A mishandled drum of acid severely burns three workers
The spill occurred in an industrial park in Fuenlabrada
SOURCE OF THE NEWS: ELPAIS.ES JAVIER SANCHEZ DEL MORAL Fuenlabrada, February 8, 2008
It was just past 10:30 in the morning. It was sandwich time. Juan José Suárez, Fernando Alonso, and Juan Pablo Fernández left the factory where they worked, located in the Los Gallegos industrial estate in Fuenlabrada. The factory was dedicated to the construction of machinery for public works and snowplows. They were casually heading to the company’s warehouse across the street, where they stored their belongings.
As they crossed, they passed by a forklift truck trying to unload a large container with 1,000 liters of sulfuric acid from a truck. At that moment, the drum fell to the ground and burst. Quickly, its contents spilled onto the ground, causing significant burns to the three workers.
«Instantly, when we heard the noises, we rushed to them, took them to the warehouse, and removed their boots and pants,» explained Florentino Carretero, a colleague of the injured workers. In the same warehouse, they treated the burns and called emergency services. At noon yesterday, the shoes and clothes of the three injured workers could still be seen at the entrance of the warehouse.
Juan José Suárez, 40, was taken to Getafe Hospital with second-degree chemical burns on both legs. Yesterday afternoon, he remained stable and hospitalized. Fernando Alonso, 49, of Portuguese nationality, was admitted to the burn unit at La Paz Hospital in serious condition due to the injuries the acid caused to his left leg. The third of the injured workers, Juan Pablo Fernández, 30, suffered only minor burns and was discharged a few hours after the accident.
The Fuenlabrada Fire Department sealed the nearby manhole covers to prevent leaks and dissolved the spill throughout the morning.
The acid drum belonged to the company Tañart SL, dedicated to creating aluminum mini-sculptures, as explained by the owner of the family company, Jaime Tañart López. «We had ordered 1,000 liters of acid from our supplier, and at that moment, we were unloading it when, unfortunately, it fell,» Tañart said, adding that the accident could have occurred because they received a drum «much heavier than the one we had ordered,» causing the vehicle that was supposed to unload it «to be unable to handle it.»
The labor unions Comisiones Obreras and UGT criticized yesterday the «lack of safety» conditions under which the acid reception process was carried out and asked the labor inspection to «take action.» «There was no planning or safety measures,» explained Carmelo Plaza of CC OO.
This union listed up to four irregularities in the process: the forklift truck used was not prepared for such weight and lacked side protections; furthermore, it was driven by a person without the necessary certification, and they did not have suitable attire to handle such a dangerous substance, as stipulated by the Occupational Risk Prevention Law.
«It is obvious that this is a transport of an extremely dangerous load, and therefore it was necessary to comply with an entire safety protocol which, in this case, has not been taken into account and has ended up affecting workers who had nothing to do with it,» said UGT’s Occupational Health coordinator, Lucila Sánchez.
UGT’s representative added that this accident is added to the one that occurred last Monday in Aranjuez when a worker lost a leg when the forklift truck he was operating overturned, and to the one that occurred on Wednesday when the driver of a crane was injured while loading a vehicle.
Court Case Summary
Case Reference: SAP M 8778/2013 Cendoj ID: 28079370062013100509 Court: Provincial Court Location: Madrid Section: 6 Appeal Number: 120/2013 Resolution Number: 288/2013 Procedure: APPEAL Rapporteur: CARIDAD HERNANDEZ GARCIA Type of Resolution: Judgment
APPEAL CASE NO. 120/2013
Oral Trial No. 287/2011 Criminal Court No. 5 of Móstoles
Judgment No. 288/2013
Provincial Court of Madrid Sixth Section
Honorable Judges PRESIDENT: D. PEDRO JAVIER RODRIGUEZ GONZALEZ PALACIOS MAGISTRATES: D. JULIÁN ABAD CRESPO, Dª. CARIDAD HERNÁNDEZ GARCÍA
In Madrid, on the fourteenth of May, two thousand thirteen:
HEARD, on appeal, by the Sixth Section of this Provincial Court of Madrid, the present Proceedings conducted under the abbreviated procedure, by virtue of the appeal lodged by Mr. Florencio and Terapio Drogas, S.A., and by Mr. Luis against the judgment issued by the Honorable Judge of the Criminal Court No. 5 of Móstoles, dated October 15, 2012, in the aforementioned case.
SEEN, with the rapporteur being the Magistrate of the Section, Honorable Mrs. CARIDAD HERNÁNDEZ GARCÍA, who expresses the opinion of the Court.
I. FACTUAL BACKGROUND
FIRST. – By the Honorable Judge of the Criminal Court No. 5 of Móstoles, a judgment was issued on October 15, 2012, with the established facts as follows:
«On February 7, 2008, around 10:30 a.m., the accused Luis, over 18 years of age and with no criminal record, sole partner and manager of the company TAÑART, SL, received at its facilities located on Gavilán Street in Fuenlabrada, a container of sulfuric acid ordered from Integral Española and supplied by the driver Florencio, as an employee of the company Terapio Drogas.
The accused Luis proceeded to unload the container onto the public road without taking any protective or safety measures for pedestrians, and using a forklift truck capable of carrying a maximum weight of 1600 kilograms, believing that the weight of the container to be unloaded was 1,000 kilograms, when in fact it was higher, without the accused having verified the exact content of the container delivered.
As a result of the overweight, the forklift truck overturned forward, causing the container to fall and break, spilling sulfuric acid onto the public road. At that moment, Carlos Francisco and Arcadio were passing by, and they were reached by the spilled sulfuric acid.
As a consequence, Carlos Francisco, 33 years old at the time of the events, suffered injuries consisting of chemical burns on his lower limbs, requiring medical and surgical treatment consisting of tangential excision and coverage with auto-grafts, pharmacological treatment, pressotherapy, and rehabilitation, taking 365 days to heal, of which 69 were hospitalised. He was left with moderate aesthetic damage and slight atrophy of the calf muscles of the right leg, resulting in partial work disability.
ASEPEYO, as the work accident mutual, covered Carlos Francisco’s medical expenses in the amount of 36,622.22 euros. Arcadio suffered injuries consisting of superficial burns on the lower limb, which did not require any medical treatment other than initial first aid and took 7 non-incapacitating days to heal.
The driver transporting the container, the accused Florencio, allowed the unloading to take place on the public road without obtaining any authorization for it, nor notifying the authorities without just cause, and without taking any measures to ensure that pedestrians were not passing through the area at the time of unloading, despite being aware of the toxicity of the sulfuric acid being transported and the risk it posed to people.»
The verdict was as follows:
«I MUST CONDEMN AND DO CONDEMN the accused Luis and Florencio, already characterized as criminally responsible authors of a crime of serious negligence causing injury, defined with the mitigating circumstance of undue delays, to a sentence of THREE MONTHS IN PRISON each, special disqualification from the right to passive suffrage for the duration of the sentence, to pay, each, one-fifth of the costs including one-fifth each of the costs of the private prosecution and the civil plaintiff, and to jointly and severally compensate, with the direct and joint liability of TAÑAT, SL and TERAPIO DROGAS, SA, Leovigildo, in the amount of fifty-five thousand one hundred seven euros and thirty-eight cents (55,107.38 euros), Arcadio in the amount of one hundred ninety-seven euros and eighty-two cents, and Asepeyo in the amount of thirty-six thousand six hundred twenty-two euros and twenty-two cents (36,622.22 euros), amounts that will be increased with legal interest plus two points from the date of notification of the sentence to the convicted persons until full payment.
I must absolve and do absolve Jose Ángel and Carlota, already characterized, of the crime of serious negligence causing injury that was being imputed to them by the private prosecution, without costs and with all favorable pronouncements.
I must absolve and do absolve Luis from the misdemeanor of slight negligence causing injury that was being imputed to him by the Public Prosecutor’s Office in the alleged injuries of Argimiro.»
SECOND. – Against said judgment, timely and correctly, appeals were filed by the Attorney Mr. Juan Antonio Gómez García, representing Mr. Florencio and Terapio Drogas, S.A., and by the Attorney Mrs. Águeda Valderrama Anguia, representing Mr. Luis, based on the grounds set forth in this resolution. Once the appeal was admitted, it was notified to the other parties involved, and the proceedings were sent to this Provincial Court.
THIRD. – On March 27, 2013, the aforementioned appeal was received by this Sixth Section, and the corresponding appeal record was formed. The hearing for the deliberation and resolution of the appeal was scheduled for May 6, 2013, without a hearing being held.
FOURTH. – The factual background of the appealed judgment is accepted, to the extent that it does not conflict with the present judgment.
II. LEGAL GROUNDS
FIRST. – The first of the appeals is based on the alleged error in attributing responsibility to the accused Mr. Florencio, as his conduct cannot be subsumed under the breach of any legal obligation, error regarding the applicable regulations and their precedence, and error in the assessment of the testimony of the expert Ms. Rosana. The grounds for the second appeal are error in the assessment of evidence due to the total absence of the minimum burden of proof against the accused Mr. Luis, and alternatively because, if applicable, the facts could only constitute a lack of negligence.
SECOND. – For reasons of coherence and logical argumentation, we will first analyze whether there has been an error by the trial judge in the assessment of the evidence presented, and then analyze the remaining grounds invoked.
Regarding the issue raised, it should be noted that it is well-established doctrine that, without forgetting the extent of the powers that any appeal, due to its content and procedural function, grants to the judicial body that must resolve it, aiming for a fair administration of justice, and that through its filing, the entire trial is not judged again, this extent cannot, regarding the evaluation of the probative basis, ever reach the point of merely substituting the evaluative criterion of the lower court judge with that of the appellate court, much less with that of the appellant, since the conviction and state of consciousness of the former, before whom the trial has taken place, cannot be dispensed with. Therefore, only when it is somehow justified that there has been a notorious error in the assessment of any evidentiary element, can that evaluation be reviewed, which is not the case here.
Given the above, it must be concluded that such allegations cannot succeed, as they constitute a partial and interested assessment, always legitimate, of the evidence presented, which cannot replace the evaluation made by the lower court judge.
The judgment is sufficiently motivated; the lower court judge has assessed the evidence presented at the trial and has opted for the reasons stated in the judgment to issue a condemnatory decision.
To issue the judgment, according to its legal reasoning, the statements of the accused, the forensic medical reports in the proceedings, the expert report attached to the records, ratified and clarified in the terms resulting from the expert testimony given in the oral trial, and the documentary evidence in the proceedings have been taken into account.
The judgment itself elaborates in great detail on the conduct of each of the accused on February 7, 2008, on Gavilán Street in Fuenlabrada, and what is indisputable, in view of the evidence presented, is that: Sulfuric acid is an extremely corrosive chemical compound. A thousand kilograms were requested and eighteen hundred kilograms were supplied. There was no verification of the cargo delivered or received. The accused Luis is an experienced person due to his long career in the sector. The accused Florencio had a driver training certificate for transporting dangerous goods and it was not the first time he transported this type of substance. The unloading of the sulfuric acid container was carried out on the public road. The photographic report in the case is very illustrative of the characteristics of the area, pages 532 and following, showing the contiguous succession of companies and parked vehicles. The reasons given have varied depending on who provided the explanation: the transporter did it at the request of the recipient because the platform was broken, something normal, he had already done it on other occasions; the transporter’s defense because the truck did not fit within the company’s premises; the recipient because the ramp was broken. When the forklift truck collapsed due to excess weight, the container fell and its contents spilled onto the street. No precautions were taken to prevent the risk of a possible fall of the cargo, neither by the recipient nor by the transporter. The causes of the accident in which workers from another company were injured were due to the overload of the forklift truck, which overturned and caused the spillage of the chemical product, and due to the lack of delimitation of the unloading area. In short, the assessment of the evidence is correctly reasoned in the judgment, all without prejudice to analyzing the reason raised by the appellant representing the convicted Mr. Florencio regarding the error in the assessment of the expert’s testimony, despite falling into contradiction with the guiding rules of transport activities.
THIRD. – Regarding the assessment that should be attributed to the conduct displayed and whether it should be considered, as proposed by the appellant on behalf of Mr. Luis, a lack of imprudence, it should be noted that the Supreme Court, in its judgment of March 15, 2007, states: «We have established the criterion -peaceful and reiterated in numerous precedents- that to determine the seriousness of imprudence in order to integrate it into one of these two categories, the following must be considered: a) the greater or lesser lack of diligence shown by the agent in the action or omission triggering the risk, taking into account the concurrent circumstances in each case; b) the greater or lesser foreseeability of the event constituting the result; and c) the greater or lesser degree of infringement by the agent of the duty of care according to the prevailing socio-cultural norms (see STS of March 18, 1999, and December 1, 2000, among others).
It is this duty of care that must be examined in each case as an essential element of imprudence, a duty of care that must be observed in all human activity and which is equivalent in Law to «the caution or precaution required for the protection or safeguarding of legal interests». It is very important to emphasize that this caution or precaution will have a maximum level of demandability when the protected legal interest put at risk is of special relevance, such as the life of individuals, so that in these cases the omission of the special duty of care required by the activity carried out by the agent will be decisive for the gradation of the seriousness of imprudence. Our judgment of November 30, 2001, declares this when it emphasizes that «the seriousness of imprudence is directly related to the hierarchy of the legal interests put at risk and the concrete possibility of the occurrence of the injurious result. In other words: when the action of the author generates a danger to an important legal interest under conditions in which the possibility of the occurrence of the result is considerable, the imprudence must be qualified as serious.»
As the Supreme Court judgment No. 26/2010 of January 25 states: The difference between serious and simple imprudence has been established by this Chamber on occasion based on the importance of the legal interest put at risk by the conduct. Thus, in judgment No. 211/2001, it was stated that «the seriousness of imprudence is directly related to the hierarchy of the legal interests put at risk and with the concrete possibility of the occurrence of the injurious result. In other words: when the action of the author generates a danger to an important legal interest under conditions in which the possibility of the occurrence of the result is considerable, the imprudence must be qualified as serious.»
In other cases, however, more direct attention has been paid to the seriousness of the infringement of the duty of care. In judgment No. 1111/2000, it was affirmed that «Imprudence will be serious, and therefore constitutive of a crime, or slight, being a misdemeanor, depending on the classification that the entity of the infringement of the objective duty of care deserves.» In judgment No. 186/2009, with a reference to judgment No. 665/2004, of June 30, it states «that the fundamental criterion for distinguishing between both types of imprudence must lie in the greater or lesser intensity or importance of the duty of care infringed.» And in judgment No. 181/2009, cited above, it was argued that imprudence is serious, equivalent to reckless under the repealed Penal Code, when it implies failing to provide the indispensable or elementary attention, encompassing both conscious and unconscious fault, as there is no need for a mental representation of the infringement by the subject. It is thus configured by the absence of the most elementary care measures causing an easily foreseeable effect and the failure to comply with a duty required of every person in the exercise of the activity they carry out (STS 1082/1999, of June 28; 11/2004, of October 13). The criteria for its measurement are the greater or lesser lack of diligence in the activity, that is, in the omission of the care required in the specific action, the greater or lesser foreseeability of the event in that activity, and the greater or lesser degree of infringement resulting from the breach of the duty required by the socio-cultural norm and the specific one regulating certain and specific activities (STS 413/1999, of March 18; 966/2003, of July 4).
In the case subject to appeal, it is evident that the protected legal interest put at risk was the life and physical integrity of individuals, that the characteristics of the place where the container containing sulfuric acid was manipulated were extremely compromised, it is sufficient to see the photographic sequence on pages 532 and following, and that the two accused failed to take even the most basic precautions, as the contested judgment indicates: verbal warning to passersby, installation of visible signs to warn of the maneuver being carried out, or placement of obstacles to prevent access by persons not involved in these maneuvers; all these elements indicate that the conduct displayed must be framed in the most serious scale of criminal offenses, that is, as a crime and not as a misdemeanor.
FOURTH. – Next, the issue of the lack of responsibility of the transporter Mr. Florencio must be addressed, as his conduct cannot be subsumed under the breach of any legal obligation.
This approach is not shared.
According to the judgment rendered, the resulting outcome is attributable to both defendants based on the theory of objective imputation in the terms set out in the judgment under appeal and does not necessarily require any legal obligation to have been breached, as the judgment itself explains by classifying the behaviors as imprudent.
Indeed, the reckless offense appears structurally configured, on the one hand, by the infringement of an internal duty of care (subjective duty of care or duty of foresight), which obliges to perceive the presence of a foreseeable danger and the extent of its seriousness; and, on the other hand, by the violation of an external duty of care (objective duty of care), which requires behaving externally in such a way that no prohibited risks are generated, or, failing that, to act in a way that controls or neutralizes the prohibited risks created by third parties or external factors to the author, provided that the author’s duty as guarantor obliges them to control or neutralize the illicit risk that has been triggered. In these requirements, in active behaviors, the causal link between the reckless action and the result (naturalistic or ontological link), and the objective imputation of the result to the reckless conduct must be added, so that the prohibited risk generated by it is the one materialized in the result (normative or axiological link). And in omissive behaviors, the hypothetical imputation criterion focused on determining if the omitted conduct would have prevented, with a probability bordering on certainty, the injury or impairment of the legal interest protected by the criminal norm must be applied, a matter that is beyond doubt of any kind.
Also, the judgment of the Supreme Court No. 907/1995, of September 22, analyzes all the elements of negligent offenses and refers to the normative or external favor represented by the infringement of the objective duty of care translated into convivial and experiential norms tacitly advised and observed in social life to avoid harm to third parties or in specific regulations and good governance of certain activities that, due to their social impact, have deserved regulatory or other normative treatment, in whose scrupulous compliance the community places the conjuration of the danger arising from the aforementioned dedications.
Therefore, Mr. Florencio, due to his condition as an experienced transporter with specific training provided for the transport of this type of substance, could not fail to notice the certain danger that could materialize with the transfer of the merchandise on the street and not in an appropriate place, whether open or closed, so that he was affected by the duty of care from a double perspective, both experiential due to his extensive and complete training and knowledge of the dangers of the transported substance, and, on the other hand, due to the rules that regulate the transport of this type of goods or substances that undoubtedly contemplate the obligation to adopt the appropriate precautions in each case.
The European Agreement on the International Carriage of Dangerous Goods by Road (ADR) in force at the time of the events, on the one hand, defines the scope of application of said Agreement, section 1.1.2 (a) the dangerous goods whose international transport is excluded and the dangerous goods whose international transport is authorized; and in chapter 1.3 concerning the training of the persons involved in the transport of dangerous goods, section 1.3.2.3 states that the personnel must receive training that addresses the risks and dangers posed by dangerous goods, which must be adapted to the seriousness of the risks of damage or exposure that may be incurred in the event of an incident during the transport of dangerous goods, including loading and unloading of these, and the transporter, as explained, had been issued the training certificate for the transport of dangerous goods in his favor.
The debate that this party intends to introduce about not classifying sulfuric acid as a dangerous substance becomes meaningless given that when the ADR explains the principles of classification, it states that the classes of dangerous goods will be defined based on their properties and all the headings of dangerous goods are listed in table A of chapter 3.2 ordered by UN number and sulfuric acid with more than 51% acid, which the appellant himself recognizes was the transported substance, has UN number 1830 and belongs to class 8.
On the other hand, in chapter 1.4 where the safety obligations of the participants are explained and regulated, section 1.4.1.1 states that the participants in the transport of dangerous goods must take appropriate measures according to the nature and extent of the foreseeable risks to avoid damage and, when necessary, minimize their effects; in any case, they must comply with the provisions of the ADR concerning them.
Therefore, the transporter should also have taken appropriate measures considering the place and circumstances in which the unloading operation was being carried out from the truck driven by him.
In short, in his capacity as a specialist adequately trained and prepared for the transport of corrosive substances such as sulfuric acid, he should have noticed the danger posed by handling the cargo in a crowded area of people, companies, and vehicles and with his omission of adopting adequate precautions to warn of the dangers that could happen by avoiding the nearby transit of people and acquiesced to the transfer carried out by the other accused without delimitation or fencing of the area in question.
The approach of the appellant in the sense that it is the unloader or recipient of the merchandise the only legal and responsible party in the unloading operation should not be accepted based on the aforementioned rules, and, in any case, for mere dialectical purposes, it would always be accepted as long as the unloading had been carried out in their own facilities, something that did not occur in the case under consideration, so the transporter intervened, although not actively, in the unloading operation to the extent that it was carried out in his presence on the public road.
For the foregoing reasons, the trial judge correctly assessed the expert technical report always taking into account that the expert was called to testify to provide explanations about facts or circumstances related to the procedure, while the interpretation and application of the rules are sovereign of the judge; in the present case, the correlation between the facts declared proven and the rules applied are correct.
The appellant himself in his appeal brief refers to the testimonial statement made on September 4, 2009, by Mr. Juan Miguel, a driver trainer, and regrets his death before the trial; it is recorded on page 746 that he stated that sulfuric acid is a moderately dangerous substance and that the ADR does not prohibit it and believes that it is not advisable to do so in a public street, the one who assumes responsibility is also the unloader, also the transporter if he allows unloading in a public street, that the ADR is a European agreement, that a municipal ordinance could restrict the ADR more, that for example, the Madrid City Council does it with the passage of trucks at certain times; so this witness, whose testimony in the trial could not be received due to the circumstances mentioned, apparently did not maintain such a distant position, but even coincident, with the expert opinion issued at the trial.
FIFTH. – Therefore, it is appropriate to dismiss the appeals lodged and confirm the appealed judgment in its entirety, declaring the costs of this appeal ex officio, as there is no merit for their imposition on the appellants.
Thus, in the exercise of the jurisdictional authority conferred upon us by the Spanish Constitution, and in the name of His Majesty the King,
WE RULE: By dismissing the appeal filed by the Attorney Mr. Juan Antonio Gómez García, on behalf of Mr. Florencio and Terapio Drogas, S.A., and by the Attorney Mrs. Águeda Valderrama Anguia, on behalf of Mr. Luis, against the judgment issued by the Honorable Mr. Magistrate-Judge of the Criminal Court No. 5 of Móstoles, dated October 15, 2012, and to which this proceeding refers, we must CONFIRM and CONFIRM it in its entirety, declaring the costs incurred in this appeal ex officio.
This Judgment is final from this date, as no further appeal may be filed against it, return the original case file along with its testimony to the originating Court for its execution and enforcement, once notified to the parties.
Thus, by this Judgment, we pronounce, order, and sign.