Elliott v. S.D. Warren Co.

• Citation: 134 F.3d 1
• Decision Date: 03 December 1997
• Docket Number: No. 97-1848,97-1848
• Parties: 48 Fed. R. Evid. Serv. 782 Darryl W. ELLIOTT, Plaintiff, Appellant, v. S.D. WARREN COMPANY, et al., Defendants, Appellees. . Heard
• Court: U.S. Court of Appeals — First Circuit

Page 1

134 F.3d 1

48 Fed. R. Evid. Serv. 782

Darryl W. ELLIOTT, Plaintiff, Appellant, v. S.D. WARREN COMPANY, et al., Defendants, Appellees.

No. 97-1848.

United States Court of Appeals First Circuit.

Heard Dec. 3, 1997.

Decided Jan. 13, 1998.

James G. Fongemie, with whom James J. MacAdam, Topsham, ME, and McTeague, Higbee, MacAdam, Case, Watson & Cohen were on brief, for Plaintiff, Appellant.

John J. Aromando, Portland, ME, with whom Jared S. des Rosiers and Pierce Atwood were on brief, for appellee S.D. Warren Co.

Leonard W. Langer, with whom Marshall J. Tinkle, Portland, ME, and Tompkins, Clough, Hirshon & Langer, P.A. were on brief, for appellees Rust Engineering & Construction, Inc. and Rust International Corporation.

Before SELYA, STAHL and LYNCH, Circuit Judges.

SELYA, Circuit Judge.

After unsuccessfully prosecuting a personal injury suit, plaintiff-appellant Darryl W. Elliott invites us to set aside a jury verdict in favor of the defendant S.D. Warren Company (Warren) and to reverse a summary judgment in favor of two other defendants (whom we sometimes shall refer to collectively as "Rust"). ¹ Discerning no error, we decline both invitations.

I. BACKGROUND

Warren hired Rust to design, build, and manage the erection of an addition to its paper mill in Hinckley, Maine. That firm in turn subcontracted with its wholly-owned subsidiary, Allegheny Industrial Electrical, Inc. (Allegheny), to install electrical conduit. Elliott, an Allegheny employee, severely injured his left wrist while working at the job site on July 21, 1990. The injury occurred when Elliott caught his hand between a railing and an adjacent piece of electrical conduit on a stairway in a structure under construction. On Elliott's theory of the case, a lack of adequate clearance at the pinchpoint between the railing and the conduit caused him to catch his hand, pull back, fall, and injure himself.

The appellant collected workers' compensation benefits from his employer. Several years later, he settled his workers' compensation claim and brought a third-party tort suit against Warren and Rust in a Maine state court. In his complaint, he alleged that Warren, as the owner of the premises and the organization having control over the area where the accident occurred, had failed both to maintain a safe workplace and to warn of a dangerous condition. At the same time, he accused Rust of negligently installing the stairway and conduit. Invoking diversity jurisdiction--the appellant is a citizen and resident of New York, Warren is a Pennsylvania corporation that maintains its principal place of business in Massachusetts, and Rust is chartered in Delaware and headquartered in Alabama--the defendants removed the case to Maine's federal district court. See 28 U.S.C. §§ 1332(a), 1441(a).

In due season, the district court granted summary judgment in favor of Rust, see Fed.R.Civ.P. 56(c), holding that Rust was insulated from liability by the terms of the release that the appellant executed when he settled his workers' compensation claim. The lawsuit proceeded to trial against Warren and the jury returned a verdict for the defendant. This appeal ensued.

II. THE JURY VERDICT

We first consider the appeal insofar as it pertains to the take-nothing jury verdict.

A. Negligence Per Se.

The appellant's most substantial claim of error concerns the district court's instruction to the jury in regard to evidence which indicated that, at the spot where Elliott caught his hand, the distance between the railing and the electrical conduit was three-quarters of an inch, rather than the three inches required by a federal regulation promulgated by the Occupational Safety and Health Administration (OSHA). See 29 C.F.R. § 1910.23(e)(6) (1990) (stipulating that "[a]ll handrails and railings shall be provided with a clearance of not less than 3 inches between the handrail or railing and any other object"). Citing Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985), the appellant requested the district court to charge the jury that the violation of an OSHA regulation constitutes negligence per se. The court refused, instead telling the jurors that they might consider any such violation "as evidence of negligence," whilst "evaluat[ing] the weight to be given to that violation along with all the other evidence in the case in determining whether the defendant was in fact negligent." The appellant assigns error.

Pratico involved a cause of action that arose under the Federal Employers' Liability Act (FELA), 45 U.S.C. §§ 51-60. In that context, we held that the violation of a regulation validly promulgated by OSHA under the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §§ 651-678, could be deemed negligence per se. 783 F.2d at 266-67.

At the time this court decided Pratico, we had very little guidance from our sister circuits. See id. at 264 (identifying the Fifth Circuit as "the only circuit court to have addressed this issue") (citing, inter alia, Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (5th Cir. Unit B 1982), and Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. Unit A 1981)). In the past twelve years, however, at least four other courts of appeals have considered when, if ever, a violation of an OSHA regulation might constitute negligence per se. See Ellis v. Chase Communications, Inc., 63 F.3d 473, 477-78 (6th Cir.1995); id. at 482-83 (Wellford, J., concurring); Robertson v. Burlington N. R.R. Co., 32 F.3d 408, 409-11 (9th Cir.1994); Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1160-65 (3d Cir.1992); Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329, 332-33 (4th Cir.1987). Three of these four courts have held squarely that, because the OSH Act does not create a private right of action, ² a violation of an OSHA regulation never can be equated with negligence per se. See Robertson, 32 F.3d at 410-11; Ries, 960 F.2d at 1158-65; Albrecht, 808 F.2d at 332-33. The Sixth Circuit, like the Fifth, leaves open the possibility that a violation of an OSHA regulation may, in some cases governed by federal law, constitute negligence per se, see Ellis, 63 F.3d at 477; Rabon, 672 F.2d at 1238, but it is rare in either circuit for a court actually to uphold a finding of negligence per se on this basis. Silhouetted against this backdrop, the Pratico holding is of questionable validity.

We need not pursue the status of Pratico today. For present purposes, it suffices to note that Pratico involved an FELA claim and the case's holding is properly limited to causes of action brought under that statute. The case at bar does not involve a cause of action arising under federal law, but, rather, a cause of action arising under Maine's common law. This is a dispositive difference.

In Pedraza v. Shell Oil Co., 942 F.2d 48 (1st Cir.1991), after first remarking that the OSH Act creates no private right of action, we cited Albrecht and held that OSHA regulations should be viewed as "prescrib[ing] standards of care relevant in common law negligence actions"; that in such actions, regulations promulgated under the OSH Act furnish evidence of the standard of care; and that proof of a violation of those regulations does not constitute negligence per se. See id. at 52. As the district court recognized, Pedraza, not Pratico, is the relevant First Circuit precedent for purposes of a garden-variety tort suit.

To cinch matters, in a diversity action a federal court is constrained to apply state substantive law, see Coyne v. Taber Partners I, 53 F.3d 454, 457 (1st Cir.1995); Daigle v. Maine Med. Ctr., Inc., 14 F.3d 684, 689 (1st Cir.1994), and, accordingly, Maine law controls here. Generally, in diversity cases the evidentiary effect accorded the violation of a safety rule is a matter of state law. See Lones v. Detroit, Toledo & Ironton R.R. Co., 22 Ohio Misc. 115, 398 F.2d 914, 917-18 (6th Cir.1968). At best, an OSHA regulation is on a par with a statute, and under Maine's common law the violation of a safety statute is merely evidence of negligence, not negligence per se. See French v. Willman, 599 A.2d 1151, 1152 (Me.1991); Dongo v. Banks, 448 A.2d 885, 889-90 (Me.1982). Thus, by instructing the jury that it might consider a discerned OSHA violation as evidence of Warren's negligence--no more, no less--the district court gave the jurors proper guidance under the governing law.

B. Other Jury Instructions.

The appellant next asserts that the district court erred in two related instances by refusing to incorporate specific language into its jury instructions. The appellant requested that, on the issue of Warren's control over the construction site, the judge (1) recount for the jury a detailed twelve-point checklist itemizing those elements that he contended various courts around the country have found to support a finding of control; and (2) tell the jury that, if it concluded that Warren had retained control over the job site, then Warren had a "nondelegable" duty to furnish Allegheny's employees with a safe and suitable workplace. The district court declined to give either instruction in haec verba, but instead advised the jury:

A contract between an owner and an independent contractor allocating responsibility between themselves for maintaining safe premises ... does not relieve the owner of liability to invitees for injuries sustained as a result of any dangerous conditions known or discoverable by the owner of the property.

The defendant in this case contracted with Rust Engineering to construct its No. 3 paper machine building. This fact does not absolve the defendant for injuries sustained by its invitees on its premises while the construction project was in progress if the defendant retained control of any part of the work. One who entrusts work to a contractor, but retains control of any part of the work, is subject to liability for physical harm to others that is caused by his failure or its failure to exercise control with...