The question in this personal-injury case was whether OSHA regulations can be used as evidence of the standard of care.

Wendland was visiting a building owned by AdobeAir’s landlord; to do so he had to cross industrial space leased by AdobeAir, where he fell into a large pit.

His expert proposed to testify, based on OSHA standards, that AdobeAir had not properly cordoned off the pit. AdobeAir objected, arguing that under a prior Arizona case OSHA standards are irrelevant and that OSHA did not apply since Wendland  was not an AdobeAir employee. The trial court allowed the testimony, with an instruction telling the jury that the OSHA evidence was “for the limited purpose of suggesting standards to protect others from floor openings.”

It was undisputed that OSHA did not technically apply here and the court pointed out that OSHA does not by its terms create a private right of action, requiring instead that personal-injury actions be based on a separate duty. Wendland’s claim was based on AdobeAir’s common-law duty as the possessor of the premises; the parties agreed that he was a licensee. The court decided that “the question is whether [OSHA] regulations were appropriately referred to . . . as some evidence of the standard of care . . .”

The court held that the prior case, named Pruett, was a case about the issue of duty and does not make OSHA irrelevant on the issue of standard of care.

The court then held that “an OSHA standard may be considered as some evidence of the standard of care even when OSHA requirements are not binding on the defendant, so long as there is sufficient foundation (1) establishing that the standard at issue is directly related to the exercise of reasonable care and (2) a reasonable nexus exists between the proffered standard and the circumstances of the injury.” The jury can be instructed appropriately so that it understands that OSHA is not binding but is only one of the factors it can use to to determine whether the defendant was negligent. The court approved the trial court’s instruction but said that “it would have been better if the trial court had explicitly stated that the OSHA standards could only be considered as some evidence of the standard of care.”