The Use Of OSHA Regulations In Private Litigation

By Thomas J. Lavelle

The Occupational Safety and Health Act, 29 U.S.C. Sects. 651 et seq., does not provide a private cause of action for workplace injuries. However, most state and federal courts do allow the use of compliance or noncompliance with OSHA standards and regulations as evidence in private litigation under the appropriate circumstances.

In North Carolina, OSHA evidence is admissible in cases where an injured worker has a claim against a nonemployer third-party, or against his or her employer in intentional tort (a.k.a. a Woodson claim).

Evidence of noncompliance with an OSHA regulation is admissible in a workplace injury suit under the Federal Employers Liability Act (FELA). 45 U.S.C. Sect. 51 et seq., and OSHA standards and regulations are admissible as evidence in products liability actions (although the federal case law on this is inconsistent).

This article discusses the current doctrines and case law on the use of OSHA evidence in third-party workplace injury actions, Woodson claims, products liability actions, and work place injury claims under FELA.

Third Party Work Place Injury Suits

In general, when a party assumes responsibility for work site safety by virtue of their expertise and control over the safety conditions at the site, that party may be held responsible for injuries sustained by nonemployees. Because such injuries arise outside of the employee-employer relationship, workers’ compensation statutes do not provide a remedy for the injured worker, requiring that she seek redress through private litigation.

The case law that has evolved around third-party workplace injury suits is commonly referred to as the “multi-employer doctrine.” The multi-employer doctrine is based on the specific duty clause of the OSH Act which imposes a duty of care to employees by nonemployers who exercise control over safety conditions at a work site. The OSH Act specific duty clause requires each employer to comply with occupational safety and health standards that are promulgated under the authority of the Act. 29 U.S.C. Sect. 654(a)(2).

The specific duty clause does not convert an OSHA violation into a private cause of action, but rather, extends to employees of an independent contractor the same duty owed to one’s own employees. For the multi-employer doctrine to apply, it is not necessary that there exist any actual contract provision specifically assigning responsibility for work site safety.

Rather, the test is whether the defendant had actual, physical control over job site safety, as well as the authority to stop work if unsafe conditions exist. See Anthony Crane Rental, Inc. v. Reich, 70 F.3d 1298 (D.C. Cir. 1995); Ellis v. Chase Communications, 63 F.3d 473 (6th Cir. 1995); Teal v. E.I. Dupont de Nemours & Co., 728 F.2d 799, 804 (6th Cir. 1984).

In North Carolina, the right of an employee of a subcontractor to maintain an action at common law against the main contractor for injuries resulting from alleged negligence on the part of the main contractor is well established. See Cathey v. Southeastern Construction Co., 218 N.C. 525, 11 S.E.2d 571 (N.C. 1940); Tipton v. Barge, 243 F.2d 531 (4th Cir. 1957); Nye v. Wadsworth Wrecking Co., 2 NCOSHD 50 (RB 1977), aff’d 2 NCOSHD 55, 77 CVS 762 (Sup. Ct. 1977); Sayles v. Loftis, 217 N.C. 674, 9. S.E.2d 393 (N.C. 1940) (The principal contractor is liable at common law as a third person for negligent injuries to employees of a subcontractor).

In such actions, evidence of OSHA noncompliance is admissible as evidence to establish negligence on the part of the principal contractor.

If the plaintiff fails to show that the third-party defendant had actual physical control over safety conditions at the work site, the defendant will likely escape liability. See, e.g., Kane v. J.R. Simplot Company, 60 F.3d 688 (10th Cir. 1995) (The defendant must have been in a position to identify and recognize an unsafe condition, and to have the means to correct the unsafe condition or stop work until the condition is corrected. To simply assert that the defendant owns the site and should therefore be held accountable is not enough to impose liability).

In North Carolina, the defendant in a third party workplace injury suit can also escape liability upon a showing of contributory negligence on the part of the plaintiff.

Contributory negligence constitutes a complete defense to an action against a third-person tortfeasor, and may be pleaded and proved by the third-person regardless of whether the action is instituted by the employer, the insurance carrier, or the employee. See Lovette v. Lloyd, 236 N.C. 663, 72 S.E.2d 886 (N.C. 1953) (Contributory negligence can only act as a bar in private litigation).

In a claim under the Worker’s Compensation statute, contributory negligence on the part of the employee can only reduce the amount of the award by ten percent. N.C.G.S. Sect. 97-12(3).

Where the duty to provide a safe workplace is embodied in contract, the courts generally allow OSHA violations as evidence in third-party personal injury actions against the guarantor.

This includes situations where the contract is between a contractor and the owner, and the injured party is an independent subcontractor. See Caldwell v. Bechtel, Inc., 631 F.2d 989 (D.C. Cir. 1980). Despite the fact that the plaintiff in this case was not an employee of the defendant, there nevertheless existed a “special relationship” between them based upon (1) the formation of a contractual duty between defendant and the project owner (the Washington Metro Authority), and (2) the defendant’s status as the safety engineer on site.

The court found that the defendant possessed the special skills of one engaged in the profession of safety engineering, knew of the high concentrations of silica dust on the job site in violation of OSHA standards, and was “fully possessed” of the power to protect workers by stopping work on the project of unsafe conditions warranted. The defendant therefore had a “special relationship” with the other employees on the job site, giving rise to duty to take reasonable steps to protect all works on the job site (including non-employees) from the foreseeable risk of harm to their health.

In North Carolina, a contractor who lets work to a subcontractor without requiring evidence that the subcontractor is in compliance with the workers’ compensation insurance provisions of N.C.G.S. Sect. 97-93 is liable under N.C.G.S. Sect. 97-19 to the employees of that subcontractor as if they were employees of the contractor. This section does not give rise to private litigation, but instead, brings nonemployees within the coverage of the North Carolina Worker’s Compensation Act.

Intentional Tort: The Woodson Doctrine

Most states have narrowed the scope of worker’s compensation exclusivity by allowing private causes of action to lie for intentional tort. In North Carolina, this type of suit is referred to as a Woodson claim, after Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222 (1991).

In Woodson, the North Carolina Supreme Court held that when an employer engages in misconduct knowing that such misconduct is substantially certain (not merely likely) to cause serious injury or death to employees, and an employee is injured or killed, the employee (or his estate) may pursue a private civil action in intentional tort against the employer. A Woodson claim may be simultaneously pursued with a workers’ compensation claim, but if simultaneous actions are pursued, there may be only one recovery.

Although not declaring it requisite to the claim, the court in Woodson relied on the introduction of prior violations of N.C. OSH Act trenching standards as part of the evidence establishing conduct substantially certain to cause injury or death. Although not required as an element of the claim, post-Woodson case law from the North Carolina Court of Appeals suggests that the Woodson plaintiff facing a defendant with a past history of OSHA violations stands a very good chance of surviving pretrial motions. A few of these cases are discussed below, and they provide some guidance as to the facts necessary to carry a Woodson claim (at least through the pretrial phase).

In Pastva v. Naegele Outdoor Advertising, Inc., 121 N.C. App. 656, 468 S.E.2d 491 (1995), appeal denied, 471 S.E.2d 74 (N.C. 1996), the North Carolina Supreme Court upheld an Appeals Court reversal of a Sect. 12(b)(6) dismissal of an action by employees injured and killed when a billboard they were working on collapsed.

The Appeals Court held that the following allegations asserted a good Woodson claim: (1) The employer ordered the plaintiffs to work on the billboard, which had a structural failure caused by a prior move and by the employer’s use of improper components; (2) The employer had actual knowledge provided by a previous work crew immediately prior to the collapse that the that the billboard was unsafe; (3) The employer had previous OSHA citations and fines, and was cited again after the billboard collapse; (4) The employer did not inspect the billboard, did not offer any employee workplace safety training, and subsequently acknowledged that its acts and omissions caused the billboard collapse.

In Arroyo v. Scottie’s Professional Window Cleaning, 121 N.C. App. 154, 461 S.E.2d 13 (1995), disc. review allowed, 342 N.C. 190, 463 S.E.2d 231 (1995), disc. review improvidently provided, 343 N.C. 118, 468 S.E.2d 58 (1996), the plaintiff window washer was injured after being required by his employer to lean outward from a small ledge without fall protection equipment. The plaintiff alleged that the employer intentionally engaged in misconduct knowing it was substantially certain to cause serious injury or death.

Although the defendant was aware of the danger inherent in cleaning the exterior windows of multi-story office buildings, the defendant had no written safety procedures nor did the defendant provide its workers with any kind of safety training. The plaintiff was also required to work at great heights from the ground without the use of a safety line or safety net, all in violation of OSHA regulations.

The defendant had also been previously cited and fined by the N.C. Department of Labor for similar OSHA violations. The Wake County Superior Court dismissed the claim on the defendants Sect. 12(b)(6) motion, and the Court of Appeals reversed, holding that the plaintiff stated a cause of action against the employer under Woodson.

In Regan v. Amerimark Building Products, Inc., 118 N.C. App. 328, 454 S.E.2d 849 (1995), disc. review denied, 340 N.C. 359, 458 S.E.2d 189 (1995), cert. denied, 342 N.C. 659, 467 S.E.2d 723 (1996), an injured employee brought an action against his employer and supervisor when his arm and body were crushed while he was cleaning a paint machine. The plaintiff’s complaint alleged that prior to his injury, other employees had clothing, gloves, arms and legs caught in the paint machine, suffering serious injury and death.

In apparent response to these previous injuries, the defendant installed emergency cutoff switches for use by employees who got caught in the machine, and employees were instructed on the hazards of the paint machine and on the operation of the switches. The plaintiff was injured when his hand was caught and pulled into the machine, and he tried to stop the machine with the emergency switches, only to find them inoperable.

The plaintiff alleged in his complaint that the defendant was aware that the emergency switches were inoperable, but nevertheless directed the plaintiff to clean the paint machine without telling him they were not functioning. The Wake County Superior Court dismissed the claim on the defendants Sect. 12(b)(6) motion, and the Court of Appeals reversed, holding that the plaintiff stated a cause of action against the employer under Woodson. The defendants’ petition for certiorari to the Supreme Court was denied.

In Pastva and Arroyo, the plaintiffs introduced evidence of past OSHA violations and citations that were of the type that caused or contributed to the plaintiffs injuries. In Regan, the plaintiff asserted that prior to his injury, other employees had been maimed and killed on the same machine.

In all three cases, past bad conduct by the defendant was an important factor in establishing a Woodson claim capable of surviving pretrial motions. Although no North Carolina court has flatly stated that past OSHA violations are necessary to establish a Woodson claim, Woodson defendants that do not have a past history of OSHA violations have been very successful in prevailing in the pretrial phase, egregious conduct on the part of the employer notwithstanding.

See, e.g., Rose v. Isenhour Brick & Tile Co., Inc., 120 N.C. App. 364, 461 S.E.2d 782 (1995), disc. review denied, 342 N.C. 415 (1996); Echols v. Zarn, Inc., 116 N.C. App. 364, 448 S.E.2d 289, aff’d 342 N.C. 184, 463 S.E.2d 229 (1995); Mickles v. Duke Power Co., 342 N.C. 103, 463 S.E.2d 206 (1995); Pendergrass v. Cardicare, Inc., 333 N.C. 233, 424 S.E.2d 391 (1993); Kelly v. Parkdale Mills, Inc., 121 N.C. App. 758, 468 S.E.2d 458 (1996).

The North Carolina Supreme Court has not provided any guidance as to what facts are necessary to allege a Woodson claim since it decided the original case, and such clarification is unlikely to be forthcoming anytime soon. This is because if a plaintiff survives rule 12(b)(6) and summary judgment motions on facts alleging a Woodson claim, it would take a pretty fearless defendant to place its conduct in front of a jury. Instead, a defendant facing a live Woodson claim is well advised to settle out of court (which most apparently do since there has yet to be a Woodson claim decided by a jury).

Although the role of previous OSHA violations in Woodson claims is not settled, the trend thus far tends toward the requiring of previous OSHA violations and citations to establish conduct that is “substantially certain” to cause injury or death. This is potentially troubling in that the resulting message to an employer is that she is free to kill or maim an employee without fear of private litigation up to the time of receipt of that first OSHA citation.

On the other hand, to assert that a company was substantially certain that a course of conduct was sufficient to cause injury or death without showing a past history of OHSA violations could weaken the “no-fault” underpinning of the N.C. workers’ compensation statute by encouraging private litigation every time the conduct of an employer exceeds mere negligence.

In a concurring opinion in Pastva, Judge James Wynn opined that the Supreme Court’s reluctance to establish a fuller standard for Woodson cases creates a “continuing dilemma” for judges and litigators. He suggests that the court should set out the relevant factors for a Woodson claim (including past OSHA violations and employer response thereto), or in the alternative, to “revisit Woodson and declare that the employer’s conduct in that case was indeed intentional conduct — an already established exception to the Worker’s Compensation Act.”

The Worker’s Compensation Act provides the exclusive remedy for an employee injured in a workplace accident unless the injury resulted from an intentional tort. N.C.G.S. Sect. 97-10.1.

Whatever the Supreme Court does, it is a safe bet that evidence of past OSHA violations will continue to be an important factor in establishing (or negating) Woodson claims. It is less clear what role OSHA citations levied subsequent to a workplace injury will play, where the condition cited was that which caused or contributed to the injury.

Such after-the-fact violations are important in establishing a “willful” violation of occupational safety standards. See, e.g., Associated Mechanical Contractors, Inc. v. Payne, 467 S.E.2d 398 (N.C. 1996 and H. Alan Pell’s article Willful Violations Under OSHA: No Knowledge Of The Act Required in this supplement), but the North Carolina courts have not adequately addressed the proper effect to be given them in the context of a Woodson claim.

Products Liability

The U.S. Court of Appeals is split as to whether OSHA standards or regulations are admissible in products liability action to prove or disprove that a machine or piece of equipment is safe. The First and Sixth Circuits have excluded OSHA evidence in products liability actions.

The Second, Fourth, Tenth, and District of Columbia Circuits have allowed it, and the Fifth and Eighth Circuits have both allowed and excluded OSHA evidence. The Third, Seventh and Eleventh Circuits have not issued published opinions directly addressing this issue.

The primary argument against admitting OSHA evidence into a products liability action is that a jury may improperly assume that the employer’s duty under the OSH Act to provide a safe machine precludes a manufacturer’s duty to manufacture a safe machine.

This concern can be cured, however, with a proper limiting jury instruction stating that (1) the evidence of compliance or noncompliance with an OSHA standard or regulation applies only to employers and not manufacturers, and (2) evidence of compliance or noncompliance with an OSHA standard or regulation is not dispositive of the fact it is being offered to prove — it is merely one factor that may be considered along with all other evidence.

Workplace Injury Suits Under FELA

Under the Federal Employers Liability Act, an injured railroad employee must establish negligence on the part of the employer railroad as an element of his or her claim for compensation. The U.S. Court of Appeals for the Fourth Circuit has held that the violation of an OSHA regulation, even though not applicable to rail roads, may nevertheless be admitted into evidence in a personal injury action under FELA.

The proper procedure for admitting evidence of nonconformance with an OSHA regulation is to read the relevant part of the regulation to the jury, and to instruct the jury that if it believes that the regulation was violated, it can consider (but is not required to) the violation as “one more piece of evidence on the issue of … negligence.” Albrecht v. Baltimore & Ohio Railroad Co., 808 F.2d 329 (4th Cir. 1994)(violation of an OSHA regulation in a FELA case admissible as evidence of negligence but not negligence per se).

Conclusion

The use of OHSA regulations’ violations and citations is and will remain an important part of private workplace safety litigation. These areas include third party work place injury suits and workplace injury suits under FELA. Under current North Carolina case law, evidence of OSHA violations are a key component of a Woodson claim; exactly to what extent and to what effect awaits further attention by the Supreme Court. And, although the federal circuits are split as to the use of OSHA evidence in products liability actions, such use is allowed under the appropriate circumstances in North Carolina and the Fourth Circuit.

Where OSHA standards or regulations are admitted into evidence in a products liability action, the non-offering party should make sure that such evidence is offered only with an appropriate limiting jury instruction.

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Tom Lavelle is a solo practitioner concentrating in environmental compliance, OSHA/workplace safety, and hazardous materials handling and transportation. He can be reached at (919) 403-5656, or via the Internet at [email protected].