OWENS v. PERDUE FARMS INC

Filing 67

ORDER DISMISSING Count II of Plaintiff's 28 Amended Complaint and LIFTING STAY. The Court also ORDERS the parties to submit a proposed Amended Scheduling/Discovery order by June 21, 2021. Ordered by US DISTRICT JUDGE TILMAN E. SELF, III on 6/7/2021. (ech)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION
HANS OWENS,
Plaintiff,
v.
PERDUE FOODS LLC,
Defendant/Third-Party Plaintiff,

CIVIL ACTION NO.
5:20-cv-00307-TES

v.
THE VINCIT GROUP d/b/a QSI INC.,
Third-Party Defendant.
ORDER

The second count of Plaintiff Hans Owens’ Amended Complaint [Doc. 28] is a
negligence per se claim. Count II alleges violations of 29 C.F.R. §§ 1910.212 and
1910.147. [Doc. 28, ¶¶ 22–26]. The authority for these federal regulations comes from 29
U.S.C. §§ 653, 655, and 657, more commonly referred to as standards set forth by the
Occupational Safety and Health Act of 1970 or “OSHA.” See [Doc. 28, ¶¶ 20, 23–24, 28,
30]. Passed by Congress in 1970, OSHA requires every employer to furnish its
employees with “a place of employment which [is] free from recognized hazards that
are causing or are likely to cause death or serious physical harm to [its] employees.” 29
U.S.C. § 654. As a means to accomplish Congress’s goal, OSHA created two new
remedies which permit the Secretary of Labor, “proceeding before an administrative
agency, (1) to obtain abatement orders requiring employers to correct unsafe working

conditions and (2) to impose civil penalties on an employer maintaining any unsafe
working condition.” Atlas Roofing Co. v. Occupational Safety and Health Rev. Comm’n, 430
U.S. 442, 445 (1977).
Pursuant to OSHA, “[e]mployees have been granted specific rights in the
investigatory and rule-making stages of the Act, including the right to . . . request that
the Secretary [of Labor] conduct a workplace inspection when employees suspect that a
violation has occurred.” Donovan v. Occupational Safety and Health Rev. Comm’n, 713 F.2d
918, 926 (2d Cir. 1983) accord Donovan v. Local 962, Int’l Chem. Workers Union, 748 F.2d
1470 (11th Cir. 1984). Despite these rights, however, an employee’s role in enforcing the
Act is quite limited. Rev. Comm’n, 713 F.2d at 926.
“Nowhere in the language of the Act, its legislative history, or in the statutory
declaration of purpose and policy in the Act itself is there the slightest implication that
Congress considered OSHA creating a private right of action for violation of its terms.”
Jeter v. St. Regis Paper Co., 507 F.2d 973, 976 (5th Cir. 1975). 1 OSHA provides:
Nothing in this chapter shall be construed to supersede or in any manner
affect any workmen’s compensation law or to enlarge or diminish or affect
in any manner the common law or statutory rights, duties, or liabilities of
employers and employees under any law with respect to injuries, diseases, or
death of employees arising out of, or in the course of, employment.

“[T]he decisions of the United States Court of Appeals for the Fifth Circuit (the ‘former Fifth’ or the ‘old
Fifth’), as that court existed on September 30, 1981, handed down by that court prior to the close of
business on that date, shall be binding as precedent in the Eleventh Circuit, for [the court of appeals], the
district courts, and the bankruptcy courts in the circuit.” Bonner v. City of Prichard, 661 F.2d 1206, 1207
(11th Cir. 1981).
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29 U.S.C. § 653(b)(4) (emphasis added). With at least six circuits to have considered this
provision from the Act, “it is now well established that ‘OSHA violations do not
themselves constitute a private cause of action for breach.’” Am. Fed’n of Gov’t Emps.,
AFL-CIO v. Rumsfeld, 321 F.3d 139, 143–44 (D.C. Cir. 2003) (citing cases). Since OSHA
does not create a private right of action, it appears that Owens cannot state a cognizable
negligence per se claim upon which relief may be granted. Accordingly, the Court
noticed the parties and gave them 14 days within which to show cause why the OSHArelated claims set forth in Count II should not be dismissed.
With no response made by any party, the Court now DISMISSES Count II of
Owens’ Amended Complaint without prejudice. 2
This 7th day of June, 2021.
S/ Tilman E. Self, III
TILMAN E. SELF, III, JUDGE
UNITED STATES DISTRICT COURT

The Court LIFTS the Stay of Discovery and ORDERS the parties to submit a proposed Amended
Scheduling/Discovery Order by June 21, 2021. See [Doc. 44]; [Doc. 45].

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