KENNETH L. BUETTNER, Judge.
11 Plaintiffs/Appellants James Claborn and Debbie Claborn appeal from judgment entered on a jury verdict in favor of Defendant/Appellee Plains Cotton Cooperative Association d/b/a/ Oklahoma Cotton Cooperative Association (Plains Cotton). The Cla-borns challenge the jury instructions and the trial court's decision to sustain an objection to a question of a witness. The trial court properly instructed the jury and
did not abuse its discretion in sustaining the objection at issue. We affirm.
2 In their Petition, the Claborns asserted a cause of action for negligence and gross negligence.
They claimed that James Cla-born, a truck driver employed by Big Iron Transportation, was injured when he fell as he attempted to secure a tarp over cotton bails loaded on his trailer at Plains Cotton's Altus facility. - The Claborns asserted Plains Cotton was negligent or grossly negligent for failing to have a harness or fall-arrest system in place to prevent James Claborn's fall. The Claborns contended Plains Cotton's negligence resulted in James Claborn suffering a broken back, shoulder and leg problems, a later heart attack, bed sores, and inability to return to work.
T 3 Plains Cotton asserted it owed no duty to the Claborns to protect James Claborn from the fall. Plains Cotton claimed that James Claborn's employer, Big Iron Transportation, had directed him to cover the load of cotton with a tarp, and that Big Iron provided the tarp, straps, and instruction. Plains Cotton further claimed that James Claborn was aware of the risk of falling while putting the tarp over the load. Plains Cotton also argued that because James Claborn was not its employee, any OSHA regulations to which Plains Cotton was subject did not protect James Claborn. Plains Cotton argued that Big Iron directed all of James Claborn's acts and Plains Cotton had no control over . James Claborn's action at the time of his fall.
14 Jury trial on the Claborns' claim was held December 17-19, 2007.
The jury returned its verdiet in favor of Plains Cotton and the trial court entered judgment accordingly. A judgment on a jury verdict will be affirmed if it is supported by any competent evidence reasonably tending to support the verdict. Lierly v. Tidewater Petroleum Corp., 2006 OK 47, ¶ 15, 139 P.3d 897.
15 The Claborns' claims on appeal challenge the jury instructions and a ruling on an objection to a question. In addressing alleged errors in the jury instructions, we must consider whether the instructions as a whole fairly and accurately stated the applicable law. Dutsch v. Seo Ray Boats. Inc., 1992 OK 155, 845 P.2d 187. We may not set aside a verdict for misdirection of the jury unless the error has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. 20 0.$.2001 § 3001.1.
T6 The Claborns complain first that the trial court gave the uniform instructions on the duty owed to an invitee, rather than one of three modified versions proposed by the Claborns. The trial court's instructions to the jury numbered 11, 12, and 13 were OUJI-Civ instructions 11.10, 11.11., and 11.12, respectively.
The Claborns appeal
the trial court's refusal to give their proposed instructions numbered 9, 10, and 11, which they assert are modified versions of OUJI-Civ 11.10.
T7 When the Oklahoma Uniform Jury Instructions (OUJT) contain an applicable instruction, the OUJI instruction "shall be used unless the court determines that it does not accurately state the law." 12 0.$5.2001 § 577.2, The Claborns contend the OUJI instructions did not accurately state the law applicable to this case because both James Claborn and Plains Cotton "knew that the process of climbing on top of the loaded cotton bales in order to fasten the appropriate straps and spread the tarps would put Mr. Claborn in a precarious position (and) knew that (Plains Cotton) did not supply a fall restraint system." The Claborns argue that this is not a typical premises liability case because there was no issue whether the danger was open and obvious.
The Claborns further argue that Plains Cotton was required to have a fall restraint system in place to meet the standard of care in the industry and to comply with OSHA regulations. They also assert that James Claborn had no choice but to subject himself to the danger of climbing onto the loaded cotton bales or forfeit his employment with
Big Iron. The authority on which the Cla-borns rely does not support their argument. Gaines v. Comanche County Med. Hospital, 2006 OK 39, 143 P.3d 203, 213, provides, in a concurring opinion, that private industry standards of conduct "have no official or legal status except to govern the conduct of the profession and industry, courts generally admit them unless a challenge is sustained." Id. Smith v. Kris-Bal Realty, Inc., 242 N.J.Super. 346, 576 A.2d 934 (1990) found it was error to instruct the jury to disregard an expert's testimony on the industry standard of care. Holding that evidence of a private industry standard is admissible is not equivalent to a finding that the trial court must have instructed the jury that Plains Cotton had a duty to install a fall restraint system.
T8 The authority cited by the Claborns does not support their claim that the trial court should have given one of their proposed modified instructions on the duty owed to an invitee. The proposed modified instructions each effectively instructed that Plains Cotton was negligent per se and directed a verdict against Plains Cotton.
T9 Beyond any implied negligence per se direction in the three proposed instructions discussed above, the Claborns also complain that the trial court erred in rejecting their proposed instruction expressly stating that it was negligence per se not to comply with certain OSHA regulations.
The plain language of the OSHA regulations at issue direct employers to act in certain ways to protect employees.
This case does not involve any claim related to James Cla-born's employer, Big Tron Trucking, and its compliance with OSHA standards in order to protect James Claborn. In Orduna v. Total Const. Services, Inc., 271 Neb. 557, 713 N.W.2d 471 (Neb.2006), cited by the Cla-borns in support of the previous proposition, the Nebraska Supreme Court plainly stated:
. in a negligence action brought by a nonemployee third party against a construction company, a violation of an OSHA regulation, while not negligence as a matter of law, may nonetheless be evidence of negligence to be considered with all the other evidence in the case.
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KENNETH L. BUETTNER, Judge.
11 Plaintiffs/Appellants James Claborn and Debbie Claborn appeal from judgment entered on a jury verdict in favor of Defendant/Appellee Plains Cotton Cooperative Association d/b/a/ Oklahoma Cotton Cooperative Association (Plains Cotton). The Cla-borns challenge the jury instructions and the trial court's decision to sustain an objection to a question of a witness. The trial court properly instructed the jury and
did not abuse its discretion in sustaining the objection at issue. We affirm.
2 In their Petition, the Claborns asserted a cause of action for negligence and gross negligence.
They claimed that James Cla-born, a truck driver employed by Big Iron Transportation, was injured when he fell as he attempted to secure a tarp over cotton bails loaded on his trailer at Plains Cotton's Altus facility. - The Claborns asserted Plains Cotton was negligent or grossly negligent for failing to have a harness or fall-arrest system in place to prevent James Claborn's fall. The Claborns contended Plains Cotton's negligence resulted in James Claborn suffering a broken back, shoulder and leg problems, a later heart attack, bed sores, and inability to return to work.
T 3 Plains Cotton asserted it owed no duty to the Claborns to protect James Claborn from the fall. Plains Cotton claimed that James Claborn's employer, Big Iron Transportation, had directed him to cover the load of cotton with a tarp, and that Big Iron provided the tarp, straps, and instruction. Plains Cotton further claimed that James Claborn was aware of the risk of falling while putting the tarp over the load. Plains Cotton also argued that because James Claborn was not its employee, any OSHA regulations to which Plains Cotton was subject did not protect James Claborn. Plains Cotton argued that Big Iron directed all of James Claborn's acts and Plains Cotton had no control over . James Claborn's action at the time of his fall.
14 Jury trial on the Claborns' claim was held December 17-19, 2007.
The jury returned its verdiet in favor of Plains Cotton and the trial court entered judgment accordingly. A judgment on a jury verdict will be affirmed if it is supported by any competent evidence reasonably tending to support the verdict. Lierly v. Tidewater Petroleum Corp., 2006 OK 47, ¶ 15, 139 P.3d 897.
15 The Claborns' claims on appeal challenge the jury instructions and a ruling on an objection to a question. In addressing alleged errors in the jury instructions, we must consider whether the instructions as a whole fairly and accurately stated the applicable law. Dutsch v. Seo Ray Boats. Inc., 1992 OK 155, 845 P.2d 187. We may not set aside a verdict for misdirection of the jury unless the error has probably resulted in a miscarriage of justice or constitutes a substantial violation of a constitutional or statutory right. 20 0.$.2001 § 3001.1.
T6 The Claborns complain first that the trial court gave the uniform instructions on the duty owed to an invitee, rather than one of three modified versions proposed by the Claborns. The trial court's instructions to the jury numbered 11, 12, and 13 were OUJI-Civ instructions 11.10, 11.11., and 11.12, respectively.
The Claborns appeal
the trial court's refusal to give their proposed instructions numbered 9, 10, and 11, which they assert are modified versions of OUJI-Civ 11.10.
T7 When the Oklahoma Uniform Jury Instructions (OUJT) contain an applicable instruction, the OUJI instruction "shall be used unless the court determines that it does not accurately state the law." 12 0.$5.2001 § 577.2, The Claborns contend the OUJI instructions did not accurately state the law applicable to this case because both James Claborn and Plains Cotton "knew that the process of climbing on top of the loaded cotton bales in order to fasten the appropriate straps and spread the tarps would put Mr. Claborn in a precarious position (and) knew that (Plains Cotton) did not supply a fall restraint system." The Claborns argue that this is not a typical premises liability case because there was no issue whether the danger was open and obvious.
The Claborns further argue that Plains Cotton was required to have a fall restraint system in place to meet the standard of care in the industry and to comply with OSHA regulations. They also assert that James Claborn had no choice but to subject himself to the danger of climbing onto the loaded cotton bales or forfeit his employment with
Big Iron. The authority on which the Cla-borns rely does not support their argument. Gaines v. Comanche County Med. Hospital, 2006 OK 39, 143 P.3d 203, 213, provides, in a concurring opinion, that private industry standards of conduct "have no official or legal status except to govern the conduct of the profession and industry, courts generally admit them unless a challenge is sustained." Id. Smith v. Kris-Bal Realty, Inc., 242 N.J.Super. 346, 576 A.2d 934 (1990) found it was error to instruct the jury to disregard an expert's testimony on the industry standard of care. Holding that evidence of a private industry standard is admissible is not equivalent to a finding that the trial court must have instructed the jury that Plains Cotton had a duty to install a fall restraint system.
T8 The authority cited by the Claborns does not support their claim that the trial court should have given one of their proposed modified instructions on the duty owed to an invitee. The proposed modified instructions each effectively instructed that Plains Cotton was negligent per se and directed a verdict against Plains Cotton.
T9 Beyond any implied negligence per se direction in the three proposed instructions discussed above, the Claborns also complain that the trial court erred in rejecting their proposed instruction expressly stating that it was negligence per se not to comply with certain OSHA regulations.
The plain language of the OSHA regulations at issue direct employers to act in certain ways to protect employees.
This case does not involve any claim related to James Cla-born's employer, Big Tron Trucking, and its compliance with OSHA standards in order to protect James Claborn. In Orduna v. Total Const. Services, Inc., 271 Neb. 557, 713 N.W.2d 471 (Neb.2006), cited by the Cla-borns in support of the previous proposition, the Nebraska Supreme Court plainly stated:
. in a negligence action brought by a nonemployee third party against a construction company, a violation of an OSHA regulation, while not negligence as a matter of law, may nonetheless be evidence of negligence to be considered with all the other evidence in the case. Our holding is consistent with this court's prior law providing that the violation of a safety regulation, established by statute or ordinance, is not negligence as a matter of law, but is evidence of negligence which may be considered in connection with all the other evidence in the case in deciding the issue. Similarly, the violation of a statute is not negligence per se, but is evidence of negligence. ~
Id. at 564-565, 713 N.W.2d 471. In Orduna, the court held that evidence of violation of OSHA standards may be admissible evidence in a case against a non-employer. Nothing in Orduna states that an OSHA regulation provides the standard of care owed to a non-employee, that the jury must be instructed that a defendant owes such a duty to a non-employee, or that it is negligence per se for a business invitor not to comply with an OSHA regulation as to a non-employee.
{10 The Claborng' final claim regarding the instructions is that it was error to instruct on comparative negligence and to provide a verdiet form for comparative negligence. Contributory negligence is an act or omission on the part of a plaintiff amounting to want of ordinary care which, together with the negligence of the defendant, is the proximate cause of the plaintiffs injury. Sloan v. Anderson, 1932 OK 782, 160 Okla. 180, 18 P.2d 274. The Oklahoma Constitution, art. 23, § 6 provides that the "defense of contributory negligence ... shall, in all cases whatsoever, be a question of fact, and shall, at all times, be left to the jury." That section requires that the contributory negligence defense be submitted to the jury if there is any evidence of an act, omission, or cireumstance tending to prove contributory negligence or from which an inference of contributory negligence might be drawn. Miller v. Price, 1934 OK 332, 33 P.2d 624, 628-9; Thomason v. Pilger, 2005 OK 10, ¶ 8, 112 P.3d 1162, 1165-6. Pleading the defense of contributory negligence alone will not warrant instructing the jury on the issue. However, contributory negligence is an issue of law only when there is no dispute of the facts and only one conclusion may be drawn from the evidence. Kansas, O. & G. Ry. Co. v. Clark, 1953 OK 276, ¶ 17, 262 P.2d 426, 429. Only a scintilla of evidence of contributory negligence is required to submit the issue to the jury. Thomason, supra, 2005 OK 10 at ¶ 16, 112 P.3d 1162. Here, James Claborn-was required to use ordinary care for his safety. The Cla-borns do not dispute that the danger was open and obvious and that James Claborn appreciated the risk when he attempted to climb up the load of cotton and to grab the straps to tarp the cotton. The record does not show a complete absence of evidence of contributory negligence. The trial court therefore properly left that issue of fact to the jury's determination.
Having reviewed all of the instructions, we find the instructions as a whole fairly and accurately presented the law on the issues presented and do not show a reasonable probability that the jury was misled or reached a different conclusion than they would have if the requested instructions had been given. We therefore do not find reversible error in the instructions.
112 The Clabornsgs' final allegation of error is that the trial court should not have sustained Plains Cotton's objection to one question by the Claborns. The challenged exchange, between Plains Cotton Manager Jay Corwart and counsel for the Claborns, followed Corwart's testimony that once the cotton is loaded onto a buyer's truck, Plains Cotton employees are no longer responsible for the load. The Claborns then asked:
Q: Now, if you had your employees tarp that cotton, would you provide a safety restraint system, a harness system, for them?
A: I'm not going to have my employees tarp that cotton.
Q: If you did have your employees tarp the cotton, would you provide them a safety restraint system? ~
Counsel for Plains Cotton: Your Honor, I'm going to object. It's a hypothetical.
The Court: Sustained.
Counsel for the Claborns then moved on without any discussion. The trial court is granted broad discretion in ruling on objections. The trial court's decision whether to admit or exclude evidence will not be reversed absent a finding of a clear abuse of discretion. Cities Service Co. v. Gulf Oil Corp., 1999 OK 14, 980 P.2d 116, 132. In this case, the trial lasted three days. The ruling challenged here does not show an abuse of discretion; additionally, nothing indicates the one sustained objection at issue here affected the verdict in any way.
{13 The jury's verdict is supported by competent evidence and the Claborns have not shown the existence of reversible error. Accordingly, the judgment is AFFIRMED.
BELL, P.J., and ADAMS, J., concur.