The General Standards of OSHA and ANSI Do Not Preempt State Tort Claims Against Product Manufacturers in Pennsylvania

Pennsylvania - Product Liability

In Kiak v. Crown Equipment Corporation, 2010 PA Super 13; 2010 Pa. Super LEXIS 18 (Pa. Super. 2010), the Superior Court of Pennsylvania held that the Occupational Safety and Health Act of 1970 ("OSHA") does not preempt a plaintiff's state common law tort claim against a forklift manufacturer for its failure to install audible warning alarms on its forklift when the throttle is placed in neutral. In so holding, the court reversed the order of the trial court and remanded for further proceedings. It also explicitly overruled its 2007 decision in Arnoldy v. Forklift L.P., 2007 PA Super 143, 927 A.2d 257 (Pa. Super. 2007), and followed long-standing precedence allowing state tort claims to prevail over OSHA.

In Kiak, the plaintiff brought a strict liability claim against Crown Equipment Corporation ("Crown"), the manufacturer of a forklift. The plaintiff alleged that Crown's forklift was defective because it did not contain a back-up alarm system when the forklift's throttle was placed in the neutral position. Although Crown's forklift was equipped with an audible back-up alarm designed to sound when the operator placed the throttle in reverse, it was not designed to sound when the operator placed the throttle in forward or neutral. The plaintiff was injured when a Crown forklift operated by his co-worker drifted backwards while in neutral, causing him injury on the job.

The issue decided by the court is whether OSHA preempts Kiak's state tort claim against Crown for the alleged defective design of its audible back-up alarm. In general, Article VI of the United States Constitution's Supremacy Clause provides that the laws of the United States "shall be the supreme Law of the Land; ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." U.S. Const. art. VI, cl. 2. This, however, does not mean that all federal laws trump state causes of action. Generally, each state is allowed to have its own laws, unless those laws are in direct conflict with federal laws, or a federal law clearly and explicitly states that it supersedes any state law on the same issue.

OSHA was promulgated in furtherance of the health and safety of employees in the workplace. Specifically, OSHA §1910.178 provides that all new powered industrial trucks, which include forklifts, shall meet the design and construction requirements for powered industrial trucks established in American National Standard for Powered Industrial Trucks ("ANSI"), Part II, ANSI B56.1-1969. Part II of ANSI B56.1-1969 provides that "every truck or tractor shall be equipped with a warning horn, whistle, or gong, or other device."

OSHA and Part II of ANSI provide no other standard applicable to audible warning devices on forklifts.

OSHA also contains a "savings clause," which specifically allows state common law and state statutory tort remedies like the plaintiff's claim in Kiak. OSHA's "savings clause" provides:

Nothing in this chapter shall be construed to supersede or ... to enlarge or diminish or affect in any other manner the common law or statutory rights, duties, or liability of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.

29 U.S.C.A. §653(b)(4).

Based on Part II of ANSI B56.1-1969 and OSHA's "savings clause," the Kiak Court held that the plaintiff's state tort claim is not preempted. The court reasoned that Kiak's proposed standard - that an audible alarm sound when the forklift is coasting backward in neutral - does not impose a standard in conflict with the federal statute and its accompanying regulations and standards. Therefore, although the forklift was equipped with a warning horn when the throttle was placed in reverse, the plaintiff's theory that the forklift should have been equipped with additional warning horns when the forklift's throttle was in neutral did not directly conflict with the ANSI standard.

In so holding, the Kiak Court explicitly overruled its decision in Arnoldy. The Arnoldy Court considered federal preemption based on an almost identical set of facts. In Arnoldy, the plaintiff was struck by a forklift being operated in reverse. However, in Arnoldy the forklift lacked any audible warning system, rearview mirrors or any strobe lighting or beacon when operating in reverse. Despite the lack of any safety features while being operated in reverse, the court held that OSHA preempted the plaintiff's state tort claims.

Although Kiak appears to be a decision in direct contravention of Arnoldy based on an almost identical set of facts, it is not. The Kiak Court expressly overruled the Arnoldy Court because Arnoldy wrongly applied Part III of ANSI B56.1-1969, which is not incorporated into the OSHA regulations. Rather, OSHA specifically incorporates Part II of ANSI B56.1-1969, which does not contain the provision relied upon in Arnoldy. Because Arnoldy based its decision regarding federal preemption on an inapplicable ANSI standard, the Kiak Court concluded that Arnoldy was wrongly decided and overruled Arnoldy on that basis, without a discussion of the merits of the Arnoldy Court's analysis.

The effect of the Kiak decision on product manufacturers is negligible because, whether you apply the provisions of Part II or Part III of ANSI B56.1-1969, the Arnoldy Court strayed from long-standing and well-settled precedence in Pennsylvania state and federal courts, which is a presumption against federal preemption. OSHA does not expressly preempt state law and, in fact, expressly provides that state law claims should not be preempted. Further, the ANSI standard incorporated into OSHA provides a very general guideline which does not reference with any specificity the audible warning alarms required. Historically, OSHA and ANSI provide minimum standards, but generally they do not preclude individuals from bringing tort claims alleging that manufacturers or others should have implemented additional safeguards to those provided for in the federal standards. Thus, the Kiak Court merely restored the status quo.

*Claire, an associate in the firm's Philadelphia, Pennsylvania, office, can be reached at (215) 575-2789 or cbventola@mdwcg.com.

Defense Digest, Vol. 16, No. 2, June 2010