The shifting sands of willfulness

Dukane Precast, Inc. v. Perez, No. 14-3156 (7th Cir. May 4, 2015).

A vacuum truck of the kind that the fire department used to rescue William Ortiz

A vacuum truck of the kind that the fire department used to rescue William Ortiz

What happened to William Ortiz is the stuff of nightmares. While working in a large bin full of sand, the sand he was standing on gave way. He sunk into the sand, which buried him up to his neck. Though he was eventually fished out by the fire department, his employer, a concrete-products maker, waited quite a while to call 911. Squeezed by the sand, Ortiz suffered serious injuries to his lower body. 

The Department of Labor charged Ortiz’s employer with willfully violating OSHA by waiting too long to call 911, and an administrative law judge imposed a fairly hefty penalty. The Seventh Circuit, via Judge Posner, upholds the penalty. The opinion asks whether a mental state of anything less than recklessness can lead to a “willful” violation, and surveys the relevant case law. It does not unequivocally resolve that issue, though, and instead upholds the penalty on the ground that Ortiz’s employer was reckless.