The Use of OSHA Regulations in Texas Personal Injury Cases

In 1971, the Occupational Safety and Health Administration (OSHA) was established with the mission to “assure safe and healthful working conditions for working men and women by setting and enforcing standards and by providing training, outreach, education and assistance.” There are thousands of regulations promulgated by OSHA that place a duty on the part of employers to take action to keep them safe or face regulatory penalties.

 

It would seem that a violation aimed at creating duties of safety would also be the basis for civil tort liability when someone is injured due to the employer’s failure to follow OSHA regulations. However, Texas Courts have consistently refused to use a violation of an OSHA regulation as a basis for establishing an independent cause of action. Obviously, this evidence is highly valuable to a person trying to prove negligence on the part of an employer. Thus, it is important to understand how and when the OSHA regulations may be used in a civil tort case.

Violating OSHA Regulations Does Not Equal Negligence Per Se in Texas

Since OSHA is a statute clearly aimed at preventing workplace injuries, it would make sense that a violation of an OSHA duty would suffice for violation of a civil duty and thus, constitute negligence per se. However, under Texas law this is not the case. See: Hill v. Consolidated Concepts, Inc. No. 14-05-00345-CV, 2006 WL 2506403 (Tex.App.—Houston[14th Dist.] 206, pet. denied).

Because OSHA is regulated by the federal government, they can impose fines on negligent corporations and employers; however, this is also why OSHA regulations cannot be used to establish negligence per se in a personal injury claim. OSHA standards are not criminal statutes and therefore not held to the same legal authority. This does not mean that violation of OSHA regulations are irrelevant to your case; rather, you must understand how to use those violations as admissible evidence when proving a personal injury claim.

Proving a Personal Injury Claim in Texas

Under the OSHA law, employers have a responsibility to provide a safe workplace. In Texas, when employers fail to provide a safe workplace and someone is seriously injured, there are five basic elements one must show to have a viable cause of action:

  1. Negligence
  2. Duty
  3. Breach of Duty
  4. Proximate Cause
  5. Damages.

 

Negligence refers to the failure to exercise reasonable care. When a negligent action or omission occurs, the responsible party has breached their duty to exercise reasonable care; and therefore, are subject to being held legally liable for their negligence. Proximate cause refers to the specific act or omission, requiring that it was a substantial factor in causing the accident to occur.

Negligence per se is a term that means “negligence as a matter of the law.” When an individual violates a criminal statute that is aimed at preventing a specific action, they are considered negligent as a matter of law under civil tort law as well.  This is because criminal law imposes certain behavioral duties upon people to act in a certain way and when they violate that duty, they are considered negligent. The doctrine of Negligence per se is a powerful legal tool for establishing the negligence element in a civil case.

OSHA Regulations Show Industry Standard

“OSHA standards are the cumulative wisdom of the industry on what is safe and unsafe.” Wal-Mart Stores v. Seale, 904 S.W.2d 718 (Tex.App.—San Antonio, 1995, no writ.) As such, several Courts have held that the regulations, themselves, are admissible into evidence to show evidence of what is safe. See: Wal-Mart Stores v. Seale, 904 S.W.2d at 721; Kraus v. Alamo Nat’l Bank, 586 S.W.2d 202, 208 (Tex.Civ.App.—Waco, 1979) affirmed on other grounds, 616 S.W.2d 908 (Tex.1981); Perez v. Smart Corp., Inc., (Tex.App—San Antonio), No. 04-12-00712-CV, 2013 WL 6203358 (2013).

However, there have been some courts that have declined to allow OSHA regulations to be admitted into evidence.  Hill v. Consolidated Concepts, Inc., No. 14-05-00345-CV, 2006 WL 2506404, at *4 (Tex.App.—Houston[14th Dist.] Aug. 31, 2006, pet denied)(mem.op.); Hall v. Dieffenwierth, No. 02-07-00058-CV, 2008 WL 2404462, at *4 (Tex.App.—Ft.Worth June 12, 2008, pet. denied)(mem.op.). Because not all courts will allow them simply as evidence of industry standard, you must consider other options/arguments when trying to get them into evidence.

OSHA Regulations to Establish Proximate Cause

One avenue to get the OSHA standards before the jury is to argue the OSHA regulations establish evidence of proximate cause. To establish proximate cause in a personal injury claim, two components are required:

  • Foreseeability of risk
  • Cause-in-fact

 

As explained by the Corpus Christi Court of Appeals, “the foreseeability component of proximate cause requires the that a person of ordinary intelligence should have reasonably anticipated the danger created by a negligent act or omission.” 4Front Engineered Solutions, Inc. v. Rosales, 512 S.W.3d 357, (Tex. App.–Corpus Christi, Mar. 12, 2015) rev'd on other grounds 505 S.W.3d 905 (Tex. 2016). Foreseeability does not account hindsight, nor does it require the exact sequence of events; simply, that there was a general danger associated with the negligent conduct.

The court in this case held that the OSHA regulation and letter of interpretation in question were probative, and thus admissible, when it came to proving the owner of a warehouse should have reasonably anticipated that a consequence of lending a forklift to an untrained independent contractor would be injury. Id.

Expert Testimony Regarding OSHA Regulations

One method to consider that may increase your chances of getting OSHA standards before the jury, is to have a qualified OSHA expert testify regarding the industry standard and negligence. Not only is it generally permissible for an expert to reference the OSHA regulations, they can testify that OSHA regulations show the standard that a reasonable employer in the industry would have employed and they can testify that the actions or inactions of the employer were inconsistent with OSHA standards.  Perez v. Smart Corp., Inc., No. 04-12-00712-CV, 2013 WL 6203358, (Tex.App.—San Antonio, Nov. 27, 2013, pet. den’d)(mem.op.). However, you need to be careful not to let the expert testify regarding the violation or non-violation of any OSHA standards found during any investigation as this may be considered reversible error. See Perez. (stating that the findings of a violation or non-violation are not admissible to establish negligence or the absence thereof.)

 

OSHA Regulations and Non-Employees

Another thing to consider is the non-employee situation in which OSHA regulations may be beneficial. Since OSHA is designed to protect employees, one might question whether they are available to assist in cases not involving employees. In 1995, the San Antonio Court of Appeals held that OSHA standards were still relevant to the standard of care when bringing claims outside of an employee/employer context:

“While OSHA was written to protect employees, an unsafe practice for an employee applies equally well to a customer who legitimately finds himself in the same geographic space as the employee. Safety principles don’t change depending on whether the victims is an employee, a customer, or a passerby. Therefore, it has relevance to the standard of care.” Wal-Mart Stores, Inc. v. Seale, 904 S.W.2d 718, 720 (Tex. App. – San Antonio Aug. 14, 1995, no writ).

This holding is consistent with the idea that the standards do not establish a duty but show evidence of industry standard.

Conclusion

Despite their protective goal, OSHA regulations cannot be used in Texas as a basis for negligence per se.  However, the OSHA regulations may or may not be admissible in a case to show the industry standard or to show proximate cause.  Additionally, if you want to have the best chance of getting them into evidence, hiring an expert witness to testify as to how they apply is the best option. Furthermore, they may be admissible regardless of the status of the Plaintiff as an employee or non-employee.

 

Author: Rebecca L. Todd is an attorney at Simmons and Fletcher, P.C., a personal injury law firm based in Houston, Texas.

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