Merced, Calif. dairy farmer Patrick J. Faria has been acquitted in the deaths of two workers who were overcome by fumes after going into a manure pit without training or safety equipment.

Faria had been charged with involuntary manslaughter in the 2001 deaths of Enrique Araisa and Jose Alatorre. The prosecution was based upon alleged violations of California's permit-required confined space regulations under changes made to the law by AB 1127 in 2000.

According to investigators, Alatorre climbed into a narrow 40-foot deep manure pit at Faria's dairy to unclog it. Overcome by fumes, Alatorre fell and drowned. As too often happens in these emergencies, Araisa climbed in to help Alatorre and suffocated.

Prosecutors argued that this hazard should have been obvious to Faria, who had received confined space training. They alleged that as a result, Faria failed to provide his workers with the training and equipment they needed to go into the pit safely. Instead, the jury blamed Cal/OSHA for failing do enough to warn dairy farmers about the specific dangers posed by manure pits. Jurors said they were concerned about lax state regulation of manure pits more than three years after the deaths.

"We did find it striking the state still does not require warning signs," said foreman David Beebe. "It seems patently callous now, given the circumstances."

This case was the subject of the third of a three-part front page series by the New York Times earlier this year. The Times showcased this prosecution to contrast what it called California's tough criminal enforcement policy in employee death cases against Fed/OSHA's alleged laxity. The Merced County District Attorney was assisted by Roy Hubert, Senior Circuit Prosecutor with the California District Attorney Association charged with prosecuting Labor Code section 6423 violations.

Although this case was successfully defended, the employer endured three years of a criminal prosecution and a trial, and the emotional and monetary costs which come with that. The case highlights the need for employers to pro-actively avoid incidents, and to rigorously defend their interests if and when an incident occurs. For help on either of these issues, please take a look at our archive of past e-zines or e-mail us at fred@walterlaw.com.

Sources: Cal-OSHA Reporter, AP and the Los Angeles Times