Martin v. MAPCO Ammonia Pipeline, Inc.

• Decision Date: 01 November 1994
• Docket Number: 93-2303-GTV.,Civ. A. No. 93-2218-GTV
• Citation: 866 F. Supp. 1304
• Parties: Constance MARTIN, individually and as Administratrix of the estate of Harris T. Martin, deceased, Plaintiff, v. MAPCO AMMONIA PIPELINE, INC., Defendant. Martin BELL and Dianna Bell, Plaintiffs, v. MAPCO AMMONIA PIPELINE, INC., Defendant.
• Court: U.S. District Court — District of Kansas

866 F. Supp. 1304

Constance MARTIN, individually and as Administratrix of the estate of Harris T. Martin, deceased, Plaintiff, v. MAPCO AMMONIA PIPELINE, INC., Defendant.

Martin BELL and Dianna Bell, Plaintiffs, v. MAPCO AMMONIA PIPELINE, INC., Defendant.

Civ. A. Nos. 93-2218-GTV, 93-2303-GTV.

United States District Court, D. Kansas.

October 13, 1994.

Memorandum and Order On Reconsideration November 1, 1994.

Curtis L. Tideman, Lathrop & Norquist, Overland Park, KS, Douglas R. Dalgleish, Thomas S. Stewart, Lathrop & Norquist, Kansas City, MO, for plaintiffs.

Bradley S. Russell, Wallace, Saunders, Austin, Brown & Enochs, Chartered, Overland Park, KS, Leonard J. Johnson, Mark E. Harris, Morrison & Hecker, Kansas City, MO, Dana M. Harris, Harris, McCausland & Schmitt, P.C., Kansas City, MO, for Mid-America Pipeline Co.

Ronald D. Montieth, Eric T. Swanson, R. Alexander Pryor, Knipmeyer, McCann, Smith, Manz & Gotfredson, Kansas City, MO, for Mapco Ammonia Pipeline, Inc.

MEMORANDUM AND ORDER

VAN BEBBER, District Judge.

This case comes before the court on the following motions:

Plaintiffs' motion in limine to exclude evidence of the federal Pipeline Safety Act and its regulations (Doc. 95 in case 93-2218); and Plaintiffs' motion to amend the pretrial orders (Doc. 109 in 93-2218 and Doc. 82 in 93-2303).

For the reasons set forth below, the motions are denied.

These diversity jurisdiction personal injury and wrongful death lawsuits arise out of an accidental discharge of anhydrous ammonia which occurred near Haviland, Kansas. As a result of that discharge, plaintiff Constance Martin's husband, Harris T. Martin, was killed, and plaintiff Martin Bell sustained serious injuries. Defendant MAPCO Ammonia Pipeline, Inc., owns and operates the ammonia pipeline system where this accident occurred. At the time of the accident, Mr. Martin and Mr. Bell were employed by McPherson Backhoe Service, a contractor which was performing various types of maintenance work. The cases have been consolidated for trial which is scheduled to begin on November 7, 1994.

I. Motion in Limine

In their motion in limine, plaintiffs seek to exclude from evidence the Pipeline Safety Act, 49 U.S.C. §§ 60101 et seq.¹ (the Act), and any regulations promulgated under the Act. Plaintiffs contend that the defendant should be prevented from using evidence of compliance with the Act and its regulations as a defense to negligence because the Act itself prohibits it. The Act specifically provides that it "does not affect the tort liability of any person." 49 U.S.C. § 60120(c).

The Act's original version is the Natural Gas Pipeline Safety Act of 1968. The House Committee Report commenting on the legislation noted that the above cited provision "is designed to assure that the tort liability of any person existing under common law or any statute will not be relieved by reason of the enactment of this legislation or compliance with its provisions." H.R.Rep. No. 1390, 90th Cong., 2d Sess. (1968), reprinted in 1968 U.S.C.C.A.N. 3223, 3239.

It is clear from the plain language of the statute, which is further supported by the legislative history, that evidence of compliance with the Act and its regulations cannot be the basis for avoiding liability in a tort action. The question remains, however, whether such evidence could be admissible in a negligence action to show the applicable standard of care and defendant's conformity with that standard. Plaintiffs appear to argue that even allowing such evidence to be introduced would serve to "affect" tort liability and therefore be prohibited under the terms of the Act.

The court has uncovered no published opinions which directly address this question. At least one court has ruled that the Pipeline Safety Act did not create a private right of action. See Doak v. City of Claxton, Georgia, 390 F.Supp. 753 (S.D.Ga.1975). The question of whether evidence of compliance with the Act may be introduced in a negligence action, however, has not been previously addressed.

While this issue has not been decided with reference to the Pipeline Safety Act, a number of courts have ruled on the question with respect to a similar provision contained in the Occupational Safety and Health Act (OSHA), 29 U.S.C. § 655 et seq. The OSHA provision states:

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.

29 U.S.C. § 653(b)(4).

The Tenth Circuit has ruled that this provision does not prohibit all reference to OSHA regulations, but made no ruling on whether OSHA regulations could be introduced as evidence relating to standard of care. In McHargue v. Stokes Div. of Pennwalt Corp., 912 F.2d 394 (10th Cir.1990), the defendant in a products liability action asserted that the devices in question met recognized industry standards. In order to bolster the credibility of those standards, the defendant elicited testimony that OSHA recognized the industry standards, and that no other standards existed for the machinery in question. Id. at 396. The Tenth Circuit ruled that the trial court did not abuse its discretion in allowing testimony about OSHA because the OSHA standards were not introduced to either prove that the device met OSHA regulations or to set out standards of care. Id.

Other circuits have considered the question of whether OSHA standards may be admitted into evidence. In a recent decision, the Ninth Circuit ruled that the district court did not err in admitting an OSHA noise-level regulation into evidence in an action brought under the Federal Employers' Liability Act (FELA). See Robertson v. Burlington Northern R.R. Co., 32 F.3d 408 (9th Cir. 1994). The court held that "OSHA standards may be admitted in a FELA case as some evidence of the applicable standard of care. Such evidence, however, is to be considered only in relation to all other evidence in the case, and a violation of an OSHA regulation is not negligence per se." Id. at 410-11. The court also approved the district court's limiting instruction to the jury. Id.

In finding such evidence admissible, the Ninth Circuit followed similar rulings of the Third and Fourth Circuits. See Ries v. National R.R. Passenger Corp., 960 F.2d 1156 (3d Cir.1992) (holding that admission of OSHA regulation into evidence did not contradict the "enlarge or diminish or affect" language in OSHA and therefore was proper evidence of negligence); Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329 (4th Cir.1987) (upholding district court reading OSHA regulations to jury and instructing that regulations could be considered as evidence of negligence but were not conclusive on the issue).

While the Sixth Circuit did reverse a judgment after finding that OSHA regulations were improperly admitted, in doing so the court did not hold that the regulations were always inadmissible. In Minichello v. U.S. Industries, Inc., 756 F.2d 26 (6th Cir.1985), the court held that it was improper to introduce OSHA regulations in a product liability suit to establish whether a product was unreasonably dangerous. The court stated:

If knowledge of the regulations leads the trier of fact to find a product defective, the effect is to impermissibly alter the civil standard of liability.... We do not mean to suggest that OSHA regulations can never be relevant in a product liability case, but OSHA regulations can never provide a basis for liability because Congress has specified that they should not.

Id. at 29. The court based its holding in part on the fact that OSHA regulations apply only to an employer's conduct, and that the district court had not instructed the jury that the evidence was only admitted for a limited purpose. Id. at 29-30.

In a later case, the Sixth Circuit reversed because the district court refused to give a limiting instruction regarding testimony in which OSHA regulations were read and commented upon. In Bailey v. V & O Press Co., Inc., 770 F.2d 601 (6th Cir.1985), the district court refused to admit the regulations in question, but did permit extensive testimony about them. The Sixth Circuit panel held that "while the initial admission and use of this evidence may have been proper, the court's failure to include a limiting instruction after submitting the case to the jury on the strict liability claim permitted unrestricted consideration of the testimony." Id. at 608-09.

Because the OSHA provision which precludes use of that statute to "enlarge or diminish or affect" any rights under state law is similar to the provision contained in the Pipeline Safety Act, it is proper to analogize from the cases just discussed. This court is persuaded by the reasoning of the majority of circuits² that have considered this issue and which have held that OSHA standards can be admitted to show evidence relating to standard of care, but cannot be considered conclusive proof of negligence or the absence of negligence. The court finds that this standard should also apply in this case if defendant offers evidence of the Pipeline Safety Act or its regulations.

Plaintiff argues that defendant should not be permitted to offer evidence of compliance with the Act or regulations to establish a defense under the Kansas Product Liability Act, and specifically K.S.A. § 60-3304(a), which provides:

When the injury-causing aspect of the product was, at the time of manufacture, in compliance with legislative regulatory standards or administrative regulatory safety standards relating to design or performance, the product shall be deemed not defective by reason of design or performance, or, if the standard addressed warnings or instructions, the product shall be deemed not defective by reason of warnings or

...