ON REMAND
Before: Danhof, C.J., and McDonald and Cav-ANAGH, JJ. McDonald, J.This case is on remand to this Court by order of the Supreme Court for the limited purpose of considering the following issue: "[W]hether the magistrate abused his discretion in binding over the defendant on the involuntary manslaughter charge for the reasons stated by the circuit judge.” 432 Mich 598, 625; 443 NW2d 127 (1989).
In our earlier opinion, 169 Mich App 62; 425 NW2d 729 (1988), we affirmed the circuit court’s dismissal of the charges against defendant, concluding the federal Occupational Safety and Health Act, 29 USC 651 et seq., precluded the application of the state’s general criminal sanctions to the instant defendant. The Supreme Court reversed, finding no preemption. We read the Supreme Court’s opinion as permitting criminal prosecution of conduct that violates either the federal osha or the Michigan osha, MCL 408.1001 et seq.; MSA 17.50(1) et seq., if the conduct also violates a criminal law. In the instant case defendant’s con*24duct is alleged to constitute the criminal act of involuntary manslaughter.
We again affirm the circuit court’s dismissal of the involuntary manslaughter charges against defendant. Although perhaps not evident from our prior opinion, we believe the problem with defendant’s criminal prosecution stems from the lack of a duty owed the deceased by defendant and the people’s improper attempt to create such a duty by reference to certain standards for safe carbon monoxide levels contained in osha and miosha while at the same time rejecting prosecution under the same statutes.
Defendant was charged with involuntary manslaughter based on his alleged failure to perform a legal duty, "to provide a work environment free of known hazards and to furnish equipment which can be operated safely.” Involuntary manslaughter based on the omission to perform a legal duty encompasses the following elements: 1) legal duty, 2) capacity, means and ability to perform the duty, 3) willful neglect or refusal to perform the duty, and 4) death as a direct and immediate consequence of a failure to act. People v Sealy, 136 Mich App 168; 356 NW2d 614 (1984); CJI 16:4:08.
The circuit court dismissed the charges against defendant, finding the people failed to establish the first element of the crime, the existence of a legal duty. We agree with the circuit court and find the magistrate abused his discretion in binding defendant over for trial. People v Gonzalez, 178 Mich App 526; 444 NW2d 228 (1989).
Although the people correctly argue the existence of a common-law duty owed an employee by his employer to maintain a reasonably safe workplace, Villar v EW Bliss Co, 134 Mich App 116; 350 NW2d 920 (1984), and to furnish, inspect and keep fit suitable equipment, Johnson v Spear, 76 *25Mich 139; 42 NW 1092 (1889), the instant defendant was not the deceased’s employer and did not own the equipment responsible for the accident. Thus, the people’s reliance on an employer’s common-law duty to maintain a safe workplace is misplaced when asserted against the instant defendant. Moreover, our search has failed to provide any other criminal statutory duty applicable to the instant defendant except perhaps the duties contained in osha and miosha under which defendant was not charged.
Thus, although defendant’s conduct may violate osha or miosha standards, such conduct does not constitute the criminal act of involuntary manslaughter.
Affirmed.
Cavanagh, J., concurred.