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Cowan v. Laughridge Construction Co.

Filed: May 18, 1982.

JOHN RAY COWAN
v.
LAUGHRIDGE CONSTRUCTION COMPANY, A CORPORATION



Appeal by plaintiff from Lane, Judge. Order entered 3 July 1981 in Superior Court, McDowell County. Heard in the Court of Appeals 27 April 1982.

Vaughn, Judge. Judges Martin (Robert M.) and Arnold concur.

Vaughn

Negligence is not presumed simply because an accident has occurred. In order to establish a prima facie case of negligence, plaintiff must offer evidence that defendant owed him a duty of care, that defendant breached that duty, and that defendant's breach was the actual and proximate cause of plaintiff's injury. {PA}

Page 324} Burr v. Everhart, 246 N.C. 327, 98 S.E.2d 327 (1957). If plaintiff fails to show any one of these elements, it is proper for the court to enter a directed verdict in favor of defendant.

It is the exceptional negligence action, however, where a directed verdict is entered. On a motion for directed verdict, the court must view the evidence in the light most favorable to the plaintiff. Where plaintiff receives the benefit of every reasonable inference, the issues of reasonable care and breach of that care are usually for the jury. Williams v. Power & Light Co., 296 N.C. 400, 250 S.E.2d 255 (1979); Robinson v. McMahan, 11 N.C. App. 275, 181 S.E.2d 147, cert. denied, 279 N.C. 395, 183 S.E.2d 243 (1971).

In the present action, the court concluded there was insufficient evidence to require submission of the issue of defendant's negligence to the jury. We disagree.

Defendant, as general contractor, subcontracted with plaintiff's employer for the installation of the building's roof. Plaintiff was, therefore, an invitee to whom defendant owed a duty of ordinary care. Benton v. Construction Co., 34 N.C. App. 421, 238 S.E.2d 655 (1977), cert. denied, 294 N.C. 182, 241 S.E.2d 517 (1978). When defendant furnished a ramp which was the only access to the building's roof, it could reasonably foresee that plaintiff would use the ramp. Defendant owed plaintiff the duty to use proper care in the ramp's construction. See Casey v. Byrd, 259 N.C. 721, 131 S.E.2d 375 (1963).

Plaintiff argues that defendant breached that duty as a matter of law by violating certain federal OSHA regulations. These regulations require guardrails for open runways four feet or more above ground and toeboards wherever tools and materials are likely to be used on the runway. We disagree that defendant's noncompliance constituted negligence per se.

The Occupational Safety and Health Act of 1970 (OSHA) was enacted to assure safe working conditions for employees. 29 U.S.C. §§ 651-678. It authorizes the Secretary of Labor to set mandatory safety standards. 29 U.S.C. § 651. In G.S. 95-131(a), the General Assembly of North Carolina has adopted the Secretary's occupational safety and health standards as the rules and regulations of the North Carolina Commissioner of Labor. Plaintiff contends

that the adopted regulations establish a standard of care and are enforceable by criminal sanctions. When noncompliance with an administrative safety regulation is criminal, the rule in North Carolina is that the violation is negligence per se in a civil trial. Swaney v. Steel Co., 259 N.C. 531, 131 S.E.2d 601 (1963).

According to G.S. 95-139, however, a willful violation of an OSHA rule constitutes a misdemeanor only if said violation causes the death of an employee. For all other violations, the sanction is a possible civil penalty accessed by the Commissioner. G.S. 95-138. We conclude that the adopted OSHA regulations are not penal in nature, and, therefore, a violation does not constitute negligence per se. Accord Otto v. Specialties, Inc., 386 F. Supp. 1240 (N.D. Miss. 1974).

OSHA regulations are, however, some evidence of the custom in the construction industry. See, e.g., National Marine Service, Inc. v. Gulf Oil Co., 433 F. Supp. 913 (E.D. La. 1977), aff'd 608 F.2d 522 (5th Cir. 1979); Knight v. Burns, Kirkley & Williams Const. Co., Inc., 331 So. 2d 651 (Ala. 1976). See Generally Annot., 79 A.L.R. 3d 962 (1977) (violation of OSHA regulation as affecting tort liability). Custom is admissible to establish the standard of care required of reasonable men in the same circumstances. 1 Stansbury, N.C. Evidence § 95 (Brandis rev. 1973). Therefore, by presenting evidence that defendant had violated certain ...


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