D&A LLC successfully represented a construction company (“Client”) in a criminal investigation involving alleged violations of the Occupational Safety and Health Act (“OSHA”) and allegations of death and injury caused by occupational negligence. On June 7, 2022, after the completion of underground gas pipeline removal work, an employee of the Client’s subcontractor was found unconscious near the worksite and later died on July 1, 2022.

From the outset of the initial investigation, we, on behalf of the Client, were focused on asserting that the worksite was an outdoor excavation fit where temporary oxygen deficiency could occur, but it did not constitute a confined space requiring safety measures under the OSHA. Furthermore, we argued that the fatal accident was not foreseeable, given that the victim’s exceptional conduct contributed to its occurrence.

The investigative authority accepted our arguments and issued a non-indictment decision concerning both the alleged OSHA violations and the alleged death and injury caused by the occupational negligence.

This case is significant, as it sets a precedent in which the investigative authority recognized that a contractee cannot be held criminally liable for accidents that are ordinarily and objectively unforeseeable.