*1 psychological physiological problem.3 Accordingly, rather than superior misplaced. court’s conclusions were

For reasons, these the State Board was authorized find that establishing Wilson failed her to meet burden of a causal connection employment. between her and her condition It is true another might given conclusion, factfinder have reached a different Dr.

Empting’s testimony. But the result, record did not demand such a supported and at least some evidence the State Board’s conclusions. superior improperly

Because the court substituted itself as the superior Board, factfinder must be lieu the State court’s decision (USA), App. Inc., YKK reversed. See 287 Ga. at 537. See also (674 County App. Harris Peach Commrs., v. Bd. 36) (2009) (“[T]he fact-finding body SE2d must in each case remain compensability injury the final arbiter of the and of whether disability the claimant’s arose out of the as well as in it.”) omitted). (citation, punctuation the course of and footnote Hospital remaining 2. We need not address the Defendants’ light enumerations of error of our decision in 1. Division Judgment Appellate Judge Barnes, J., reversed. P. and Senior G.

Alan Blackburn concur. Decided October 23, 2010

Reconsideration denied November appellants. Elliott, Wall, Wall & Cronin, Elton L. Claire for Morgan Morgan, appellee. Conner, & Ronald C. Liner,

Rebecca E. amicus curiae. TRANSPORTATION,

A10A1289. SMITH v. CSX INC. SE2d Judge. Ellington, Larry property After and fell on stairs owned Transportation, brought against CSX Inc., this action order, decision, superior adopted by court also noted that the AU’s as Board, passing family State made a reference to the had fact Wilson other members who psychological superior had suffered from illness. court concluded that the ALJ and State by improperly inferring psychological Board erred that Wilson suffered from a based illness upon history. significant her familial But since there was far other more medical evidence problems psychological origin, namely, the record that Wilson’s were the assessment of a her, neurologist history improper who evaluated inference the familial drawn from (2) (526 379) (1999). See, e.g., County Higgins, App. harmless. Compare Bibb 241 Ga. SE2d (2) (451 74) (1994). Leonard, Ga. Power Co. v.

898 Employ- County Superior Federal under the Court of Gwinnett (“FELA”).1 jury Liability in favor of A returned a verdict

ers’ Act Following trial, a new Smith denial of his motion for CSX. admitting contending appeals, in trial court erred addition, In he contends fell, he was “out of service.” at the time he jury regarding failing a federal in to instruct the the trial court erred requires slip-resistant regulation nos- stair treads that explained workplace. ings2 below, we reverse. For the reasons employed as a CSX conduc- that Smith was The evidence shows April Administration 6, 2004, when he went to the Terminal tor on safety mandatory Building Walbridge, union Ohio to attend a capacity meeting Smith took interior in his as a local chairman. slipped meeting Smith’s foot as second-floor room. stairs to reach the puddle liquid soap stepped tread that had a small on a stair step. year edge later, Smith had left knee hit the One it, and his surgery. knee provides damages pursuant FELA, which for

Smith sued CSX injured remedy employees who are on the for railroad a federal tort engaged job.3 protects employee for a railroad FELA who works employ- or further the commerce and whose duties affect interstate employee transportation that business whenever er’s interstate employment.4 working scope Activities within of his or her within necessarily scope employment that are inciden- include those employee duty, employment, if is off but not those even the tal to relationship having private purpose no causal for a undertaken against employment.5 FELA, In CSXunder order to recover with the protected required prove, alia, that he was was inter Smith injury; negligent in FELA at the time of that CSX duty care under the circum- breached its to exercise reasonable reasonably place provide work; safe which to stances to Smith a 1 seq. 45 USC 51 et 2 immediately projecting beyond nosing portion the face of the riser “[t]hat A of a tread (b) (2). below.” 29 CFR 1910.21 3 (III) (A) (7th 1031, R., Regional 211 1035 Kossman v. Northeast Illinois Commuter F3d (Because 766) (1994) 2000). 707, Transp., 708 Cir. See Neal v. CSX County, registered agent registered for service in Gwinnett venue maintains its office and there.). proper FELA of a state court action is (II) (6th 2001); Co., 255, Hardyman Cir. Moore v. v. &c. R. 243 F3d Norfolk (2) (4th 1981); Co., 1004, Chesapeake Coastline R. R. F2d Cir. Fowler v. Seaboard &c. (5th 1981). Co., 638 F2d Cir. (2d 1994); Corp., Baker v. Baltimore Rail 19 F3d Cir. Rostocki Consolidated 1974). (6th Co., F2d Fowler v. Seaboard Coastline R. &c. R. 502 F2d Cir. See (“[T]he proper scope [is] FELA whether the act was one in an case at 20 test employee might reasonably employer might reasonably have foreseen and which the which the necessary employer.”). thought in the interest of or the benefit negligence played part injury.6 and that CSX’s some Smith’s any trial, Before Smith in limine to moved exclude evidence that disciplined April arguing incident, CSXhad him before the such evidence bad character was irrelevant the issue whether applies particular, sought FELA his claim. to exclude April evidence that stairs, several hours before he supervisors him

two observed violate a rule told *3 granted him that he of was “out service.” The trial court the motion. Notwithstanding argued, ruling, opening CSX state- .

ment, that morning.

Smith should not have been there He that had just by company been taken out of service hours before ... him, service,”

officials who told “You’re out of which he you’re company means not knows property. allowed to come on not have So he should even been there. being cross-examination,

On CSX’scounsel asked Smith whether out employee go property of service that means cannot onto CSX permission. responded without Smith that does not mean that.

Counsel then asked whether it was Smith’s contention that he was April affirmatively of not taken out service on 6. Smith testified that “[he] morning. of was not taken out service” that CSX’s counsel safety meeting, whether, then asked Smith hours before the two supervisors, they Forro, Jim him Horner and Justin told that had moving equipment, safety seen him dismount a rule violation. Smith they they had, admitted that testified him but that did tell that they addition, he was out of service. he testified that lacked the authority him of take out service. beginning prohibit case-in-chief,

At of CSX’s Smith moved to deposition testimony presenting from at trial the of Horner and testimony. Forro. The trial court denied the motion and allowed the Employing general jury form, verdict found in favor CSX. question

1. whether, Smith contends that the at the time injury, employee working the course of his question Further,

interstate commerce of law for the court. he day that, even if he contends had been taken out of service on the he slipped, furthering established, law, the evidence as a matter of that he was by attending

CSX’s business interstate commerce mandatory safety meeting and, therefore, as a union local chairman protections result, contends, he entitled to the FELA. aAs he any he evidence that had been taken out of service was irrelevant to 6 Hardyman (II); &c. at R. 243 F3d Kossman v. Northeast Illinois Norfolk (III) (A). R., Regional Commuter 211 F3d at 1035-1036 jury, admitting

issue and the trial erred to be decided court safety it. that that he committed a serious Smith contends evidence credibility poorly and, rule reflected on his violation character prejudiced therefore, the trial error him.7 “We review a that court’s admissibility trial decisions of evidence under an court’s (Citation omitted.) punctuation discretion standard.” abuse of (2) (679 Foods, Fuller v. Flash (2009). granted above, limine, motion in

As noted the trial court Smith’s disciplined ruling Smith, that CSX inadmissible evidence had April including the stairs on hours before 6, 2004, Horner and told him that he was “out of service” Forro violating they him rule. When because had observed CSX’s he had been taken out of service that counsel asked delayed objection morning, however, Smith’s counsel to that line questioning affirmatively until after Smith testified Horner *4 April and Forro did not tell him that he was out of service 6. may impeached by “[a] Georgia disproving law, be Under facts witness the by [or her].” Although him OCGA testified to 24-9-82. a may impeached by “wholly disproving not be that are witness facts may case, to the issue the “indirectly a witness immaterial” matters at impeached on a issue which is material” to the collateral (Citation omitted.) Barngrover punctuation at issue. and v. matters (1) (657 14) (2008). App. 410, Hins, 289 Ga. SE2d surrounding

We conclude that the circumstances Smith’s dis- pute hours went with Horner and Forro a few before Smith building meeting the were administration indirectly to attend at least including case, to at issue material matters this acting scope within of his when the he fell. Although ruling the favorable on Smith’s motion limine did not encompassed require object by motion,8 him to to evidence we questioning to the conclude once Smith submitted issue seeking ruling, opened limine the without to enforce the door to being impeached disprove his with evidence that tended to testi- Accordingly, mony. allowing the did trial court not abuse discretion admitting to Smith on

CSX cross-examine the issue and testimony purposes disproving the of Horner Forro for certain 7 Although we have that Smith is to a new trial for the concluded entitled reasons infra, 2, may and, therefore, explained evidentiary issue we in Division this recur address this claim error here. (295 (Where (1) 94) (1982) Reno, 855, See Reno v. Ga. 855-856 SE2d trial court evidence, grants by the a motion in limine to exclude certain and the nonmovant violates order limine, offering encompassed by the motion in the movant nevertheless object need review.); preserve appellate Chapman, App. 203 Ga. in order to issue for Scott v. (1) 111) (1992) (416 (accord). SE2d facts to which Smith had testified. Morris State &c. v. Farm Ins. (9) (418 203 Ga. App. (1992); SE2d & Co. v. Swift (97 168) (1957).

Lawson, App. 35, Ga. SE2d 2. Smith contends the trial court erred in to failing instruct jury, as he requested, regarding regulation issued the federal (“OSHA”) Occupational Safety Health Administration requires that stair treads be reasonably and that slip-resistant nosings have a finish.9 “A requested charge should be given evidence, has been raised embraces correct and where law, complete principle has not been in the substantially included given, instructions and is evi specifically adjusted (Citation omitted.) dence.” Nelson, State Farm v. punctuation (2) (673 588) (2009).10 App. SE2d is duty It the trial court on the law charge jury to the issues where applicable there evidence on which to instructions. A refusal predicate give a error [requested] charge is if the is a correct charge state- ment of the law applicable the issues involved.

(Citations omitted.) and punctuation Ga. Blankenship West 596) (1994). Plumbing Supply, Generally, evidence of with OSHA noncompliance regulations admissible as evidence negligence.11 case, employer’s *5 9 full, requested charge: following Smith the comply § Plaintiff contends the did Defendant Railroad not OSHA CPR (f), demands, 1910.24 which reasonably slip-resistant nosings All Stair treads. be treads shall and the nonslip grating nosings shall be of finish. Weldedbar treads without are acceptable providing leading readily by edge person- the can be identified descending stairway provided nel the the tread is serrated or is of nonslip design. height definite Rise and tread shall uniform width be throughout any flight including any of stairs foundation structure used as one or more treads of the stairs. charge you you I if that... believe from the the evidence that Defendant Railroad regulation, you may violated this then consider this violation as evidence of part negligence on the of the Defendant Railroad and a failure of the Defendant provide reasonably place a Railroad to safe to work. (5) (396 794) (1990) 650, Smoky, McCray, App. Inc. v. See 196 Ga. 655-656 SE2d (Although give requested charge precise “it is not error for the trial court to refuse to in the requested language principles substantially by where the embodied therein are covered the charge!,)” requested charge by substantially the issue of whether a covered standardized charge general principles perspective involved should evaluated “from the of the which average juror, grasp unschooled law and hence unable to all the shades and nuances may present solely an ‘general the law principles’ applies individual case from an abbreviated discussion of the involved!, courts, jury, appellate because] the the it is trial court or the law[.]”) omitted). (citations, punctuation emphasis the (1) (404 291) (1991) (“OSHA Dupree Indus., 138, App. Keller SE2d regulations merely legal performance, are admissible not as standards of but as evidence of on the stairs the CSX nosings evidence that the presented

Smith finish12 fell were not of a where he building administration the finish caused soap spill, nosings’ with the together however, charge, give requested The trial court refused to fall.13 to the apply § 1910.24 does not on its conclusion that 29 CFR based This fell, is, building. an office in which Smith building type in 29 CFR standards, which are set out error. OSHA’s general was excepted. unless 1910, workplace, specifically apply Part (c) (2). (a). The jury § 1910.5 § 1910.5 See also 29 CFR CFR 1910.24, § which from 29 CFR is drawn requested instruction of fixed safe and construction design for the specifications “contains (a). In of 29 § 1910.24 the context industrial stairs.” 29 CFR indus- “general or “general industry” Part the modifier CFR application standard has general denotes that plainly trial” that are limited to certain industries and is not any workplace D, which additional, Subpart standards.14 particularized subject surfaces,” such a general “walking-working standards for provides fell does not Further, office which Smith building standard. (b). follows that § See 29 CFR 1910.5 It exception. fall under an 1910.24 of stairs 29 CFR provided standards for the construction Smith fell. building which apply 51-1-6.”) (citation may give duty, action under OCGA violation of which a cause of omitted); County, punctuation Cardin v. Acres Lowndes Telfair (III) (3d 731) (1990) (accord); Corp., Passenger v. Nat. R. 960 F2d Ries FELA, [and, therefore,] (Although under the “OSHA is not a statute Cir. contributory negligence per regulation and bar could not constitute se violation of an OSHA regulation properly employer’s] [an] negligence[, violation of OSHA . . . the defendant negligence!.]”). employer’s] note that some state and federal [the We admissible as evidence regulation may negligence per violation of an OSHA constitute courts have determined that a (IV) (1st 1985) (“[A] See, e.g., F2d Cir. Pratico v. Portland Terminal se. negligence per [is] regulation [when] there can be considered se violation of an OSHA independent either state or federal law which establishes cause of action established negligence, duty employer right employee to take reasonable to be free from of an injuries liability employer to take precautions, caused the failure and the regulation Ludington, precautions.”); “Violation of OSHA as see also John E reasonable affecting *6 (1977, updated weekly). liability,” tort 79 ALR3d “slippery”; nosings “vinyl” were another testified One witness testified that the they in they vinyl; smooth and not covered and Smith testified that were that were smooth slip-resistant material. material, nosing a different he would not if the had been made of Smith testified edging caught [his] boots.” have fallen “because the would’ve 1910.15; 1910.12; longshoring See, construction, shipyards, § e.g., § in 29 CFR in 29 CFR 1910.16; mills, 1910.261; terminals, power § paper § in electric in 29 CFR and marine 29 CFR (c) 1910.269; etc.); (providing § plants, 1910.5 for circumstances in 29 CFR see also 29 CFR standard); general Enterprises, particular preempts a Brock Williams when a OSHA standard (II) (A) (11th 1987) (“A setting general an standard forth measures that 832 F2d Cir. by specific particular preempted employer protect employees hazard not take to from a must particular specific addresses the same hazard as the standard unless that standard.”) (citation omitted). standard presented jury Because the evidence issues for the to resolve (f) regarding and, violated 29 CFR 1910.24 in so doing, negligently injuries, prin- caused Smith’s and because the ciples charge, were in not otherwise covered the trial court’s the trial refusing request jury court erred in Smith’s instruct on the requirements regulation in relation to their consideration of Blankenship Plumbing Supply, Smith’s FELA claim. v. WestGa. (The give requested charge at 277 trial court’s failure legal theory recovery on a critical constituted substantial error law.). Burlington harmful as a matter of See Robertson v. (I) (9th 1994) (the Co., Northern R. 32 F3d Cir. trial properly regula- court admitted into evidence an OSHA noise-level applicable tion as some evidence of the standard of care a FELA jury regulation action and instructed the to consider the in relation case); to all other evidence Albrecht v. Baltimore &c. R. (4th 1987) (the correctly charged 808 F2d Cir. trial court jury regarding regulations employee alleged OSHA employer jury violated, had which the could consider as some negligence). evidence of

Judgment Phipps, Miller, J., J., C. reversed. P concur. specially. Barnes, J., Andrews, J., P. concurs and concurs P. Johnson Doyle, JJ., dissent. Presiding Judge, concurring specially. BARNES, Although fully judgment I concur in Division 2 and the majority opinion, I cannot concur Division l.15The statement that questioning [of “once Smith submitted to on the issue whether he service”] seeking ruling, was “out of without enforce the limine opened being impeached the door to with evidence that tended to disprove testimony” places obligation upon Smith which does exist our law. Harley-Davidson (1), Daniel, Motor Co. v. n. 20) (1979), Supreme objection our Court held that no necessary preserve at trial to the denial of the motion in limine for appeal: purpose filing suppress motion limine to opposing

evidence or instruct counsel not to offer is to prevent asking prejudicial questions making and the prejudicial presence jury statements in the respect proper bearing to matters which have no

precedent. There Court *7 being of Appeals no majority concurring Rule 33 (a). in Division may not be cited as binding rights parties of the to the suit. in the case or the

issues questions prejudicial asked or state- effect It ments made the evidence, the with the offer of connection prejudicial itself, the of the evidence which not the effect is intended to reach. motion limine omitted.) (Citation punctuation reasoning Supreme also later made clear that

Our Court granted. applies motion limine when a require otherwise, and successful movant to hold To object encompassed by the motion limine when evidence purpose trial, defeat of is nevertheless offered at would forced, in limine, as the movant would be the motion presence prejudicial jury, special to to call attention of previously to be trial court had ordered evidence which the jury’s from consideration. excluded (1982). Therefore, Reno, 249 Reno v. ruling” required to limine was not seek “enforce the Smith object grant failing his seek to enforce the or otherwise his by questioning open the CSX. could not door motion judgment fully Accordingly, I in Division and the concur opinion, majority not in Division 1. but Presiding dissenting. Judge, ANDREWS, employer, Larry brought slip against his and fall claim Smith seeking damages Transportation, Inc., Federal Em- under the CSX (FELA). Liability appeal judgment ployer’s from entered On Act jury against claim, he two rendered enumerates verdict errors, of which has merit. neither allowing jury

First, he “The trial court erred claims: whether, was out of service of, and determine Plaintiff hear because, scope within the broad as a matter of law Plaintiff was seq.” complains protection FELA, S. C. 51 et U. allowing at in evidence to introduced the trial court erred that trial about whether or other words relieved — placed had him “out service” — slip of his him of his work duties at the time injury building. He contends in a CSX office and fall stairs located injury, as a matter of law of his evidence showed at the time regarding FELA, covered and that evidence that was he may erroneously jury find of service” caused the was “out by FELA. he was not covered seeking trial, in limine to exclude Prior to Smith filed a motion discipline” against example “past him, one evidence of railroad *8 day prior injury, that, which was evidence the to his CSX claimed to placed him “out of service” because he violated a rule related to employment. Although granted the trial court the motion in raising limine, Smith introduced evidence in his case-in-chief placed issue of CSX, had been “out service” prohibited going whether “out of service” meant that he was from property, prohibited attending or was from the union meeting property injured. on CSX at which he was Prior to intro- with the ducing engaged colloquy evidence, this Smith’s counsel judge scope judge’s ruling trial over the on the motion that, limine. Smith’s counsel stated “I think what we discussed in specific discipline in limine motions is that the was not relevant happened. they they to what . . . What’s relevant is claim took him him They argue service, out fine. that’s can that we saw violating a rule and took him Thereafter, out of service.” testified direct issue, examination about the “out of service” including testimony that no one at CSX told him he was “out service,” if even he had been of service,” “out that did not right engaged activity affect his office to be a work-related in the CSX building attending safety meeting the union at which he injured. was testimony, When defense counsel cross-examined Smith on this objected counsel

Smith’s on the basis that the “out of properly service” issue was not relevant. trial court overruled objection. scope Given his counsel’s concession about the ruling, testimony gave in limine motion and the Smith himself complain issue, “out service” Smith cannot that the trial court by allowing present erred CSX to cross-examine him and concerning Regents Ambati, issue. Bd. &c. v. (685 719) (2009); SE2d T & M Investments v. Jackson, 300) (1992). App. 218, 220 by refusing

Second, Smith claims trial court erred give following jury charge:

Plaintiff contends the Defendant Railroad did not com- (f), ply with O. S. H. A. 29 demands, C. F. R. 1910.24 which reasonably slip-resistant “Stair treads. All treads shall be nosings and the shall be of finish. bar Welded grating nosings acceptable providing treads without are leading edge readily by personnel can be identified descend- ing stairway provided tread serrated or is of nonslip design. height definite Rise and tread width shall be throughout any flight including any uniform of stairs foun- dation structure used as one or more treads of the stairs.” charge you you

I if believe from the evidence that regulation, you the Defendant Railroad violated this then *9 negligence may as of this consider violation part Defen- Defendant Railroad and failure reasonably place provide to work. to safe dant Railroad request charge on Smith’s contention that to was based The above fell, a CSX office on which he and located the stairs (f) Occupational Safety building, governed by subsection were (OSHA) “Fixed industrial stairs” Health Act standard entitled and § 1910.24, that CSX’s violation forth 29 CFR and set negligence. was evidence of standard may categorized into four broad be OSHA standards [in subject Industry 29 CFR Part Standards areas: General [in Longshoring 29 CFR 1910]; and Standards Maritime [in 29 CFR 1918]; Construction Standards Parts 1915 [in Agricultural 29 CFR Part 1926]; and Standards Part 1928], (West § Safety Occupational 4:1 Rothstein, Law, and Health A.

Mark 2009). subpart of is found in a the General 29 CFR 1910.24 “Subpart Walking-Working Industry Surfaces,” D: Standards titled §§ complete OSHA 1910.21 to 1910.30. set forth 29 CFR is in 29 CFR for “Fixed industrial stairs” set forth standard (a) (i) through provides following: 1910.24 subsections (a) requirements. Application section contains This specifications design of fixed for the safe and construction includes inte- industrial stairs. This classification machinery, tanks, and other rior and exterior stairs around platforms, leading equipment, floors, to or from and stairs apply pits. for exit not to stairs used fire or This section does operations private purposes, residences, to construction may floating stairs, such as installed or to articulated angle changes facilities, or on of which roof tanks dock support. the rise and fall of the base (b) required. shall be fixed stairs are Fixed stairs Where provided to another for access from one structure level regular operations levels, between where necessitate travel any equipment operating platforms and for access at routinely during operations. requires Fixed which attention provided access to elevations stairs shall also be daily where inspec- purposes gauging, or for such as at each shift may regular maintenance, etc., tion, expose employees where such work gases, acids, caustics, other or harmful carrying purposes of tools or substances, or for which (It equipment by normally required. hand is is not the preclude intent of this section to the use fixed ladders for tanks, towers, access to elevated structures, similar traveling cranes, etc., overhead where the use fixed practice.) Spiral stairways ladders is common permitted except shall not be special usage secondary limited practical provide access situations where stairway. Winding stairways may conventional be installed on tanks and similar round structures where the diameter *10 of the structure is not less than five feet.

(c) strength. stairways designed Stair Fixed shall be carry constructed to anticipated a load of five times the normal live load strength carry safely but never of less than to moving pounds. 1,000 concentrated load of

(d) stairways Stair Fixed width. shall a minimum width of 22 inches.

(e) Angle stairway of rise. Fixed stairs shall be installed angles (degrees) at of the horizontal between 30 and 50 (degrees). Any uniform combination of dimen- rise/tread may stairway angle sions be used will result in a anat permissible range. to the horizontal within the D-l Table gives produce stairway dimensions which will rise/tread permissible range, stating angle within the produced by

horizontal However, each combination. given combinations are not limited to those rise/tread Table D-l.

[Table omitted] D-l (f) reasonably slip- Stair All treads. treads shall be nosings resistant and the shall be of finish. Welded grating nosings acceptable providing bar without treads are leading edge readily by personnel can be identified descending stairway provided the tread is serrated nonslip design. height or is of definite shall be uniform Rise and tread width

throughout any flight including of stairs any foundation structure used as one or more treads of the stairs.

(g) Stairway platforms. Stairway platforms shall be no stairway less than the width of a and a minimum of 30 length inches in measured in the direction of travel.

(h) Railings railings and handrails. Standard shall be provided open exposed stairways sides of all and stair platforms. provided Handrails shall be one of at least side stairways right preferably descending. closed side railings in accordance handrails shall be installed

Stair provisions of 1910.23.16 with the (i) any stair Vertical clearance above Vertical clearance. be at least feet obstruction shall tread to overhead edge leading tread. from the measured wording application determining standard, “In interpreted manner, in a consistent must reasonable the standard understanding. are to The words in a standard common sense light judged in of its context, isolation, not in be viewed (Citation omitted.) Secretary application to the facts the case.” (OSHRC,17 Spirit 31163770, *7 Docket Homes, 2002 Labor v. WL 2002). Sept. ALJ, standard 00-1807; 00-1808, OSHA Nos. regulating part of the OSHA standards “Fixed industrial stairs” operates Industry in the railroad in 29 CFR Part 1910. CSX General industry subject purpose OSHA, the commerce and interstate of which is *11 every working possible man and woman so far as assure working conditions and to Nation safe and healthful employ- by encouraging

preserve ... our human resources employees efforts to reduce the number ers and occupational their places

safety at and health hazards their authorizing Secretary by [and] of Labor to mandatory occupational standards and health set applicable to . . . businesses. (b) (1), (3); Transp. Usery, § 539 Co.

29 USC 651 Southern Pacific (5th 1976). § at CFR 1910.24 OSHA standard F2d Cir. The specialized design purpose by requiring and construc- advances this protect employees specifications for “Fixed industrial stairs” tion occupations expose recognizable industrial hazards them to whose Undoubtedly, workplace. parts sub- railroad business CSX’s jects employees the “Fixed industrial to industrial hazards which against. injury protect in this But the intended to stairs” standard case occurred when Smith stairs located building. no There was evidence that administration office building the office that would industrial hazard existed at specifica- required to the “Fixed industrial stairs” CSX construct AFL-CIO v. American Petroleum adjudicating (Rehnquist, CFR 1910.23 Occupational § citations issued J., concurring). Safety (d) contains and Health Review Commission Institute, Secretary standards U. S. Labor under OSHA. for stairway railings (OSHRC) SC 2844, Indus. body charged Union LE2d guards. Dept., 1010) protect employees tions set forth 29 CFR 1910.24 in order to Secretary from those hazards. See Labor v. & Williams Davis (OSHRC, Boilers, Inc., 1980 WL *11 79-3817, No. Docket Sept. (finding leading ALJ, that stairs to an office and “ordinary building governed stockroom at business were stairs” requirements by general not way “Fixed industrial stairs” but stair (d)). in 29

standards CFR 1910.23 There was also no evidence that CSX was cited for violation of the OSHA standard for “Fixed context, industrial stairs.” Viewed common sense dictates apply OSHA standard for “Fixed industrial stairs” did not judge correctly give case, facts of this the trial refused to requested jury charge. respectfully I dissent. Judge Judge Doyle

I am authorized to state that Johnson and join in this dissent.

Decided October 23, 2010

Reconsideration denied November Douglas appellant. Warshauer,

Michael J. Dumont, C. Casey appellee. Gilson, Gilson, James E. Karen R. Dunbar, for