Thornock v. State

Decision Date04 November 1987
Docket NumberNo. 87-68,87-68
Citation745 P.2d 324,229 Mont. 67
Parties, 56 USLW 2288, 13 O.S.H. Cas.(BNA) 1511, 1987 O.S.H.D. (CCH) P 28,088 Larry D. THORNOCK, Plaintiff and Appellant, v. STATE of Montana, Defendant and Respondent.
CourtMontana Supreme Court

Edward K. Duckworth, Ronan, Michael J. McKeon (argued), Anaconda, for plaintiff and appellant.

R. Scott Currey (argued) Agency Legal Services Bureau, Helena, for defendant and respondent.

HARRISON, Justice.

Plaintiff Larry D. Thornock appeals from an order of the District Court of the Twentieth Judicial District granting summary judgment for the State. He had claimed that the State had been negligent in failing to inspect hazardous places of employment as required by Sec. 50-71-321, MCA. He argues that this inaction by the State allowed the sawmill at which Thornock worked to operate in a hazardous condition and led to an accident in which Thornock lost his left arm at the elbow. We are presented with the question of whether the federal Occupational Safety and Health Act (29 U.S.C. Secs. 651 et seq.) preempted that statutory duty. The District Court ruled that it did and granted summary judgment for the State. We affirm.

On December 1, 1982, Thornock injured his left arm while attempting to unjam a block of wood that had stalled a conveyor belt called a feed chain at the Flathead Lumber Company in Polson, Montana. He did not turn off the power that fed the machine. The result was that his arm was pulled into the drive chain and sprocket. Thornock filed a claim for Workers' Compensation benefits and received a full and final settlement in September 1984. One of the owners of the mill stated in his deposition that the State had never inspected that feed chain in the five years that the sawmill had been operating. Section 50-71-321, MCA, adopted as part of the Montana Safety Act in 1969, provides:

(1) The division [of Workers' Compensation] shall inspect from time to time all the places of employment defined in the Montana Workers' Compensation Act as being hazardous and the machinery and appliances therein contained for the purpose of determining whether they conform to law.

(2) A report of such periodic inspection shall be filed in the office of the division and a copy thereof given the employer. Such report shall not be open to public inspection or made public except on order of the division or by the division in the course of a hearing or proceeding.

Mr. Thornock filed his claim against the State on January 10, 1985. In paragraph V of his complaint, he alleged that the State's failure to inspect the feed chain constituted negligence that was a proximate cause of the "traumatic amputation" of his arm. The State answered that it had no responsibility for the safety of working conditions at the Flathead Lumber Company in December 1982 because its authority had been preempted by the federal Occupational Safety and Health Act. Both parties moved for summary judgment and briefed the issue. On January 21, 1987, the District Court granted the State's motion for summary judgment, pursuant to Rule 54(b), M.R.Civ.P., and denied Thornock's motion. The District Court wrote:

In 1970 the U.S. Congress enacted OSHA to assure safe and healthful working conditions and provides [sic] that states may assert jurisdiction where there are no federal standards in effect.

29 C.F.R., Sec. 1900.265 was adopted and set federal safety standards for sawmills and adopted specific construction, operation and maintenance standards for conveyors ... Since the adoption of OSHA and said regulations, the State of Montana has not followed the procedure provided therein for the state to assert jurisdiction over occupational safety in this area of conveyors in sawmills.

The federal law and regulations adopted pursuant thereto have preempted the state law which is the basis of Plaintiff's complaint and Defendant is therefore entitled to summary judgment as a matter of law.

On appeal, Thornock concedes that OSHA preempts the promulgation of safety standards and enforcement of such standards from the State's purview. However, he argues that OSHA has not preempted the State's responsibility of gathering and compiling information as to safety in the work place. He argues also that the wording of OSHA does not meet the United States Supreme Court's test for the applicability of the doctrine of preemption as set forth in Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443. We shall consider these arguments in turn.

His first argument--that the State's duty to inspect hazardous work places and prepare reports on their safety is not preempted by OSHA--is founded on the premise that OSHA was intended to preempt states from setting and enforcing their own standards as to worker safety but not as to inspections. He notes that 29 U.S.C. Sec. 667(a) allows state agencies to "[assert] jurisdiction under state law over any occupational safety or health issue with respect to which no standard is in effect under section 655 of this title." He notes that 29 U.S.C. Sec. 655 establishes the rulemaking procedure by which the Secretary of Labor may "promulgate, modify, or revoke any occupational safety or health standard," and claims this does not include the process of inspection. Because inspection is not included in 29 U.S.C. Sec. 655, he claims that Sec. 50-71-321, MCA, is still valid because of 29 U.S.C. Sec. 667(a)'s provisions guarding state duties. Furthermore, he notes that 29 U.S.C. Sec. 667(b) provides a means by which any state may petition the Secretary of Labor "to assume responsibility for development and enforcement ... of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated ..." He concedes, however, that the State of Montana has never completed such a petition.

Thornock relies on P & Z Co., Inc. v. District of Columbia (D.C.1979), 408 A.2d 1249, in which the Court of Appeals for the District of Columbia distinguished the three functions of OSHA as standard specification, standard enforcement, and information gathering and reporting. P & Z Co., 408 A.2d at 1250. That court held that OSHA does not preempt state duties unless standards have been promulgated under 29 U.S.C. Sec. 655. Thornock contends that since information gathering and reporting has not been considered to be a standard, information gathering and reporting are not preempted by OSHA. P & Z Co., 408 A.2d at 1250. The District of Columbia Court of Appeals found nothing in the legislative history of OSHA to support the appellant's claim that a statute requiring an employer to report employee injuries had been preempted by OSHA. P & Z Co., 408 A.2d at 1251, n. 7. Similarly, in Berardi v. Getty Refining & Marketing (N.Y.1980), 107 Misc.2d 451, 435 N.Y.S.2d 212, the court ruled that while OSHA was meant to be exclusive in the promulgation and enforcement of standards, a state may take jurisdiction over any safety issue on which there is no federal standard. Berardi, 435 N.Y.S.2d at 216. Thornock's reliance on these two cases, however, is misplaced because the holdings of these cases are at odds with the allegations of Thornock's complaint. In his complaint, Thornock cites Sec. 50-71-321, MCA, as requiring the State to inspect the sawmill's feed chain and enforce standards. He claims it was the State's failure to inspect the premises along with the State's failure to require the sawmill to be operated safely that was the proximate cause of his injuries. Whereas P & Z Co. holds that a state or other local jurisdiction can exercise duties not preempted by OSHA, Thornock specifically incorporates into his complaint a duty preempted by OSHA--the right to enforce standards. The thrust of the holding in P & Z Co. is that the adoption and enforcement of work place safety standards by the states is preempted where federal standards have been promulgated. P & Z Co., 408 A.2d at 1250.

Section 50-71-321, MCA, does not exist in a vacuum; it is an integral part of a state scheme to set and enforce safety codes, Secs. 50-71-101 through 50-71-334, MCA. Thornock concedes, however, that the provisions in that state scheme for establishing and enforcing safety standards are preempted by OSHA, but contends the element of the scheme providing for state inspection is still vital. He argues, in effect, that the State still has a duty to inspect work sites even though its authority to set the standards to be inspected or to impose sanctions for discrepancies has been superseded.

The tort of negligence arises when one has a duty recognized by law, he breaches that duty, the breach of the duty serves as a legal cause of another's injury, and that injury is an actual loss or damage. Roy v. Neibauer (Mont.1981), 623 P.2d 555, 556, 38 St.Rep. 173, 174; Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. If no duty exists there can be no negligence. Ambrogini v. Todd (1982), 197 Mont. 111, 118, 642 P.2d 1013, 1017, citing Prosser on the Law of Torts Sec. 30; Green v. Hagele (1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. No duty on the part of the State lies here because of the federal government's usurpation of the Montana Safety Act when Congress passed OSHA in 1970. Congress declared its role in 29 U.S.C. Sec. 651 as being "to assure so far as possible every working man and woman in the Nation safe and healthful working conditions ..." by creating occupational health and safety standards, establishing an enforcement program, and providing appropriate reporting procedures. Subsection 11 of 29 U.S.C. Sec. 651(b) allows states to assume administration of workers' safety programs if they submit plans approved by the Department of Labor.

State laws dealing with workers' safety are preempted once OSHA enacts similar standards. New Jersey State Chamber of Commerce v. Hughey ...

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