedure, or went ahead recklessly (i.e., with heightened awareness of a substantial and unjustifiable risk of collapse, let alone a risk of drowning). They all continued, believing the prescribed approach to be both appropriate and officially approved. AJI of this not only fails to support, but negates the element of recklessness that the defendants were aware of and “consciously disregard[ed]” a “substantial and unjustifiable risk”. Considering that the defendants’ conduct did not amount to a conscious disregard of a known risk, the additional statutory element — that the disregard be so extreme as to be a gross deviation from a reasonable person’s standard of conduct — is, a fortiori, not met (see, People v Warner-Lambert Co., 51 NY2d 295; People v Roth, 176 AD2d 1186, mod 80 NY2d 239, cert denied 450 US 1031). While tragic drownings ensued, that does not convert the defendants’ actions into criminal recklessness, except by hindsight. Thus, this case also fails to satisfy the foreseeability element of criminal liability for recklessness.

As the Court of Appeals said in People v Roth (80 NY2d 239, 243-244, supra):

“For purposes of criminal liability, it was not enough to show that, given the variety of dangerous conditions existing at the site, an explosion was foreseeable; instead the People were required to show that it was foreseeable that the explosion would occur in the manner that it did.

“It was error, therefore, to instruct the Grand Jury that the defendants could be indicted ‘if you find that they recklessly created unsafe conditions that led to [the victim’s] death by a foreseeable event, namely, the explosion’ ”.

The actual causative events and the supposed preventability of the drownings by the use of shoring is too speculative to satisfy the standard of criminal recklessness, or foreseeability in the context of criminal recklessness. In measuring whether a risk is substantial and unjustifiable and whether conduct is a gross deviation from that of a reasonable person, it bears emphasizing that no one at the scene foresaw or suggested, prior to continuation of the digging, that the water should be shut off for fear of drowning. Moreover, the County Court pointed out an additional cause of the drownings, notably the failure of others, who had control of the water system, to turn off the water after the pipe burst. This also speaks to unforeseeability.

The dissent’s position is incompatible with established, governing case law and would, without precedent, inappropriately extend and import civil liability concepts for OSHA violations into the realm of homicide, by way of criminal recklessness. The Warner-Lambert Court explained that before criminal liability for recklessness may be sustained, the defendants must have foreseen the precise cause of death and then their disregard of that risk must have constituted a gross deviation from the standard of care that a reasonable person would have observed in the situation. It is not enough that a defendant’s actions lead to someone’s death (see, People v Warner-Lambert Co., 51 NY2d, supra, at 306-307). In Warner-Lambert the defendants were warned of a risk of explosion and ignored it. An explosion did take place but by means of a different combination of factors. The Court of Appeals held that the foreseeability prerequisite for recklessness was lacking. In the Court’s language: “inasmuch as the .evidence before the Grand Jury was not legally sufficient to establish the foreseeability of the actual immediate, triggering cause of the expíosion, defendants cannot be held criminally culpable” (People v Warner-Lambert Co., 51 NY2d, supra, at 307). If criminal recklessness could not be sustained for indictment in Warner-Lambert — a vastly more egregious case than the one before us — it may not be sustained here. Rosenblatt, J. P., Copertino and Altman, JJ., concur.