THOMA v. KETTLER BROS., INC.

• Decision Date: 18 October 1993
• Docket Number: No. 92-CV-225,92-CV-225
• Citation: 632 A.2d 725
• Parties: Ann E. THOMA, et ux., Appellants, v. KETTLER BROTHERS, INC., et al., Appellees.
• Court: D.C. Court of Appeals

632 A.2d 725

Ann E. THOMA, et ux., Appellants, v. KETTLER BROTHERS, INC., et al.,Appellees.

No. 92-CV-225.

District of Columbia Court of Appeals.

Argued June 4, 1993.

Decided October 18, 1993.

APPEAL FROM THE SUPERIOR COURT, STEPHEN F. EILPERIN, J.

J. Gordon Forester, Jr., Washington, DC, for appellants.

Timothy E. Fizer, Lutherville, MD, for appellees.

Before FERREN, FARRELL, and SULLIVAN, Associate Judges.

FARRELL, Associate Judge:

A jury returned a verdict for the defendants (appellees) in this personal injury case arising from a construction site accident. On appeal, appellants' primary argument is that the trial judge erred in refusing to admit in evidence a relevant Occupational Safety and Health Act (OSHA)¹ regulation and to instruct the jury that it was evidence the jury could consider in deciding the precise duty of care appellees owed to business-invitees on the construction site (assuming it found appellants to be invitees). We hold that, upon proper request, a plaintiff is entitled to an instruction on the evidentiary significance of a standard such as the OSHA regulation. For the reasons stated in part IV. of this opinion and in the concurring opinion of Judge Sullivan, however, the failure to give that instruction provides no basis for reversal of the judgment in this case.

I.

Appellants Ann and Robert Thoma contracted with appellee Kettler Brothers, Inc., the general contractor and direct sales agent, to purchase a newly-constructed townhouse in Washington, D.C. The developer was appellee Miller and Smith Companies of Georgetown, Inc. Mrs. Thoma visited the home several times during its construction, both before and after signing the contract. For instance, on January 5, 1989, she inspected the interior of the building with a view to selecting fixtures and colors for the home. On February 23, 1989, while the house was still under construction, Mrs. Thoma went to the Kettler sales office and told the agent, Jo Hanlon, that she and her friends would be visiting the house early that evening. According to Mrs. Thoma, Mrs. Hanlon stated that there would be "no problem" and gave Mrs. Thoma her home telephone number in the event security prevented her from entering the home.² Mrs. Thoma visited the home with her friends at approximately 5:00 p.m., still during daylight. As she was descending the interior stairs, she slipped and fell. She testified that her fall was caused by loose plastic, debris, and plaster dust which covered the stairs. She suffered an avulsion fracture of the left ankle and a displaced fracture of the right ankle, requiring surgery and the permanent fixation of a metal plate.

Mrs. Thoma sued for damages for her injuries; Mr. Thoma sued for loss of consortium. They filed a motion in limine on February 8, 1991, as supplemented by an August 8, 1991 memorandum, requesting a jury instruction that appellees' violation of anOSHA regulation set forth at 29 C.F.R. § 1926.501(d) & (e) (1990) was per se negligence. They also filed a February 3, 1992, Memorandum of Law requesting an instruction that violation of the OSHA regulation could at least be considered by the jury as evidence of negligence. The trial judge denied both requested instructions, and as a result the jury heard no evidence of the regulation. The judge rejected the proposed per se negligence instruction on the ground that the OSHA regulations are intended to protect employees on the worksite, not members of the general public. Although the judge was disposed to let the jury consider the regulation as evidence, he ultimately declined to do so and rejected the second requested instruction because the pertinent regulation, though operative at the time of the accident, had been superseded at the time of trial; and, in any case, he viewed the regulations as applying only to temporary structures on the construction site, not stairways intended to be part of the finished home.

II.

Appellants first contend the trial judge erred in not instructing the jury that appellees' violation of the OSHA regulations would constitute negligence per se.³ The regulation in effect at the time of the accident, 29 C.F.R. § 1926.501, reads in relevant part as follows:

* * * * * *

(d) Debris, and other loose materials, shall not be allowed on or under stairways.

(e) Slippery conditions on stairways shall be eliminated as soon as possible after they occur.⁴

For the violation of a statute or regulation to constitute negligence per se, the regulation must be enacted "to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff [must be able to] establish his relationship to the statute. . . ." Ceco Corp. v. Coleman, supra note 3, 441 A.2d at 945; see also RESTATEMENT (SECOND) OF TORTS, § 286, at 25 (1965). "The party relying upon the statutory standard must, at the outset, establish its applicability by showing that he is within the class of persons intended to be protected by it, and that the injury incurred resulted from the type of risk against which the statute was designed to protect." Lewis v. Washington Metro. Area Transit Auth., supra note 3, 463 A.2d at 674.

Appellants' claim that they come within the class of persons intended to be protected by the OSHA regulations, and thus were entitled to a per se negligence instruction, is foreclosed by Kurtz v. Capital Wall Paper Co., 61 A.2d 470 (D.C. 1948).⁵ InKurtz, a customer of a wallpaper supply company was injured while using a wallpaper trimming machine made available for customer use on the company premises. He sued and attempted to introduce as evidence a safety regulation promulgated by the Minimum Wage and Industrial Safety Board which arguably had been violated by the company in maintaining the machine. The trial judge excluded the evidence, and the court of appeals sustained the exclusion. Pointing out that throughout the statute which authorized the regulation "there are references to 'employers,' 'employees' and 'places of employment,' but nowhere is there any mention of a duty toward members of the general public," the court found "no indication whatever that [the statute] was intended to protect any one other than employees or wage earners." Id. at 471. It therefore held that "the trial judge was correct in declining to let the jury consider the tendered regulation as a basis of additional support for plaintiff's claim." Id.

With respect to the intended class of protected individuals, the OSHA regulations cannot be distinguished meaningfully from the safety regulation at issue in Kurtz. Both govern the workplace relationship of employer and employee. See, e.g., 29 U.S.C. § 654(a) (1985) (under OSHA, "[e]ach employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards . . . [and] shall comply with occupational safety and health standards promulgated under this chapter").⁶ Therefore, appellants' effort to extend the scope of OSHA's coverage to themselves as business invitees of Kettler Brothers founders on Kurtz's refusal even to permit introduction in evidence of an analogous safety regulation in a suit brought by a customer. Even without the binding authority of Kurtz, moreover, we would decline to hold that violation of an OSHA regulation is negligence per se as applied to injured persons who in no sense are party to the employer-employee relationship to which the regulations relate. E.g., Smith v. Kris-Bal Realty, Inc., 242 N.J. Super. 346, 576 A.2d 934, 938 (1990) (business-invitee); Wood v. Smith, 343 Pa. Super. 547, 495 A.2d 601, 603 (1985) (homeowner).⁷ See also W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS (PROSSER) § 36, at 222 (5th ed. 1984) (in determining the class of persons to whom a statutory violation pertains, courts "have been careful not to exceed the purpose which they attribute to the legislature"). Cf. District of Columbia v. Brown, 589 A.2d 384, 387 (D.C. 1991) (D.C. elevator code not meant to protect members of general public from their own negligence).⁸

III.

Appellants' primary contention, however, is that the trial judge erred in refusing to permit the jury to consider the OSHA regulations even as evidence of the standard of care to be followed by contractors such as appellees in maintaining the construction site. Kurtz, viewed in isolation, forecloses this argument as well: it sustained the refusal of the trial judge "to let the jury consider the tendered regulation as a basis of additional support for plaintiff's claim." 61 A.2d at 471 (emphasis added). But, as we have stated in another context, Kurtz would bind us on this point only "[i]f the law had stood still since" that decision. Elam v. Monarch Life Ins. Co., 598 A.2d 1167, 1170 (D.C. 1991). Significantly, decisions of the United States Court of Appeals for the District of Columbia Circuit rendered after Kurtz, but binding upon this court, M.A.P. v. Ryan, supra note 5, establish the very different rule that even though a statute or regulation "is not directly applicable as a protection to the particular plaintiff," it nonetheless may constitute "evidence of a standard which the jury [can] consider in determining whether the defendants . . . exercised due care according to their respective responsibilities." Curtis v. District of Columbia, 124 U.S.App.D.C. 241, 243, 363 F.2d 973, 975 (1966).

In Curtis, the plaintiff was injured in a fall caused by a protruding metal covering of a vault beneath a public sidewalk. He could not claim violation of a relevant provision of the municipal building code, because the regulation had been promulgated after the accident in question and was not intended to apply retroactively. Nevertheless, the court of appeals reasoned that "the advent into public law of this evidence of a standard bearing upon the issue of due care need not be entirely ignored in this case." Id. The court quoted PROSSER, supra, to the effect...