Gonzalez v. Ideal Tile Importing Co.

Justice ZAZZALI

dissenting.

I respectfully dissent from the majority’s conclusion that regulations promulgated under the Occupational Safety and Health Act (Act), 29 U.S.C.A §§ 651 to 678, preempt New Jersey products liability claims against a third-party forklift manufacturer. Instead, I would conclude that preemption is inapplicable in this appeal, and I would remand to allow plaintiffs to maintain their state law claims.

I.

Congress designed the Act to help guarantee that every American worker has “safe and healthful working conditions.” 29 U.S.C.A. § 651(b). To advance that objective, Congress empowered the Secretary of Labor to establish workplace safety and health regulations, 29 U.S.C.A. § 655, and created the Occupational Safety and Health Administration (OSHA) to enforce them, 29 U.S.C.A. § 657. Because OSHA standards are wide-ranging and have the force of federal law, see, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295, 99 S.Ct. 1705, 1714, 60 L.Ed.2d 208, 221 (1979), the vexing question that frequently arises is whether the regulations preempt state tort law.

*425Preemption principles are, at best, “difficult to apply,” Geier v. Am. Honda Motor Co., 529 U.S. 861, 868,120 S.Ct. 1913, 1918, 146 L.Ed.2d 914, 923 (2000), and, at worst, “of a Delphic nature,” Int’l Ass’n of Machinists v. Gonzales, 356 U.S. 617, 619, 78 S.Ct. 923, 924, 2 L.Ed.2d 1018, 1021 (1958). Furthermore,’ preemption “is not to be lightly presumed.” Turner v. First Union Natl Bank, 162 N.J. 75, 88, 740 A.2d 1081 (1999) (quoting Franklin Tower One, L.L.C. v. N.M., 157 N.J. 602, 615, 725 A.2d 1104 (1999)).

Here, the Court should not affirm the Appellate Division’s finding of preemption for three reasons. First, by including a broad “saving clause,” Congress intended any implied preemption of state tort claims by the Act to be extremely narrow. Second, state products liability law is generally applicable to all manufacturers and does not regulate employers and employees specifically. Third, imposing tort liability on a forklift manufacturer for defective design does not divest forklift users of their discretion to implement safety precautions, but rather encourages the exercise of that discretion with due care.

A.

Any preemption analysis relative to OSHA' regulations must begin with the Act’s saving clause, which provides:

Nothing in this chapter shall be construed to ... enlarge or diminish or affect in any other 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.A § 653(b)(4).]

No other statutory framework that the Supreme Court has considered “contains a saving clause more broad.” In re Welding Fume Prods. Liab. Litig., 364 F.Supp.2d 669, 687-88 (N.D.Ohio 2005) (observing that by selecting wording such as “affect in any other manner” and “injuries, diseases, or death,” Congress “carefully preserved” personal injury claims); see also Sprietsma v. Mercury Marine, 537 U.S. 51, 63, 123 S.Ct. 518, 520, 154 L.Ed.2d 466, 478 (2002) (“[A saving clause] assumes that there are some significant number of common-law liability cases to save .... ” *426(citing Geier, supra, 529 U.S. at 868, 120 S.Ct. at 1918, 146 L.Ed.2d at 923)).

The majority opinion relies on the Supreme Court’s decision in Gade v. National Wastes Management Ass’n, 505 U.S. 88, 112 S.Ct. 2374, 120 L.Ed.2d 73 (1992), for the proposition that “Congress intended for OSHA regulations to have a preemptive effect” in certain circumstances. Ante at 421, 877 A.2d at 1251. Gade, supra, however, is of limited value here because, in that case, a state legislature enacted a licensing requirement in an affirmative and direct attempt to regulate the training of hazardous waste workers. 505 U.S. at 93, 112 S.Ct. at 2380, 120 L.Ed.2d at 81. Stated differently, because the Gade licensing statute was “a positive enactment setting occupational standards,” rather than a common law duty, the Act’s “saving clause was virtually irrelevant to the Supreme Court’s pre-emption analysis.” Welding Fume, supra, 364 F.Supp.2d at 687.

In contrast, the saving clause preserves the state tort claims at issue here because the clause specifically refers to “common law ... rights, duties, or liabilities” regarding “injuries, diseases, or death of employees.” 29 U.S.C.A. § 653(b)(4). In light of Congress’s clear statement, we should find preemption “only when there is a conflict between state tort law and federal regulation that is especially ‘direct, clear and substantial.’ ” Welding Fume, supra, 364 F.Supp.2d at 689 (emphasis added) (quoting Gade, supra, 505 U.S. at 107, 112 S.Ct. at 2387, 120 L.Ed.2d at 90); see also York v. Union Carbide Corp., 586 N.E. 2d 861, 866 (Ind.Ct. App.1992) (stating that because “state tort actions are expressly saved by the OSH Act,” court would not even consider “whether such actions are impliedly preempted”). As explained more fully below, that high benchmark has not been reached in this appeal.

B.

The Court should not give OSHA forklift regulations preemptive effect because New Jersey products liability law is “generally] applicabfle]” to any person or business that manufactures *427and sells goods. See Gade, supra, 505 U.S. at 107, 112 S.Ct. at 2387,120 L.Ed.2d at 90. In Gade, the Supreme Court recognized that

state laws of general applicability (such as laws regarding traffic safety or fire safety) that do not conflict with OSHA standards and that regulate the conduct of workers and nonworkers alike would generally not be pre-empted. Although some laws of general applicability may have a “direct and substantial” effect on worker safety, they cannot fairly be characterized as “occupational” standards, because they regulate workers simply as members of the general public.
[Id. at 107,112 S.Ct. at 2387-88,120 L.Bd.2d at 90 (emphasis added).]

Products liability law is generally applicable because it imposes a duty on manufacturers to act reasonably in designing, testing, and marketing their products, see, e.g., Fabian v. Minster Mach. Co., 258 N.J.Super. 261, 273-74, 609 A.2d 487 (App.Div.1992), regardless of whether those products are ultimately used by employees in the workplace, see Welding Fume, supra, 364 F.Supp.2d at 686. Such generally applicable “private rights and remedies ... hardly qualify as standards” because they are “more ex post [and] reactive than prescriptive or normative.” Pedraza v. Shell Oil Co., 942 F.2d 48, 53 n. 5 (1st Cir.1991) (internal quotation marks omitted). Tort duties — which the Act explicitly indicates are unaffected by OSHA regulations — are established on a case-by-case, post hoc basis. Although the accretion of decisional precedent may have the potential to influence workplace behavior, such an effect does not set a standard or establish a regulation in the traditional sense. Accordingly, I would conclude that the OSHA forklift regulations do not preempt generally applicable state products liability law.

C.

Finally, preemption is inappropriate because OSHA’s forklift regulations simply provide the forklift “user” with a range of discretion to select safety devices. Requiring the user, and by implication the manufacturer, to act reasonably in exercising that discretion is not a “direct, clear and substantial” interference with the regulations. Gade, supra, 505 U.S. at 107, 112 S.Ct. at 2387, 120 L.Ed.2d at 90.

*428On this point, the majority relies heavily on Geier, supra, in which the Supreme Court held that products liability claims against auto manufacturers for failing to install airbags were preempted because “[sjuch a state law ... by its terms would have required manufacturers of all similar ears to install air bags rather than other passive restraint systems.” 529 U.S. at 881, 120 S.Ct. at 1925, 146 L.Ed.2d at 932. However, Geier is distinguishable for two reasons.

First, the relevant saving clause in Geier was less specific than the saving clause in the Act. See Welding Fume, supra, 364 F.Supp.2d at 687 & n. 21. The Geier saving clause provided that “ ‘[c]ompliance with’ a federal [auto] safety standard ‘does not exempt any person from any liability under common law.’ ” Geier, supra, 529 U.S. at 868, 120 S.Ct. at 1918, 146 L.Ed.2d at 923 (quoting 15 U.S.C. § 1397(k)) (first alteration in original). In contrast, as noted above, the Act’s saving clause speaks in far broader terms than whether “compliance” affects “liability”:

Congress was careful to warn that its intention was to leave common law duties and liabilities absolutely unchanged; not only would the OSH Act neither “enlarge [n]or diminish” the common law, but — just in case there was some other way to modify tort law besides “enlarging or diminishing” it — Congress further stipulated that the OSH Act would not “affect [the common law] in any other manner.” It is difficult to imagine a more explicit statement of Congressional intention to preserve and not pre-empt state common law.
[Welding Fume, supra, 364 F.Supp.2d at 687-88 (emphasis added) (alteration in original) (quoting 29 U.S.C.A. § 653(b)(4)).]

Second, the regulation in Geier was of a different nature than the forklift regulations in this matter. The Geier airbag regulation “deliberately sought a gradual phase-in of passive restraints” and any interference by state law “would have presented an obstacle to the variety and mix of devices that the federal regulation sought.” Geier, supra, 529 U.S. at 879, 881, 120 S.Ct. at 1924, 1925, 146 L.Ed.2d at 930, 932. Thus, the airbag regulation implemented the Department of Transportation’s industry-wide determination of the suitable ambient level of passenger safeguards. That determination, however, was not based on an as*429sessment of the appropriate safety measures for each individual vehicle in light of particular road hazards.

OSHA’s forklift regulations, on the other hand, provide the user with discretion to implement certain safety devices in order to protect against specific dangers present under various work conditions. A statement that accompanies the regulation explains that “the user [should] consider certain factors to enhance a safe operation. He may use his own judgment or that of one with more experience.” Gonzalez v. Ideal Tile Importing Co., 371 N.J.Super. 349, 369, 853 A.2d 298 (App.Div.2004) (alteration in original) (quoting ANSI/ABME B56.1-1983, Interpretation 1-6). However, the statement also reveals that the regulation is by necessity incomplete: “The myriad combinations related to lighting, ambient noise levels, traffic routes for both materials and personnel, floor conditions, proximity of machinery, equipment and work stations, etc., suggest that this would be a difficult subject to cover in a standard with finite verbiage.” Id. at 370, 853 A.2d 298 (emphasis added) (quoting ANSI/ABME B56.1-1983, Interpretation 1-6). This intentional incompleteness, coupled with the Act’s broad saving clause, suggests that general tort principles have a role to play in determining proper forklift safety precautions. See also S.Rep. No. 91-1282 (1970), reprinted in 1970 U.S.C.C.A.N. 5177, 5186 (announcing that Act adheres to “principles of common law,” that “individuals are obliged to refrain from action which cause harm to others,” and that “employers shall furnish this degree of care”).

For illustration, one conceivable alternative design that the forklift manufacturer might have considered would allow the user to easily install, remove, enable, or disable a variety of “other [safety] devices ... suitable for the intended” jobsite. Gonzalez, supra, 371 N.J.Super. at 369, 853 A.2d 298 (quoting OSHA forklift regulations). In that way, the user could retain control over which safety devices are in use at given time and could reasonably respond to work conditions as they arose. At the same time, the forklift manufacturer could produce an adaptable, and ultimately *430safer, product. Guided by expert testimony, and taking into account the totality of the circumstances, a factfinder could decide whether the manufacturer’s decision to forgo such a design was reasonable. Under the majority’s holding, however, the regulations give the manufacturer unfettered and unreviewable discretion, a result that is contrary to traditional tort law principles and indifferent to employee safety.

II.

To be sure, the Appellate Division sets forth a creative argument, which the majority adopts, in favor of preemption on these facts. The dilemma is that, however appealing its reasoning may seem, the court’s thesis rests on distinguishable precedent, runs counter to the plain language of the Act, and conflicts with Congress’s intent to allow common law actions to proceed except in the clearest cases.

Accordingly, I respectfully dissent and would reverse the Appellate Division’s finding of preemption.

For affirmance — Chief Justice PORITZ, Justices LONG, LaVECCHIA, ALBIN, WALLACE and RIVERA-SOTO — 6.

For reversal — Justice ZAZZALI — 1.