Massachusetts Appeals Court Holds State Occupational Safety Regulations Appropriately Excluded from Negligence Trial

A plaintiff was injured in February 2013 when he fell from scaffolding on a construction site while employed by a contractor of the defendant. The plaintiff thereafter filed suit for negligence against the defendant, alleging that the defendant violated several Massachusetts state regulations and federal Occupational Safety and Health Act (OSHA) regulations concerning the safety of the worksite.The trial judge allowed the plaintiff to introduce the OSHA regulations at trial but concluded that he could not introduce the state regulations because they were preempted by OSHA. After trial, the jury determined that the plaintiff was 51 percent negligent in causing his own injuries and that the defendant was only 49 percent negligent. The plaintiff therefore did not recover damages, and judgment was entered dismissing his complaint. On appeal, he claimed that the trial judge erroneously prevented him from introducing the state regulations at trial because they are not preempted by OSHA, and he was entitled to a new trial because the state regulations would have made a difference in the verdict. The Massachusetts appeals court disagreed and affirmed the lower court’s judgment.

The appeals court first noted that all of the state regulations that the plaintiff sought to introduce at trial had since been repealed because they are preempted by OSHA. The court nonetheless concluded, however, that even if the regulations had not been preempted and had been erroneously excluded, the plaintiff would not be entitled to a new trial because it could “say with substantial confidence that the error would not have made a material difference” in the verdict.

At trial, the plaintiff sought but was prevented from introducing the state regulation defining a general contractor, the regulation imposing a nondelegable duty on general contractors to ensure compliance with safety regulations, and the regulation prescribing safety standards for scaffolding. The court first held that allowing the plaintiff to introduce the state scaffolding regulations would not have made a difference at trial because they are nearly identical to the OSHA regulations that he did introduce. The court concluded that allowing the plaintiff to introduce nearly identical state regulations that impose the same safety requirements for scaffolding would have been merely cumulative of other evidence pointing in the same factual direction.

Admitting the state regulations defining a general contractor and imposing a nondelegable duty on general contractors to ensure the safety of worksites, the appeals court explained, also would not have changed the outcome of the trial. The regulations define “general contractor” as “[a]ny employer having a contract with an owner to perform the general construction … work of the project whether or not any portion of said work is in turn sub-contracted.” Furthermore, “[i]n no case” shall a general contractor “be relieved of overall responsibility for compliance with the requirements” of the state worksite safety regulations.

The defendant indisputably entered into a contract with the owner in this case, which was admitted into evidence at trial. As a result, the plaintiff argued that he should have been allowed to introduce the state regulations, since they would have imposed a nondelegable duty on the defendant for the safety of the worksite, which would have been easier to establish than the duty owed under OSHA or tort law. The OSHA multi-employer worksite policy, admitted into evidence at trial, provides that an employer is subject to OSHA regulations if it is a “creating, exposing, correcting, or controlling employer.” Relevantly, a “controlling employer” is one that “has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.”

The trial judge also instructed the jury that the defendant owed a duty to the plaintiff if it “retain[ed] the right to control the work in any of its aspects, including the right to initiate and maintain safety measures and programs.” The defendant argued that it did not owe a duty because it was the “construction manager” of the project, rather than the general contractor, and thus it was not responsible for the safety of the worksite. The jury apparently rejected this argument, however, since they found the defendant 49 percent negligent. If the jury had concluded that the defendant owed no duty, they would have found the defendant zero percent negligent. Thus, the state regulations imposing a nondelegable duty on the defendant based on its contract with the owner would not have made a difference in the verdict, and the appeals court therefore concluded that the plaintiff was not entitled to a new trial.

If you have been hurt on a construction site, you may need the assistance of a scaffolding accident lawyer to seek compensation. At the Neumann Law Group, our Massachusetts attorneys provide trustworthy legal representation to victims all over the state. Contact us toll-free at 800-525-NEUMANN or use our online form to set up a free consultation.

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