Teal v. E.I. DuPont de Nemours and Co.

• Citation: 728 F.2d 799
• Decision Date: 07 March 1984
• Docket Number: No. 82-5466,82-5466
• Parties: 11 O.S.H. Cas.(BNA) 1857, 1984-1985 O.S.H.D. ( 26,887 Richard J. TEAL and Tina Teal, Plaintiffs-Appellants, v. E.I. DuPONT de NEMOURS AND COMPANY, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 799

728 F.2d 799

11 O.S.H. Cas.(BNA) 1857, 1984-1985 O.S.H.D. ( 26,887

Richard J. TEAL and Tina Teal, Plaintiffs-Appellants, v. E.I. DuPONT de NEMOURS AND COMPANY, Defendant-Appellee.

No. 82-5466.

United States Court of Appeals Sixth Circuit.

Argued Aug. 25, 1983.

Decided March 7, 1984.

Robert L. Estes, Stewart, Estes & Donnell, Nashville, Tenn., William B. Vest (argued), Vest & Fentress, Hendersonville, Tenn., for plaintiffs-appellants.

John S. Bryant (argued), Bass, Berry & Sims, Nashville, Tenn., for defendant-appellee.

Before JONES and KRUPANSKY, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CELEBREZZE, Senior Circuit Judge.

Richard and Tina Teal (plaintiffs-appellants) brought this diversity action against E.I. DuPont deNemours and Company (defendant-appellee) to recover for injuries sustained as a consequence of an accident that occurred at DuPont's plant in Old Hickory, Tennessee. ¹ At the conclusion of a five day jury trial, a verdict was returned in favor of DuPont. On appeal, appellants raise two issues which merit discussion. ² First, appellants claim that the trial court erred by instructing the jury that a landowner owes no duty to invitees to furnish protection against hazards on the landowner's premises. Second, appellants assert that the trial court erred by refusing to instruct the jury on the issue of negligence per se. Although the instruction concerning a landowner's duty to invitees is ambiguous, we conclude that such ambiguity is harmless. We hold, however, that the court's refusal to instruct the jury on the issue of negligence per se was improper and prejudicial. Accordingly, this case is affirmed in part, reversed in part and remanded for a trial solely on the issue of negligence per se.

The Daniel Construction Company (Daniel Construction) entered into a contract with DuPont to dismantle and remove hydraulic bailers from DuPont's plant. The bailers occupied three floor levels within the plant and were used to compress synthetic Dacron fiber. Hydraulic "rams" provided the force necessary to compress the fiber. The rams were located below the ground floor in a "bailer pit", access to which was provided by a straight and permanently affixed ladder. On March 14, 1979, Richard Teal, an employee of Daniel Construction, fell approximately seventeen feet from the ladder to the floor of the bailer pit. Richard Teal brought this action against DuPont alleging that his fall and injuries were the direct and proximate result of DuPont's negligence. ³

One of appellant's negligence theories concerned DuPont's duty to invitees to "furnish protection against dangers" on DuPont's property. Initially, the trial court instructed the jury that a landowner's duty to invitees is "to give warning of, or use ordinary care to furnish protection against such dangers to employees of the contractor who are without actual or constructive notice of the dangers." After the jury had retired for deliberations, it requested additional instructions. Specifically, the jury asked the following question:

Do DuPont employees wear safety belts on ladders: was it DuPont's responsibility to see that Richard Teal wore a safety belt?

The trial court again instructed the jury that a landowner owes a duty to invitees "to give warning of or use ordinary care to furnish protection against" dangers on the landowner's property. The court further instructed the jury, however, that "an owner or occupant of land who has an independent contractor or who employs employees to perform work owes a duty to warn of hazards, but he is not under a duty to specify the manner in which those hazards should be avoided." Appellants claim that the latter instruction is erroneous.

Appellants' second argument concerns their negligence per se claim. During the course of the trial, appellants introduced evidence which indicated that DuPont's ladder failed to conform to federal regulations promulgated pursuant to the Occupational Safety and Health Act of 1970. 29 U.S.C. Sec. 651 et seq. Specifically, OSHA regulations require a clearance of not less than seven inches "from the centerline of the rungs, cleats or steps to the nearest permanent object in back of the ladder." 29 C.F.R. Sec. 1910.27(c)(4). The uncontroverted testimony of Robert B. Taylor, a director of the Division of Occupational Safety and Health for the Tennessee Department of Labor, indicated that the ladder failed to conform with the seven inch clearance requirement. Because DuPont had breached a regulatory obligation, appellants requested the trial court to instruct the jury on the issue of negligence per se. The trial court refused; instead, it informed the jury that the OSHA regulation "may be considered ... as some evidence ... of the (appropriate) standard of care." Appellants claim that the district court's refusal to charge on the issue of negligence per se is reversible error.

When a federal court's jurisdiction is based solely on diversity of citizenship, the federal court must apply state law. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817 82 L.Ed. 1188 (1938). In this case, the law of Tennessee is the substantive law to be applied.

Although state law determines the substance of jury instructions in a diversity of citizenship case, federal law governs our standard of review for determining whether a jury instruction is prejudicial. E.g., Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 719 (8th Cir.1982); Wright v. Albuquerque Auto-Truck Stop Plaza, Inc., 591 F.2d 585, 587 (10th Cir.1979). Generally, a charge that contains an inaccurate or ambiguous statement does not constitute reversible error if the inaccuracy or ambiguity is unlikely to mislead the jury. E.g., Vicksburg Furniture Mfg., Ltd. v. Aetna Cas. and Sur. Co., 625 F.2d 1167, 1169 (5th Cir.1980). In determining whether an isolated clause in the jury instructions is likely to have misled the jury, a reviewing court must consider the entire charge. E.g., Blackwell v. Sun Electric Corp., 696 F.2d 1176, 1181 (6th Cir.1983); Haislah v. Walton, 676 F.2d 208, 212 (6th Cir.1982); Hrzenak v. White-Westinghouse Appliance Co., 682 F.2d 714, 719 (8th Cir.1982). Thus, the critical inquiry is whether the instructions as a whole provide the jury with sufficient guidance concerning the issues to be tried. Consistent with these principles, we address appellant's first assignment of error.

Appellants argue that the trial court's instruction that a landowner "owes a duty to invitees to warn of hazards, but need not specify the manner in which those hazards should be avoided," states imprecisely the law of Tennessee. According to appellants, the jury could have interpreted this instruction to mean that a landowner never owes a duty to invitees to furnish protection against hazards by specifying ways to avoid particular dangers. Such an interpretation is inconsistent with established case law. A landowner's duty to invitees is defined in the disjunctive: a landowner must either warn invitees of hazards on his premises, or furnish protection against such dangers. E.g., Jackson v. Tennessee Valley Authority, 413 F.Supp. 1050, 1056 (M.D.Tenn.1976). In other words, a landowner owes a duty to invitees to furnish protection against hazards only if he fails to warn of the hazards. We agree with appellant's assertion that the trial court's statement to the jury is ambiguous. We disagree with appellant's claim, however, that the instructions failed to provide the jury with sufficient guidance concerning a landowner's alternative duties to invitees.

In our view, the jury instructions as a whole informed the jury sufficiently of DuPont's alternative duty to invitees to furnish protection against dangers on its premises. In its initial charge, the trial court instructed the jury that a landowner's duty to invitees is "to give warning of, or use ordinary care to furnish protection against" dangers. Clearly, this instruction states correctly a landowner's duty to invitees. Thereafter, the jury requested further instructions. In response to the jury's questions, the trial court again informed the jury that a landowner's duty to invitees is "to give warning of, or use ordinary care to furnish protection against" dangers on the landowner's premises. In light of these instructions, we doubt that the jury was misled by the trial court's ambiguous statement. In all likelihood, the jury interpreted the disputed statement to mean that if a landowner warns of a hazard, he owes no further duty to specify the manner in which the hazard should be avoided. In short, we believe that the instructions as a whole were sufficient to inform the jury of the issues to be tried. Accordingly, we hold that the trial court's ambiguous statement of law is harmless error. In this respect, the jury's verdict is affirmed.

The second issue on appeal concerns the trial court's refusal to instruct the jury on the issue of negligence per se. Pursuant to Tennessee case law, a breach of a duty imposed by statute or regulation is negligence per se if the party injured is a member of the class of persons the statute or regulation was intended to protect. E.g., Alex v. Armstrong, 215 Tenn. 276, 385 S.W.2d 110 (1964); Taylor v. Coburn, 597 S.W.2d 319, 322 (Tenn.App.1980); Berry v. Whitworth, 576 S.W.2d 351, 353 (Tenn.App.1978). In this case, the parties agree that Richard Teal was, at the time of the accident, an employee of Daniel Construction, an independent contractor, and that Teal fell from a permanently affixed ladder in DuPont's plant. Further, the parties agree that the OSHA regulation established a duty owed by DuPont and that DuPont breached its duty to conform with the specifications of the regulation. ⁴ Accordingly, the primary dispute is whether an employee of an independent contractor is a member of the class of persons that the OSHA regulation was intended to protect.

DuPont argues that the stated purposes for the ...