# Thoma v. Kettler Bros., Inc. > District of Columbia Court of Appeals · October 18, 1993 · 632 A.2d 725 URL: https://www.frixlaw.com/law-library/cases/9766463 ## Case - **Full name:** Ann E. THOMA, Et Ux., Appellants, v. KETTLER BROTHERS, INC., Et Al., Appellees - **Court:** District of Columbia Court of Appeals - **Decided:** October 18, 1993 - **Citations:** 632 A.2d 725; 1993 D.C. App. LEXIS 251; 1993 WL 429273 - **Precedential status:** Published - **Opinion:** Concurring in part by Ferren - **Judges:** Ferren, Farrell, Sullivan - **Cited by:** 27 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9766463 ## How later opinions describe it (automated extraction) - stating negligence per se instruction improper because generality of regulation providing that “[djebris and other loose materials, shall not be allowed on or under stairways” and “[sjlippery conditions on stairways shall be eliminated as soon a possible” did not differ signif… - holding that a negligence per se instruction would have been improper because the regulations at issue did “not differ significantly in their particulars from the common law standard of reasonable care in the circumstances” - noting that the generality of the regulation providing that “[d]ebris and other loose materials, shall not be allowed on or under stairways” and “[s]lippery conditions on stairways shall be eliminated as soon as possible” did not differ significantly in particulars from the co… - finding that even when persons are not part of class intended to be protected by OSHA regulations, the regulations may be admissible as some evidence of the standard of care ## Opinion text FERREN, Associate Judge, concurring in part and dissenting in part: I agree with Judge Fakbell that the OSHA regulation at issue was admissible “as evidence of a standard [of care] by which the jury must measure the conduct of the defendants in determining whether they exercised that due care the law required in the situation.” Curtis v. District of Columbia, 124 U.S.App.D.C. 241 , 244, 363 F.2d 973, 976 (1966), quoted ante at 8; see Klein v. District of Columbia, 133 U.S.App.D.C. 129, 131-132 , 409 F.2d 164, 166-167 (1969), quoted ante at 8. I also conclude, in line with the reasoning in Judge Faerell’s footnote 11, see ante at 730 n. 11, — and contrary to Judge Sullivan’s view — that appellants did not waive entitlement to the proper instruction. 1 *733 I part company with Judge Farrell, however, on his invocation of harmless error, and thus I respectfully dissent from affirmance. In Curtis, on which Judge FARRELL and I rely, the court reversed the judgment on a jury verdict for the defendants. In concluding that plaintiff-appellant had been entitled to the omitted instruction, the Curtis court did not consider harmless error, apparently believing that the jury would not necessarily have come out the same way if it had known it was entitled to find evidentiary value in the defendants’ violation of a provision of the building code. 2 Similarly, I cannot say that the jury’s failure to learn of “a nationwide legal standard” bearing the “imprimatur” of OSHA regulators 3 — a standard that was relevant to the common law duty appellees owed Mrs. Thoma — could have had no effect on the jury’s verdict. In Rolick, supra note 3, the United States Court of Appeals for the Third Circuit reversed for failure to inform the jury about an OSHA standard, as against a harmless error challenge, even though the jury was told that the defendants had violated an American Pulpwood Association standard that actually incorporated the undisclosed OSHA standard. See id., 975 F.2d at 1014. The case for harmless error was even stronger in Rolick than it is here. I would therefore reverse and remand for a new trial. . Judge Farrell refers to the trial judge’s reasons for declining to give the proposed instruction— reasons which "appellees do not defend, and which we find unsustainable, on appeal." Ante at 730 n. 11. First, the judge relied on the fact that the regulations in effect at the time of the accident had been replaced by the time of trial. More specifically, the earlier regulations had been replaced because they were “redundant or ambiguous or are not clearly applied to all situations,” 55 Fed.Reg. 47661 (1990). The regulation in effect at the time of trial provided that "[sjlippeiy conditions on stairways shall be eliminated before the stairways are used to reach other levels." 29 C.F.R. § 1926.1052 (a)(7) (1992). But as evidence of the standard of care governing appellees’ conduct, the regulations in effect at the time of the accident clearly were relevant. Moreover, the succeeding regulations, *733 while eliminating as “redundant” the express requirement of debris removal, maintained and even strengthened the requirement that an employer eliminate slippery conditions from stairways. Second, the judge concluded that the regulation applied only to emergency situations or "temporary” stairways used in the construction process, not those incorporated into the permanent structure. But neither the old nor the new regulations made this distinction with regard to the safety condition of stairways. Title 29 C.F.R. § 1926.1050 provides that this subpart ("Stairways and Ladders”) "applies to all stairways ... used in construction, alteration, repair ...” (emphasis added). And where a requirement was to relate to stairways “that will not be a permanent part of the structure,” the drafters used those precise words or equivalent language. See 29 C.F.R. § 1926.1052 (a)(1); see also id. § 1926.1052(b) ("Temporary service”). Absent clearer indication in the text, I cannot agree that the regulators meant to relieve a contractor of the duty to prevent slippery or dangerous conditions whenever the contractor used the permanent staircase for access to other levels during construction. . The other principal case on which Judge Farrell and I rely, Klein , reversed the grant of a directed verdict at the end of the plaintiffs’ case. . Rolick v. Collins Pine Co., 975 F.2d 1009, 1014 (3d Cir.1992). --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9766463. Public record. Not legal advice.