Opinion
16–P–791
03-29-2017
Stephen A. CRAFFEY v. EMBREE CONSTRUCTION GROUP, INC.
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff, Stephen A. Craffey, was injured on February 14, 2013, when he fell from scaffolding on a construction site while employed by a contractor of the defendant, Embree Construction Group, Inc. The plaintiff brought this negligence action six months later against the defendant, alleging that the defendant violated several 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 fifty-one percent negligent in causing his own injuries, and that the defendant was only forty-nine percent negligent. The plaintiff therefore did not recover, and judgment entered dismissing his complaint. The plaintiff appeals, claiming that the trial judge erroneously prevented him from introducing the State regulations at trial because they are not preempted by OSHA, and that he is entitled to a new trial because the State regulations would have made a difference in the verdict. We affirm.
The plaintiff's wife and daughter were coplaintiffs below, alleging loss of consortium claims that were also rejected by the jury. They did not perfect appeals and are not before us.
Standard of review . To receive a new trial, the plaintiff must make a "plausible showing that the trier of fact might have reached a different result if the [excluded] evidence had been before it." DeJesus v. Yogel , 404 Mass. 44, 48–49 (1989). The erroneous exclusion of evidence is not grounds for a new trial unless the error "injuriously affected the substantial rights of the parties." G. L. c. 231, §§ 119, 132.
Discussion . We first note that all of the State regulations that the plaintiff sought to introduce at trial have since been repealed because they are preempted by OSHA. 1322 Mass. Reg. 189 (Sept. 23, 2016) ("This regulation [454 Code Mass. Regs. §§ 10.00 et seq.] is being repealed because it is superseded by the federal Occupational Safety and Health Act").
Moreover, even if the regulations had not been preempted and had been erroneously excluded, the plaintiff would not be entitled to a new trial because we "can say with substantial confidence that the error would not have made a material difference" in the verdict. De Jesus , 404 Mass. at 49. The plaintiff sought to introduce the following State regulations at trial: 454 Code Mass. Regs. § 10.01 (1993), which defines "[g]eneral [c]ontractor"; 454 Code Mass. Regs. § 10.03 (1993), which imposes a nondelegable duty on general contractors to ensure compliance with safety regulations; and 454 Code Mass. Regs. § 10.104 (1993), which prescribes safety standards for scaffolding. The plaintiff introduced the following OSHA regulations at trial: 29 C.F.R. § 1926.451(b), (f)(3)–(4) (2012) ; 29 C.F.R. § 1926.452(w) (2012) ; and 29 C.F.R. § 1926.454 (2012), all of which concern safety requirements for scaffolding.
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. For example, 454 Code Mass. Regs. § 10.104(2)(l) provides that "[a]ll planking of platforms shall be overlapped (minimum 12 [inches] ), or secured from movement." The cognate OSHA regulation introduced at trial states: "On scaffolds where platforms are overlapped ... the overlap shall occur only over supports, and shall not be less than 12 inches (30 cm) unless the platforms are nailed together or otherwise restrained to prevent movement." 29 C.F.R. § 1926.451(b)(7). Similarly, 454 Code Mass. Regs. § 10.104(6)(f) provides, "The force necessary to move the mobile scaffold shall be applied near or as close to the base as practicable ...." The corresponding OSHA regulation introduced at trial specifies that "Manual force used to move the scaffold shall be applied as close to the base as practicable ...." 29 C.F.R. § 1926.452(w)(3). The plaintiff emphasized the defendant's failure to comply with the OSHA regulations in his closing argument. See Perry v. Medeiros , 369 Mass. 836, 841 (1976) ("[V]iolation of [safety regulations] does not in itself give rise to a cause of action but is evidence of negligence" [quotation omitted] ). Thus, 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." De Jesus , 404 Mass. at 49 n.7 (quotation omitted).
For further examples, compare 454 Code Mass. Regs. § 10.104(2)(h) ("Any scaffold ... damaged or weakened from any cause shall be immediately repaired or replaced"), with 29 C.F.R. § 1926.451(f)(4) ( "Any part of a scaffold damaged or weakened ... shall be immediately repaired or replaced ..."); 454 Code Mass. Regs. § 10.104(6)(g) ("No person, tools or equipment shall remain on the platform while the tower is being moved, raised or lowered"), with 29 C.F.R. § 1926.452(w)(6) ( "Employees shall not be allowed to ride on scaffolds" unless certain conditions exist); and 454 Code Mass. Regs. § 10.104(6)(h) ("The casters or wheels shall be locked to prevent any movement"), with 29 C.F.R. § 1926.452(w)(2) ("Scaffold casters and wheels shall be locked ... to prevent movement ...").
Admitting the State regulations defining "[g]eneral [c]ontractor" and imposing a nondelegable duty on general contractors to ensure the safety of worksites also would not have changed the outcome of the trial. The regulations define "[g]eneral [c]ontractor" 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." 454 Code Mass. Regs. § 10.01. 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. Id. at § 10.03(9). The defendant indisputably entered into a contract with the owner in this case, which was admitted into evidence at trial. As such, the plaintiff argues that he should have been allowed to introduce the State regulations, because 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, not the general contractor, and thus, not responsible for the safety of the worksite. The jury apparently rejected this argument, however, because they found the defendant forty-nine 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 plaintiff is not entitled to a new trial.
The defendant's contract with All Interiors, Inc., the plaintiff's employer, referred to the defendant as the "[c]onstruction [m]anager" and All Interiors, Inc., as the "[c]ontractor." The contract further provided: "The Construction Manager will not have control over, charge of, or responsibility for, the construction means, methods, techniques, sequences or procedures, or for the safety precautions and programs in connection with the Work, since these are solely the Contractor's rights and responsibilities under the Contract Documents."
The plaintiff also argues that the defendant assumed a contractual duty to comply with the State regulations even if they were preempted by OSHA, because the defendant's safety manual, admitted into evidence, states that the defendant complies with "all local, state, and federal safety standards, codes, and regulations." However, this sentence is not reasonably read to include preempted State regulations that are invalid under the Supremacy Clause of the United States Constitution. See California Fed. Sav. & Loan Assn . v. Guerra , 479 U.S. 272, 280 (1987) ; Boston Hous. Authy . v. Garcia , 449 Mass. 727, 733 (2007).
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Judgment affirmed .