Michael Pratico v. Portland Terminal Company (1985)

But see Pratico v. Portland Terminal Co., 783 F.2d 255, 266-68 (1st Cir.1985) (holding that violation of an OSHA regulation may be considered negligence per se and thereby, bar a finding of comparative negligence); Elliott v. S.D.

But cf. Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985), which holds that a negligence per se rule may be applied.

See id.; but see Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985).

But see Pratico v. Portland Terminal Co., 783 F.2d 255, 265 (1st Cir.1985) (holding violation of OSH Act may be basis of negligence per se claim).

Hearings on H.R. 843, H.R. 3809, H.R. 4294 and H.R. 13373 before Select Sub-comm. on Education and Labor, 91st Cong., 1st Sess., Pt. 2, at 1592-93 (emphasis added) (quoted in Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985)).

In that context, we held that the violation of a regulation validly promulgated by OSHA under the Occupational Safety and Health Act (OSH Act), 29 U.S.C. §§ 651-678, could be deemed negligence per se. 783 F.2d at 266-67.

Pratico v. Portland Terminal Co., 783 F.2d 255, 262 (1st Cir.1985); Restatement (Second) of Torts § 286 (1965).

Silberman, Solicitor of Labor), quoted in Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985).

Silberman, Solicitor of Labor), quoted in Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir. 1985).

See Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231, 1238 (5th Cir. Unit B 1982); Pratico v. Portland Terminal Co., 783 F.2d 255, 264-66 (1st Cir.1985); Donovan v. General Motors, 762 F.2d 701, 705-06 (8th Cir.1985). 10 Williams next argues that even if Kentucky law would impose the KOSHA regulations as South State's standard of care, Kentucky law is preempted by OSHA.

Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985) (quoting Occupational Safety and Health Act of 1969: Hearings on H.R. 843, H.R. 3809, H.R. 4294, and H.R. 13373 before the Select Subcomm. on Education and Labor, 91st Cong., 1st Sess., Part 2 at 1592-93 (letter of L.H.

Pratico v. Portland Terminal Co., 783 F.2d at 267 (further noting absence of legislative history that Congress intended to limit “the safety statutes which would trigger the elimination of contributory negligence under § 53”).

Id. at 263-64, 267 ; Pl.’s Resp. in Opp’n. re Def.’s Mot. in Limine Regarding References to Negligence Per Se at 2-3.

Pratico v. Portland Terminal Company, 783 F.2d 255, 265 (1st Cir.1985) (finding a claim for negligence per se based upon a violation of OSHA regulations).

Even before the Pedraza opinion, the First Circuit had held “[t]he legislative history of § 653(b)(4) shows that the intent of the provision was merely to ensure that OSHA was not read to create a private right of action for injured workers which would allow them to bypass the otherwise exclusive remedy of worker's compensation.” Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir. 1985).

Even before the Pedraza opinion, the First Circuit had held “[t]he legislative history of § 653(b)(4) shows that the intent of the provision was merely to ensure that OSHA was not read to create a private right of action for injured workers which would allow them to bypass the otherwise exclusive remedy of worker's compensation.” Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir. 1985).

See Pratico, 783 F.2d at 262 (“review of these regulations reveals . . . no regulations covering the procedure and equipment to be used,” i.e., a jack, 5 to lift “brasses”).

See Pratico , 783 F.2d at 262 ("review of these regulations reveals ... no regulations covering the procedure and equipment to be used," i.e., a jack, to lift "brasses").

Under the traditional negligence per se analysis, “proof of a defendant’s violation of a safety statute designed to protect the party who was injured against the type of injury which occurred, relieves the plaintiff from pleading the negligence elements of foreseeabil ity, duty and breach.” Moody v. Boston & Maine Corp., 921 F.2d 1, 4 (1st Cir.1990) (citing Pratico v. Portland Terminal Co., 783 F.2d 255, 262 (1st Cir.1985); Restatement (Second) of Torts § 286 (1965)).

Portland Terminal Co., 783 F.2d 255, 262-63 (1st Cir. 1985), the plaintiff asserted a negligence per se claim under the Federal Employers’ Liability Act (“FELA”) on the ground that the defendant’s actions, which caused his injuries, violated OSHA regulations.

R.R., 808 F.2d 329, 332-33 (4th Cir.1987)), and one court has even allowed testimony about a defendant’s violation of OSHA regulations to be considered as per se evidence of negligence (Pratico v. Portland Terminal Co., 783 F.2d 255, 264-67 (1st Cir.1985)).

(See Pratico v. Portland Terminal Co. (1st Cir. 1985), 783 F.2d 255, 265-66 (OSH Act does not create private right of action against employer).) Aside from the sweeping language of the saving clause, the relevant case authority supports this view.

Id. at 1368 , citing Pratico v. Partland Terminal Co., 783 F.2d 255, 264-65 (1st Cir.1985); Dixon v. International Harvester Co., 754 F.2d 573, 581 (5th Cir.1985).

Cf. Pratico v. Portland Terminal Co., 783 F.2d 255, 264-67 (1st Cir.1985) (holding OSHA violations may be used as evidence of negligence per se under FELA).

While Martin Construction relies greatly upon First Circuit's holding in Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985), this decision does not address the issue presently before us; rather, Pratico was concerned with how OSHA affects tort actions, not with whether OSHA preempts state tort law.

Pratico v. Portland Terminal Co., 783 F.2d 255, 264-65 (1st Cir.1985); Dixon v. International Harvester Co., 754 F.2d 573, 581 (5th Cir.1985).

(See Pratico v. Portland Terminal Co. (1st Cir. 1985), 783 F.2d 255, 266 (“Our review of the legislative history of OSHA suggests that it is highly unlikely that Congress considered the interaction of OSHA regulations with other common law and statutory schemes other than worker’s compensation”).) Indeed, OSHA provides principally civil sanctions and only a few minor criminal sanctions for violations of its standards.

Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985). 2 The plaintiff’s theory is essentially a bootstrap argument.

Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503 , 34 S.Ct. 635 , 58 L.Ed. 1062 (1914); see also Pratico v. Portland Terminal Co., 783 F.2d 255, 267-68 (1st Cir. 1985); Chicago Great Western Ry.

Seaboard Air Line Ry. v. Horton, 233 U.S. 492, 503 (1914); see also Pratico v. Portland Terminal Co., 783 F.2d 255, 267-68 (1st Cir. 1985); Chicago Great Western Ry.

See id. at 264 (identifying the Fifth Circuit as “the only circuit court to have addressed this issue”) (citing, inter alia, Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231 (5th Cir. Unit B 1982), and Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. Unit A 1981)).

See Pratico v. Portland Terminal Co., 783 F.2d 255, 269 (1st Cir.1985) (Campbell, C.J., dissenting on other grounds) (exclusion of a statute or regulation is of little effect when the jury finds the defendant’s conduct was negligent for other reasons).

See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985) ("The legislative history of § 653(b)(4) shows that the intent of the provision was merely to ensure that OSHA was not read to create a private right of action for injured workers which would allow them to bypass the otherwise exclusive remedy of workers' compensation.").

See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985) (“The legislative history of § 653(b)(4) shows that the intent of the provision was merely to ensure that OSHA was not read to create a private right of action for injured workers which would allow them to bypass the otherwise exclusive remedy of workers’ compensation.”).

See, e.g., Practico v. Portland Terminal Co., 783 F.2d 255, 265-67 (1st Cir. 1985); Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231, 1238 (5th Cir. 1982); Byrd v. Fieldcrest Mills, Inc., 496 F.2d 1323 (4th Cir. 1974).

Compare Pratico v. Portland Terminal Co., 783 F.2d 255 , 265–68 (1st Cir. 1985) (holding that an OSHA violation gives rise to negligence per se under the Federal Employers Liability Act (“FELA”) and eliminates the application of contributory negligence), and Rabon v. Automatic Fasteners, Inc., 672 F.2d 1231, 1238 (5th Cir. 1982) (noting, in dicta, that a violation of an OSHA regulation can, “in appropriate circumstances” be 17 issue here—OSHA—does not eliminate the applicati…

See Pratico v. Portland Terminal Co., 783 F.2d 255, 262 (1st Cir.1985).

See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 265 (1st Cir.1985) (finding that plaintiffs could bring a negligence per se claim based on a violation of Occupational Safety and Health Act even though the statute did not provide a private cause of action); Sorenson v. H & R Block, Inc., No. 99-cv-10268-DPW, 2002 WL 31194868 , at *10, 2002 U.S. Dist.

See Pedraza v. Shell Oil, Co., 942 F.2d 48, 52 (1st Cir.1991) (citing Pratico v. Portland Terminal Co., 783 F.2d 255, 266 (1st Cir.1985)).

See, e.g., Practico v. Portland Terminal Co., 783 F.2d 255, 265 (1st Cir.1985) (finding that plaintiffs could bring a negligence per se claim based on a violation of Occupational Safety and Health Act even though the statute did not provide a private cause of action); Sorenson v. H & R Block, Inc., No. 99-cv-10268-DPW, 2002 WL 31194868 , at *10, 2002 U.S. Dist.

See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 265-267 (IV) (1st Cir.1985) ("[A] violation of an OSHA regulation can be considered negligence per se [when] there [is] an independent cause of action established by either state or federal law which establishes the right of an employee to be free from negligence, the duty of the employer to take reasonable precautions, and the liability of the employer for injuries caused by the failure to take reasonable precaution…

See Prati-co v. Portland Terminal Co., 783 F.2d 255, 265-67 (1st Cir.1985); Restatement (Second) of Torts § 874A cmt. e. However, many of the same considerations that are relevant to determining whether to identify a new private right of action are also relevant to determining whether a specific statutory standard of conduct should be imported into a negligence action. 6 .

See Pratico v. Portland Terminal Co., 783 F.2d 255, 265-67 (1st Cir. 1985); Restatement (Second) of Torts § 874A cmt. e. However, many of the same considerations that are relevant to determining whether to identify a new private right of action are also relevant to determining whether a specific statutory standard of conduct should be imported into a negligence action. 6 W .

See Daggett, supra; see also Pratico v. Portland Terminal Co., 783 F.2d 255, 262 (1st Cir.1985) (“[N]egligence per se will be found where violation of a statutory duty caused precisely the kind of harm which the statute was designed to prevent.”); Dan B.

Accord Pratico, 783 F.2d at 263 . ¶83 Accordingly, we hold that the District Court did not err when it instructed the jury that a violation of the federal regulations applicable to locomotive noise emissions constituted negligence per se.

See Pratico v. Portland Terminal Co., 783 F.2d 255, 265 (1st Cir.1985).

See Pratico v. Portland Terminal Co. , 783 F.2d 255, 265 (1st Cir. 1985).

See Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985); Sanchez v. Galey, 112 Idaho 609 , 733 P.2d 1234 (1986).

See, e.g., Pratico v. Portland Terminal Co., 783 F.2d 255, 266-68 (1st Cir.1985); Kelley v. Howard S. Wright Const. Co., 90 Wash.2d 323 , 582 P.2d 500, 508 (1978).

See Pratico v. Portland Terminal Co., 783 F.2d 255 (1st Cir.1985) (absent a statutory violation, traditional negligence principles apply in an action under the FELA).