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Hargis v. Baize5/19/2005
f] does not create a private right of action." As further noted by the Ellis Court, " he Act itself explicitly states that it is not intended to affect the civil standard of liability." Like in Ellis, Baize owed no duty independent duty to Hargis. And KRS 446.070 does not create an independent duty; it merely provides for enforcement of a breach of an existing statutory duty other than one contained in KOSHA. Yet under the majority's interpretation, KRS 338.031(1)(b) provides the duty that KRS 446.070 allegedly gives effect to. Lest the majority forgets, KRS 338.031(1)(b) is a part of KOSHA; any duty it supposedly creates is not independent of KOSHA. But even if the holding of Ellis could be perverted to support the majority opinion, the federal court's interpretation of OSHA is not binding on this Court in our construction of KOSHA, and a reading of the exclusion clearly shows an intention by the Legislature to preclude this type of action.
For the above reasons, I dissent and would affirm the Court of Appeals.
Johnstone, J., joins this dissenting opinion.
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