endorsing instruction defining proximate cause as "that which, in continuous sequence, unbroken by a new cause, produces an event, and without which the event would not have occurred"
How later courts described this case
- endorsing instruction defining proximate cause as "that which, in continuous sequence, unbroken by a new cause, produces an event, and without which the event would not have occurred"
- "A statute, ordinance, or regulation 'is evidence of negligence on the part of a violator as to all consequences that the statute, ordinance or regulation was intended to prevent.’ "
- “This court has never held that safety statutes … are admissible to prove causation. Negligence and causation are separate matters.”
Written by the judges who cited it.
The opinion
Nolan, J.,
(dissenting, with whom Liacos, C.J., and Abrams, J., join). The trial judge in this case excluded evidence which was not only relevant but crucial to the plaintiffs case. For this reason, the plaintiff is entitled to a new trial, and therefore I dissent.
The majority’s opinion rests on an issue which is not before this court. See Mass. R. A. P. 16 (a) (4), as amended, 367 Mass. 921 (1975). Whether the OSHA regulations were properly offered in evidence is an issue which was not raised, briefed, or argued by either party. Indeed, contrary to the court’s holding, both parties assume in their briefs that Roberts sought to introduce regulations of the Occupational Safety and Health Administration (OSHA) and that the judge excluded them. The transcript reveals that Roberts’s counsel twice approached the subject of OSHA regulations *479 and each time the judge prevented any further exploration. 1 As to which regulations Roberts sought to introduce, the transcript records that Roberts’s counsel referred to the “general safety” regulations and stated that he planned to address “[f]ive particular points.” He addressed only one point before the judge interrupted. The second time the judge repeated his decision “not ... to let [the expert witness] get into the OSHA regulations based on the evidence . . . in front of me.” The majority claims that by these words the judge did not “exclude” the regulations, ante at 469, yet it seems to me and apparently to both parties as well that to keep evidence from coming in is to “exclude” it. Moreover, the majority fails to consider that a judge’s attitude and inflections, which are not reflected in the transcript, may on occasion communicate a ruling more effectively than words. In this case, the transcript, ambiguous at best, simply does not substantiate the decision to address an issue not raised by the parties. As a result, there is no firm ground to support the majority’s opinion; it is built in the clouds.
The OSHA regulations are relevant to the issue of proximate cause, which as the court notes, ante at 469, was the crux of the case at trial. If a plaintiff’s injuries are the foreseeable result of the defendant’s breach of duty or a natural and probable consequence of the defendant’s negligence, such negligence was the proximate or legal cause of the injuries. See Rae v. Air-Speed, Inc., 386 Mass. 187, 193 (1982) (foreseeable cause); Marshall v. Carter, 301 Mass. 372, 377-378 (1938), quoting Ogden v. Aspinwall, 220 Mass. 100, 103 (1915) (probable consequence). See generally J.R. Nolan & L.J. Sartorio, Tort Law § 226, at 370-374 (2d ed. 1989). An *480 accurate standard of care, therefore, is crucial in determining what injuries could be the natural and probable consequence of a breach of that duty.
To establish the scope of the duty owed by the defendant, Roberts sought to introduce evidence that the defendant was in violation of safety and health regulations. The OSHA regulations outline, inter alla, the defendant’s duty to train and to educate employees in the recognition and avoidance of all unsafe conditions at a work site, 29 C.F.R. § 1926.21 (b) (2), as well as to conduct frequent and regular inspections, § 1920.21 (b) (2), and store materials properly, § 1926.250 (a) (1). These affirmative statutory duties go well beyond the obligations owed to invitees at common law. See Mounsey v. Ellard, 363 Mass. 693, 707 (1973) (common duty of reasonable care). Cf. Comean v. Brown-Wales Co., 348 Mass. 800 (1965) (defendant not negligent because no duty to store materials properly and no duty to warn of “self-evident” danger in storage area). Although the regulations refer only to “employees,” the duty owed to an employee is relevant to the scope of the duty owed to a trainee like Roberts who performs similar tasks and hence is subject to the same risks as employees. 2 Thus, the regulations significantly enlarge and clarify the scope of Southwick’s obligation to Roberts.
Roberts also attempted to introduce expert testimony concerning the force needed to topple properly-stacked sheetrock of the size and amount which fell on her. The judge refused to allow this testimony because he believed that such evi *481 dence was not expert testimony but mere common knowledge. Common knowledge, however, is not the standard for excluding expert testimony in Massachusetts. A trial judge must determine whether the expert’s testimony would be of assistance to the jury in resolving a factual issue. Commonwealth v. Francis, 390 Mass. 89, 98-99 (1983), and cases cited. Accord Proposed Mass. R. Evid. 702. We have noted that “the line between matters of common knowledge and matters beyond common knowledge often is not precise.” Commonwealth v. Trainor, 374 Mass. 797 , 801-802 (1978). As a result, a judge’s attention is more properly focused on what assistance, if any, the expert’s testimony could provide to the jury. Id. at 802. If the testimony would not aid the jury because it was clearly within common knowledge, then it may be properly excluded. E.g., Thomas v. Tom’s Food World, Inc., 352 Mass. 449, 451 (1967) (expert testimony not needed to show that greasy ramp at forty or forty-five degree angle was dangerous). The handling of sheetrock is not a matter clearly within common knowledge.
The exclusion of the OSHA regulations and the expert’s testimony was not harmless error. If either had been introduced as evidence, the jury might have reached a different result. They might have concluded, for example, that absent the proper warnings or training, it was foreseeable that an inexperienced trainee might attempt to move a pile of improperly-stacked sheetrock. If so, then Roberts’s negligence would not be an intervening act and would not break the chain of causation proceeding from the defendant’s breach of duty. See Horan v. Watertown, 217 Mass. 185, 186 (1914); J.R. Nolan & L.J. Sartorio, Tort Law § 228, at 381-382 (2d ed. 1989). Southwick’s negligence, therefore, would be the “operative factor” or proximate cause of Roberts’s injuries.
For these reasons, Roberts is entitled to a new trial. See DeJesus v. Yogel, 404 Mass. 44, 49-50 (1989).
It is also important to note that, during the voir dire of Roberts’s expert witness, Roberts’s counsel asked whether the “precarious” nature of the improperly-stacked sheetrock “would be readily apparent to the normal common sense person.” Such a question squarely addresses the subject matter of 29 C.F.R. § 1926.21 (1991), the safety training and education regulation, which requires employers to train and to educate employees on how to recognize and to avoid workplace dangers. When Roberts’s counsel asked if he could “make an offer of proof’ on that point, the judge refused to allow it.
The record indicates that the workshop offered supervised, hands-on, on-site training, and that on the day of her injury Roberts was assisting a supervisor in nailing clapboards to the outside of a house. It was the supervisor who asked Roberts to go inside the house and look for the nail marks in the same room as the pile of sheetrock. Therefore, when Roberts was injured, she was performing the task of an employee under an employee’s supervision. Since her injuries were work related, they were of a kind which the regulation was designed to prevent.
Obviously, Southwick’s duties as prescribed by the OSHA regulations would not apply to trespassers, visitors, or others who were not relying on the contractor’s supervision and performing the same tasks as her employees.