Trowell v. Brunswick Pulp and Paper Co.

• Decision Date: 01 October 1981
• Docket Number: Civ. A. No. 80-1161-1.
• Citation: 522 F. Supp. 782
• Court: U.S. District Court — District of South Carolina
• Parties: Gerald G. TROWELL, Plaintiff, v. BRUNSWICK PULP AND PAPER COMPANY and Kockum Industries, Defendants.

522 F. Supp. 782

Gerald G. TROWELL, Plaintiff, v. BRUNSWICK PULP AND PAPER COMPANY and Kockum Industries, Defendants.

Civ. A. No. 80-1161-1.

United States District Court, D. South Carolina, Charleston Division.

October 1, 1981.

Lee S. Bowers, Estill, S. C., for plaintiff.

Stephen E. Darling, Sinkler, Gibbs & Simons, Charleston, S. C., for defendant, Brunswick Pulp and Paper Co.

Elliott T. Halio, Halio & Holmes, Charleston, S. C., for defendant, Kockum Industries.

ORDER

HAWKINS, District Judge.

This matter, instituted on June 19, 1980, is before the court on defendant Brunswick Pulp and Paper Company's motion in limine to prohibit any evidence at trial of violations of Sections 651 et seq., of Title 29 of the United States Code, commonly known as the Occupational Safety and Health Act of 1970 (hereinafter OSHA), or any rules and regulations promulgated thereto as evidence of standard of care, negligence, or negligence per se, and to prohibit any instruction by the court to the jury as to violations of OSHA or its rules or regulations as evidence of a standard of care, negligence, or negligence per se.

This lawsuit arises out of an accident which occurred on October 16, 1978, at the defendant Brunswick Pulp and Paper Company's hardwood chip mill in McCormick, South Carolina. The plaintiff has alleged that the accident was caused by a defective debarker designed and manufactured by defendant Kockum Industries and improperly operated by the defendant Brunswick. The plaintiff was not an employee of Brunswick but rather was touring the Brunswick premises to observe the chip mill in order for his own employer to have some information before bidding on a project requiring the supply of similar machinery.

No reported cases have been found from South Carolina or from the Fourth Circuit which consider whether or not evidence of OSHA violations would be admissible as evidence of a standard of care, negligence, or negligence per se.

In several South Carolina cases, the court has found that the violation of a particular statute is negligence per se. See, e. g., Wright v. S. C. Power Co., 205 S.C. 327, 31 S.E.2d 904 (1944); Eickhoff v. Beard-Laney, Inc., 199 S.C. 500, 20 S.E.2d 153 (1942).

Given the fact that these OSHA regulations have the effect of law, see, 29 U.S.C. § 654, that would be applicable to establish negligence per se only if certain criteria are met. The first requirement to be met before such use is that the plaintiff must fall within the class of persons protected under the statute or regulation. See, Williams v. Hill Mfg. Co., Inc., 489 F.Supp. 20 (D.S.C.1980); Smoak v. Martin, 108 S.C. 472, 94 S.E. 869 (1918). It is the opinion of this court that plaintiff, as an invitee, is not within the class of those protected by OSHA regulations. The court is persuaded by the following language, which provides that the Act does not "enlarge or diminish or affect in any 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." 29 U.S.C. § 653(b)(4). This court's view is shared by the Fifth Circuit in Barrera v. E. I. Dupont De Nemours and Co., Inc., 653 F.2d 915, 920 (5th Cir. 1981), and is supported by two district court cases which have held that the OSHA regulations do not even apply to employees of subcontractors. See, Horn v. C. L. Osborn Contracting Co., 423 F.Supp. 801, 808 (M.D.Ga.1976); Cochran v. International Harvester Co., 408 F.Supp. 598, 602 (W.D. Ky.1975). Since the plaintiff is not in the class to be protected, evidence of an OSHA violation would not be admissible as evidence of negligence per se. Furthermore, the argument that OSHA impliedly creates a private cause of action under federal law for violation of OSHA standards has been rejected by every state and federal court in which it has been advanced, including the Fourth Circuit. See, e. g., Barrera v. E. I. Dupont De Nemours and Co., Inc., 653 F.2d 915 (5th Cir. 1981); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974); Russell v. Bartley, 494 F.2d 334 (6th Cir. 1974).

Similarly, there are no cases in the Fourth Circuit or in South Carolina concerning the issue of whether evidence of OSHA violations, such as those alleged to have been committed by the defendant Brunswick, should be admitted as evidence of negligence or as an applicable standard of care. However, in Williams v. Hill Mfg. Co., Inc., 489 F.Supp. 20 (D.S.C.1980), which involved a tort action by a town employee against a manufacturer, Judge...