Thornock v. State

No. 87-68
IN THE SUPREME COURT OF THE STATE OF MONTANA

1987

LARRY D. THORNOCK,
Plaintiff and Appellant,
-vs-
STATE OF MONTANA,
Defendant and Respondent.

APPEAL FROM: District Court of the Twentieth Judicial District,
In and for the County of Lake,
The Honorable C. B. McNeil, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Edward K. Duckworth argued, Ronan, Montana
Michael J. McKeon argued, Anaconda, Montana
For Respondent :
R. Scott Currey argued, Agency Legal Services Bureau,
Helena, Montana

Submitted: September 15, 1987

Decided: November 4, 1987

Filed: 1 av 4 - 1987
4

Clerk
Mr. Justice John Conway Harrison delivered the Opinion of the
Court.

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 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. 55 651
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 hlock 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 I
Compensation] shall inspect from t.ime to
time all the places of employment defined
in the Montana Workers1 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 j s
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. S 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. § 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.
S 655, he claims that § 50-71-321, MCA, is still valid
because of 29 U.S.C. S 667 (a)Is provisions guarding state
duties. Furthermore, he notes that 29 U.S.C. § 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. S 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), 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
9 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, §§ 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 5 30; Green v. Haegele
(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. 5 651 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. S 651 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 (3rd. Cir. 1985), 774 F.2d 587, 592.
In that case, the court refused to hold that OSHA preempted
all of New Jersey's environmental protection laws since the
Secretary of Labor's preemptive authority applies only to
state occupational safety and health laws. Chamber of
Commerce, 774 F.2d at 593. OSHA itself provides the
Secretary of Labor and his agents with the authority to enter
any factory, construction site or other work place to inspect
and investigate machinery and working conditions. Such
inspecti-ons are sanctioned under 29 U.S.C. S 657. See, 61
Arn.Jur.2d Plant and Job Safety 5 62 (1981). Since the
federal legislation itself provides such inspection
authority, it makes no difference whether standards for
inspection have been approved under 29 U.S.C. § 655. In Ohio
Manufacturers' Association v. City of Akron (6th Cir. 1986) ,
801 F.2d 824, the court interpreted the legislative history
of OSHA. It determined that OSHA was intended to establish a
national standard, which would be needed to insure that all
states would at least meet certain minimum work safety
requirements. To that degree, the court held that state
workers ' safety laws were preempted expressly.
Ohio Manufacturers' Association, 801 F.2d at 831. It also
concluded that OSHA standards on communication of hazards, 29
C.F.R. 1910, impliedly preempted a city ordinance that
regulated the presence of hazardous substances in the work
place. Ohio Manufacturers' Association, 801 F.2d at 834.
That court ruled that OSHA's desire to achieve uniformity
would aid in the enforcement of, and compliance with, its
standards.
 The reasoning employed by the Sixth Circuit Court of
Appeals in Ohio Manufacturers' Association is sound and is
applicable to the question before this Court. Thornock must
persuade this Court that federal powers granted in OSHA do
not relieve the State of its burden to inspect dangerous work
sites. As we have noted previously he bases that argument on
the fact that OSHA expressly relieves the State of its right
to set standards and to enforce standards, but fails to
expressly relieve the State of its duty to inspect. Such an
argument fails. Congress has stated expressly that
formulation and enforcement of work place safety will be a
prerogative of OSHA. The power to inspect the work place is
part and parcel of the enforcement of standards. Without
inspections, the governing agency has no grounds for
enforcement. Similarly, without enforcement powers, which
Thornock concedes the State no longer has, inspection
privileges are meaningless.
Congress may preempt state laws in either of two
manners. The first occurs when Congress manifests an intent
to occupy the field; the second occurs when Congress passes
federal legislation not intended to occupy the field. In
that case, any contradictory state laws must yield to the
federal legislation. Pacific Gas & Electric Co. v. State
Energy Resources Conservation & Development Commission
(1983), 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1722, 75
L.Ed.2d 752, 765; State ex rel. Nepstad v. Danielson (1967),
149 Mont. 438, 440, 427 P.2d 689, 691. The first of these
scenarios controls this case.
It is plain from reading the Occupational Safety and
Health Act that Congress intended to occupy the field of
assuring worker safety. Congress accomplished this by
setting minimum federal standards that all employers must
meet. Thornock's argument that Congress did not occupy the
field because it expressly included. provisions in OSHA by
which the various states could resume workers safety programs
is not persuasive. In order to regain the right to set and
enforce work safety rules, a state must submit to the
Secretary of Labor a plan that is "at least as effective in
providing safe and healthful employment and places of
employment as the standards promulgated under section 655
... " .
29 U.S.C. $ 667 (c)(2) So while states may choose
to exercise work safety programs, they may do so only on the
federal government's terms. This field has been occupied by
federal law; as such we need not concern ourselves with
whether $ 50-71-321, MCA, is or is not contrary to OSHA.
Such an analysis would be required only if the field had not
been occupied by the federal government but one party claimed
state law and federal law clashed.
The doctrine of preemption stems from Article VI, cl. 2
of the United States Constitution, which states that the
United States Constitution and the laws of the United States
"shall be the Supreme Law of the Land . . . " Congress'
intent to preempt state law may be either explicit in the
statute or implicit in its structure and purpose. Marshall
v. Burlington Northern, Inc. (9th Cir. 1983), 720 F.2d 1149,
1152. In Jones v. Rath Packing Co. (1977), 430 U.S. 519, 9 7
S.Ct. 1305, 51 L.Ed.2d 604, the United States Supreme Court
ruled that when Congress has "unmistakably ordained" that its
enactments alone will regulate a portion of commerce, any
state laws regarding that aspect must fall. Jones, 430 U.S.
at 525-26, 97 S.Ct. at 1310, 51 L.Ed.2d at 614. The
interpretation and application of state law, vis-a-vis
federal law, is as crucial in this determination as is the
actual- wording of the competing acts. Jones, 430 U.S. at
526, 97 S.Ct. at 1310, 51 L.Ed.2d at 614.
Montana law recognizes that it is not the wording that
determines if a state law has been preempted by federal
action. "It is well settled that the question of whether a
statute is invalid under the supremacy clause depends upon
the intent of Congress." Mountain States Telephone &
Telegraph Co. v. Commissioner of Labor and Industry (1979),
187 Mont. 22, 41, 608 P.2d 1047, 1057, appeal dismissed 445
U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754. As we have noted
earlier Congress stated that OSHA was meant to assure every
working person "safe and healthful working conditions." 29
U.S.C. S 651(b). Congress also has stated a desire to return
the function of protecting workers1 safety to the various
states as soon as the state submits a plan at least as
stringent as OSHA to the federal government for approval. 29
.
U.S.C. 5 667 ( b ) Montana has completed no such state plan.
This combination of effective federal standards and State
acquiescence to those standards despite the fact that the
State could, if it wanted to, recapture those powers
demonstrates that the federal government has occupied the
field. Thus, Congress has preempted the Montana Safety Act.
As his second issue, Thornock claims OSHA falls short
of the test for preemption established in Silkwood, supra.
In Silkwood, an award of punitive damages under state law for
the decedent's contamination by plutonium was not preempted
even though Congress had passed the Atomic Energy Act in an
effort "to encourage widespread participation in the
development and utilization of atomic energy for peaceful
purposes." Silkwood, 464 U.S. at 257, 104 S.Ct. at 626, 78
L.Ed.2d at 458, citing 42 U.S.C. 5 2013(d). The Supreme
Court also noted that punitive damages would not be contrary
to the federal act since 42 U.S.C. S 2013(d) said such
development and utilization of atomic power should be done
"consistent with thr health and safety of the public." The
award of punitive damages did not contravene federal
purposes. Silkwood, 464 U.S. at 257, 104 S.Ct. at 626, 78
L.Ed.2d at 458.
 Such rationale does not comport well with the
circumstances of this case. In 29 U.S.C. 5 657, the
Secretary of Labor is provided with means by which he may
enter and inspect a work site. Subsection (d) says very
specifically that any such inspections by federal agencies or
by proper state agencies shall not be unnecessarily
burdensome on the employer
(dl Obtaining of Information
Any information obtained by -
the
i l
Health and
-Human ~e;vices, - - -State
Secretarv.. Labor1 the Secretarv of
Tof
or a
agency under this chapter shall - be
obtained - a minimum burden upon
with -. - -

employers, especially those operating
small businesses. Unnecessary
duplication - - efforts - obtaining
. -
.
of - in
information shall be reduced to the
maximum -extent -
- feasible.
- (Emphasis
added. )
The intent of Congress is clear. It has created
federal law by which to insure the safety of the work place.
It has established an agency to set standards and to enforce
them. This has been done to create a uniform minimal level
of safety. Thus, state efforts to set and enforce standards
have been superseded. In addition, Congress has realized
that a plethora of inspectors from all sorts of agencies is
not needed, and ordered that such inspections not be unduly
repetitious. The State of Montana, with no standards of its
own or any enforcement powers, decided not to inspect
dangerous work places. It concluded that OSHA had assumed
that responsibility.
As a last-ditch argument, Thornock cites 29 U.S.C.
S 653(b) (4) and argues that it exempts his cause of action
from OSHA preemption. That subsection reads:
Nothin in this chapter shall be
cnt:d
osre T o su~ersede or in any manner
C
affect 3 workmen's compensatio~- -law or
-to enlarge - diminish - affect in any
or or
 other manner the common - - statutory
law or
rights, duties, or liabilities of
employers - employees
and under any law
with respect to injuries, diseases, or
death of -employees arising out of, or in
the course of, employment. (Emphasis
added. )
This argument has little merit. In United Steel Workers of
America v. Marshall (D.C. Cir. 1980), 647 F.2d 1189, cert.
denied National Association of Recycling Industries, Inc. v.
Secretary of Labor, 453 U.S. 913, 101 S.Ct. 3149, 69 L.Ed.2d
997, an issue was whether the monitoring of blood-lead levels
and the payment of benefits to those that exhibited high
blood-lead levels was an attempt to federalize workers'
compensation laws. The Circuit Court termed 29 U.S.C.
5 653 (b)(4) as "vague and ambiguous on its face," and further
stated that OSHA's legislative history reveals "essentially
nothing" about the section. United Steel Workers, 647 F.2d
at 1234, see also n. 70. It is true that the general rule of
statutory construction in Montana is that a court should
interpret the statute so as to allow the intent of the
legislature to control if possible. Darby Spar, Ltd. v.
Department of Revenue (Mont. 1985), 705 P.2d 111, 113, 42
St.Rep. 1262, 1264. In interpreting an act of Congress, a
court may not depart from the statute's clear meaning. Adams
v. Morton (9th Cir. 1978), 581 F.2d 1314, 1320, cert. denied
sub nom Gros Ventre Tribe v. United States (1978), 440 U.S.
958, 99 S.Ct. 1498, 59 L.Ed.2d 771. It can be clearly
determined from the language of this section that Congress
did not mean to interfere with the various states' workers'
compensation schemes. Beyond that, Congress' intention is
obscure. We conclude that Thornock's cause of action is not
exempted from OSHA.
After a careful review of the record and a weighing of
the arguments we agree that the State's duty to inspect had
been superseded by the federal act. Thus, the fact that the
State had not inspected the sawmill at which Thornock was
injured does not make the State negligent for the most
important element of negligence--duty--had been assumed by
the federal government. We affirm the District Court's order
granting summary judgment for the State.
Mr. Justice William E. Hunt, Sr., dissenting:

In this Opinion, as in Thornock v. Pack River Management
Co. (1987), 740 P.2d 149, the majority posits an argument
which denies Larry Thornock any third party action recovery
for the tragic amputation of his left arm. I disagree with
the result of the majority opinion and would reverse the
judgment of the District Court.

I concur with the foregoing dissent of Mr. Justice William

E. Hunt, Sr.

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