Darryl W. Elliott v. S.D. Warren Company

134 F.3d 1, 48 Fed. R. Serv. 782, 1998 U.S. App. LEXIS 538, 1998 WL 4373
CourtCourt of Appeals for the First Circuit
DecidedJanuary 13, 1998
Docket97-1848
StatusPublished
Cited by88 cases

This text of 134 F.3d 1 (Darryl W. Elliott v. S.D. Warren Company) is published on Counsel Stack Legal Research, covering Court of Appeals for the First Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Darryl W. Elliott v. S.D. Warren Company, 134 F.3d 1, 48 Fed. R. Serv. 782, 1998 U.S. App. LEXIS 538, 1998 WL 4373 (1st Cir. 1998).

Opinion

SELYA, Circuit Judge.

After unsuccessfully prosecuting a personal injury suit, plaintiff-appellant Darryl W. Elliott invites us to set aside a jury verdict in favor of the defendant S.D. Warren Company (Warren) and to reverse a summary judgment in favor of two other defendants (whom we sometimes shall refer to collectively as “Rust”). 1 Discerning no error, we decline both invitations.

I. BACKGROUND

Warren hired Rust to design, build, and manage the erection of an addition to its paper mill in Hinckley, Maine. That firm in turn subcontracted with its wholly-owned subsidiary, Allegheny Industrial Electrical, Inc. (Allegheny), to install electrical conduit. Elliott, an Allegheny employee, severely injured his left wrist while working at the job site on July 21, 1990. The injury occurred when Elliott caught his hand between a railing and an adjacent piece of electrical conduit on a stairway in a structure under construction. On Elliott’s theory of the case, a lack of adequate clearance at the pinchpoint between the railing and the conduit caused him to catch his hand, pull back, fall, and injure himself.

The appellant collected workers’ compensation benefits from his employer. Several years later, he settled his workers’ compensation claim and brought a third-party tort suit against Warren and Rust in a Maine state court. In his complaint, he alleged that Warren, as the owner of the premises and the organization having control over the area where the accident occurred, had failed both to maintain a safe workplace and to warn of a dangerous condition. At the same time, he accused Rust of negligently installing the stairway and conduit. Invoking diversity jurisdiction — the appellant is a citizen and resident of New York, Warren is a Pennsylvania corporation that maintains its principal place of business in Massachusetts, and Rust is chartered in Delaware and headquartered in Alabama — the defendants removed the case to Maine’s federal district court. See 28 U.S.C. §§ 1332(a), 1441(a).

*4 In due season, the district court granted summary judgment in favor of Rust, see Fed.R.Civ.P. 56(c), holding that Rust was insulated from liability by the terms of the release that the appellant executed when he settled his workers’ compensation claim. The lawsuit proceeded to trial against Warren and the jury returned a verdict for the defendant. This appeal ensued.

II. THE JURY VERDICT

We first consider the appeal insofar as it pertains to the take-nothing jury verdict.

A. Negligence Per Se.

The appellant’s most substantial claim of error concerns the district court’s instruction to the jury in regard to evidence which indicated that, at the spot where Elliott caught his hand, the distance between the railing and the electrical conduit was three-quarters of an inch, rather than the three inches required by a federal regulation promulgated by the Occupational Safety and Health Administration (OSHA). See 29 C.F.R. § 1910.23(e)(6) (1990) (stipulating that “[a]ll handrails and railings shall be provided with a clearance of not less than 3 inches between the handrail or railing and any other object”). Citing Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985), the appellant requested the district court to charge the jury that the violation of an OSHA regulation constitutes negligence per se. The court refused, instead telling the jurors that they might consider any such violation “as evidence of negligence,” whilst “evaluatpng] the weight to be given to that violation along with all the other evidence in the case in determining whether the defendant was in fact negligent.” The appellant assigns error.

Pratico involved a cause of action that arose under the Federal Employers’ Liability Act (FELA), 45 U.S.C. §§ 51-60. In that context, we held that the violation of a regulation validly promulgated by OSHA under the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §§ 651-678, could be deemed negligence per se. 783 F.2d at 266-67.

At the time this court decided Pratico, we had very little guidance from our sister circuits. See id. at 264 (identifying the Fifth Circuit as “the only circuit court to have addressed this issue”) (citing, inter alia, Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (5th Cir. Unit B 1982), and Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. Unit A 1981)). In the past twelve years, however, at least four other courts of appeals have considered when, if ever, a violation of an OSHA regulation might constitute negligence per se. See Ellis v. Chase Communications, Inc., 68 F.3d 473, 477-78 (6th Cir.1995); id. at 482-83 (Wellford, J., concurring); Robertson v. Burlington N. R.R. Co., 32 F.3d 408, 409-11 (9th Cir.1994); Ries v. National R.R. Passenger Corp., 960 F.2d 1156, 1160-65 (3d Cir.1992); Albrecht v. Baltimore & Ohio R.R. Co., 808 F.2d 329, 332-38 (4th Cir.1987). Three of these four courts have held squarely that, because the OSH Act does not create a private right of action, 2 a violation of an OSHA regulation never can be equated with negligence per se. See Robertson, 32 F.3d at 410-11; Ries, 960 F.2d at 1158-65; Albrecht, 808 F.2d at 332-33. The Sixth Circuit, like the Fifth, leaves open the possibility that a violation of an OSHA regulation may, in some cases governed by federal law, constitute negligence per se, see Ellis, 63 F.3d at 477; Rabon, 672 F.2d at 1238, but it is rare in either circuit for a court actually to uphold a finding of negligence per se on this basis. Silhouetted against this backdrop, the Pratico holding is of questionable validity.

We need not pursue the status of Pratico today. For present purposes, it suffices to note that Pratico involved an FELA claim and the case’s holding is properly limited to causes of action brought under that statute. The case at bar does not involve a cause of *5 action arising under federal law, but, rather, a cause of action arising under Maine’s common law. This is a dispositive difference.

In Pedraza, v. Shell Oil Co.,

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Bluebook (online)
134 F.3d 1, 48 Fed. R. Serv. 782, 1998 U.S. App. LEXIS 538, 1998 WL 4373, Counsel Stack Legal Research, https://law.counselstack.com/opinion/darryl-w-elliott-v-sd-warren-company-ca1-1998.