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.

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