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The question of how an OSHA violation affects liability in a tort action often arises in the context of construction site accidents. Sometimes the Defendant will actually have received a citation from State or Federal regulatory bodies. In other instances, the Plaintiff's Attorney will simply plead an alleged violation of the applicable OSHA standard in the Complaint. Under either of these circumstances, it is important to understand how State and Federal OSHA regulations affect liability.

I. What Is OSHA, And How Is It Implemented In North Carolina?

The Occupational Safety and Health Act was first enacted by Congress in 1970, with its stated goal "to assure so far as possible every working man and woman in the nation safe and healthful working conditions and to preserve our human resources." 29 U.S.C.A. 651 (1970). The Department of Labor is responsible for administering OSHA at the Federal level. The Occupational Safety and Health Review Commission was set up to provide fair and timely adjudication of workplace safety and health disputes between the Department of Labor and employers.

As permitted under the Federal Act, the State of North Carolina administers and operates, with Federal supervision, its own plan, known as the Occupational Safety and Health Act of North Carolina or OSHANC. By statute, the North Carolina State Legislature has specifically adopted the federal standards and regulations. N.C.Gen.Stat. §95-131 (2006). The North Carolina Department of Labor is responsible for OSHANC compliance within the State. The State has also set up the North Carolina Occupational Safety and Health Review Commission in order to settle disputes between employers and the North Carolina Department of Labor. The North Carolina system essentially mirrors the federal system.

II. What Is The Effect Of A Real Or Alleged Osha Violation On Tort Liability In North Carolina?

In North Carolina, OSHA regulations may be used as evidence of custom in a particular industry, which is, in turn, admissible in establishing the standard of care owed to the Plaintiff. A Defendant is deemed to be negligent if it is determined that it violated the applicable standard of care owed to the Plaintiff. A violation of an OSHA regulation is only some evidence of negligence and is not dispositive by itself. Sawyer v. Food Lion, Inc. 144 N.C.App. 398, 401, 549 S.E.2d 867, 869 (2001). Most importantly, this standard requires a jury to find that the Defendant violated the applicable standard of care. However, in North Carolina evidence that the Defendant may have violated an OSHA or OSHANC regulation raises a fact issue that will probably allow a Plaintiff to survive a Summary Judgment motion. These distinctions are important because some states do treat violations of OSHA Standards as Negligence Per Se, meaning that if the Defendant violated the statute it is deemed to be negligent conduct, without any further proof.

III. What If The Plaintiff Was Contributorily Negligent?

In cases where there is a clear violation of an OSHA standard by the Defendant, the facts may allow an affirmative defense to liability based on the contributory negligence of the Plaintiff. In a construction site or workplace accident, employees are often familiar with the surrounding workplace, and may be on actual or constructive notice of the defect that is the subject of the OSHA violation. When faced with a clear OSHA violation, the Defendant should continue the investigation to determine whether the danger was open and obvious to the Plaintiff, and if the Plaintiff knew or should have known of the dangerous condition that constituted the OSHA violation.

III. Does A General Contractor Owe A Duty Of Care To All Workers On The Job Site, Or Just Its Employees?

The question of the extent of a general contractor's duty to a subcontractor's employees was recently settled by the North Carolina Court of Appeals in Commr. Of Lab. Of the St. of N.C. v. Weekley Homes, L.P. d/b/a David Weekley Homes 169 N.C.App. 17, 609 S.E.2d 407 (2005). In Weekley Homes, the Court of Appeals adopted the "multi-employer doctrine," which provides that "an employer who controls or creates a worksite safety hazard may be liable under the Occupational Safety and Health Act, even if the employees threatened by the hazard are solely employees of another employer." Id. at 23, 609 S.E.2d 413, quoting Universal Const.Co, Inc. v. O.S.H.R.C., 182 F.3d 726,728 (10 th Cir. 1999). Discretionary review of this case has been denied by the North Carolina Supreme Court, so this holding will be the applicable law in the State, until the North Carolina Supreme Court or State Legislature revisit the issue.

IV. Conclusion

A documented or alleged violation of an OSHA standard may be evidence of negligence, since it may show a failure to meet the appropriate standard of care. It is important to understand that an OSHA violation is not Negligence Per Se, and the issue of liability is a fact question that must be decided by a jury. Whenever OSHA violations are an issue, the Defendant should also be aware of possible contributory negligence by the Plaintiff. For an overview of how other states view OSHA violations in regards to tort liability, please see 79 A.L.R.3d 962. For any specific questions regarding OSHA violations in North Carolina, please call an attorney here at Dean & Gibson, PLLC , P.L.L.C.

Caselaw:

Commr. Of Lab. Of the St. of N.C. v. Weekley Homes, L.P. d/b/a David Weekley Homes 169 N.C.App. 17, 609 S.E.2d 407 (2005).

Sawyer v. Food Lion, Inc. 144 N.C.App. 398, 401, 549 S.E.2d 867, 869 (2001).

Schenk v. HNA Holdings, Inc., 613 S.e.2d 867 (2001).

Statutes:

29 U.S.C.A. 651 (1970).

N.C.Gen.Stat. §95-131 (2006).

Helpful Links:

North Carolina

Federal

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