Canape v. Petersen

• Decision Date: 05 June 1995
• Docket Number: No. 94SC230,94SC230
• Citation: 897 P.2d 762
• Parties: 17 O.S.H. Cas. (BNA) 1289, 1995 O.S.H.D. (CCH) P 30,882 Martin CANAPE, Petitioner, and Colorado Compensation Insurance Authority, Petitioner-Intervenor, v. David PETERSEN, d/b/a Western Hills Construction, Respondent.
• Court: Colorado Supreme Court

Page 762

897 P.2d 762

17 O.S.H. Cas. (BNA) 1289, 1995 O.S.H.D. (CCH)

P 30,882

Martin CANAPE, Petitioner and Colorado Compensation Insurance Authority, Petitioner-Intervenor, v. David PETERSEN, d/b/a Western Hills Construction, Respondent.

No. 94SC230.

Supreme Court of Colorado En Banc.

June 5, 1995.

Winston & Liston, P.C., Joseph R. Winston, Mary Ann Liston, LeHouillier & Associates, Patric J. LeHouillier, Colorado Springs, for petitioner.

Hale Pratt Midgley Hackstaff & Goldberg, P.C. Charles M. Pratt, Denver, for petitioner-intervenor.

Vaughan, Reeves & DeMuro, Carla McCord Albers, Colorado Springs, for respondent.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to consider the following question:

Whether the Colorado Court of Appeals erred in ruling that a violation of the Occupational Safety and Health Act of 1970, 29 U.S.C. § 651 et seq. (1988), cannot be the basis of a negligence per se jury instruction.

We conclude that the trial court correctly refused to instruct the jury on the issue of negligence per se. We therefore affirm the court of appeals' ruling on this issue in Canape v. Peterson, 878 P.2d 83 (Colo.App.1994).

I.

On April 10, 1991, the petitioner, Martin Canape (Canape), was delivering shingles to the construction site of a garage being built by the respondent, David A. Petersen d/b/a Western Hills Construction (Petersen). Canape fell through a hole in a roof covered by a loose plywood board. ¹

Canape was not employed by Petersen, a general contractor, but was working for an independent contractor. ² Immediately prior to the accident, Canape and his co-employees were off-loading the shingles and stacking the material on the partially unfinished roof of the garage. While walking across the roof, Canape stepped on a piece of loose plywood covering a hole in the roof. Canape fell seventeen feet onto a concrete floor. As a result of the injuries he received from this fall, Canape underwent a spinal fusion operation.

Canape, and the intervenor, the Colorado Compensation Insurance Authority, brought this action against Petersen, alleging that Canape's injuries were the direct and proximate result of Petersen's negligence in failing to provide a warning regarding the conditions of the roof. ³ He requested that the El Paso County District Court instruct the jury on negligence per se and on res ipsa loquitur. ⁴ The court declined to give these instructions, and the jury found in favor of Petersen. Specifically, the jury found that although Canape incurred injuries, damages, and losses, Petersen was nevertheless not negligent.

The court of appeals affirmed the ruling of the trial court. The court of appeals first held that instructing the jury on a negligence per se theory of liability would violate the Occupational Safety and Health Act, 29 U.S.C. § 653(b)(4) (1988) (OSHA), because it would affect the common law or statutory rights, duties, and liabilities of employers and employees. The court of appeals also held that Canape was not entitled to an instruction on res ipsa loquitur because it concluded that it was not more likely than not that Petersen's negligence was the cause of the accident.

II.

Canape contends that the trial court erred by refusing to instruct the jury on the issue of negligence per se. ⁵ We disagree.

Further, Canape refers to a regulation in OSHA as the basis for his proposed jury instruction on negligence per se. The regulation provides that "[f]loor openings shall be guarded by a standard railing and toe boards or cover." 29 C.F.R. § 1926.500(b)(1) (1990). Subparagraph (f) requires that floor covers be "capable of supporting the maximum intended load and [be] so installed as to prevent accidental displacement." The regulation defines a "floor opening" as "[a]n opening measuring 12 inches or more in its least dimension in any floor, roof, or platform through which persons may fall." 29 C.F.R. § 1926.502(b) (1994).

Negligence per se may be established where the defendant's actions are in violation of a statute enacted for the public's safety, and where it is established that the violation of the statute proximately caused the plaintiff's injury. Lyons v. Nasby, 770 P.2d 1250, 1257 (Colo.1989). The plaintiff "must also show that he or she is a member of the class of persons whom the statute was intended to protect and that the injuries suffered were of a kind that the statute was enacted to prevent." Id.

The trial court held that Canape was not entitled to an instruction on negligence per se because he was not employed by Petersen and thus was not within the class of persons intended to be protected by the OSHA regulation. Specifically, the trial court stated:

[T]he Plaintiff was not engaged to "work at the site". The Plaintiff ... was engaged to deliver materials to the site.

So, [based on the relevant caselaw] the Court sees th[e] distinction [between the status of a subcontractor or the employee of any other firm engaged to work at the site and the situation here] and finds that the OSHA reg[ulation]s do not apply to the Plaintiff in this particular situation.

The trial court additionally determined that the OSHA regulations at issue here were not applicable to the facts of this case. In reaching this determination, the trial court relied on 29 C.F.R. § 1926.500(a), which provides that the floor and wall opening regulation applies "to temporary or emergency conditions where there is a danger of employees or material falling through the floor, roof, or wall openings." (Emphasis added.)

The court of appeals also concluded that an instruction on negligence per se was not warranted but relied on a broader rationale. The court of appeals examined the language contained in 29 U.S.C. § 653(b)(4) (1988), and concluded that an instruction on negligence per se would enlarge the plaintiff's common law rights and would thus violate the statute. Specifically, the court of appeals stated that

a negligence per se theory of liability "operates to engraft a particular legislative standard onto the general standard of care imposed by traditional tort law principles." Thus, application of a negligence per se instruction affects the common law rights, duties and liabilities of employers and employees.

We thus elect not to follow those cases which conclude that the intent of [Section] 653(b)(4) was merely to ensure that OSHA was not read to create a private cause of action, and thus, imposing negligence per se for an OSHA violation is not precluded.

Further, we disregard those cases which have held that OSHA regulations may be used to establish negligence per se, but have done so without addressing 29 U.S.C. § 653(b)(4).

Canape, 878 P.2d at 86 (citations omitted).

Canape argues that the court of appeals' decision does not square with the legislative history of § 653 and does not advance the public policy of this state--to provide safe working conditions for all employees. He also contends that imposing a negligence per se theory does not enlarge the rights, duties, or liabilities of an employer.

Under OSHA, an employer is responsible for the safety and health of its employees. Although OSHA covers a wide range of workplace injuries, it is not "designed to require employers to provide absolutely risk-free workplaces." Industrial Union Dep't, AFL-CIO v. American Petroleum Inst., 448 U.S. 607, 641, 100 S.Ct. 2844, 2863, 65 L.Ed.2d 1010 (1980); Usery v. Kennecott Copper Corp., 577 F.2d 1113, 1118 (10th Cir.1977) ("[OSHA] does not hold the employer responsible for the prevention of all accidents.").

Section 654 of 29 U.S.C. sets forth the duties of employers and employees and provides as follows:

(a) Each employer

(1) shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees;

(2) shall comply with occupational safety and health standards promulgated under this chapter.

Section 654(a)(1) creates a general duty for an employer to protect its employees from hazards that are likely to cause death or serious bodily injury at the work site. Canape was neither an employee of Petersen nor an employee of a subcontractor employed by Petersen to work at the job site. Rather, he was a material supply person making a one-time delivery to the job site where he was injured. Because it is undisputed that Canape was not an employee of Petersen, § 654(a)(1) does not apply.

Section 654(a)(2) creates a specific duty of care for employers to comply with OSHA regulations. There is a split of authority from courts who have analyzed this section as to whether it creates a duty of care only as to the employer's own employees. ⁶ Although a non-employee may have a claim under § 654(a)(2) due to this split of authority, we need not reach this result since our analysis is limited to the scope of 29 U.S.C. § 653(b)(4). Section 653(b)(4) provides that

[n]othing in this chapter shall be construed to supersede or in any manner affect any work[ers'] compensation law or to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liabilities, of employers and employees under any law with respect to injuries ... arising out of, or in the course of employment.

(Emphasis added.)

Traditional principles of statutory interpretation dictate that we first look at the plain meaning of the statutory language. Ingersoll-Rand Co. v. McClendon, 498 U.S. 133, 139, 111 S.Ct. 478, 482-83, 112 L.Ed.2d 474 (1990). In construing a statute, we assume that the legislative purpose is expressed by the ordinary meaning of the words used. Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, ----, 112 S.Ct. 2374, 2381-82, 120 L.Ed.2d 73, 83 (1992). Further, a statute should not be construed in a manner which would defeat its legislative intent. Id.

In enacting § 653(b)(4), Congress intended to prevent...