Buhler v. Marriott Hotels, Inc., Civ. A. No. 73-2317.

Citation390 F. Supp. 999
Decision Date20 August 1974
Docket NumberCiv. A. No. 73-2317.
PartiesAnn H. BUHLER v. MARRIOTT HOTELS, INC., et al., Liberty Mutual Insurance Co., Intervenor.
CourtU.S. District Court — Eastern District of Louisiana

Frank B. Hayne III, Hammett, Leake, Hammett, New Orleans, La., for plaintiff.

Robert A. Katz, Metairie, La., for intervenor.

Jones, Walker, Waechter, Poitevent, Carrere & Denegre, John J. Weigel, New Orleans, La., for Marriott Hotels, Inc., Marriott Corp., Duman Investments, Inc., and Liberty Mutual.

A. R. Christovich, Jr., Christovich & Kearney, New Orleans, La., for Daley and Sikora, McGrath.

ALVIN B. RUBIN, District Judge.

The defendants have moved for partial summary judgment in an attempt to foreclose plaintiff's claim to the extent that it states a claim for damages for violation of the Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. They rely on this court's decision in Skidmore v. Travelers Insurance Company, E.D.La.1973, 356 F.Supp. 670, and the Fifth Circuit's affirmance of it, 483 F.2d 67 (1973).

Skidmore rested on two rationales, each developed in some detail. The first reason for the decision was that nothing in the legislative history of the Act, or in any other relevant source material, indicates an intent on the part of Congress to create a private action for damages; indeed, the legislative history indicates a contrary intent. The second rationale for the decision was the court's belief that the Act imposed duties only upon the employer, and not upon employees; this factor was important in Skidmore because the claim was one for executive officer liability.

Counsel for the plaintiff has pointed out that the court in Skidmore overlooked § 5(b) of the Act, which imposes on each employee the duty to "comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this Act which are applicable to his own actions and conduct." As Frankfurter said, "wisdom too often never comes, and so one ought not to reject it merely because it comes late." Henslee v. Union Planters National Bank, 1949, 335 U.S. 595, 600, 69 S.Ct. 290, 293, 93 L.Ed. 259. To the extent that Skidmore rests upon its second rationale, the court now disavows it as erroneous.

But counsel's argument leaves untouched the first rationale in Skidmore. If it was dicta there, it operates as holding here and disposes of this motion for summary judgment.

The defendants' motion for summary judgment is therefore granted. The...

To continue reading

Request your trial
13 cases
  • Melerine v. Avondale Shipyards, Inc.
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • 23 Octubre 1981
    ...Marine Serv., Inc. v. Gulf Oil Co., 433 F.Supp. 913, 919 (E.D.La.1977), aff'd mem., 608 F.2d 522 (5th Cir. 1979); Buhler v. Marriott Hotels, Inc., 390 F.Supp. 999 (E.D.La.1974); Otto v. Specialties, Inc., 386 F.Supp. 1240, 1243 (N.D.Miss.1974); Federal Employees for Non-Smokers' Rights (FEN......
  • Berardi v. Getty Refining & Marketing Co.
    • United States
    • New York Supreme Court
    • 5 Diciembre 1980
    ...Insurance Co., D.C., 356 F.Supp. 670; Hare, 359 F.Supp. 214; Otto v. Specialties, Inc., D.C., 386 F.Supp. 1240; Buhler v. Marriott Hotels Inc., D.C., 390 F.Supp. 999; Dravo Corp. v. Occupational Safety and Health Review Commission, 3 Cir., 613 F.2d 1227; Knight v. Burns, Kirkley and William......
  • Pratico v. Portland Terminal Co., 85-1196
    • United States
    • U.S. Court of Appeals — First Circuit
    • 4 Diciembre 1985
    ...439 A.2d at 957; Hebel, 475 N.E.2d at 657. Close reading of the National Marine opinion and the case it cites, Buhler v. Marriott Hotels, Inc., 390 F.Supp. 999 (E.D.La.1974), shows that this interpretation was incorrect. National Marine actually held that while Sec. 653(b)(4) precluded a pr......
  • Hebel v. Conrail, Inc., 1-482A94
    • United States
    • Indiana Appellate Court
    • 26 Enero 1983
    ...is admissible to prove an employer's negligence, Melerine v. Avondale Shipyards, Inc. (5th Cir.1981) 659 F.2d 706; Buhler v. Marriot Hotels, Inc. (La.1974) 390 F.Supp. 999; and in fact the evidence can be used to establish negligence per se. Rabon v. Automatic Fasteners, Inc. (5th Cir.1982)......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT