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Hargis v. Baize5/19/2005
ot relieve railroad of liability for injury caused by its violation of Safety Appliance Act); D.H. Davis Coal Co. v. Polland, 62 N.E. 492, 495-96 (Ind. 1902) (provision in contract of employment by which employee relieved employer of duty to provide safeguards required by statute held unenforceable); Warren City Lines, Inc. v. United Refining Co., 287 A.2d 149, 151 (Pa. Super. 1971) (exculpatory clause in contract for lease of gasoline pump did not relieve lessor of liability for explosion caused by lessor's violation of safety regulation: "Any attempt by a negligent party to exculpate himself for a violation of a statute intended for the protection of human life is invalid."); Metz v. Medford Fur Foods, Inc., 90 N.W.2d 106, 108 (Wis. 1958) (hold-harmless agreement in contract of sale was unenforceable where damages were caused by seller's violation of statute prohibiting sale of adulterated foods).
Accordingly, we reverse the Court of Appeals and remand this case to the Muhlenberg Circuit Court with directions to vacate the summary judgment granted to Baize, to grant Appellants a partial summary judgment on the issue of Baize's liability, and to conduct further proceedings consistent with this opinion.
Lambert, C.J.; Graves, Scott, and Wintersheimer, JJ., concur.
Keller, J., dissents by separate opinion, with Johnstone, J., joining that dissenting opinion.
DISSENTING OPINION BY JUSTICE KELLER
Because this is a civil action by an employee against an employer and is based on a violation of the Kentucky Occupational Safety and Health Act (KOSHA), it is precluded by KRS 338.021(2), and therefore, I respectfully dissent.
A violation of KOSHA may not be the basis of a civil action by an employee against his or her employer. The Legislature could not have stated it any clearer when it authorized in KRS Chapter 338 the promulgation and adoption of the KOSHA regulations:
Nothing in this hapter shall be construed to supersede or in any manner affect any workers' compensation law or to enlarge or diminish or affect in any manner the common law or statutory rights, duties, or liabilities of employers or employees, under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of employment.
This exclusion is even repeated almost verbatim in KOSHA itself. In other words, if a civil action for an employee's injury or death did not exist before the adoption of KOSHA, then KOSHA could not be the basis thereafter for such an action. But the majority opinion has ignored this clear mandate of the Legislature, and a civil action based on a KOSHA violation is exactly what the majority has sanctioned with today's opinion.
To avoid the prohibition of the statute and to reach its desired result, the majority opinion employs the circular reasoning that although the KOSHA provisions themselves do not create a private right of action, violation of those provisions constitutes a violation of KRS 338.031(1)(b), which in turn invokes KRS 446.070 which provides that a "person injured by the violation of any statute may recover from the offender such damages as he sustained by reason of the violation." The majority opinion claims that this "creat a right of action in favor of a person damaged by a violation of KOSHA." The first four words of KRS 338.021(2)-"Nothing in this chapter"-are rendered totally meaningless by this reasoning. Those words, of course, are referring to KRS Chapter 338 and therefore include KRS 338.031(1)(b) and KRS 338.051(3), which specifically authorized the Kentucky Occupational Safety and Health Standards Board to promulgate and adopt the KOSHA regulation tha
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