Exonerated! James Lomma talks about his not guilty verdict

When Judge Daniel Conviser announced his verdict in the Manhattan Supreme Court on April 26, 2012, James Lomma felt a wave of emotions. After enduring a grueling criminal trial associated with a New York City tower crane accident in 2008, Lomma silently tried to relish the words "not guilty" spoken six times by the judge. Afterward, he reached out to hug members of his legal team who worked vehemently on his behalf .

While the verdict was a huge relief, Lomma is still quick to point out that the accident was a tragedy. The deaths of two workers on the East 91st Street job, and the experience of going through the long and arduous criminal and pending civil trial process, have been life changing for the owner of JF Lomma Inc. and New York Crane.

Three weeks after he was found not guilty, Lomma describes his feelings as "bittersweet."

"At the end of the day, two people were killed," he says. "It's a tragedy."

While the prosecutors claimed that the tower crane that fell wasn't safe, Lomma's attorneys would prove that the accident occurred due to the operator two blocking the crane and causing it to collapse.

With a legacy of more than 30 years working in the crane and transport business, Lomma has been known as a consummate professional and safety advocate. He has been an active member of the SC&RA, serving as president in 1996.

Lomma was hailed as a hero back in 2001 when, (at the request of then Mayor Rudolph Giuliani), he led the crane operation efforts involved in the search, rescue and recovery and later clean-up efforts at Ground Zero after the attacks of 9-11.

But Lomma's name and business have been driven through the mud. The New York City press, in particular, have been brutal, publishing skewed, distorted and in some cases outright false information, according to Lomma.

The truth is that Lomma has long been a leader in the advancement of crane safety and crane operator certification. Lomma was an instrumental leader in the SC&RA's establishment of the National Commission for the Certification of Crane Operators (NCCCO), and he has helped with the implementation of countless safety and risk management initiatives in the crane industry.

Lomma is now trying to enjoy the feeling of exoneration. He has been very guarded about speaking with the press about the trial for many reasons, the main one being that he still has to endure a civil trial related to the accident. Sitting in on our interview was Glenn Fuerth, one of Lomma's attorneys. On a couple of occasions during our interview, Fuerth was able to offer clarity and legal expertise to our questions. We have noted his input in the interview.

As the trial played out, were you confident that the judge would review the facts and find you innocent of the charges?

Well, it gets down to when you review all the facts, I felt we'd be found not guilty. But at the end of the day, you never know what the judge may or may not do. We didn't do anything wrong, and we didn't break any laws or regulations, and the facts support that.

How have you dealt with the negative press and not being able to refute it?

You just learn to deal with it. There is nothing you can say. You are really here to try the case in front of the judge. You just have to sit there and tell yourself that the judge is trying you, not the press. And it's hard. It's very hard. It's not easy. You present all the facts, and once the judge reviews all the facts, he will make the decision. The press, the newspapers, they only want to sell newspapers. The coverage was all negative. They never told the whole story.

When the judge announced the verdict all six times, how did you feel?

You can just imagine me sitting there, and here again, this sort of thing had never happened to me before, and I'm hoping it will never happen to me or anyone else again. Six times [to hear the judge read the verdict] is a long time. One two, to six, and every time he said 'not guilty' I felt a little bit better. Basically he reviewed everything and made his decision. I felt justice was served once the judge saw all the facts.

You have many friends and colleagues in this industry who were releived to hear that you were exonerated. Have you heard from many people in the industry. What has been the response?

I've gotten a lot of positive responses. I've heard from people all over the world. I've gotten a lot of support. Basically, this is an industry thing too. They were trying to indict an officer, the president of a corporation. God forbid if it would have went the other way, this would have affected everyone in the crane industry.

Could this have happened to any crane owner whose crane was involved in an accident?

Yes. The bottom line is the accident was never, ever investigated properly. Here again, they were trying to go after the owner of a company just because there was a crane accident, but they didn't do a proper investigation [to see what really happened].

What happens next?

What's going to happen is that we have a civil trial that is going to take place. They will take my deposition. I don't know what will happen at the civil trial. We are going to present the same facts. But it's totally different in a civil trial. Glenn could answer more questions about that than I can.

Glenn Fuerth: Basically we are just going to vigorously defend Mr. Lomma and New York Crane and JF Lomma Inc., and the defense is based on the same defense in the criminal case. It's just that in a civil case, the burden of proof is substantially lower, and the case will be tried in front of a jury.

In other words, in a criminal case it has to be beyond a reasonable doubt. In a civil case, the plaintiff has to establish by a preponderance of the evidence - it's sort of like 95 percent proof in a criminal case and 51 percent proof for the plaintiff in a civil case.

While there is still a civil trial pending, with the criminal case out of the way, does this allow you to get back involved in the business and not have to keep such a low profile in the industry?

Glenn Fuerth: As a result of his acquittal he is now free to take up where he left off. He can now move on with his life and business.

Lomma: I even have my passport back. I can travel again.

How can the crane industry learn from this accident and also from its aftermath that you have endured?

In New York, basically, cranes are rented bare. A lot of cranes around the country are rented bare. And we don't have any control, as a crane rental company, who operates our cranes in many cases. That's the only thing I can say. We don't have any control in who operates and maintains our cranes.

The operator may not have the experience needed. Here again, with this crane, this Kodiak crane, it's probably one of the fastest tower cranes, if not the fastest tower crane, ever built. You really need a guy with a lot of experience [running this crane]. The way the rules are written, there is no experience qualification, at the time, if you were running a tower crane or a regular crane. Basically, the crane industry has to join together with the regulatory industry to make sure the operators going forward are qualified to run these cranes.

The NCCCO has a qualification for every class of crane, where in the city of New York, as we speak, they are finally changing that rule. Just as we are involved in all this, OSHA has changed the rule and so has the city of New York, and going forward, I think we are going to get a better class of operator.

Really it gets down to this question: Is the person qualified to run this crane? The rules are one thing and the qualifications are another thing. You have to remember, this operator had never operated this type of crane before. He was never on a Kodiak tower crane before in his life. So he was basically training on the streets of New York.

Glenn Fuerth: OSHA is the standard. You can't be less strict than OSHA. OSHA sets the baseline standards. Cities, states or governmental entities can make the rules stricter for operators.

What can you say about this case and how your defense team handled the facts of the accident?

First of all, I had the best defense team you can get. They spent a lot of time learning about cranes. They put on their dungarees and went out and climbed around on cranes and got their hands dirty. They really, really did a good job, and they had to do a good job because the district attorney was never looking for the truth in this case. The DA came up with a version of what happened which was never, ever supported by the evidence - at all.

Do you think the district attorney thought he could really win this case?

I don't know, I don't think I can comment on that. I don't think the DA and their staff is even qualified to get involved in a case like this. I mean, if he really thought he would lose, I don't think he would have tried it. They took two years to indict and two years to go to trial.

Glenn Fuerth: It's tough to comment on the operation of someone's mind, what they were thinking and so forth.

At this point, with the criminal case over, do you feel the weight of world is off your shoulders?

Well yes. I just don't want this to happen again. I don't want to see it happen to anyone else. Okay, and basically going forward, [in terms of accidents, we should be assured that] they should investigate the accident and do a more thorough job before they start to indict people.

But it's because they want to appeal to the public. They want to look like they are responding, but they should know the facts [before they go to this extent.]

There seemed to be a collective sigh of relief for you and for the crane industry itself when the verdict was reached. We know you still have a case pending so we can't push you too hard, but how can lessons be learned from this tragedy?

We do have to be very careful, and I don't know how to say this. The judge basically left the case records open. Normally when you are acquitted they seal the court records of the case. The judge in this particular case wanted the records left open. I had the right to seal them.

But the reason he gave was that he felt, well I don't want to get into his head, but he basically said to us, with the press that was out there, he saw no reason to seal the records.

I think he hopes that some good would come out of this, and that was his reason for not sealing the transcript of the trial, to give anyone who wanted the opportunity to read the minutes of the transcript.

Here again, I don't want to put words in the judge's mouth. He did not say the press treated us unfair. He just said with all the press that was out there, he felt he should leave it open. I'm interpreting that my way.

So by leaving these records open, the press could go in and report your side of the story? The industry can see what really happened?

Yes. But that doesn't sell newspapers. Particularly, with some of the [coverage by] the periodicals, it was yellow dog journalism at its worst.

But actually, I was surprised, [the negative press was mainly in New York.] A lot of people from around the country called me up and that didn't happen, the negative press, in every part of the country. People in Chicago or Los Angeles, they didn't see as much of what we had in New York City.

Still, this was a tragedy. But there was nothing about it that was criminal. That's what the civil litigation is for. At the end of the day two people were killed. At the end of the day, it was my crane and I'm involved. No one wants to see anyone die. It was bittersweet.

It's just that you have an aggressive district attorney and politicians out there.

There is no one I know in the crane business who would ever do anything, who would never knowingly do anything, that would ever, ever endanger anybody's life.