OSHA Retail Guidelines Don't Establish Standard of Care, Court Rules

A March 27 decision by a panel of the U.S. Court of Appeals for the District of Columbia Circuit points out a problem when OSHA uses guidelines rather than mandatory standards to influence employers -- a problem if you're a plaintiff, at any rate. Plaintiff Judith Briggs' wrongful death suit for damages against the Washington Metropolitan Area Transit Authority because her son, a physician, was murdered in August 2000 near the top of the escalators at a Metro subway station outside the new Washington convention center failed because her expert witness could not cite an applicable national standard that would have required WMATA to increase the lighting where Dr. Gregory Derringer was stabbed to death or to remove sheets of construction plywood that concealed the location.

The witness did cite OSHA's guideline for late-night retail establishments, but that is not a controlling standard, Senior Circuit Judge Harry T. Edwards wrote in the 3-0 decision upholding summary judgment for the defendants.

The case is Judith C. Briggs v. Washington Metropolitan Area Transit Authority, et al., No. 06-7037. The opinion says Briggs failed to meet her burden of establishing that a standard of care was required of WMATA, and this failure doomed her lawsuit. The expert witness said OSHA's guidelines and Crime Prevention Through Environmental Design (CPTED) both had been used for years to increase security and deter robberies, but he admitted in his deposition that there is no national security standard for lighting nor a standard covering the appropriate timing for removing construction fencing, according to the opinion.

Download Center

  • Safety Metrics Guide

    Is your company leveraging its safety data and analytics to maintain a safe workplace? With so much data available, where do you start? This downloadable guide will give you insight on helpful key performance indicators (KPIs) you should track for your safety program.

  • Job Hazard Analysis Guide

    This guide includes details on how to conduct a thorough Job Hazard Analysis, and it's based directly on an OSHA publication for conducting JHAs. Learn how to identify potential hazards associated with each task of a job and set controls to mitigate hazard risks.

  • A Guide to Practicing “New Safety”

    Learn from safety professionals from around the world as they share their perspectives on various “new views” of safety, including Safety Differently, Safety-II, No Safety, Human and Organizational Performance (HOP), Resilience Engineering, and more in this helpful guide.

  • Lone Worker Safety Guide

    As organizations digitalize and remote operations become more commonplace, the number of lone workers is on the rise. These employees are at increased risk for unaddressed workplace accidents or emergencies. This guide was created to help employers better understand common lone worker risks and solutions for lone worker risk mitigation and incident prevention.

  • EHS Software Buyer's Guide

    Learn the keys to staying organized, staying sharp, and staying one step ahead on all things safety. This buyer’s guide is designed for you to use in your search for the safety management solution that best suits your company’s needs.

  • Vector Solutions

Featured Whitepaper

OH&S Digital Edition

  • OHS Magazine Digital Edition - May 2022

    May 2022

    Featuring:

    • WEARABLE TECHNOLOGY
      How Wearable Technology is Transforming Safety and the Industrial Workplace
    • TRAINING: CONFINED SPACES
      Five Tips to Improve Safety in Confined Spaces
    • INDUSTRIAL HYGIENE
      Monitor for Asbestos to Help Save Lives
    • PPE: FALL PROTECTION
      Fall Protection Can Be Surprising
    View This Issue