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Use of OSHA as Standard of Care in Negligence Cases-Expert Safety Witness Role

By: Greg Gerganoff
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When personal injury events occur legal negligence actions may arise.

Common law negligence is established by plaintiff showing defendant owed plaintiff a legal duty, to conform to a standard of care, defendant breached that duty, plaintiff suffered injury and there is a causal relationship between the breach and injury. FN 1 But what sources of standard of care proofs are available? How does a litigant go about proving standard of care?

While the Restatement of Torts and Colorado common law have long been a historical source of offering examples of standard of care a relatively new additional potential source of this crucial element has arisen in Colorado (and some other states), namely the safety standards of the Occupational Safety Health Act of 1970 ("OSH Act"). The OSH Act is a body of federal safety rules and procedures applied to certain businesses and industries relative to employee safety. As originally designed the OSH Act was developed and implemented as federally (or states using State OSHA) enforceable safety guidelines for employee safety in the U.S. work place.

The OSH Act is administered by the federal agency Occupational Health and Safety Administration ("OSHA") (or OSHA Approved State Plans) and divided into four parts: General Industry, Construction Industry, Maritime and Agriculture. (The OSH Act specifically excludes mining which governed by its "little brother", Mine Health Safety Administration, "MSHA", pursuant to the Federal Mine safety & Health Act of 1977.) OSHA through one of these four parts enforces compliance in the workplace venue upon employers.

Are the OSH Act safety standards available for use in private negligence actions? In Colorado the answer is a qualified "yes".

A brief history of the use of the OSH Act in negligence cases in Colorado may assist in understanding the path leading to "yes".

Attempts in the past to use the OSH Act as a jury instruction in negligence per se have met judicial resistance. In a leading case on this point a plaintiff an independent contractor on a job site, fell through a roof hole loosely covered by plywood and sustained injuries. FN2 Plaintiff argued the roof condition violated federal safety rules under the OSH Act, thereby making defendant contractor responsible for his injuries. FN3 The Canape court ruled that use of the OSH Act (in jury instructions) under a theory of negligence per se was contrary to the OSH Act under 29 CFR 653 (b) (4).

The Canape court reasoned that negligence per se may be established where 1) defendant's action violates a statute and plaintiff's injury was proximately caused by that violation, and 2) plaintiff can show he/she is a member of the protected class under the statute. FN 4 The Canape court ruled the OSH Act focuses strictly on employer/employee relationships and that plaintiff's services to defendant were rendered as an independent contractor. In support of this conclusion, the Court noted applicability of the OSH Act applicability to specific working relationships is limited to employer/employee relationships. FN 5

The Canape court further ruled the OSH Act prohibits its use where there may be an enlargement of common law rights. FN 6 The court's raised the concern that negligence per se jury instruction using the OSH Act would exceed its statutory limitation. Colorado courts have consistently held Congress specifically legislated the OSH Act to NOT be available to injured employees claiming a violation that would bypass applicable state worker's compensation benefits via a court action. FN7 Furthermore, Colorado courts hold that accepting a negligence per se jury instruction via OSH Act would alter a contractor's duty at common law in the exercise of reasonable care thereby enlarging his burden under OSHA. Canape's defendant's tort liability would have been enlarged by allowing Canape to proceed with a negligence per se theory." FN8

Did Canape completely remove the OSH Act from negligence actions in Colorado?

No. In Scott an independent contractor fell from atop a tanker owned by defendant Matlack sustaining injuries. Plaintiffs sought to introduce OSH Act safety regulations to prove a standard of care breach by defendant. Defendant argued the OSH Act could not be put forth as a standard of care pursuant to OSH Act section 653 (b) (4). (This section of OSH Act provides it may not be used to change an employees or employers common law liability.)

In Scott the trial court denied plaintiffs proposed jury instruction of negligence per se via the OSH Act in lieu of rather allowing an instruction of general common-law negligence. The Colorado Supreme Court granted certiorari to determine if the Canape ruling excludes all OSH Act related evidence (pertaining to the appropriate standard of care) in negligence actions.

The Scott court ruled on several points regarding the use of the OSH Act in negligence cases. First, the Canape ruling does not "...preclude the admission of the Occupational Safety and Health Act evidence in a negligence suit, therefore; (2) "...it is proper for the trial court to admit Occupational Safety and Health Act regulations as evidence of the standard of care in an industry..." FN 9 The Scott court holding further states 1) the OSH Act could not create a private cause of action and hence plaintiffs are prohibited from using OSH Act to establish negligence per se; and 2) that use of the OSH Act in common law negligence claims is not prohibited under Canape. In short the trier of fact is allowed to hear evidence of the OSH Act as "...some, nonconclusive, evidence of the standard of care in the relevant industry." FN 10

So what does it all mean?

Common-law negligence cases now have a slightly broader source of potentially useable standard of care tools in the form of 29 CFR 1910, 1926, 1928, 1915, 1917 and 1918. Additionally, the Scott ruling raises the question of whether any other federal safety regulatory scheme, such as the MSH Act, might be useful in the same manner.

Who benefits from this ruling? Any litigant (plaintiff or defendant) may avail itself of the OSH Act in proving of standard of care.

So how can the OSH Act be introduced and used in a common-law negligence case? A litigant seeking to demonstrate an actor did or did not satisfy "standard of care" toward another may use the OSH Act as "some" evidence of an industry standard in its case. This is a good point in the discussion to examine the role of a safety expert witness.

First, what is a safety expert? A safety expert is typically someone who through education and field safety work has learned safety regulations (OSH Act/MSH Act), industry practices and customs. Each industry possesses unique working conditions and situations leading to hazards commonly encountered and proper or customary methods of dealing with hazards. Each part of the OSH Act Part has its own rules of jurisdictions, functions and specific safety standards. To make a finer point here is some of the OSH Act Parts deal with a common hazard but offer differing regulations.

The safety profession encompasses multiple activities undertaken by business regarding "safety". These include: Safety program management, field safety auditing, statistical analysis (worker's compensation and OSHA Recordable), OSH Act record keeping, training and hazard identification, etc. Safety personnel typically work for companies overseeing, directing and orchestrating safety systems designed to minimize injury risk to employees and equipment damage.

So what role would a safety expert play in a negligence case? There are several phases in a law suit where a safety expert could assist legal counsel.

First, case assessment from a safety perspective.Is there a supportable basis for the claim or defense using a safety standard of care? Knowing this fairly early on in the case's progression may assist in determining the suitability of an anticipated claim or defense using the OSH Act. Knowing the answers to certain questions may be beneficial: Did an act or condition satisfy an applicable OSH Act standard? If yes or no, why or how? What should have been done that wasn't or what was done? Were safety steps or processes undertaken according to common industry custom or OSH Act standards? In short an OSH Act perspective relative to negligence case assessment can offer some early guidance to legal counsel. After all, legal disputes are essentially comprised of evidence woven into arguments in support of a position and an early case determination of the OSH Act's application may be beneficial.

Second, discovery considerations. Like many industries and professions safety has developed many unique elements. Familiarity with the various elements comprising the world of safety is helpful in knowing what to ask for in the discovery phase. What should a certain industry safety program cover topic wise? Is something missing from the program, field safety management or training? Was something done that shouldn't have been done or something not done that should have been done? What OSH Act regulations are applicable? What industry section of the OSH Act is applicable to the case scenario?

An example here may help highlight the use of a safety expert in discovery in negligence case. A person falls from the height of five feet while working and his lawyer wants to use the OSH Act as a standard failed or satisfied regarding standard of care. In one industry the standard of care for working at height is 4 feet while another industry standard is 6 feet. (But more on this in a moment.) Some questions to ask include: What type of work was being performed? What was the nature of the project? Why are these questions potentially important? Because the nature of the work will determine which of the OSH Act Parts apply.

. . .Continue to read rest of article (PDF).


Greg Gerganoff, ASP, CSP, Esq., is an OSHA / MSHA Safety field and compliance expert with experience in the heavy construction, oil and gas, mining, pipeline, and trenching and excavation industries. Mr. Gerganoff assists with discovery questions regarding safety matters. Safety opinions based upon statutory, administrative, judicial rulings and related industry association safety policies ancillary to OSHA and MSHA.

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