OSHA and the “Controlling Employer” Policy: No Automatic Legal Duty for General Contractors

In its recently published opinion in Kovacevich v. Reg’l Produce Coop. Corp., 172 A.3d 80 (Pa.Super. 2017), the Superior Court of Pennsylvania distinguished between violations of statutory standards and administrative directives in litigation stemming from Occupational Safety and Health Administration (OSHA) regulations. The court held that, while OSHA regulations can be used to determine appropriate standards in negligence actions, OSHA compliance directives—and specifically the “controlling employer” policy—do not establish tort liability under Pennsylvania law.

Kovacevich involved claims made by the plaintiff stemming from an injury caused by a co-worker’s operation of a pallet jack at the Philadelphia Wholesale Produce Market. The plaintiff, a salesman for one of the tenants at the market, filed a premises liability claim against the market’s management company in which he alleged the management company had control over the co-worker who was operating the pallet jack. One issue on appeal was whether the market’s management company was liable for the co-worker through OSHA’s “controlling employer” policy and whether a violation of an OSHA directive should constitute negligence per se.

Pennsylvania courts have adopted § 286 of the Second Restatement of Torts, which permits the use of legislative enactments designed to protect a class of individuals, such as the Occupational Safety and Health Act, to set the duty of care owed in a negligence case. In other words, Pennsylvania’s courts have ascertained that OSHA violations do not establish negligence per se but, rather, that OSHA regulations can be used to determine appropriate standards in negligence actions: “[a] failure to comply with OSHA regulations is not negligence per se, but it is some evidence of negligence.” Wood v. Smith, 495 A.2d 601 (Pa.Super. 1985)(court looked to OSHA regulations to determine appropriate standards applicable to erection of scaffolding). See also, Brogley v. Chambersburg Eng’g Co., 452 A.2d 743 (Pa.Super. 1982)(proper to utilize OSHA regulations to determine standard applicable to maintenance of equipment used in a forge).

The nuance involved in Kovacevich was the issue of OSHA’s “controlling employer” doctrine, an updated agency directive published in its policy manual, which instructs enforcement staff that more than one employer may be cited for an OSHA violation. This policy is significant in construction industry litigation, where the use of general contractors and subcontractors is especially prevalent. The requirement defines a “controlling employer” somewhat broadly as “one who has general supervisory authority over the worksite, including the power to correct safety and health violations itself or require others to correct them.” OSHA Compliance Directive 02-00-124 (Dec. 10, 1999).

Kovacevich alleged the market’s management company was liable for his injuries because of its failure to enforce OSHA regulations; the co-worker did not receive the proper training and certification required under OSHA regulations to operate the pallet jack machine. The plaintiff asserted the management company owed him a duty since it maintained control over the daily operations of the market and also exercised control over its tenants’ employees. The general manager of the market testified that, while the market did not have control or authority over its tenants’ employees, management could give “verbal corrections” for unsafe work performed in the common areas of the market. The plaintiff alleged that the combination of the OSHA violations together with the “controlling employer” doctrine were enough to find liability against the market’s management.

The Superior Court affirmed the trial court’s non-suit against the market’s management company, finding that the OSHA “controlling employer” policy does not establish a legal duty under Pennsylvania law. Pennsylvania courts have repeatedly emphasized the distinction between OSHA regulations that establish a standard of care compared to those that “merely describe OSHA’s enforcement policies.” Following the precedent of Leonard v. Commonwealth, 771 A.2d 1238 (Pa. 2001), a leading case on distinguishing the applicability of OSHA regulations, the court held that the “controlling employer” policy found in the compliance directive does not create a legal duty; rather, it is merely an enforcement policy.

Pennsylvania courts have established a strong precedent that, while evidence of OSHA violations is admissible at trial to prove the duty of care, an OSHA violation itself does not constitute negligence per se. Kovacevich goes one step further, excluding the use of OSHA compliance directives in a plaintiff’s attempt to create an additional statutory duty of care. The “controlling employer” doctrine is still a relevant and important focus for litigation, especially construction litigation, but the court has held that this theory must be supported by robust evidence that shows a general contractor’s control and authority over the employees of a subcontractor. Simply arguing liability under the OSHA “controlling employer” doctrine is not enough to substantiate claims against a general contractor who truly had no control over a subcontractor’s employees.

*Colin is an associate in our Philadelphia, Pennsylvania office. He can be reached at 215.575.2779 or cjobrien@mdwcg.com.

_{Defense Digest, Vol. 24, No. 3, September 2018. Defense Digest is prepared by Marshall Dennehey Warner Coleman & Goggin to provide information on recent legal developments of interest to our readers. This publication is not intended to provide legal advice for a specific situation or to create an attorney-client relationship. ATTORNEY ADVERTISING pursuant to New York RPC 7.1. © 2018 Marshall Dennehey Warner Coleman & Goggin. All Rights Reserved. This article may not be reprinted without the express written permission of our firm. For reprints, contact tamontemuro@mdwcg.com.}