Shahtout By and Through Shahtout v. Emco Garbage Co., Inc.
Jurisdiction | Oregon |
Parties | Michelle Luna SHAHTOUT, a minor By and Through her guardian ad litem, Maurice SHAHTOUT, Petitioner on Review, v. EMCO GARBAGE COMPANY, INC., and Jeff Weitzel, Respondents on Review. TC A8110-06373; CA A28635; SC S30764. |
Citation | 298 Or. 598,695 P.2d 897 |
Court | Oregon Supreme Court |
Decision Date | 16 April 1985 |
David J. Sweeney, Portland, argued the cause and filed briefs for petitioner on review. With him on the briefs were Mark B. Weintraub and Gilbertson, Brownstein, Rask, Sweeney, Kerr & Grim, Portland.
Jas. Jeffrey Adams, Portland, argued the cause and filed briefs for respondents on review. With him on the briefs were William H. Mitchell and Mitchell, Lang & Smith, Portland.
Plaintiff was injured when defendant's truck backed up and struck her, and she sued for damages. A jury found that defendant was not negligent. On appeal, plaintiff claimed that the trial court made erroneous rulings concerning the truck's lack of an alarm device to signal when the truck was to be backed. The Court of Appeals affirmed without opinion. 68 Or.App. 53, 680 P.2d 21. We allowed review to consider the proper treatment of a safety regulation relating to such signals.
The regulation is OAR 437-56-095(2), a rule promulgated by the Workers' Compensation Department under the Oregon Safe Employment Act, ORS 654.001 to 654.295, in order to assure employees of safe and healthful working conditions. ORS 654.003, 654.025. The rule provides:
Plaintiff claims that violation of this rule constitutes "negligence per se," or that the existence of the rule at least was admissible so that noncompliance could be considered as evidence of negligence.
In considering the effect of a governmental regulation in actions for damages, it is important at the outset to distinguish between liability for damages based on violation of the rule and the significance of such a violation for common law liability. See Bob Godfrey Pontiac v. Roloff, 291 Or. 318, 630 P.2d 840 (1981) (majority and concurring opinions). A law that is designed to protect some or all persons against a particular risk of harm may expressly or impliedly give persons within the protected class a right to recover damages if noncompliance with the law results in harm of the kind the law seeks to prevent. See, e.g., Nearing v. Weaver, 295 Or. 702, 670 [298 Or. 601] P.2d 137 (1983). The basis of such claims ordinarily is not "negligence per se"; whether they involve negligence at all depends on whether this is a term of the law involved. See Watzig v. Tobin, 292 Or. 645, 655-58, 642 P.2d 651, 658-59 (1982).
The phrase "negligence per se" can apply only to cases brought on a theory of liability for negligence rather than liability grounded in obligations created by statute. Even when a statute neither expressly nor impliedly gives a person injured by its violation any claim for damages, that person may have such a claim under existing common law theories, based on negligence or on something else, to which the statutory violation may be relevant. Recently, for instance, we held that an employer's violation of an anti-discrimination law which does not itself provide for civil damages could provide the element of wrongfulness in a common law claim of wrongful discharge. Holien v. Sears, 298 Or. 76, 689 P.2d 1292 (1984).
Of course, a plaintiff may assert both statutory and common law theories of liability on the same facts. See Nearing v. Weaver, supra, 295 Or. at 708, 670 P.2d at 141. In a negligence case, the plaintiff must show that defendant did not meet an applicable standard of due care under the circumstances. When a plaintiff (or a defendant seeking to prove negligence on plaintiff's part) invokes a governmental rule in support of that theory, the question is whether the rule, though it was not itself meant to create a civil claim, nevertheless so fixes the legal standard of conduct that there is no question of due care left for a factfinder to determine; in other words, that noncompliance with the rule is negligence as a matter of law. This court long has held that violations of statutory safety rules by themselves provide the element of negligence with respect to those risks that the rules are meant to prevent, at least unless the violator shows that his conduct in fact did not violate the rule under the circumstances. Barnum v. Williams, 264 Or. 71, 504 P.2d 122 (1972); Peterson v. Standard Oil Co., 55 Or. 511, 106 P. 337 (1910). 1
The present action is based only on common law negligence. Plaintiff first claims that OAR 437-56-095 required defendant's truck to be equipped with audible reverse signals, and that the lack of such signals in violation of the rule was negligence per se. Defendant responds that OAR 437-56-095 exists exclusively for the protection of defendant's employees and cannot be invoked by plaintiff, and that the requirement is not mandatory in any event. Defendant cites Rich v. Tite-Knot Pine Mill, 245 Or. 185, 421 P.2d 370 (1966), and Davis v. Portland General Electric, 286 Or. 195, 593 P.2d 1135 (1979).
In Rich, plaintiff was injured by machinery in a sawmill where he sought to work, and he sued for damages under the Employers' Liability Act or common law negligence. The court stated that the safety codes promulgated by the Workers' Compensation Board were intended for the protection of employees and therefore were limited in application to employees. 2 In Davis, an injured worker sued a third party, which defended in part by showing that plaintiff's employer had violated a safety code. In holding the evidence admissible, the court explained Rich as stating a rule of "relevancy" with respect to evidence of the safety violation.
We think the question deserves further analysis beyond the brief statements in Rich and Davis. Those decisions merely recited that the legislature authorized safety rules under ORS 654.025 for the protection of employees. That is true, and it follows that they afford plaintiff no basis to argue for recovery grounded in a statutory violation. But it does not follow that the safety rule is irrelevant to the determination of due care in a case grounded in common law negligence. That confuses the question of the concern giving rise to adoption of a rule, here the safety of workers, with the question whether the standard imposed by the rule is one peculiar to risks of the workplace or is intended to protect workers against risks that they share with others. If the risk is common to workers and other persons, and the government has determined that the risk calls for a mandatory safeguard, it is difficult to argue that this determination has no relevance when someone suffers the kind of injury that the safeguard was meant to prevent.
Omission of a required safeguard such as an audible "reverse signal alarm" on a vehicle would fall below a mandatory standard of care and thus establish "negligence per se" toward any victim if the requirement were enacted by the legislature or if authority to promulgate it for general public safety were delegated to the Motor Vehicles Division. Cf. ORS 483.050 and ORS 483.436 to 483.440 ( ). If a rule promulgated by the director of the Workers' Compensation Department does not have the same effect, it is because the legislature has not given that department responsibility for vehicle safety standards required to protect the general public. 3 Rather, ORS 654.003 states that the purposes to be accomplished by the department's safety standards are to assure workers of safe and healthful working conditions, to preserve human resources, and to reduce the economic burdens of lost production, wage losses, medical expenses, and compensation payments as well as human suffering. The legislature did not direct the department, in setting standards for these purposes, to take account of the cost of consequential civil liability toward other parties; if anything, the statute implies that safeguards for workers are not to be compromised by such considerations. It therefore is quite possible that the director would require safety equipment in order to protect workers that the legislature or any agency with a wider directive would not deem necessary to protect the world at large. With respect to motor vehicles, in fact, the legislature has enacted laws governing lights, ORS 483.402 to 483.442, including stop lamps and turn signals, ORS 483.407, and warning horns, ORS 483.446, but these do not require reverse warning signals.
The circuit court therefore did not err in ruling that noncompliance with OAR 437-56-095(2) would not establish defendant's negligence as a matter of law.
Plaintiff's second claim is that the trial court erred in not allowing the jury to consider the safety rule requiring reverse warning...
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