494 F.2d 334 (6th Cir. 1974), 73-1791, Russell v. Bartley

Docket Nº:73-1791.
Citation:494 F.2d 334
Party Name:Lester RUSSELL, Plaintiff-Appellant, v. Wallace BARTLEY et al., Defendants-Appellees.
Case Date:March 27, 1974
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit

Page 334

494 F.2d 334 (6th Cir. 1974)

Lester RUSSELL, Plaintiff-Appellant,


Wallace BARTLEY et al., Defendants-Appellees.

No. 73-1791.

United States Court of Appeals, Sixth Circuit.

March 27, 1974

Argued Feb. 15, 1974.

Robert L. Bertram, Jamestown, Key., for plaintiff-appellant.

Donald F. Mintmire, Munfordville, Ky., and Michael A. Owsley, Bowling Green, Ky., for defendants-appellees; Robert B. Hensley, Hensley & Mintmire, Munfordville, Ky., and English, Lucas, Priest & Owsley, Bowling Green, Ky., on briefs.

Before PECK and ENGEL, Circuit Judges, and CONTIE, District Judges. 1

Page 335


The issue in this case is one of first impression in this Circuit. We are asked to hold that the Occupational Safety and Health Act of 1970, 29 U.S.C.§§ 651-678 (hereinafter 'OSHA'), impliedly created a private remedy for damages resulting from violations of the Act. For the reasons set forth in this opinion we decline to so hold.

Appellant was injured in the course and scope of his employment with the Bartley and Barton partnership, allegedly as a result of the failure of this employer to comply with provisions of OSHA. The injuries of which appellant complains were occasioned when a ditch in which he was working collapsed. He applied for an received workmen's compensation benefits pursuant to the applicable Kentucky statutes for the injuries he sustained. Appellant instituted this suit against his employer claiming that OSHA created a private cause of action against employers for violations of the Act. Subsequently, he filed an amended complaint bringing Howard K. Bell, Consulting Engineers, Inc. (hereinafter 'Bell') into the suit as an additional defendant. Bell acted as supervising engineer and designed the plans and specifications on the project on which appellant was injured, the allegation against Bell being that its negligence was a joint and concurrent cause of the injuries. The amended complaint further alleged that all parties to the suit were residents of Kentucky and that Bell was a Kentucky corporation. Jurisdiction was asserted under 28 U.S.C. § 1331.

The District Court, acting on defendants' motions to dismiss and for summary judgment, concluded that OSHA did not give an employee a cause of action against his employer of any other party and dismissed the complaint for want of jurisdiction. Judgment was entered in favor of defendants...

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