Otto v. Specialties, Inc., DC 73-63-K.

• Decision Date: 27 September 1974
• Docket Number: No. DC 73-63-K.,DC 73-63-K.
• Citation: 386 F. Supp. 1240
• Parties: Jack M. OTTO and Maryland Casualty Company, Plaintiffs, v. SPECIALTIES, INC., Defendant.
• Court: U.S. District Court — Northern District of Mississippi

386 F. Supp. 1240

Jack M. OTTO and Maryland Casualty Company, Plaintiffs, v. SPECIALTIES, INC., Defendant.

No. DC 73-63-K.

United States District Court, N. D. Mississippi, Delta Division.

September 27, 1974.

James O. Marty, Memphis, Tenn., for plaintiffs.

Thomas M. Murphree, Jr., Jackson, Miss., for defendant.

MEMORANDUM OPINION

KEADY, Chief Judge.

The court has before it the motion of defendant, Specialties, Inc., for an order to limit the plaintiffs in the character of the evidence which they may present upon trial. For the reasons to follow, we believe that the motion is meritorious and must be sustained.

This diversity action arises out of an accident which occurred at the defendant's place of business at Olive Branch, Mississippi. Jack M. Otto, plaintiff, a citizen of Tennessee, was at that time employed by Jet Electric Company, a Tennessee concern which often performed various electrical jobs at the defendant's Mississippi office. Although the circumstances surrounding the accident are in dispute, this much is clear. On June 2, 1972, plaintiff went to defendant's place of business to perform some work for the defendant; and while so engaged, he fell from a ladder belonging to the defendant, and injured himself.

Otto claims damages for his injuries under both the Mississippi common law of negligence and the Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. § 651 et seq. Otto's OSHA claim is based on allegations that the ladder from which he fell was structurally deficient, in violation of minimum safety standards issued pursuant to OSHA by the Secretary of Labor.

Defendant contends that OSHA cannot be utilized by Otto in this action, since the Act does not expressly provide any private civil remedy for its violation. Defendant further claims that no private remedy may be implied from the Act and, therefore, plaintiff should be prohibited at trial from referring to the Act or to any of the safety standards promulgated pursuant to it.¹

Otto concedes that the Act makes no express provision for a cause of action by an injured worker against an employer whose violations of OSHA safety standards proximately causes the worker's injury. Otto argues, however, that courts have often permitted civil damage suits to be maintained where federal statutes proscribe certain conduct and provide only for penalties against the violator as a means of enforcement. Plaintiff's argument is essentially that, where a federal statute evinces a Congressional policy determination, the federal courts should promote the attainment of those expressed goals by providing for judicial remedies. Otto also asserts that, even if this court declines to allow a federal civil action based on violation of OSHA regulations, those safety standards may still be utilized here under the Mississippi common law of negligence, as evidence of negligent conduct by Specialties.

The avowed purpose of OSHA, as stated in the initial section of the Act, is to "assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .." 29 U.S.C. § 651(b). In achieving this goal, OSHA mandates the promulgation of safety and health standards by the Secretary of Labor which have the force of law. See 29 U.S.C. §§ 654, 655.² Violation of the standards is punishable by specified criminal and civil penalties of considerable severity. 29 U.S.C. § 666. Nowhere in the Act or in its legislative history can be found any indication that Congress intended to allow additional civil actions instituted by aggrieved employees injured through violations of OSHA standards.³ Indeed, 29 U.S.C. § 653(b)(4) strongly implies that Congress intended no such remedy should be made available:

"Nothing in this Act . . . 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."

Although the recent passage of this legislation militates against the existence of a large body of case law on this subject, several cases do shed substantial light on our question. In each, the court found that Congress intended not to create, and did not create, any civil cause of action for violations of OSHA regulations.

In Skidmore v. Travelers Ins. Co., 356 F.Supp. 670 (E.D.La.1973), a case in which diversity of citizenship was not present, the plaintiff sued solely under OSHA for damages suffered from an alleged violation of OSHA standards. In dismissing the complaint, the court noted that Congress had provided for enforcement of OSHA safety standards through criminal and civil penalties, and that 29 U.S.C. § 653(b)(4) evidenced a positive Congressional intent not to create any private civil remedy. The court admitted that civil remedies have often been allowed for breaches of statutory duties which were expressly to be enforced in other ways, but noted that in those cases the vindication of the legislative policies behind the remedial statutes was contingent upon the creation of an additional remedy. Finding that the Congressional goals behind OSHA were adequately safeguarded by the statutory penalties already provided, the court refused to allow the action.

This court, too, through Judge Smith, has ruled that OSHA provides no relief for civil litigants. In Hare v. Federal Compress and Warehouse Co., 359 F. Supp. 214 (N.D.Miss.1973), the plaintiff was employed by an independent contractor performing excavation work on the defendant's property. When the ditch in which the plaintiff was working collapsed, he brought a diversity action alleging negligence and violation of OSHA regulations. After ruling that the defendant was not liable under Mississippi negligence law, the court dismissed plaintiff's OSHA claim, holding that OSHA did not create an independent cause of action or affect or enlarge the common-law rights of injured plaintiffs.

The Sixth Circuit spoke to this question in Russell v. Bartley, 494 F.2d 334 (1974). In Russell, the plaintiff sued without diversity, relying solely on the federal claim arising out of OSHA. In dismissing the plaintiff's claim, the Sixth Circuit agreed with the two earlier district court opinions. Criminal and civil penalties provided in the Act were held to be exclusive enforcement provisions, with Congress not contemplating or permitting a private civil action for OSHA violations.

Although the Fifth Circuit has not addressed this precise issue, analogous questions have arisen. In resolving them, the Fifth Circuit has outlined an approach we believe to be sound when courts undertake to create federal causes of action from federal statutes which make no express provision for their existence. In Breitwieser v. KMS Industries, Inc., 467 F.2d 1391 (5 Cir. 1972), the issue was whether the child labor provisions of the Fair Labor Standards Act (FLSA), 29 U.S.C. § 212, created a private cause of action for damages for wrongful death. There, as here, violation of the statute was punishable by criminal and civil sanctions, and the statute did not, on its face, make provision for any civil recovery by aggrieved employees. In rejecting the contentions of plaintiff that the FLSA be read to imply a civil remedy, the Court adopted a method of analysis which is appropriate here.

"Although federal courts have on occasion implied remedies for infringement of federally conferred rights, . . . they have done so only when the law creating the right provided for no remedy or for a grossly inadequate remedy. The courts have thus implied relief when necessary to prevent abrogation of congressional policies. The instant case presents a very different situation in that the FLSA, rather than lacking in remedies or providing inadequate remedies, contains a comprehensive enforcement scheme, . . . including substantial criminal penalties for violations of child labor law." 467 F. 2d at 1392.

The Court concluded that the presence of efficacious federal enforcement provisions, together with an available state remedy, was reason enough not to fashion an additional cause of action under the FLSA. 467 F.2d at 1394.

We believe this case to be cut from the Breitwieser mold. Like the FLSA, OSHA provides a comprehensive series of criminal and civil penalties as enforcement mechanisms. Sanctions range from a civil penalty of $1,000 for a first violation not of a serious nature to a $20,000 fine and imprisonment of one year for repeated, serious violations. These penalties are stringent and comprehensive. If enforced, they are sufficiently powerful to insure compliance with OSHA and the Safety standards. Further, Mississippi's negligence law is...