THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin
Go to Shellow Collection Table of Contents

Occupational Safety and Health Act of 1970 (29 USC 654)

    1.    General Instruction On Purpose Of OSHA
    2.    OSHA Violations: Statute
    3.    Evidence Of Accident Is Not Evidence Of OSHA Violation
    4.    Jury Must Review Violation Of Each Regulation Separately
    5.    "Causation" Defined
    6.    "Proof" Defined
    7.    Corporate Responsibility
    8.    Specific Intent
    9.    OSHA Violations: Corporate Willfulness
    10.  "Willful" Defined
    11.  "Willfully" Defined
    12.  "Willfulness" Defined
    13.  Willful: Factors To Consider
    14.  Willful: Evidence To Consider
    15.  Corporate Willfulness: Outside Inspections
    16.  OSHA Violations: No Strict Liability
    17.  No Imputation Of Unforeseeable Conduct
    18.  Violations Must Be Willfull, Knowing And Must Be The Cause Of Accident
    19.  Jury Many Consider Whether Language Of The Regulation Was Vague Or Uncertain
    20.  "Significant Risk of Harm" Defined
    21.  Issues Not Involved In Federal Criminal Trial
    22.  Elements Of The Offense: Knowledge
    23.  "Corporate Knowledge" Defined; "Supervisory Employee" Defined
    24.  Mere Expressions Of Doubt Or Concern By Employees Insufficient Alone 
           To Constitute Corporate Knowledge
    25.  Knowledge Presented Through Safety Committee
    26.  Statements Made Amongst Employees Are Not Statements Of Company 
           Nor Are Minutes Of Safety Committee
    27.  Witnesses Are Not Property Of Either Party
    28.  Refreshing Recollection
    29.  Credibility: Witness Attitude
    30.  Knowledge Required
    31.  Assumptions, Beliefs And Suspicions Of Employees Never Imputed 
           To Corporate Employer
    32.  Corporate Knowledge: Mere Conclusions Not Imputed To Corporation
    33.  Corporate Knowledge: Weight
    34.  Corporate Knowledge: Reliability Of Source Required
    35.  Corporate Knowledge: Identity Of Employee With Knowledge Required
    36.  Office Gossip: Reliability
    37.  No Absolute Duty To Avoid An Accident; Fault
    38.  Authentication Of Documents
    39.  Jurors Not To Consider Punishment
    40.  Jurors Not To Consider Civil Litigation Against Corporation
    41.  Good Faith Defense
    42.  Knowledge of Independent Contractor Not Imputed to Corporation
    43.  Knowledge Obtained Outside Scope of Employment Not Imputed to Employer
    44.  Employee Notes
    45.  Union Officer Notes
    46.  Situations In Which 29 CFR 1910.36 Is Applicable
    47.  Essential Elements Of 29 CFR 1910.36(b)(1)
    48.  Essential Elements Of 29 CFR 1910.36(b)(2)
    49.  Essential Elements Of 29 CFR 1910.36(b)(4)
    50.  Essential Elements Of 29 CFR 1910.36(b)(8)
    51.  Essential Elements Of 29 CFR 1910.36(d)(1)
    52.  Essential Elements Of 29 CFR 1910.37(d)(1)
    53.  Essential Elements Of 29 CFR 1910.37(k)(2)
    54.  Essential Elements Of 29 CFR 1910.272(n)(1)
    55.  Intent Of The Standards Charged
    56.  "Building Or Structure Designed For Human Occupancy" Defined
    57.  "Means of Egress" Defined
    58.  "Exit" Defined
    59.  "Exit Access" Defined
    60.  "Required Exit" Defined
    61.  "Exit Discharge" Defined
    62.  "Capacity of Means of Egress" Defined
    63.  "Free Of Obstructions" Defined
    64.  "Free Of Impediments" Defined
    65.  "Means Of Emergency Escape" Defined

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

1.     General Instruction On Purpose Of OSHA

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

New York State Elec. & Gas v. Secretary of Labor, 88 F.3d 98, 103 (2d Cir. 1996); REA Express, Inc. v. Brennan, 495 F.2d 822, 825-26 (2d Cir. 1974); Horne Plumbing & Heating Co. v. OSHRC, 528 F.2d 564, 568-69 (5th Cir. 1976).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

2.    OSHA Violations: Statute

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

3.    Evidence Of Accident Is Not Evidence Of OSHA Violation

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

AUTHORITY:  

National Realty and Construction Company, Inc. v. Occupational Safety and Health Review Commission, 489 F.2d 1257, 1267 (D.C. Cir. 1973) (". . . actual occurrence of hazardous conduct is not, by itself, sufficient evidence of a violation, even when the conduct has lead to injury."); B&B Insulation v. Occupational Safety and Health Review Commission, 583 F.2d 364, 372 note 17 (5th Cir. 1978) (Commissioner Cleary [of the Review Commission] found the risk of a fall in this case to be demonstrated by the fatal fall which occurred. . . . We reject Commissioner Cleary's approach, observing that prevention is not served by hindsight determinations of hazardous conditions . . ."); Cape and Vineyard Division of the New Bedford Gas and Edison Light Company v. Occupational Safety and Health Review Commission, 512 F.2d 1148, 1154-55; Secretary of Labor v. Rockwell International Corporation, 9 BNA OSHA 1092-1098 (1980) ("... the occurrence of an injury is not a necessary predicate for establishing a violation . . .,").

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

4.    Jury Must Review Violation Of Each Regulation Separately

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See NCJIC 274.1 [Multiple Counts Or Offenses -- Miscellaneous Issues].

See NCJIC 276.8.2 [Multiple Counts: Special Instructions].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

5.    "Causation" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to find that the violation of the OSHA standards charged caused the death of __________ (name of victim), you must find that defendant's willful failure to comply with the specific requirements of the standards, not any other factors, directly caused the death of __________ (name of victim).

29 USC 666(e).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 55: Causation.

See generally NCJIC Chapter 69: Corporate Liability.

See NCJIC 305.3.1 [Causation].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

6.    "Proof" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Mercado, Case No. 93-CR-116 (E.D. Wis. 1994); State v. Esker, No. 89-CR-1148 (Marathon County 1990); United States v. Zapata, No. 87-CR-84 (E.D. Wis. 1987); State v. Gelhaar, No. K-7185 (Milwaukee County Circuit Court 1986); United States v. Bronk, No. 84-CR-54-S (W.D. Wis. 1985); United States v. Matta, No. 82-CR-20 (E.D. Wis. 1982); United States v. Kramer, Case No. 81-CR-106 (E.D. Wis 1982); United States v. Wornock, No. 76-CR-549 (N.D. Ill. 1978); United States v. Stillman, No. 80-133-Erie (W.D. Pa. 1981); United States v. Robinson, No. 78-CR-106 (E.D. Wis. 1979); United States v. Balistrieri, Case No. 81-CR-152 (E.D. Wis. 1983).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See generally NCJIC Chapter 270: Burdens And Standards Of Proof.

See generally NCJIC 270.5 [Reasonable Doubt Standard: Specific Words And Phrase].

See generally NCJIC Macro 309.2 [Burden Of Proof].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

7.     Corporate Responsibility

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Koppers Company, Inc., 652 F.2d 290, 298 (2d Cir, 1981).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See generally NCJIC Volume 6: Theories Of Criminal Responsibility And Defenses Thereto.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

8.    Specific Intent

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The government must prove beyond a reasonable doubt that the ________ (name of company) had the specific intent to violate the statute charged in the indictment. A corporation can be said to have a state of mind only when that state of mind is possessed by a single individual. Thus, in order for the jury to return a verdict of guilty, it must first find beyond a reasonable doubt that at least one supervisory agent of ________ (name of company) had the specific intent to violate the statute.

United States v. LBS - Bank, Inc., 757 F. Supp. 496, 501 n.7 (E.D. Pa. 1990); Louisiana Power & Light v. United Gas Pipe Line, 642 F.Supp. 781, 803 (E.D. La. 1986); Hasakis v. Trade Bulkers, Inc., 690 F.Supp. 260, 259-60 (S.D.N.Y. 1988).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 45: Criminal Intent.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

9.    OSHA Violations: Corporate Willfulness

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

First paragraph: United States v. LBS Bank -- New York, Inc., 757 F. Supp. 496, 501 n. 7 (E.D. Pa. 1990); First Equity Corp. v. Standard & Poor's Corp., 690 F. Supp. 256, 260 (S.D.N.Y. 1988), aff'd, 868 F.2d 175 (2d Cir. 1989); Louisiana Power and Light Co. v. United Gas Pipe Line Co., 642 F. Supp. 781, 803 (E.D. La. 1986) (specific intent).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

10.    "Willful" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The term "willful," as used in these instructions is as follows: The failure to comply with a safety standard under the Occupational Safety and Health Act is "willful" if done knowingly and purposely by an employer who, having a free will or choice, [either] intentionally disregards the standard [or is plainly indifferent to its requirement].(1) A willful failure to comply requires knowledge of the particular standard at issue [or knowledge that the particular act is illegal],(2) an intent to violate the standard,(3) and a conscious and deliberate choice or decision to do so.(4) "Willful " requires an affirmative act, either of commission or omission, but not merely the careless omission of a duty, lack of diligence, or lack of adequate care.(5)

    [Optional] An employer is not guilty of willful failure to comply with a safety standard under the Occupational Safety and Health Act if the employer in good faith believes that it is in compliance with the standard.(6)

1.Reich v. Trinity Industries, Inc., 16 F.3d 1149, 1152 (11th Cir. 1994); United States v. Dye Construction Co., 510 F.2d 78, 80 (10th Cir. 1975) (criminal case).

Cases in which court held that a criminal charge requires higher standard than in a civil citation:

Brock v. Morello Bros. Construction, Inc., 809 F.2d 161. 163-64 (1st Cir. 1987) (Willfulness "implies some form of awareness, not simply of the forbidden conduct, but also of the statute or rule that forbids it. In the criminal law, 'willful' conduct typically means that the offender not only intended to perform the unlawful act, but also that he knew that what he did was unlawful. In civil cases such as this one, the standard is weaker in that an act may be 'willful' if the offender shows 'indifference' to the rules; he need not be consciously aware that the conduct is forbidden at the time he performs it . . . .")

Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1167 (3d Cir. 1980) ("[C]onduct more culpable than is generally required in the usual civil context is the minimum that Congress intended to be within the meaning of the term willful.")

United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974) (MSHA case) ("[T]here should be a very clear distinction between the type of violation that would incur only a civil penalty and one that would rise to criminal liability. Obviously, it was not intended that such a violation as would give rise to a civil penalty should be alternatively a criminal offense.")

2.Brock v. Morello Bros. Construction, Inc., 809 F.2d 161, 164 (1st Cir. 1987); United States v. Kenny Construction Co., Inc., 1988 U.S.Dist. LEXIS 11192 *32 (N.D.Ill. 1988) (criminal case); Intercounty Construction Co. v. OSHCR, 522 F.2d 777, 780-81 (4th Cir. 1975).

Additional cases in which court found employer had actual knowledge of standard or regulation at issue, although did not explicitly say knowledge was an element:

Reich v. Trinity Industries, Inc., 16 F.3d 1149, 1155 (11th Cir. 1994) ("Applying the test for 'willful,' we agree with the Secretary that Trinity willfully violated the requirements of section 1910.95. Trinity knew of the requirements and their applicability, yet intentionally disregarded them in violation of the Act.")

Daniel International Corp. v. Donovan, 705 F.2d 382, 387 (10th Cir. 1983) ("The Commission affirmed the judge's factual finding that Daniel had reason to know of OSHA's requirements yet made no effort to comply. . . . [W]e must confirm the Commission's finding that Daniel knew of OSHA's standards and either intentionally disregarded them or acted with plain indifference to their requirements.")

Universal Auto Radiator Manufacturing Co. v. Marshall, 631 F.2d 20, 23 (3rd Cir. 1980).

Kent Nowlin Construction Co. v. OSHRC, 593 F.2d 368, 372 (10th Cir. 1979) ("The petitioner, with knowledge of the existence of the standard, . . . chose not to comply with the standard . . . .")

Cedar Construction Co. f. OSHRC, 587 F.2d 1303, 1305 (D.C.Cir. 1978).

Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir. 1978).

United States v. Dye Construction Co., 510 F.2d 78, 80 (10th Cir. 1975) (criminal case).

F. X. Messina Construction Corp. v. OSHCR, 505 F.2d 701, 702 (1st Cir. 1974).

3.St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 845 n.10 (8th Cir. 1981); Babcock & Wilcox C. v. OSHRC, 622 F.2d 1160, 1165, 1167 (3rd Cir. 1980) ("There was a lack of diligence, but not the intentional element necessary for a willful violation."); National Steel and Shipbuilding Co. v. OSHRC, 607 F.2d 311, 315 (9th Cir. 1979) (distinguishing "serious" from "willful" violations on the basis of whether the employer intended to violate an OSHA standard).

4.Western Waterproofing Co., Inc. v. Marshall, 576 F.2d 139, 143 (8th Cir. 1978) ("Petitioner, through its foreman, made its choice, a conscious, intentional, deliberate, voluntary decision . . .."); Intercounty Construction Co. v. OSHRC, 522 F.2d 777, 780-81 (4th Cir. 1975) ("A conscious, intentional, deliberate, voluntary decision properly is described as willful."); F. X. Messina Construction Corp. v. OSHRC, 505 F.2d 701, 702 (1st Cir. 1974) (same).

5.United States v. Consolidation Coal Co., 504 F.2d 1330, 1335 (6th Cir. 1974) (MSHA case). See, e.g., St. Joe Minerals Corp. v. OSHRC, 647 F.2d 840, 848 (8th Cir. 1981) and Babcock & Wilcox Co. v. OSHRC, 622 F.2d 1160, 1165-68 (3d Cir. 1980) ("There was a lack of diligence, but not the intentional element necessary for a willful violation.").

6.McLaughlin v. Union Oil Co. of Calif., 869 F.2d 1039, 1047 (7th Cir. 1989); Secretary of Labor v. Johnson Controls, Inc., 1993 WL 99203 *3-4 (OSHRC 1993); Brock v. Morello Brothers Construction, Inc., 809 F.2d 161, 165 (1st Cir. 1987); RSR Corp. v. Brock, 764 F.2d 355, 363 (5th Cir. 1985); Donovan v. Mica Construction Co., 699 F.2d 431,432 (8th Cir. 1983); United States v. Kenny Construction Co., Inc., 1988 U.S.Dist. LEXIS 11192 *27-29 (N.D.Ill. 1988).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

11.    "Willfully" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Illinois Central R.R. Co., 303 U.S. 239, 243 (1937).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

12.    "Willfulness" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. Illinois Central R. Co., 303 U.S. 239 (1938); Steere Tank Lines, Inc. v. United States, 330 F.2d 719 (5th Cir. 1964).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

13.    Willful: Factors To Consider

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The scope of ________’s (name of company) overall efforts to make the ___________ (facility, e.g., plant) a safe work environment may be considered by the jury in its determination of whether ________ (name of company) willfully violated an OSHA standard.

United States ex rel. Porter v. Kroger Grocery & Baking Co., 163 F.2d 168, 175 (7th Cir. 1947); United States v. Twentieth Century Fox Film Corp., 882 F.2d 656, 661 n.2 (2d Cir. 1989), cert. denied, 493 U.S. 1021 (1990).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

14.    Willful: Evidence To Consider

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730, 741 n.17 (W.D. Va. 1974).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

15.    Corporate Willfulness: Outside Inspections

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In considering whether the ________ (name of company) acted willfully, you may consider whether inspections by the ________ Fire Department and the insurance company identified as safety hazards the conditions which caused the ________ (incident e.g., collapse of the platform at the Lower "E" gallery).

See United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730, 741 (W.D. Va. 1974) (lack of prior notice from governmental regulatory agency of apparent violation probative re willfulness).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

16.    OSHA Violations: No Strict Liability

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Brennan v. OSHRC (Hanovia Lamp), 502 F.2d 946, 951 (3rd Cir. 1974); Pennsylvania P&L v. OSHRC, 737 F.2d 350, 353-54 (3rd Cir. 1984).

Brennan v. OSHRC (Hanovia Lamp), 502 F.2d 946, 951 (3rd Cir. 1974); Pennsylvania P. & L. v. OSHRC, 737 F.2d 350, 354 (3rd Cir. 1984).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 54: Strict Liability.

See NCJIC 66.5.5 [Attempt To Commit A Strict Liability Offense Requires Intent To Bring About The Prescribed Result].

See generally NCJIC Chapter 69: Corporate Liability.

See NCJIC 257.4.4 [Entrapment By Estoppel: Applicable To Strict Liability Crimes].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

17.    No Imputation Of Unforeseeable Conduct

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Central Soya de Puerto Rico v. Secretary of Labor, 653 F.2d 38, 39-40 (1st Cir. 1981); Horn Plumbing and Heating Company v. OSHRC, 528 F.2d 564, 571 (5th Cir. 1976); Ocean Electric Corp., 594 F.2d 396 (4th Cir. 1979); Mountain States Telephone & Telegraph Co. v. OSHRC, 623 F.2d 155 (10th Cir. 1980).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

18.    Violations Must Be Willful, Knowing And Must Be The Cause Of Accident

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to find the defendant guilty of the offense with which it is charged, it is not enough to find that the company violated the safety requirements of the Code of Federal Regulations. You must also find that such violations of the code were willful and knowing, and that these violations caused the death of __________ (name of victim).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 46: Willfulness.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

19.    Jury Many Consider Whether Language Of The Regulation Was Vague Or Uncertain

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Kolender v. Lawson, 461 U.S. 352, 357-58 (1983); Georgia Pacific Corp. v. OSHRC, 25 F.3d 999, 1005 (11th Cir. 1994); United States v. Kenny Construction Co., 1988 WL 105297 *12 (N.D.Ill. 1988) (OSHA violation held not willful where regulations "did not make clear" that which was required).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See NCJIC 252.10.1.5 [Vague Or Ambiguous Statute/Regulation: Defendant's Reasonable Belief In Lawfulness Of Conduct].

See generally NCJIC 300.13 [Vagueness And Overbreadth].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

20.    "Significant Risk of Harm" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The term "significant risk of harm" as used in these instructions means that the unsafe conditions alleged to have threatened __________’s (name of victim) life did more than subject him to the mere possibility of harm.

    Many of the activities that we engage in every day entail some risk of accident or injury; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace is not considered unsafe unless it threatens workers with a significant risk of harm.

Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 103-04 (2d Cir. 1981) (citing Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).

    The term "significant risk of harm" as used in these instructions means that the unsafe conditions charged against defendant threatened __________’s (name of victim) life with a significant risk of harm, not a possibility of harm.

    There are many activities that we engage in every day — such as driving a car or even breathing city air — that entails some risk or accident or material health impairment; nevertheless, few people would consider these activities "unsafe." Similarly, a workplace is not considered unsafe unless it threatens workers with a significant risk of harm.

Pratt & Whitney Aircraft v. Secretary of Labor, 649 F.2d 96, 103-04 (___ Cir. 1981) (citing Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 U.S. 607 (1980).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See NCJIC 6.2.17 [Foreseeability: Improper To Use Terms Such As "Probable" Or "Likely"].

See NCJIC Chapter 55: Causation.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

21.    Issues Not Involved In Federal Criminal Trial

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

AUTHORITIES:

United States v. S.A. Healy Company, Case No. 90-CR-123 (E.D. Wis. 1991).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

22.    Elements Of The Offense: Knowledge

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    ________ (name of company) can only be found guilty of this offense if the prosecution has proven beyond a reasonable doubt that ________ (name of company) through one or more supervisors knew that the _______ (alleged safety hazard e.g., fire escape platform at the west end of the Lower "E" gallery) was a safety hazard.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

23.    "Corporate Knowledge" Defined; "Supervisory Employee" Defined

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In this case, the Defendant is a corporate employer. "Knowledge" by a corporate entity is necessarily a fiction; the corporation can only be said to "know" information by imputing to it the knowledge of persons who serve as its agents. Under the Occupational Safety and Health Act, only the knowledge of Defendant's supervisory personnel, acting within the scope of their supervisory responsibilities, is imputable to Defendant.1 The knowledge of non-supervisory employees is not imputable to Defendant.2

    A supervisory employee is defined as an employee who controls and directs the work of other employees.3 Mere labels are insufficient. Supervisory authority requires the ability to hire and fire, or at least the ability to enforce safety rules.4

    Thus, in order to find Defendant guilty of the charges alleged, you must find that Defendant's supervisors, acting within the scope of their supervisory authority: (1) had knowledge of the hazardous conditions alleged to violate the OSHA standards charged and (2) willfully and intentionally disregarded the requirements of those standards as otherwise defined in these instructions.

1.Central Soya de Puerto Rico v. Secretary of Labor, 653 F.2d 38, 39 (1st Cir. 1981) (In upholding willful violation, Court held: "We think it is reasonable on the facts of this case to charge the employer with knowledge of the hazard based on the knowledge of supervisory personnel of an unsafe condition existing within the scope of their supervisory responsibility"); New York State Electric and Gas Corp. v. Secretary of Labor, 88 F.3d 98, 105 (2d Cir. 1996) (Holding that knowledge may be imputed to an employer through a "supervisory agent," Court remanded case for determination of whether employee with knowledge was or was not a supervisor for the purpose of imputing knowledge to the employer); Mountain States Telephone & Telegraph Co. v. OSHRC, 623 F.2d 155, 158 (10th Cir. 1980) (". . . because a corporate employer acts and acquires knowledge through its agents, ordinarily the actions and knowledge of its supervisory employees are imputed to the employer").

2.By implication, all of the above-cited cases holding that the knowledge and acts of supervisory employees is imputable to a corporate Defendant means that the conduct and knowledge of non-supervisory employees is not imputable to the employer. See also Secretary of Labor v. Jones and Williams Construction Co., 6 BNA OSHC 1612,; 1978 WL 6670 (OSHRC 1978) (citation vacated because the person to whom the violative condition was reported was not a "supervisor" within the meaning of the Occupational Safety and Health Act and therefore the knowledge of the conditions could not be imputed to the employer).

3.Secretary of Labor v. Iowa Southern Utilities Co., 1977-78 CCH OSHC ¶21,612 (OSHRC 1977).

4.Secretary of Labor v. F.A. Gray, Inc., 1984-1985 OSHD (CCH) ¶ 27,270, 12 O.S.H. Cas. (BNA) 1311, 1985 WL 44840 (OSHRC 1985) ("leadman" or "foreman" at worksite not supervisory employee because could not have prevented fellow employees from ignoring safety rule).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

24.    Mere Expressions Of Doubt Or Concern By Employees Insufficient Alone To Constitute Corporate Knowledge

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730, 739 (W.D. Va. 1974).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

25.    Knowledge Presented Through Safety Committee

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730, 739-40 (W.D. Va. 1974).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

26.    Statements Made Amongst Employees Are Not Statements Of Company Nor Are Minutes Of Safety Committee

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Statements made by one ________ (name of company) employee to another ________ (name of company) employee are not statements of the ________ (name of company) and do not constitute admissions by the company.

    Similarly, reports, such as the Minutes of the Safety Committee, which are not distributed to persons outside the company are not statements of the company nor binding upon it as company admissions.

United States v. United Shoe Machinery Corp, 89 F. Supp. 349, 353 (D. Mass. 1950) (per Wyzanski, J.), citing Restatement, Agency s 287; Lever Bros. Co. v. Atlas Assur. Co., 131 F.2d 770, 776, 777 (7th Cir. 1942); Standard Oil Company of California v. Moore, 251 F.2d 188, 218 (9th Cir. 1957).

United States v. Linton et al., No. CR-R-80-24-ECR (D. Nev. 1981) (Reed, J.).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

27.    Witnesses Are Not Property Of Either Party

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Witnesses are not the property of either party. It was improper for Detective __________ (name) to instruct __________ (name of witness) not to talk with anyone about what (he/she) had told Detective __________ . If you believe that this direction from Detective __________ influenced the testimony of __________ (name of witness), you may consider it in weighing __________’s (name of witness) credibility.

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966); United States v. Carrigan, 804 F.2d 599 (10th Cir. 1986); United States v. Vole, 435 F.2d 774 (7th Cir. 1970); I ABA Standards for Criminal Justice 3-3.1 (1986).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Witnesses.

See generally NCJIC Chapter 27: Witness Credibility.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

28.    Refreshing Recollection

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Witnesses.

See generally NCJIC Chapter 27: Witness Credibility.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

29.    Credibility: Witness Attitude

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In weighing the testimony of union employees of the ________ (name of company) the jury may consider evidence which it heard concerning the attitude of the witness toward ________ (name of company) [and toward its parent corporation,________ (name of company)].

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Witness Bias.

See generally NCJIC Chapter 27: Witness Credibility.

See generally NCJIC 27.1.3 [Witness Credibility: Proof Of Bias Almost Always Relevant].

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

30.    Knowledge Required

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    The Court has instructed the jurors that before a finding of guilty can be returned the jurors must unanimously find that the ________ (name of company) had knowledge of the condition which caused the ________ (event leading to accident e.g., collapse of the fire escape platform at the Lower "E" gallery).

    That is, the corporation cannot be found guilty unless the prosecution has proven beyond a reasonable doubt that ________ (name of company) knew the following:

    1. __________ (insert factors e.g., The design of the platform supports had not been followed).

    2. __________ (insert factors e.g., The angle bracket supporting the grating had deteriorated).

    3. __________ (insert factors e.g., The concrete surrounding the anchors to which the bracket was attached had deteriorated).

    The Court has instructed that before a finding of guilty can be returned the jurors must unanimously find that the ________ (name of company) had knowledge of the condition which caused the ________ (event leading to accident e.g., collapse of the fire escape platform at the Lower "E" gallery).

    The corporation cannot be found guilty if all that the prosecution has proven is that ________ (name of company) had knowledge of a fact which should have put it on notice of the condition which actually caused the ________ (event leading to accident e.g., platform to collapse).

    ________ (name of company) cannot be found guilty of this charge unless the prosecution proves beyond a reasonable doubt that it had knowledge of the actual condition which caused the ________ (event leading to accident).

    The prosecution has not proven its case if all it has proven is that ________ (name of company) knew some fact which permitted it to infer the existence of the conditions which cause the ________ (event leading to accident).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

31.    Assumptions, Beliefs And Suspicions Of Employees Never Imputed To Corporate Employer

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

32.    Corporate Knowledge: Mere Conclusions Not Imputed To Corporation

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

33.    Corporate Knowledge: Weight

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

34.    Corporate Knowledge: Reliability Of Source Required

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

35.    Corporate Knowledge: Identity Of Employee With Knowledge Required

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

36.    Office Gossip: Reliability

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Brookover v. Mary Hitchcock Memorial Hosp., 893 F.2d 411, 416 (1st Cir. 1990) [citing 4 J. Weinstein & M. Berger, Weinstein's Evidence para. 801(d)(2)(D)[01] at 226-227 (1988 and Supp. 1989)]; Litton Systems, Inc. v. American Tel. & Tel. Co., 700 F.2d 785, 816 (2d Cir. 1983) [same].

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC 27.5 [Witness Credibility: Out-Of-Court Statements].

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

37.    No Absolute Duty To Avoid An Accident; Fault

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Millong v. Bakken, 112 Wis. 2d 445, 334 N.W. 2d 80, 84 (1983).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 55: Causation.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

38.    Authentication Of Documents

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Zenith Radio Corporation v. Matsushita Electric Industrial Company, Ltd., 505 F. Supp. 1190, 1218-1220 (E.D. Pa. 1980), rev'd on other grounds, 723 F.2d 238 (3d Cir. 1983), rev'd on other grounds, 475 U.S. 574 (1986).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Evidence: Documentary Evidence.

See also THE SHELLOW COLLECTION: Evidence: Hearsay Rule And Exceptions – Business Records.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

39.    Jurors Not To Consider Punishment

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

United States v. S.A. Healy Co., Case No. 90-CR-123 (E.D. Wis. 1991).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See generally NCJIC Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

40.    Jurors Not To Consider Civil Litigation Against Corporation

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    _________ (name of victim’s survivor) has brought suit against _________ (name of company). The outcome of this trial will in no way affect that litigation and you are instructed that sympathy for the victim’s family or for _________ (name of company) should play no part in your deliberations.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See generally NCJIC Chapter 279: Jury Consideration Of Penalty, Punishment Or Consequences Of Verdict.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

41.    Good Faith Defense

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Good faith is a defense to all of the charges against _________ (name of company). In considering whether the _________ (name of company) believed in good faith that it was not in violation of an OSHA standard, you may consider whether in previous OSHA inspections OSHA inspectors identified the conditions which caused the _________ (incident e.g., collapse of the platform at the lower "E" gallery) as OSHA violations.

See United States v. T.I.M.E.-D.C., Inc., 381 F. Supp. 730, 741 (W.D. Va. 1974) (lack of prior notice from governmental regulatory agency of apparent violation probative re willfulness).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

See generally NCJIC 252.10 [Innocent Intent, Good Faith].

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

42.    Knowledge of Independent Contractor Not Imputed to Corporation

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1440 (9th Cir. 1990); Sanford v. Johns-Manville Sales Corp., 923 F.2d 1142, 1149-50 (5th Cir. 1991).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

43.    Knowledge Obtained Outside Scope of Employment Not Imputed to Employer

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    Observations of the condition of the _________ (thing observed) made by an employee who was on the _________ (thing observed) for fresh air or to view the scenery were not made in the course of the employee's duties nor within the scope of (his/her) employment and for that reason any fact which (he/she) learned from these observations is not imputed to _________ (name of company).

Wilkinson v. Carnival Cruise Lines, Inc., 920 F.2d 1560, 1565-67 (11th Cir. 1991).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See also THE SHELLOW COLLECTION: Elements: Knowledge.

See generally NCJIC Chapter 47: Knowledge.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

44.    Employee Notes

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

City of Long Beach v. Standard Oil of California, 46 F.3d 929, 937 (9th Cir. 1995).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

45.    Union Officer Notes

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

City of Long Beach v. Standard Oil of California, 46 F.3d 929, 937 (9th Cir. 1995).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

46.    Situations In Which 29 CFR 1910.36 Is Applicable

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

47.    Essential Elements Of 29 CFR 1910.36(b)(1)

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to sustain its burden of proof that Defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(1), as charged in Count ___ of the Indictment, the government must prove the following six essential elements beyond a reasonable doubt:

    1. That the ________ (building or structure) of defendant's ________ (business) is a "building or structure designed for human occupancy."

    2. That the ________ (building or structure) of defendant's ________ (business) was not provided with a sufficient number of exits to permit the prompt escape of __________ (name of victim) in case of fire or other emergency. 29 C.F.R. § 1910.36(b)(1) does not necessarily require more than one exit.(1)

    3. That if the ________ (building or structure) did not contain sufficient exits, such condition created a significant risk of harm to __________ (name of victim).

    4. That defendant knew or reasonably should have known that the ________ (building or structure) did not have a sufficient number of exits to permit the prompt escape of persons occupying the ________ (building or structure) in the case of fire or other emergency.(2)

    5. That the lack of a sufficient number of exits caused the death of __________ (name of victim).

    6. That Defendant willfully violated the requirements of 29 Code of Federal Regulation § 1910.36(b)(1).

1. Secretary of Labor v. ConAgra, Inc., 14 BNA OSHC 1771, 1774; 1990 WL 150374 (O.S.H.R.C.) (1990) ("Section 1910.36(b) does not propose a strict two exit requirement;. . .")

2. St. Joe Minerals v. Occupational Safety and Health Review Commission, 647 F.2d 840,847 (8th Cir., 1981).

    29 C.F.R. §1910.36(b)(1) provides as follows:

    Every building or structure, new or old, designed for human occupancy shall be provided with exits sufficient to permit the prompt escape of occupants in case of fire or other emergency. The design of exits and other safeguards shall be such that reliance for safety to life in case of fire or other emergency will not depend solely on any single safeguard; additional safeguards shall be provided for life safety in case any single safeguard is ineffective due to some human or mechanical failure.

    In order to sustain its burden of proof that defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(1), and that this violation caused the death of __________ (name of victim) as charged in the Indictment, the government must prove each of the following six essential elements beyond a reasonable doubt:

    1. That the ________ (building or structure) of defendant's grain-handling complex is a "building or structure designed for human occupancy."

    2. That the ________ (building or structure) of defendant's ________ (business) was not provided with a sufficient number of exits to permit the prompt escape of occupants in case of fire or other emergency. 29 C.F.R. § 1910.36(b)(1) does not necessarily require more than one exit.(1)

    3. That if the ________ (building or structure) did not contain sufficient exits, such condition created a significant risk of harm to occupants.

    4. That defendant knew that the ________ (building or structure) did not have a sufficient number of exits to permit the prompt escape of persons occupying the ________ (building or structure) in the case of fire or other emergency.

    5. That the lack of a sufficient number of exits caused the death of __________ (name of victim).

    6. That Defendant willfully violated the requirements of 29 Code of Federal Regulation § 1910.36(b)(1).

(1) Every exit need not comply with the egress requirements of 29 C.F.R. 1910.36 and .37 when there are adequate alternate exits which do comply with those requirements.

Spot-Bilt, Inc. 11 BNA OSHC 1998 (1984); Secretary of Labor v. ConAgra, Inc., 14 BNA OSHC 1771, 1774; 1990 WL 150374 (O.S.H.R.C.) (1990) ("Section 1910.36(b) does not propose a strict two exit requirement;. . .").

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

48.    Essential Elements Of 29 CFR 1910.36(b)(2)

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to sustain its burden of proof that defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(2), as charged in Count ____ of the Indictment, the government must prove the following six elements beyond a reasonable doubt:

    1. That the ________ (building or structure) of Defendant's grain-handling complex is a "building or structure."

    2. That the ________ (building or structure) was not: (1) constructed (2) arranged, (3) equipped, (4) maintained, and (5) operated as to avoid undue danger to the life and safety of __________ (name of victim) from fire, smoke, fumes or resulting panic during the period of time reasonably necessary for __________ (name of victim) to escape from the ________ (building or structure) in the case of fire or other emergency.

    3. That if the ________ (building or structure) was not constructed, arranged, equipped, maintained and operated so as to avoid undue danger to the life and safety of __________ (name of victim) from fire, smoke, fumes or resulting panic only during the period of time reasonably necessary for __________ (name of victim) to escape from the ________ (building or structure) in the case of fire or other emergency, such conditions created a significant risk of harm to __________ (name of victim).

    4. That defendant knew or reasonably should have known that the ________ (building or structure) was not constructed, arranged, equipped, maintained and operated as to avoid undue danger to the lives and safety of persons occupying the ________ (building or structure) from fire, smoke, fumes, or resulting panic during the period of time reasonably necessary for such persons to escape from the ________ (building or structure) in case of fire or other emergency.(1)

    5. That the failure to construct, arrange, equip, maintain and operate the ________ (building or structure) so as to avoid undue danger to the life and safety of __________ (name of victim) from fire, smoke, fumes, or resulting panic during the period of time reasonably necessary for __________ (name of victim) to escape from the ________ (building or structure) in case of fire or emergency, caused the death of __________ (name of victim).

    6. The defendant willfully violated the requirements of 29 Code of Federal Regulations § 1910.36(b)(2).

1. St. Joe Minerals v. Occupational Safety and Health Review Commission, 647 F.2d 840,847 (8th Cir., 1981).

    29 C.F.R. §1910.36(b)(2) provides as follows:

    Every building or structure shall be so constructed, arranged, equipped, maintained, and operated as to avoid undue danger to the lives and safety of its occupants from fire, smoke, fumes, or resulting panic during the period of time reasonably necessary for escape from the building or structure in case of fire or other emergency.

    In order to sustain its burden of proof that defendant willfully violated 29 Code of Federal Regulations §1910.36(b)(2), and that this violation caused the death of __________ (name of victim) as charged in the Indictment, the government must prove each of the following six elements beyond a reasonable doubt:

    1. That the ________ (building or structure) of defendant's ________ (type of business) is a "building or structure."

    2. That the ________ (building or structure) was not: (1) constructed (2) arranged, (3) equipped, (4) maintained, and (5) operated as to avoid undue danger to the life and safety of occupants from fire, smoke, fumes or resulting panic during the period of time reasonably necessary to escape from the lower ________ (building or structure) in the case of fire or other emergency.

    3. That if the ________ (building or structure) was not constructed, arranged, equipped, maintained and operated so as to avoid undue danger to the life and safety of occupants from fire, smoke, fumes or resulting panic during the period of time reasonably necessary for __________ (name of victim) to escape from the ________ (building or structure) in the case of fire or other emergency, such conditions created a significant risk of harm to __________ (name of victim).

    4. That defendant knew that the ________ (building or structure) was not constructed, arranged, equipped, maintained and operated as to avoid undue danger to the lives and safety of persons occupying the ________ (building or structure) from fire, smoke, fumes, or resulting panic during the period of time reasonably necessary for such persons to escape from the ________ (building or structure) in case of fire or other emergency.

    5. That the failure to construct, arrange, equip, maintain and operate the ________ (building or structure) so as to avoid undue danger to the life and safety of occupants from fire, smoke, fumes, or resulting panic during the period of time reasonably necessary for occupants to escape from the ________ (building or structure) in case of fire or emergency, caused the death of __________ (name of victim).

    6. The Defendant willfully violated the requirements of 29 Code of Federal Regulations §1910.36(b)(2).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

49.    Essential Elements Of 29 CFR 1910.36(b)(4)

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to sustain its burden of proof that Defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(4), as charged in Count ____ of the Indictment, the government must prove the following six elements beyond a reasonable doubt:

    1. That the ________ (building or structure e.g., lower E gallery of Defendant's grain-handling complex) is a building or structure.

    2. That exits in the ________ (building or structure e.g., lower E gallery) were not (1) arranged and (2) maintained so as to provide free and obstructed egress from all parts of the ________ (building or structure) when it was occupied by __________ (name of victim).

    3. That if exits in the ________ (building or structure) were not arranged and maintained as to provide free and unobstructed egress from all parts of the ________ (building or structure) at all times when it was occupied, such conditions created a significant risk of harm to __________ (name of victim).

    4. That Defendant knew or reasonably should have known that the exits in the ________ (building or structure) were not so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it was occupied.

    5. That the arrangement and maintenance of the exits in the ________ (building or structure) caused the death of __________ (name of victim).

    6. That Defendant willfully violated the requirements of 29 Code of Federal Regulations §1910.36(b)(4).

    29 C.F.R. §1910.36(b)(4) provides as follows:

    In every building or structure exits shall be so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it is occupied. No lock or fastening to prevent free escape from the inside of any building shall be installed except in mental, penal, or corrective institutions where supervisory personnel is continually on duty and effective provisions are made to remove occupants in case of fire or other emergency.

    In order to sustain its burden of proof that defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(4), and that this violation caused the death of __________ (name of victim) as charged in the Indictment, the government must prove each of the following six elements beyond a reasonable doubt:

    1. That the ________ (building or structure) of defendant's ________ (business) is a "building or structure."

    2. That exits in the ________ (building or structure) were not (1) arranged and (2) maintained so as to provide free and unobstructed egress from all parts of the ________ (building or structure) when it was occupied.

    3. That if exits in the ________ (building or structure) were not arranged and maintained as to provide free and unobstructed egress from all parts of the ________ (building or structure) at all times when it was occupied, such conditions created a significant risk of harm to occupants.

    4. That defendant knew that the exits in the ________ (building or structure) were not so arranged and maintained as to provide free and unobstructed egress from all parts of the building or structure at all times when it was occupied.

    5. That the failure to arrange and maintain the exits as to provide free and unobstructed egress from all parts of the ________ (building or structure) caused the death of __________ (name of victim).

    6. That Defendant willfully violated the requirements of 29 Code of Federal Regulations §1910.36(b)(4).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

50.    Essential Elements Of 29 CFR 1910.36(b)(8)

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to sustain its burden of proof that Defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(8), as charged in Count ____ of the Indictment, the government must prove the following six essential elements beyond a reasonable doubt:

    1. That the ________ (building or structure e.g. lower E gallery) of defendant's ________ (business e.g., grain-handling complex) is a building or structure.

    2. That the ________ (building or structure) did not have at least two means of egress remote from each other and so arranged to minimize any possibility that both may be blocked by any one fire or other emergency.

    3. That if the ________ (building or structure) did not have at least two means of egress remote from each other and so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency, such condition created a significant risk of harm to __________ (name of victim).

    4. That defendant knew or reasonably should have known that the ________ (building or structure) did not have at least two means of egress remote from each other and so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency.

    5. That the lack of at least two means of egress in the ________ (building or structure) remote from each other and so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency, caused the death of __________ (name of victim).

    6. That Defendant willfully violated the requirements of 29 C.F.R. § 1910.36(b)(8).

    29 C.F.R. §1910.36(b)(8) provides as follows:

    Every building or structure, section, or area thereof of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, shall have at least two means of egress remote from each other, so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency conditions.

    In order to sustain its burden of proof that Defendant willfully violated 29 Code of Federal Regulations § 1910.36(b)(8), and that this violation caused the death of __________ (name of victim) as charged in the Indictment, the government must prove each of the following seven essential elements beyond a reasonable doubt:

    1. That the ________ (building or structure) of defendant's ________ (business) is a building or structure.

    2. That the ________ (building or structure) is of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke.

    3. That the ________ (building or structure) did not have at least two means of egress remote from each other and so arranged to minimize any possibility that both may be blocked by any one fire or other emergency.

    4. That if the ________ (building or structure) did not have at least two means of egress remote from each other and so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency, such condition created a significant risk of harm to numbers of occupants.

    5. That defendant knew that the ________ (building or structure) was of such size, occupancy, and arrangement that the reasonable safety of numbers of occupants may be endangered by the blocking of any single means of egress due to fire or smoke, and that the ________ (building or structure) did not have at least two means of egress remote from each other and so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency.

    6. That the lack of at least two means of egress in the ________ (building or structure) remote from each other and so arranged as to minimize any possibility that both may be blocked by any one fire or other emergency, caused the death of __________ (name of victim).

    7. That Defendant willfully violated the requirements of 29 C.F.R. § 1910.36(b)(8).

See also THE SHELLOW COLLECTION: Corporate Conspiracy.

See also THE SHELLOW COLLECTION: Corporate Liability.

See generally NCJIC Chapter 69: Corporate Liability.

THE SHELLOW COLLECTION
Jury Instructions By James M. Shellow of Wisconsin

51.    Essential Elements Of 29 CFR 1910.36(d)(1)

ALERT: Carefully review the Caveats and Disclaimers before using these materials.

    In order to sustain its burden of proof that defendant willfully violated 29 Code of Federal Regulations § 1910.36(d)(1), as charged in Count ____ of the Indictment, the government must prove the following six essential elements beyond a reasonable doubt:

    1. That the fire escape door to the ________ (building or structure) is a "required exit."

    2. That if every required exit, way of approach to thereto and way of travel from the exit into the street or open space in the ________ (building or structure) of defendant's ________ (type of business e.g. grain-handling facility) was not continuously maintained free of all obstructions or impediments to full instant use in the case of fire or other emergency.

    3. That if every required exit, way of approach thereto and way of travel from the exit into the street or open space in the ________ (building or structure) was not maintained free from all obstructions or impediments to full instant use in the case of fire or other emergency, such conditions created a significant risk of harm to __________ (name of victim).

    4. That defendant knew or reasonably should have known that every required exit, way of approach thereto and way of travel from the exit in the street or open space in the ________ (building or structure) was not maintained free of all obstructions or other impediments to the full instant use of in the case of fire or other emergency.

    5. That the failure to maintain every required exit, way of approach thereto and way from travel from the exit into the street or open space in the ________ (building or structure) free from all obstructions or impediment to full instant use in the case of fire or other emergency, caused the death of __________ (name of victim).

    6. That defendant willfully violated the requirements of 29 Code of Federal Regulations § 1910.36(d)(1).