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10/18/93 ANN E. THOMA v. KETTLER BROTHERS

October 18, 1993

ANN E. THOMA, ET UX, APPELLANTS
v.
KETTLER BROTHERS, INC., ET AL, APPELLEES



Appeal from the Superior Court of the District of Columbia; (Hon. Stephen F. Eilperin, Trial Judge)

Before Ferren, Farrell, and Sullivan, Associate Judges. Opinion for the court (except for part IV.) by Associate Judge Farrell. Opinion of Associate Judge Sullivan Concurring in part and Concurring in the result. Opinion of Associate Judge Ferren Concurring in part and Dissenting in part.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: A jury returned a verdict for the defendants (appellees) in this personal injury case arising from a construction site accident. On appeal, appellants' primary argument is that the trial Judge erred in refusing to admit in evidence a relevant Occupational Safety and Health Act (OSHA) *fn1 regulation and to instruct the jury that it was evidence the jury could consider in deciding the precise duty of care appellees owed to business-invitees on the construction site (assuming it found appellants to be invitees). We hold that, upon proper request, a plaintiff is entitled to an instruction on the evidentiary significance of a standard such as the OSHA regulation. For the reasons stated in part IV. of this opinion and in the Concurring opinion of Judge Sullivan, however, the failure to give that instruction provides no basis for reversal of the judgment in this case.

I.

Appellants Ann and Robert Thoma contracted with appellee Kettler Brothers, Inc., the general contractor and direct sales agent, to purchase a newly-constructed townhouse in Washington, D.C. The developer was appellee Miller and Smith Companies of Georgetown, Inc. Mrs. Thoma visited the home several times during its construction, both before and after signing the contract. For instance, on January 5, 1989, she inspected the interior of the building with a view to selecting fixtures and colors for the home. On February 23, 1989, while the house was still under construction, Mrs. Thoma went to the Kettler sales office and told the agent, Jo Hanlon, that she and her friends would be visiting the house early that evening. According to Mrs. Thoma, Mrs. Hanlon stated that there would be "no problem" and gave Mrs. Thoma her home telephone number in the event security prevented her from entering the home. *fn2 Mrs. Thoma visited the home with her friends at approximately 5:00 p.m., still during daylight. As she was descending the interior stairs, she slipped and fell. She testified that her fall was caused by loose plastic, debris, and plaster dust which covered the stairs. She suffered an avulsion fracture of the left ankle and a displaced fracture of the right ankle, requiring surgery and the permanent fixation of a metal plate.

Mrs. Thoma sued for damages for her injuries; Mr. Thoma sued for loss of consortium. They filed a motion in limine on February 8, 1991, as supplemented by an August 8, 1991 memorandum, requesting a jury instruction that appellees' violation of an OSHA regulation set forth at 29 C.F.R. § 1926.501 (d) & (e) (1990) was per se negligence. They also filed a February 3, 1992, Memorandum of Law requesting an instruction that violation of the OSHA regulation could at least be considered by the jury as evidence of negligence. The trial Judge denied both requested instructions, and as a result the jury heard no evidence of the regulation. The Judge rejected the proposed per se negligence instruction on the ground that the OSHA regulations are intended to protect employees on the worksite, not members of the general public. Although the Judge was disposed to let the jury consider the regulation as evidence, he ultimately declined to do so and rejected the second requested instruction because the pertinent regulation, though operative at the time of the accident, had been superseded at the time of trial; and, in any case, he viewed the regulations as applying only to temporary structures on the construction site, not stairways intended to be part of the finished home.

II.

Appellants first contend the trial Judge erred in not instructing the jury that appellees' violation of the OSHA regulations would constitute negligence per se. *fn3 The regulation in effect at the time of the accident, 29 C.F.R. § 1926.501, reads in relevant part as follows:

(d) Debris, and other loose materials, shall not be allowed on or under stairways.

(e) Slippery conditions on stairways shall be eliminated as soon as possible after they occur. *fn4

For the violation of a statute or regulation to constitute negligence per se, the regulation must be enacted "to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff [must be able to] establish his relationship to the statute . . . ." Ceco Corp. v. Coleman, supra note 3, 441 A.2d at 945; see also RESTATEMENT (SECOND) OF TORTs, § 286, at 25 (1965). "The party relying upon the statutory standard must, at the outset, establish its applicability by showing that he is within the class of persons intended to be protected by it, and that the injury incurred resulted from the type of risk against which the statute was designed to protect." Lewis v. Washington Metro. Area Transit Auth., supra note 3, 463 A.2d at 674.

Appellants' claim that they come within the class of persons intended to be protected by the OSHA regulations, and thus were entitled to a per se negligence instruction, is foreclosed by Kurtz v. Capital Wall Paper Co., 61 A.2d 470 (D.C. 1948). *fn5 In Kurtz, a customer of a wallpaper supply company was injured while using a wallpaper trimming machine made available for customer use on the company premises. He sued and attempted to introduce as evidence a safety regulation promulgated by the Minimum Wage and Industrial Safety Board which arguably had been violated by the company in maintaining the machine. The trial Judge excluded the evidence, and the court of appeals sustained the exclusion. Pointing out that throughout the statute which authorized the regulation "there are references to 'employers,' 'employees' and 'places of employment,' but nowhere is there any mention of a duty toward members of the general public," the court found "no indication whatever that [the statute] was intended to protect any one other than employees or wage earners." Id. at 471. It therefore held that "the trial Judge was correct in declining to let the jury consider the tendered regulation as a basis of additional support for plaintiff's claim." Id.

With respect to the intended class of protected individuals, the OSHA regulations cannot be distinguished meaningfully from the safety regulation at issue in Kurtz. Both govern the workplace relationship of employer and employee. See, e.g., 29 U.S.C. § 654 (a) (1985) (under OSHA, "each employer . . . shall furnish to each of his employees employment and a place of employment which are free from recognized hazards shall comply with occupational safety and health standards promulgated under this chapter"). *fn6 Therefore, appellants' effort to extend the scope of OSHA's coverage to themselves as business invitees of Kettler Brothers founders on Kurtz's refusal even to permit introduction in evidence of an analogous safety regulation in a suit brought by a customer. Even without the binding authority of Kurtz, moreover, we would decline to hold that violation of an OSHA regulation is negligence per se as applied to injured persons who in no sense are party to the employer-employee relationship to which the regulations relate. E.g., Smith v. Kris-Bal Realty, Inc., 242 N.J. Super. 346, 576 A.2d 934, 938 (N.J. Super. App. Div. 1990) (business-invitee); Wood v. Smith, 343 Pa. Super. 547, 495 A.2d 601, 603 (Pa. Super. Ct. 1985) (homeowner). *fn7 See also W. PAGE KEETON ET AL., PROSSER & KEETON ON THE LAW OF TORTS (PROSSER) ยง 36, at 222 (5th ...


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