Appeals Court Rules on Project Manager’s Manslaughter Conviction
The California Court of Appeal has upheld the involuntary manslaughter conviction of a construction project manager in an infamous 2012 trench death. The Sixth Appellate District in San Jose rejected all of defendant Dan Luo’s claims.
Luo’s attorney asserted that the trial yielded insufficient evidence to support his conviction, that the Superior Court judge committed instructional errors and improperly limited witness cross-examination, that prosecutors did not give Luo adequate notice of the charges against him, and that the prosecution failed to specify a particular criminal act. The defense also took a stab at undermining Labor Code section allowing employers and supervisors to be criminally charged in safety fatalities, saying it is unconstitutionally vague.
Luo was convicted by a Santa Clara County jury in 2015 and sentenced to two years in county jail. His employer, Richard Liu, CEO of U.S.-Sino Investment, also was convicted and appealed, but later dropped that appeal.
“The question is what a reasonable person would do.” – California Court of Appeal
Luo acted as project manager for a residential construction project on a hillside in Milpitas. He had no experience in construction and was not a licensed contractor, but had “acted as Liu’s assistant, tending to administrative matters and selling properties to potential buyers,” the ruling states.
One such party was the person who bought the Milpitas property from U.S.-Sino, then agreed to let the company design and build the home. Liu was often out of the country, so Luo oversaw construction and dealt with workers and the property owner.
But the project ran into trouble in 2012 when the contractor hired to build it walked off the job after not having been paid for two weeks, the court notes.
The contractor had not completed the house’s foundation, and a 12-foot-high, unshored dirt wall with an overhanging ledge remained in place.
Stop-Work Order Ignored
Luo hired a carpenter and several laborers to finish the foundation. “Defendant did not put in place any safety job plan nor did he meet with the workers to discuss safety,” the three-judge panel notes.
Work on the foundation resumed on January 16, 2012, and nine days later, an inspector from the City of Milpitas visited the job site and issued a stop-work order for the project because of the unshored trench.
Additionally, the area had experienced heavy rains during that period. The order warned U.S.-Sino not to begin work again until the city’s building and safety department had inspected and approved the excavation.
But, according to prosecutors, Luo did not tell the workers about the stop-work order and did not direct them to stop working, merely telling them that the city wanted the excavation benched. And he did not request or receive approval to resume work.
Two days after the order was issued, Luo “specifically instructed the workers to work in the excavation area,” the court recounts. The project manager was expecting a visit from the property owner and wanted to show progress. He instructed the workers to place boards along the dirt wall that was designed to become a hallway.
The next day, laborer Raul Zapata was working at one end of the excavation to nail forms when the wall collapsed, crushing his skull.
The jury convicted Luo of involuntary manslaughter and three counts of willfully violating Cal/OSHA safety orders.
Reasonable Person Standard
Luo’s attorney, Marlene Thomason, argued that there was insufficient evidence to support a manslaughter conviction because the prosecution did not produce an expert witness to establish that he “owed a duty to the victim or that he breached that duty.”
But, the court ruled, a defendant can be convicted of involuntary manslaughter despite a “good faith” belief that the conduct posed no risk if the belief was objectively unreasonable under the circumstances.
Expert testimony is only required when the subject of the testimony is “beyond the common experience. Expert testimony is not required where the question is what a reasonable person would do.”
As to the expert testimony allegation, Thomason argued that such testimony was also required to establish that Luo violated the stop-work order.
But the court said the prosecution only needed to establish that Luo acted “without appropriate regard for human life.” The evidence was sufficient for a rational jury to conclude he was guilty of involuntary manslaughter “by performing a lawful act that might produce death, without due caution or circumspection.”
Luo’s defense also contended that there was no evidence to support a conviction for violations of Labor Code §6425 and that there was no evidence from which a jury could infer that violations of Construction Safety Orders §1541 “proximately caused” Zapata’s death. But the appellate court said, “We find ample evidence presented from which to infer noncompliance with the regulations caused the death in this case.”
The court also rejected Luo’s attorney’s arguments that the trial judge issued erroneous instructions to the jury and erred in refusing to give a “special instruction” to the jury specifying that the prosecutor presented no evidence that Luo violated the stop-work order. The instruction “has no legal basis,” the court said. “Evidence was presented at trial that defendant ignored the Stop Work Notice.”
“Defendant ignored the Stop Work Notice.” – California Court of Appeal
And the judges also rejected the attorney’s claims that the trial judge limited her ability to cross-examine witnesses.
Labor Code Unconstitutional?
Finally, attorney Thomason argued that LC §6425, which allows prosecution of managers and supervisors for willful safety violations that result in death, is unconstitutionally vague and violates the U.S. Constitution’s due process clause. She contended that it does not provide adequate notice of what conduct is prohibited and allows for “arbitrary and discriminatory enforcement.” It does not provide sufficient warning to employers or supervisors that they could be prosecuted for willful violations. A person reading only the text of the underlying regulations (CSO §1541 in this case) would not know that they could be exposed to criminal liability, she argued.
But, the court said, “it makes little sense” to completely discard §6425 and focus just on the regulation. And it also rejected the contention that the statute could lead to criminal enforcement against anybody on a construction site. The Labor Code “limits criminal sanctions to employers and those employees who exercise direction, management, and control,” the judges said.