Wendland v. AdobeAir, Inc – 12/8/2009

December 16, 2009

Arizona Court of Appeals Division One Holds That Standards in the Occupational Safety and Health Act Can Be Considered As Some Evidence of the Standard of Care in Negligence Cases Even When The Act Is Not Binding.

Wendland sued AdobeAir for negligence after falling into an open pit on property AdobeAir used as a manufacturing facility.  Wendland was not AdobeAir’s employee, but was a sub-contractor passing through AdobeAir’s building on his way to meet the general contractor.  Before trial, AdobeAir sought to exclude Wendland’s expert who relied on Occupational Safety and Health Act (“OSHA”) standards to support his opinion of AdobeAir’s standard of care.  The trial court allowed the OSHA evidence on the grounds that it was “some” evidence of negligence.  A jury found for Wendland and AdobeAir timely appealed.

In a unanimous opinion, the Arizona Court of Appeals affirmed.  First, AdobeAir argued that OSHA standards were inadmissible as evidence of the standard of care, relying on Pruett v. Precision Plumbing, Inc., 27 Ariz. App. 288, 293, 554 P.2d 655, 660 (1976).  Although some language in Pruett suggested that OSHA evidence was inadmissible to show the standard of care, the Court distinguished that language as dicta because Pruett concerned only what duties OSHA imposed and therefore did not control the issue whether OSHA standards are relevant to the standard of care in negligence cases. 

Second, the Court rejected AdobeAir’s argument that OSHA could not apply because Wendland was not AdobeAir’s employee.  Following the Restatement and a majority of other courts, the Court held that, although not binding on AdobeAir, OSHA standards could be considered as “some evidence of the standard of care” if there was adequate foundation.  Adequate foundation exists if (1) the OSHA standard is “directly related to the exercise of reasonable care” and (2) there is a “reasonable nexus” between the OSHA standard and the injury.  Applying its reasoning to Wendland’s injury, the Court held that the trial court appropriately allowed the expert to discuss OSHA standards for open pits.  It was clear that the jury was allowed to consider other evidence of the standard of care and was not told that OSHA’s requirements were mandatory.

Finally, AdobeAir challenged a jury instruction which said that OSHA evidence was introduced “for the limited purpose of suggesting standards to protect others from floor openings.”  The Court held that, though not perfect, the instructions sufficiently explained that the jury could consider other evidence of the standard of care in addition to the OSHA evidence.

Judge Brown authored the opinion; Judges Barker and Swann concurred.