Safety Expert Witness: Use of the OSH Act as Standard of Care in Common-Law Negligence Cases
- Greg Z. Gerganoff (Safety Consultant)
- Document ID
- American Society of Safety Engineers
- Professional Safety
- Publication Date
- January 2017
- Document Type
- Journal Paper
- 46 - 49
- 2017. American Society of Safety Engineers
- 0 in the last 30 days
- 21 since 2007
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- The standard of care is one of the key elements establishing common-law negligence. The Colorado Supreme Court recognized the admission of the OSH Act as some evidence of identifying standard of care in common-law negligence cases in 2002.
- A logical application of the OSH Act could include written opinion and testimony of a safety expert who can explain the hazard of a given situation or condition and describe the suitable safety regulations given the facts of the case.
- Safety experts also offer other benefits in common-law negligence cases, such as in the initial case assessment and discovery phases and at trial.
When personal injury events occur legal negligence actions may arise. Two types of negligence are defined by law: negligence per se and common-law negligence. According to AllLaw (2016):
Negligence per se is defined as an act that is negligent because it violates a law that has been designed to protect the public. Some common examples of laws that, if violated, can result in a negligence per se claim are speed limits, building codes and blood alcohol content limits for drivers.
This article focuses on common-law negligence and the use of safety expert witnesses.
Common-law negligence is established when the plaintiff shows: 1) the defendant owed the plaintiff a legal duty; 2) to conform to a standard of care; 3) the defendant breached that duty; 4) the plaintiff suffered injury; and 5) the existence of a causal relationship between the breach and injury (FindLaw, 2016; Scott v. Matlack Inc., 2002). One of two key focal points in this article is the standard of care. How does a litigant go about proving (or disproving) standard of care?
Proving Standard of Care
Attorneys have traditionally looked to several sources accepted in the judicial community to prove standard of care in common-law negligence cases. In Colorado, a potential source of this crucial element can be found in Scott v. Matlack Inc. (2002), and in other states in the safety standards of the OSH Act of 1970. As safety professionals know, the OSH Act is a body of federal safety rules and procedures applied to certain businesses and industries addressing employee safety in the workplace.
The OSH Act is administered by OSHA (or OSHA-approved state plans) and divided into four parts: general industry, construction industry, maritime, longshoring operations and agriculture. The act specifically excludes mining, which is governed by MSHA, pursuant to the Mine Safety and Health (MSH) Act of 1977. OSHA enforces compliance in the workplace upon employers through one of these four parts.A note of clarification regarding negligence per se, common-law negligence and why this article focuses on the common-law negligence. Prior court rulings regarding the use of the OSH Act in negligence cases have long prohibited the use of the OSH Act in negligence per se cases [ Canape v. Petersen, 1995; Geographic applicability, 1970, 29 CFR 653 (b)(4)]. But in 2002 that changed when the OSH Act was allowed to be used in common-law negligence cases.
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