OSHA Violation not Applicable to Produce Market Forklift Mishap (PA)
In Pennsylvania, in determining whether a duty exists in a negligence action, a court may look to a “legislative enactment or an administrative regulation” for the standard of conduct of a reasonable person. To that end, Pennsylvania courts sometimes rely on regulations by the Occupational Safety and Health Administration (“OSHA”), which is part of the US Department of Labor, to determine whether an employer has a duty in a negligence claim—after all, part of its mission is to assure safe working conditions by setting and enforcing standards.The question in Kovacevich v Regional Produce Cooperative Corporation was whether a policy in OSHA’s Field Inspection Reference Manual constituted an “administrative regulation,” thereby triggering a duty of care on defendant Regional Produce Cooperative Corporation (“RPCC”). Defendant RPCC is a management company that operated a wholesale produce market. Plaintiff was a tenant leasing space in the market. In February 2013, one of plaintiff’s co-workers drove a pallet jack full of fruit “forks first” into plaintiff’s back, causing serious injuries.
The plaintiff relied on an OSHA regulation that provides that an employer must train and certify operators of powered industrial trucks, such as forklifts. Although RPCC did not employ the forklift operator, plaintiff argued that the market was a multi-employer worksite; per OSHA policy, more than one employer may be citable for a hazardous condition that violates an OSHA standard if they are a “controlling employer.” According to plaintiff’s theory, since RPCC owned the market where industrial trucks operate, it had a duty to ensure operators were trained and certified.
At the close of trial, the judge entered a nonsuit in favor of defendant RPCC, finding that a jury could not reasonably hold RPCC liable on its OSHA-based theory of premise liability. On appeal, the Superior Court affirmed the trial court’s ruling. The Superior Court relied on Supreme Court precedent which distinguishes between administrative regulations (which set standards of care) and guidance documents (which describe enforcement policies). The Superior Court deemed the “controlling employer” policy was not a regulation but an OSHA compliance directive and the directive’s intent was to guide OSHA regulators in dealing with multi-employer worksites by giving them the power to cite numerous employers for a violation if they have some level of control or responsibility over the worksite.
Historically, courts have only applied the “controlling employer” directive to construction sites, where there are numerous contractors and subcontractors and here the court was not persuaded to extend the application to a produce market.
Thanks to Ellis Palividas for his contribution to this post and please write to Mike Bono for more information.