This came out a couple of weeks ago but it takes us older folks time to dodder through 67 pages. This criminal case says unfortunate things about common law.

Far West ran a wastewater treatment plant. An employee suffered death by sewage in an underground tank. The recitation of facts borders on hysteria but is intended to show that the company’s higher-ups flagrantly disregarded and evaded safety measures, OSHA requirements, etc. Far West itself was convicted of various crimes including negligent homicide and aggravated assault.

It argued on appeal that it couldn’t be criminally liable and that the court made mistakes at trial. We will hit the highlights.

33-305 says that an “enterprise” commits a criminal offense if “the conduct constituting the offense consists of a failure to discharge a specific duty imposed by law” or if (paraphrasing) it is authorized or recklessly allowed by a manager. Maybe we shouldn’t blame the court’s analysis for being as clunky as the statute, though judges do preen themselves about being wiser than mere legislators. (In fairness, Far West’s arguments – that one statute “violates” another, for example – were evidently not well-crafted; sewage in, sewage out.)  The opinion should have focused on the second part of the statute. Instead, the brunt of it seems to be that the common-law duty to provide a safe workplace is a “specific duty imposed by law,” that it is no different than the requirements of 23-403 (to keep a safe workplace), and that it can therefore trigger the first part of 33-305.

We don’t know much criminal law but the folks connected with this case don’t seem to have known much civil. The common-law duty to provide a safe workplace for employees is just like the common-law duty to provide a safe store for customers, and like traditional common-law duties in general: a duty to use due care under the circumstances to make and keep things reasonably safe. The courts have been telling us for years that duty is separate from the acts necessary to fulfill it (Palsgraf rest in peace, though of course duty was not specific under that case, either). To call the duty to use reasonable care a “specific” duty, or to say that it is the same as a statute that says “you shall do such-and-such,” is a new conception of common law – or a misconception.

So when does a company’s negligence become criminal culpability? How does a corporation “assault” someone who slips on a loose widget? The opinion, clearly sensitive to criticism on that issue, devotes a whole section to saying that they are completely different things. What it boils down to is that criminal acts are really bad as opposed to just moderately bad and that courts know the difference when they see it.

As to the alleged errors at trial, the court justified a set of instructions that may have been, reading between the lines, even more fouled up than Far West made it out to be. More disturbingly, though, it held that the trial court was correct to allow evidence of the ADOSH investigation. A statute clearly prohibits that. But the court said that the statute merely creates a privilege that ADOSH can waive, citing for the proposition an Arizona Supreme Court case that it can’t have read since that just ain’t the holding. There is law about whether a statute can control evidence but none of it is here.

(link to opinion)