Knight v. Burns, Kirkley & Williams Const. Co., Inc.

• Citation: 295 Ala. 477,331 So.2d 651
• Parties: 4 O.S.H. Cas. (BNA) 1271, 1976-1977 O.S.H.D. (CCH) P 20,876 Josephine KNIGHT et al. v. BURNS, KIRKLEY & WILLIAMS CONSTRUCTION COMPANY, INC., et al. SC 1252.
• Decision Date: 07 May 1976
• Court: Alabama Supreme Court

Page 651

331 So.2d 651

4 O.S.H. Cas. (BNA) 1271, 1976-1977 O.S.H.D. (CCH) P 20,876

Josephine KNIGHT et al. v. BURNS, KIRKLEY & WILLIAMS CONSTRUCTION COMPANY, INC., et al.

SC 1252.

Supreme Court of Alabama.

May 7, 1976.

Albert W. Copeland, Montgomery, for appellants.

Walker, Hill, Gullage, Adams & Umbach, Opelika, for appellee.

HEFLIN, Chief Justice.

This case is an appeal from a dismissal granted by the trial court pursuant to a Rule 12(b)(6) motion filed by the defendant Burns, Kirkley and Williams Construction Company (Burns). This court reverses.

The action was originally brought by the dependent mother and sister of Shade Knight for Knight's wrongful death under the provisions of Title 26, Section 312, Code of Alabama, 1940, as amended. The case is before the court on the allegations of the complaint alone. The facts alleged in the complaint show that Shade Knight died while working for Smith Plumbing and Heating Company which had contracted with defendant to install an underground sewer in a trailer park the defendant was constructing as general contractor. At the time of his death, Knight was working on the trailer park project in a trench more than 10 feet deep. He died when the sides of the trench caved in.

The complaint, as to the defendant Burns, is in two counts. Count I alleges that Burns, at the time of Knight's death, was subject to the Occupational Safety and Health Act of 1970 and the regulations promulgated thereunder, which prescribe that, where persons are required to work in a trench more than five feet deep in unstable soil, appropriate precautions must be taken to shore, sheet, brace, properly slope or otherwise support the sides of the trench to avoid a cave-in. 29 C.F.S. § 1926.652(a)-(b) (1975). The count goes on to allege that these precautions were not taken and that Burns' negligent failure 'to take appropriate precautions to shore, sheet, brace * * *, to furnish Shade Knight safety devices and safeguards, * * * to adopt and use methods and processes reasonably adequate to render the employment of Shade Knight and the places where his employment was to be performed reasonably safe * * * or * * * to do everything reasonably necessary to protect the life, health and safety of the said Shade Knight, who, at the time of his injury and death as aforesaid was not a trespasser' was the proximate cause of Knight's death.

Count II of the complaint alleges liability of the general contractor based on the following theory:

'On said date the work being performed by Shade Knight as an employee of Smith was inherently or intrinsically dangerous, however skillfully done and the defendant Burns knew, or in the exercise of due diligence should have known, of the dangers inherent in the performance of such work.'

This count further asserts that Burns' negligent failure 'to see that all reasonable precautions were taken during the performance of the work by Smith to the end that employees of Smith such as Shade Knight could have been effectively protected against injury or death' was the proximate cause of Knight's death.

The only error assigned by appellants is the trial court's action in dismissing the complaint. In reviewing this assignment, this court must determine whether it appears beyond doubt that the plaintiffs can prove no set of facts in support of their claim which would entitle them to relief. This standard for determining the merits of a motion to dismiss was recognized by the court in Bowling v. Pow, 293 Ala. 178, 186, 301 So.2d 55, 63 (1974) which follows the rule established in Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957).

The defendant argues that the Occupational Safety and Health Act (OSHA) creates no duty on defendant's part and gives no private remedy to plaintiffs. The defendant cites Skidmore v. Travelers Insurance Company,483 F.2d 67 (5th Cir.1973); Russell v. Bartley, 494 F.2d 334 (6th Cir.1974); and Hare v. Federal Compress and Warehouse Company, 359 F.Supp. 214 (N.D.Miss.1973). In Russell v. Bartley, supra, the 6th Circuit in a per curiam opinion said:

'OSHA's declared purpose is 'to assure so far as is possible every working man and woman in the Nation safe and healthful working conditions. . . .' 29 U.S.C. § 651(b). To this end the Act specifies safety requirements for employers engaged in interstate business and emphasizes the duty of the employer to provide safeworking conditions. Enforcement of that duty is by criminal sanction, civil penalty and the right to injunctive relief. However, nowhere in the statute or in the record of the debate on the Act in Congress is there any mention of a private civil remedy against anyone for damages suffered by an employee because of a violation of the Act. On the contrary, the Act provides that:

'Nothing in this chapter shall be construed to supersede or in any manner affect any workmen's compensation law 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.' 29 U.S.C. § 653(b) (4).

'Arguments not unlike those made by appellant were advanced in two cases emanating from the Fifth Circuit. Hare v. Federal Compress and Warehouse Co., 359 F.Supp. 214 (N.D.Miss.1973); Skidmore v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.La.1973), aff'd per curiam, 483 F.2d 67 (5th Cir.1973). In Hare the plaintiff sought to fix liability upon a property owner or the prime contractor who hired the subcontractor whose employee was killed as a result of alleged OSHA violations. The court dismissed this claim because 'the act does not 'enlarge or diminish or affect any . . . liabilities of employers . . . under any law . . ..' 29 U.S.C. § 653(b)(4).' 359 F.Supp. at 218. Skidmore involved a complaint filed against executive officers of the injured workman's employer for the employer's failure to comply with the Act. The Skidmore court stated as follows: 'While the statute imposes a duty on employers, . . . it does not mention any private civil remedy against the employer . . ..' 356 F.Supp. at 671. In neither of the above cases was the employer named as a defendant, but both courts clearly recognized the difficulty in concluding that OSHA directly or impliedly created any type of civil remedy in favor of employees.

'(T)here is no legislative history or case law to support appellant's proposition that OSHA created a private civil remedy and the clear language of § 653(b)(4) of the Act specifically evidences a congressional intention to the contrary. Therefore, the District Court's determination that it lacked jurisdiction under 28 U.S.C. § 1331 was eminently correct.'

The plaintiffs have not directed this court's attention to any case which holds that OSHA establishes a new private civil remedy against anyone for damages suffered by an employee because of a violation of the Act. In its own independent research, this court has found no such cases. This court holds that the plaintiff does not have a private civil remedy in this case because of a violation of the Occupational Safety and Health Act of 1970 or the regulations promulgated thereunder. However, this does not mean that appropriate and relevant standards and safety requirements established by OSHA or accompanying regulations are completely and totally irrelevant....