Jeter v. St. Regis Paper Co.

• Decision Date: 06 February 1975
• Docket Number: No. 73-3470,73-3470
• Citation: 507 F.2d 973,35 A.L.R. Fed. 449
• Parties: , 2 O.S.H. Cas.(BNA) 1591, 1974-1975 O.S.H.D. ( 19,298 John R. JETER, Jr., Plaintiff-Appellant, v. ST. REGIS PAPER CO., Defendant-Third Party Plaintiff-Appellee-Appellant, American Employers Insurance Company, Intervenor, Mid South Painting Specialist, etc., Third Party Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 973

507 F.2d 973

35 A.L.R.Fed. 449, 2 O.S.H. Cas.(BNA) 1591,

1974-1975 O.S.H.D. ( 19,298

John R. JETER, Jr., Plaintiff-Appellant, v. ST. REGIS PAPER CO., Defendant-Third Party

Plaintiff-Appellee-Appellant, American Employers

Insurance Company, Intervenor, Mid South

Painting Specialist, etc.,

Third Party

Defendant-Appellee.

No. 73-3470.

United States Court of Appeals, Fifth Circuit.

Feb. 6, 1975.

Robert B. Sessums, James L. Young, Jackson, Miss., for plaintiff-appellant.

John M. Roach, Curtis E. Coker, Jackson, Miss., for St. Regis.

W. Swan Yerger, Jackson, Miss., for Mid South Painting.

James A. Becker, Jr., Jackson, Miss., for Am. Employ. Ins. Co.

Appeals from the United States District Court for the Southern District of Mississippi.

Before COLEMAN, CLARK and RONEY, Circuit Judges.

RONEY, Circuit Judge:

John R. Jeter, Jr. was paralyzed from the chest down in a forty foot fall from a 'swinging scaffold' on which he had been painting. Having received Mississippi Workmen's Compensation benefits from his employer, Mid-South Painting Specialists, Jeter now seeks compensatory damages against the owner of the chemical silo he was painting, St. Regis Paper Company, for whom his own employer was working as an independent contractor. A jury returned a verdict against plaintiff on the one theory of recovery approved by the trial court, i.e., whether St. Regis had violated a nondelegable duty to insure that proper precautions were taken to avoid injury arising from inherently dangerous work. On this fourteen point appeal, Jeter questions the refusal of the trial judge to submit the case to the jury on his other two theories of liability: first, liability of St. Regis for violations of and failure to remedy violations of the Occupational Safety and Health Act of 1970 (OSHA) and the regulations promulgated thereunder by the Secretary of Labor, and second, liability for negligent performance of assumed obligations regarding safety engineering. We affirm the district court on the grounds that first, OSHA does not provide a private right of action for the employee of an independent contractor against an owner for the owner's violation of OSHA's requirements, a decision of first instance in this Circuit, second, the evidence in this case was insufficient to support the allegation that St. Regis assumed safety engineering responsibilities to Jeter, and third, none of the other points on this appeal, principally concerning jury charges, admission of evidence, and rulings of law, merit reversal.

The case brought forth claims and affirmative defenses from virtually everyone connected with Jeter's work. The initial defendant St. Regis denied the allegations of the complaint and affirmatively asserted as defenses 100% Contributory negligence and assumption of risk by Jeter. St. Regis also filed a thirdparty complaint against Mid-South, as Jeter's employer, seeking both contractual and common law indemnification in the event that Jeter recovered against it. St. Regis alleged that negligence on the part of Mid-South was the sole or at least a contributing proximate cause of Jeter's injury. Mid-South responded with allegations of negligence against Jeter and St. Regis, and asserted that Jeter's exclusive remedy against Mid-South was under the Mississippi Workmen's Compensation Act. To complete the chorus, American Employers Insurance Company, Mid-South's workmen's compensation carrier, intervened as plaintiff to claim the workmen's compensation and medical payments it had made to Jeter.

A short recital of the facts illustrates the relationship of the various parties and reflects the circumstances of Jeter's unfortunate injuries. Pursuant to a routine maintenance schedule, St. Regis contacted various industrial painting contractors in the fall of 1971 to solicit bids for the painting of two salt-cake silos and a power-house stack located at the St. Regis plant near Monticello, Mississippi. The job was ultimately awarded to Mid-South, and a contract was executed by both parties on October 18, 1971.

Jeter, age twenty, was employed by Mid-South in the spring of 1972, to assist in the work being done for St. Regis. Jeter's father had been an industrial painter for many years, and plaintiff had done part-time industrial painting work since he was fifteen years old. While his experience on a swinging scaffold was somewhat limited, Jeter had sufficient general experience in the field to be hired by Mid-South as a 'journeyman' painter, a rating higher than either 'helper' or 'apprentice.' He testified at trial that he was aware of the dangers of the job and of the safety precautions he could have taken, and that he understood the operation of the scaffold.

On April 6, 1971, the day of the accident, Jeter had spent the morning on the ground running the paint pot and assisting in the operation of the swinging scaffold from which a co-worker was sandblasting and painting a salt-cake silo. The silo was a cylindrical structure with a conical top which peaked over eighty-eight feet from the concrete base on which it was anchored. The middle twenty-nine and one-half feet had a vertical surface. The aluminum scaffold was suspended from the 'catwalk' at the top of the silo and was raised and lowered by two, one-half inch manila ropes, each laced through two double block-and-tackles, which provided a combined mechanical advantage of four for the rope on each end.

Sometime after lunch Mid-South's foreman told Jeter to go up on the scaffold and assist a co-worker, Herrington, in the sandblasting and painting operation. At that time no mention was made to Jeter of the availability of a safety belt for his use, even though such belts were at the job site and could have been used. Jeter uneventfully negotiated his way to the scaffold and began to assist in the operation. As the painting of the area accessible from the scaffold was completed, each man would simultaneously untie the rope on his end and lower the scaffold a prescribed distance, where the ropes would be resecured and work begun on the newly accessible area. After lowering the scaffold in this manner several times in the course of over two hours, the two men ran out of paint and decided to lower themselves to the ground, either to get more paint or to prepare to go home since it was almost quitting time. When the two men untied their ropes Jeter had difficulty with his end and shouted this to Herrington, who immediately resecured his rope and stepped from the scaffold onto a narrow ledge on the silo, yelling for Jeter to do likewise. Jeter did not do so, and after holding on for a few more seconds the rope apparently slipped from his hands causing the scaffold to drop to a vertical position, suspended by Herrington's secured end, and Jeter fell forty feet to the ground, landing on the concrete base. The fall caused his spinal cord to be severed at about chest level, rendering him a permanent paraplegic.

CAUSE OF ACTION UNDER OSHA

Although in all other aspects of this diversity jurisdiction case we are asked to apply Mississippi law, plaintiff asserts that a federal cause of action was impliedly created in his favor against St. Regis by the Occupational Safety and Health Act of 1970. See 29 U.S.C.A. 651(b). He appeals the trial court's charge to the jury that it could not award damages under this OSHA count because Congress had not intended that law to affect or apply to a relationship such as the one between St. Regis and Jeter. Assuming without deciding that St. Regis may have violated the requirements of OSHA and the regulations promulgated thereunder by the Secretary of Labor, we affirm the trial court's charge and hold that no cause of action for such violations can be implied under OSHA to run in favor of a person who was not an employee of the violator against whom recovery is sought.

The Occupational Safety and Health Act of 1970 imposes a duty on employers and provides for enforcement of that duty by criminal sanctions, civil penalties recoverable by the United States for deposit into the Treasury of the United States and, under certain circumstances, injunction of the violation of the duty by a district court acting upon application of the Secretary of Labor. See 29 U.S.C.A. 662, 666. Congress has set up a comprehensive system for the promulgation and enforcement of regulations and standards under OSHA. Nowhere in the language of the Act, its legislative history, or in the statutory declaration of purpose and policy in the Act itself is there the slightest implication that Congress considered OSHA creating a private right of action for violation of its terms. See 1970 U.S.Code Cong. & Admin.News, pp. 5177- 5241; 29 U.S.C.A. 651. The only provision in the statute which addresses itself to a private remedy clearly indicates that Congress did not intend OSHA to create a new action for damages in favor of employees. Section 653(b)(4) of the Act provides that

Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's 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, diseases, or death of employees arising out of, or in the course of, employment.

It seems clear that Congress did not intend OSHA to create a new private cause of action, but, on the contrary, intended private rights to be unaffected thereby.

The provisions for the enforcement of OSHA and the regulations promulgated thereunder are sufficiently comprehensive to make such a private right of action unnecessary to effectuate the congressional policy underpinning the substantive provisions of the statute. See Martinez v. Behring's Bearings Service, Inc., 501 F.2d 104 (5th Cir. 1074); cf. Breitweiser v. KMS Industries, Inc., 467 F.2d 1391, 1394 (5th Cir. 1972), cert. denied, 410 U.S. 969, 93 S.Ct. 1445, 35 L.Ed.2d 705 (1973)....