Dunn v. Brimer, 76--33

CourtSupreme Court of Arkansas
Citation537 S.W.2d 164,259 Ark. 855
Docket NumberNo. 76--33,76--33
Parties, 79 A.L.R.3d 958, 4 O.S.H. Cas. (BNA) 1501, 1976-1977 O.S.H.D. (CCH) P 20,834 Dan DUNN d/b/a Dan Dunn Roofing Company, Appellant, v. Judge BRIMER, Jr., Appellee.
Decision Date07 June 1976

Laser, Sharp, Haley, Young & Boswell, P.A., Little Rock, for appellant.

William R. Wilson, Jr., Little Rock, for appellee.

GEORGE ROSE SMITH, Justice.

This appeal is from a $25,000 judgment for the appellee in an action for personal injuries. The principal issue, presented by the direct appeal, is whether the trial judge was right in submitting to the jury, in the format of AMI Civil 2d, 601 (1974), the appellant's asserted violation of a federal safety regulation.

Brimer, the plaintiff, was employed by the general contractor as a carpenter at a building construction job in Bald Knob. Dunn, the defendant, was the roofing subcontractor. On the day of his injury Brimer was working several feet above the ground upon a scaffold that was beneath a wide eave. Dunn's emplolyees were using a ladder that extended from the ground to the edge of the roof, passing very close to the scaffolding. Brimer testified that as he worked from one end of the scaffold to the other it was easier for him to step on and off the ladder than to crawl past it. During one such transit Brimer looked up and thought a bucket of tar was being swung toward him by one of the roofers. Brimer tried to jump aside, but the ladder, which was not fastened in place, shifted its position, causing Brimer to fall upon debris on the ground and break his ankle.

Federal regulations issued pursuant to the Occupational Safety and Health Act of 1970 (29 U.S.C.A. §§ 651 et seq.) provide that portable ladders shall be fastened and that the area below them shall be kept clean. Dunn, in his contract with the general contractor, had agreed to comply with that Act. The trial judge inserted the regulations in AMI 601, telling the jury that a violation of the regulations is evidence of negligence to be considered with the other facts and circumstances.

Dunn argues that the federal regulations had nothing to do with the case, because they apply only as between employers and employees. Brimer was employed not by Dunn but by general contractor. Hence, it is said, the regulations had no application.

We cannot agree. Of course, one element in Brimer's cause of action for negligence is the violation of a duty of care owed by Dunn to Brimer. Restatement, Second, Torts, § 281 (1965). But it is not essential that the duty be owed to Brimer as an employee of Dunn. Dunn's employees had reason to know that Brimer, in the course of his work, might step onto the ladder in just the way that he did. In fact, he had done so before, as was to be expected in the circumstances. The required duty of care existed.

In that situation the jury might consider, without regard to any employer-employee relationship, whether Dunn's violation of the regulations was negligence. Prosser points out that 'where the statute does set up standard...

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18 cases
  • Scott v. Matlack, Inc.
    • United States
    • Supreme Court of Colorado
    • January 14, 2002
    ...that most jurisdictions hold that OSH Act regulations are admissible despite the relationship between the parties. Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164, 166 (1976) (holding jury may consider violations of the OSH Act as evidence of negligence "without regard to any employer-employee......
  • Brogley v. Chambersburg Engineering Co.
    • United States
    • Superior Court of Pennsylvania
    • November 5, 1982
    ...Transportation Co., Iowa, 253 N.W.2d 265, 269-270 (1977); DiSabatino Brothers, Inc. v. Baio, Del., 366 A.2d 508 (1976); Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976); Buhler v. Marriott Hotels, Inc., 390 F.Supp. 999 (E.D.La.1974); Arthur v. Flota Mercante Grain Centro Americana S.A., ......
  • Wendland v. Ridgefield Const. Services, Inc.
    • United States
    • Supreme Court of Connecticut
    • May 12, 1981
    ...Marine Service, Inc. v. Gulf Oil Co., 433 F.Supp. 913, 919-20 (E.D.La.1977), aff'd 608 F.2d 522 (5th Cir. 1979); Dunn v. Brimer, 259 Ark. 855, 856-57, 537 S.W.2d 164 (Ark.1976); Buhler v. Marriott Hotels, Inc., 390 F.Supp. 999, 1000 (E.D.La.1974). But see Otto v. Specialties, 386 F.Supp. 12......
  • Orduna v. Total Const. Services, Inc.
    • United States
    • Supreme Court of Nebraska
    • May 5, 2006
    ...v. Collins Pine Co., 975 F.2d 1009 (3d Cir.1992); Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir.1981); Dunn v. Brimer, 259 Ark. 855, 537 S.W.2d 164 (1976); Elsner v. Uveges, 34 Cal.4th 915, 102 P.3d 915, 22 Cal.Rptr.3d 530 (2004); Ball v. Melsur Corp., 161 Vt. 35, 633 A.2d 705......
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