Walton v. Potlatch Corp.

• Decision Date: 30 August 1989
• Docket Number: No. 17177,17177
• Citation: 116 Idaho 892,781 P.2d 229
• Parties: , 14 O.S.H. Cas. (BNA) 1186 Robert WALTON, Plaintiff-Respondent Cross-Appellant, v. POTLATCH CORPORATION, Defendant-Appellant Cross-Respondent.
• Court: Idaho Supreme Court

Page 229

781 P.2d 229

116 Idaho 892, 14 O.S.H. Cas. (BNA) 1186

Robert WALTON, Plaintiff-Respondent Cross-Appellant, v. POTLATCH CORPORATION, Defendant-Appellant Cross-Respondent.

No. 17177.

Supreme Court of Idaho.

Aug. 30, 1989.

Rehearing Denied Oct. 31, 1989.

Clements, Brown & McNichols, Lewiston, for defendant-appellant cross-respondent. Michael E. McNichols, argued.

Clark & Feeney, Lewiston, for plaintiff-respondent cross-appellant. Paul T. Clark argued.

HUNTLEY, Justice. ^*

This is an appeal from a personal injury action brought by Robert Walton against the Potlatch Corporation. Walton maintains that he sustained injuries after he inhaled chlorine dioxide while he was working as an employee of Western Industrial Fiberglass at Potlatch's pulp and paper facility in Lewiston, Idaho. Potlatch appeals from a jury verdict in Walton's favor, claiming the court erred in its instructions on the applicable standard of care, in its admission of certain evidence and in other matters.

In the fall of 1985 Potlatch (a corporation engaged in the business of manufacturing pulp and paper products), hired Western Industrial Fiberglass to apply fiberglass to the interior of Potlatch's chlorine dioxide bleaching tower dome. The job was to be performed during a plant shutdown. After Western commenced working on the interior of the dome, Potlatch also hired Western to apply fiberglass to the dome's exterior. Potlatch required Western to work at Potlatch's direction and to comply with Potlatch's safety plan. However, the only safety instruction Potlatch gave to Western was a verbal instruction on safety gear, face shields, hard hats, reporting to first aid, and the like.

Prior to the September 1985 plant shutdown and Western's fiberglassing work, Potlatch representatives were aware that chlorine dioxide gas was leaking from the water seal at the top of the bleaching tower dome. Officials from Western were not aware of the gas leak.

Western's owner, Chuck Walton, employed three workmen to physically prepare the top of the dome for the application of the fiberglass. They were: plaintiff Bob Walton, Mike Evett and Kerry Harding. The three workmen attended a safety meeting prior to going to the job site wherein Bob Walton was told not to forget his safety glasses, to use ear plugs, and to keep his hard hat on. In preparation for his work, Bob Walton picked the type of yellow face mask he had always taken to Potlatch, which mask was not a fresh air mask. Walton's co-worker Kerry Harding took the same type of mask. The workmen went to the Potlatch mill at approximately 1:00 p.m. on the afternoon of October 23, 1985. Plaintiff Bob Walton went up to the tower for the first time that afternoon at approximately 1:30 p.m. He wore his mask over a full beard as he had in the army and as did other friends who worked in the pulp and paper plant. Walton had not read the label on any of the three yellow face masks which he opened and used. The label warned that the masks might not provide a satisfactory face seal with certain physical characteristics, such as a beard.

While on the tower, Walton encountered chlorine dioxide coming from the center of a shaft near the water seal. Chlorine dioxide is a gas which can have numerous harmful effects on people who come into contact with it. It can irritate the skin, the eyes, the tracheal/bronchial tract and the deeper recesses of the lungs. Although most people recover from exposure to chlorine dioxide, some never do.

Walton had been trained to put on a mask and leave an area when encountering gas, but he did not do so on this occasion. Although Walton wore his goggles and mask the entire time he was on the tower, the chlorine dioxide was so bad that it burned his nose and the back of his throat. In spite of his discomfort, Walton completed the job because he didn't feel he was in danger; his boss was with him for part of the time and he saw Potlatch employees in the area. Although Walton was in extreme discomfort, he drove home after work. He went to the hospital emergency room the next day.

As a result of the chlorine exposure Walton suffered chemical bronchitis and restrictive airway disease, resulting in diminution of pulmonary function to the point that he is not able to carry on his everyday home, work and social activities in the manner he previously enjoyed.

Walton filed suit against Potlatch on May 9, 1986, alleging negligence and asserting further that Potlatch's negligence was gross, wanton and willful. Walton sought to introduce Occupational Safety and Health Administration (OSHA) regulations and American National Standards Institute (ANSI) standards into evidence at trial, to show, inter alia, that Potlatch failed to provide any adequate warning of respiratory hazards. Walton also argued that the safety standards prepared and furnished by Potlatch did not contain or incorporate the OSHA regulations or the ANSI standards.

The court instructed the jury (in Instruction No. 9) that violation of certain OSHA regulations and ANSI standards constituted negligence per se. The court also instructed the jury (in Instruction No. 7), that Potlatch owed the plaintiff the duty of ordinary care. The court then went on (in Instruction No. 8), to instruct the jury that an owner of premises owes to employees of a contractor a duty to exercise ordinary care for management, inspection, safety, and provision of necessary warnings. Finally, the court allowed Walton to put on evidence of Potlatch's wealth and instructed the jury on punitive damages. In closing argument Walton asked for general damages of $568,920 plus his medical and pharmaceutical bills.

The jury attributed negligence in the following percentages: Walton 15%; Potlatch 60% and Western 25%. The jury denied punitive damages and awarded him $375,000 in general damages. The court ultimately entered judgment on the verdict in favor of Walton in the amount of $248,666.32 after reducing the jury's award for Walton's comparative negligence and for his worker's compensation benefits. Potlatch filed motion for remittitur or new trial, requesting that the court weigh the evidence and decide what it would have awarded and then compare that with what the jury actually awarded. The court denied the motion without indicating that it had determined what it would have awarded had it been the trier of fact. Potlatch appeals.

I.

Potlatch first claims that the trial court erred when it instructed the jury that violation of certain OSHA regulations and ANSI standards would constitute negligence per se. Potlatch supports this claim with arguments that: (1) OSHA regulations should not be used as evidence of negligence per se because the jury will place too much emphasis on those regulations; (2) If OSHA regulations can be used as evidence of negligence per se, they can only be used to establish the negligence of a direct employer to an employee; (3) private tort actions brought against land owners, such as in the instant case, are properly governed only by the common law; finally, (4) even if violation of an OSHA regulation by a non-employer constitutes negligence per se, the trial court erred by instructing the jury on the wrong OSHA regulations.

While we disagree with the first three of Potlatch's arguments, we find sufficient cause to reverse and remand for new trial based upon the fourth argument. We discuss each of the four in turn.

A.

OSHA regulations may be used as evidence of negligence per se in suits by an employee of a contractor against the owner of the work site. In this case, the court properly instructed the jury on certain OSHA regulations, but the instructions were overly broad in that they imposed duties upon Potlatch which are properly attributable only to an immediate employer. Therefore, we reverse and remand with instructions to more carefully tailor the instructions as to the duty of care owed by Potlatch.

In Sanchez v. Galey, 112 Idaho 609, 733 P.2d 1234 (1987), this Court ruled that OSHA regulations may be used to establish negligence per se for which the defendant can be held to respond to the plaintiff, provided that four criteria are met. The criteria are: (1) the statute or regulation must clearly define the required standard of conduct; (2) the statute or regulation must have been intended to prevent the type of harm the defendant's act or omission caused; (3) the plaintiff must be a member of the class of persons the statute or regulation was designed to protect; (4) the violation must have been the proximate cause of the injury. Sanchez, supra, at 617, 733 P.2d 1234. ¹

B.

Potlatch contends that the third criterion--the plaintiff must be a member of the class to be protected--is not satisfied because Bob Walton was not an employee of Potlatch. We disagree; Walton was a member of the class to be protected.

In Brennan v. Underhill Construction Corp., 513 F.2d 1032 (2d Cir.1975), the 2nd circuit stated:

We turn then to the important question whether a violation of the Act requires in addition to proof of the existence of a hazard, evidence of direct exposure to the hazard by the employees of the employer who is responsible for the hazard.

Concededly, ... the language of the "general duty" clause of the Act ... [is that] an employer's duty runs to "his employees" rather than a broader duty to keep a work area safe for any employees having access to that area. In addition, the Act narrowly defines "employee" to mean "an employee of an employer who is employed in a business of his employer which affects commerce." 29 U.S.C. § 652(6).

But to draw from this a general rule that standards under the Act can be violated only when a cited employer's own employees are shown to be directly exposed to a violation of a standard seems to us to be wholly unwarranted. It also fails to give effect to the clause under which Dick-Underhill [Defendant] was cited, subparagraph (2) of § 654(a). That sub-paragraph requires employers to...