Roberts v. Southwick

O’Connor, J.

(concurring, with whom Lynch, J., joins). Even if the regulations at 29 C.F.R. §§ 1926.16, 1926.20, 1926.21, and 1926.250 (1991), had been offered in evidence, *475their exclusion would not have been erroneous.1 A statute, *476ordinance, or regulation “is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent.” Perry v. Medeiros, 369 Mass. 836, 841 (1976), quoting Follansbee v. Ohse, 293 Mass. 48, 52 (1935). The Occupational Safety and Health Act of 1970 (OSHA), 29 U.S.C. §§ 651 et seq., and the regulations promulgated thereunder, including those at issue in this case, were not designed to protect persons such as the plaintiff who, according to her uncontradicted pleadings and testimony, was not an employee of the defendant but, instead, was a mere intermittent observer at the work site. The language of OSHA and the OSHA regulations makes it clear that the regulations were designed to protect employees, not mere invitees. In § 651(a), entitled “Congressional statement of findings and declaration of purpose and policy,” Congress states that “personal injuries and illnesses arising out of work situations impose a substantial burden upon, and are a hindrance to interstate commerce in terms of lost production, wage loss, medical expenses, and disability compensation payments.” The statute imposes numerous duties on employers and employees to lessen that *477burden. Section 654(b) provides that “[e]ach employee shall comply with occupational safety and health standards and all rules, regulations, and orders issued pursuant to this chapter which are applicable to his own actions and conduct.” The plaintiff was neither bound by the OSHA regulations nor was she protected by them. See Barrera v. E.I. DuPont De Nemours & Co., 653 F.2d 915, 920 (5th Cir. 1981) (“OSHA does not create duties between employers and invitees, only between employers and their employees”). Because the OSHA regulations were not designed to prevent injuries to nonemployee visitors, they would have been inadmissible even if they had been offered.

In my view, still another point with respect to the OSHA regulations should be made. Even if the regulations had been adequately offered, and even if they had been admissible, they would have been admissible on the question of negligence only, not causation. The jury found the defendant was negligent, so the exclusion of admissible evidence of negligence, even if that occurred, was harmless. New trials should not be awarded on the basis of harmless error.

This court has never held that safety statutes, ordinances, or regulations are admissible to prove causation. Negligence and causation are separate matters. See J.R. Nolan & L.J. Sartorio, Tort Law § 227, at 380 (2d ed. 1989). As the court has stated in Perry v. Medeiros, supra at 841, “ ‘[t]he general rule in Massachusetts is that violation of [a] safety statute or ordinance does not in itself give rise to a cause of action but is evidence of negligence.’ Dolan v. Suffolk Franklin Sav. Bank, 355 Mass. 665, 667 (1969). It is also the general rule that while the violation of a safety statute, ordinance or regulation is not conclusive on the issue of civil liability, it ‘. . .is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was designed to prevent.’ Follansbee v. Ohse, 293 Mass. 48, 52 (1935), quoting from Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 516 (1929).” (Emphasis added.) See also Falvey v. Hamelburg, 347 Mass. 430, 435 (1964) (“To say that the violation of law involved in operating an improp*478erly registered automobile is evidence of negligence does not necessarly mean that there is a case for the jury. There is still the question of causation to consider”).

Evidence concerning violation of safety regulations is logically related to the question whether conduct has been reasonable, but it bears no such relationship to the question of causation. “Underlying [the rule that violation of a safety regulation may be evidence of negligence] is the general belief that the duties imposed by legislatively-prescribed conduct are normally reasonable ones to bear.” LaClair v. Silberline Mfg. Co., 379 Mass. 21, 28 (1979). It cannot fairly be said, however, that, according to the common experience of mankind, the fact that a defendant’s conduct preceding a plaintiffs injury violated a safety regulation tends to prove that the conduct caused the injury. Causation can only be determined by reference to the events that took place. Whether one or more of those events constituted a violation of law says nothing about causation. Thus, even if the OSHA regulations had been erroneously excluded by the trial judge, which was not the case, an award of a new trial would have been inappropriate.

The relevant portion of § 1926.16 provides: “In no case shall the prime contractor be relieved of overall responsibility for compliance with the requirements of this part for all work to be performed under the contract.”

Section 1926.20, entitled “General safety and health provisions,” is as' follows:

“(a) Contractor requirements. (1) Section 107 of the Act requires that it shall be a condition of each contract which is entered into under legislation subject to Reorganization Plan Number 14 of 1950 (64 Stat. 1267), as defined in § 1926.12, and is for construction, alteration, and/or repair, including painting and decorating, that no contractor or subcontractor for any part of the contract work shall require any laborer or mechanic employed in the performance of the contract to work in surroundings or under working conditions which are unsanitary, hazardous, or dangerous to his health or safety.

“(b) Accident prevention responsibilities. (1) It shall be the responsibility of the employer to initiate and maintain such programs as may be necessary to comply with this part.

“(2) Such programs shall provide for frequent and regular inspections of the job sites, materials, and equipment to be made by competent persons designated by the employers.

“(3) The use of any machinery, tool, material, or equipment which is not in compliance with any applicable requirement of this part is prohibited. Such machine, tool, material, or equipment shall either be identified as unsafe by tagging or locking the controls to render them inoperable or shall be physically removed from its place of operation.

“(4) The employer shall permit only those .employees qualified by training or experience to operate equipment and machinery."

Section 1926.21, entitled “Safety training and education,” provides:

“(a) General requirements. The Secretary shall, pursuant to section 107(f) of the Act, establish and supervise programs for the education and training of employers and employees in the recognition, avoidance and prevention of unsafe conditions in employments covered by the act.

“(b) Employer responsibility. (1) The employer should avail himself of the safety and health training programs the Secretary provides.

“(2) The employer shall instruct each employee in the recognition and avoidance of unsafe conditions and the regulations applicable to his work environment to control or eliminate any hazards or other exposure to illness or injury.

“(3) Employees required to handle or use poisons, caustics, and other harmful substances shall be instructed regarding the safe handling and use, and be made aware of the potential hazards, personal hygiene, and personal protective measures required.

“(4) In job site areas where harmful plants or animals are present, employees who may be exposed shall be instructed regarding the potential hazards, and how to avoid injury, and the first aid procedures to be used in the event of injury.

“(5) Employees required to handle or use flammable liquids, gases, or *476toxic materials shall be instructed in the safe handling and use of these materials and be made aware of the specific requirements contained in subparts D, F, and other applicable subparts of this part.

“(6)(i) All employees required to enter into confined or enclosed spaces shall be instructed as to the nature of the hazards involved, the necessary precautions to be taken, and the use of protective and emergency equipment required. The employer shall comply with any specific regulations that apply to work in dangerous or potentially dangerous areas.

“(ii) For purposes of paragraph (b)(6)(i) of this section, ‘confined or enclosed space’ means any space having a limited means of egress, which is subject to the accumulation of toxic or flammable contaminants or has an oxygen deficient atmosphere. Confined or enclosed spaces include, but are not limited to, storage tanks, process vessels, bins, boilers, ventilation or exhaust ducts, sewers, underground utility vaults, tunnels, pipelines, and open top spaces more than 4 feet in depth such as pits, tubs, vaults, and vessels.” (Emphasis added.)

The relevant part of § 1926.250, entitled “General requirements for storage,” is “(a) General. (1) All materials stored in tiers shall be stacked, racked, blocked, interlocked, or otherwise secured to prevent sliding, falling or collapse.”