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IN THE COURT OF APPEALS OF IOWA No. 0-733 / 09-1852 Filed December 8, 2010 ROBERT J. DOTY, Plaintiff-Appellant, vs. DARWIN OLSON d/b/a RIVER CITY CONSTRUCTION AND STORAGE, Defendant-Appellee. ________________________________________________________________ Appeal from the Iowa District Court for Clinton County, C.H. Pelton, Judge.

Robert Doty appeals the district courts refusal to instruct the jury concerning negligence arising from alleged OSHA violations and challenges the district courts order taxing him the cost of deposition transcripts and court costs. AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

Anthony Bribriesco, Bettendorf, for appellant. William Bush, Davenport, for appellee.

Considered by Sackett, C.J., and Potterfield and Tabor, JJ.

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TABOR, J. Plaintiff Robert Doty seeks a new trial of his personal injury suit, alleging the district court erred in refusing to instruct the jury that defendant Darwin Olsons alleged violation of federal or state Occupational Safety and Health Administration (OSHA or IOSHA) standards was either negligence per se or some evidence of negligence. Because Doty was not Olsons employee, we agree with the district courts determination that he was not entitled to an instruction on per se negligence. And, although we conclude the district court should have instructed the jury that an OSHA violation could be considered as non-conclusive proof of negligence, Doty is not entitled to a new trial because he did not suffer prejudice when the court declined to give the instruction. Doty also challenges the district courts taxation of costs. Finding the

district court erred in taxing the costs of two deposition transcripts to Doty, we reverse and remand for entry of an amended cost assessment. I. Facts and Procedural History Olson is a homebuilder and operates a company called River City Construction. Olson contracted with the plumbing company which employed

Doty and eventually hired Doty to do plumbing jobs as an independent contractor. Doty installed plumbing for Olson on six different building projects, two of which were still underway in January 2006. On January 16, 2006, Doty stopped by a housing addition in Camanche where Olsons company was constructing a new home. Doty testified that Olson asked him to visit the site to offer a bid on the plumbing. Olson testified that he

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planned to do the plumbing on that project himself and that Doty entered the site without an invitation. While at the construction site, Doty stepped between stud walls and onto a tarp covering the ten-by-three-foot stairway shaft. The insulated tarp had been placed across the shaft by Alvin Cromer, owner of Cromer Masonry, Inc., to prevent the freshly poured concrete from freezing. Doty fell eight to ten feet onto the concrete basement floor, hitting his head and elbow and shattering his heel. Doty called Olson on his cell phone for help because he did not know the address of the construction site to tell a 911 dispatcher. Olson called 911 and rushed to the site. Fire department rescuers hoisted Doty from the basement with ropes and pulleys because the stairs had not been installed yet. Doty was eventually transported to the University of Iowa Hospital where surgeons repaired his calcaneus fracture with nine screws and a metal plate. Doty

underwent a second surgery in April 2007 to remove the plate and screws. After his injury, Doty could not perform the physically demanding work he used to do as a plumber. Doty filed a petition at law on December 13, 2006, alleging that Olsons negligence in failing to take proper safety precautions at the construction site caused his injuries.1 The matter went to trial on July 13, 2009. Both sides called expert witnesses to testify regarding OSHA and argued about the relevance of the OSHA standards in their closing arguments. After presentation of the

evidence, Dotys attorney requested that the court instruct the jurors that they
1

Doty settled his claim against Cromer Masonry before trial.

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could use Olsons alleged violation of OSHA standards in deciding the question of negligence. The district court declined to give Dotys requested instructions. On July 20, 2009, the jury returned a verdict awarding Doty $37,500 in damages, including $18,000 in past lost wages; $2000 in past loss of function of the body; $8000 in present value of future loss of function of the body; $3500 in past pain and suffering; and $6000 in future pain and suffering. The jury

assessed the percentages of comparative fault as follows: fifteen percent for Olson, thirty-five percent for Cromer, and fifty percent for Doty. The district court entered judgment in the amount of $5625 for Doty. The judgment entry taxed costs to Olson in the amount of $528.58. Olson applied to recover $4305.07 in costs--including expenses for depositions, exhibits, expert witness, travel, and court costs--pursuant to Iowa Code chapter 677 (2005). The application noted that on June 26, 2009, Olson filed an offer to confess, submitting a settlement amount of $50,000. In response to Olsons application, the district court taxed costs in the amount of $2186.73-- including the cost of deposition transcripts, a video deposition, and expert witness fees--to Doty. Court costs were split with Olson ordered to pay $140 for costs incurred before June 26, 2009, and Doty ordered to pay $340 for those incurred after June 26, 2009. Doty appeals the district courts refusal to instruct the jury concerning negligence arising from alleged OSHA violations and challenges the district courts order taxing him the cost of deposition transcripts and court costs.

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II.

Standard of Review We review the district courts refusal to give a requested jury instruction for

legal error. Gamerdinger v. Schaefer, 603 N.W.2d 590, 595 (Iowa 1999). The court is required to instruct the jury in accord with a partys request if the proposed instruction states a correct rule of law, applies to the facts, and the concept is not embodied in other instructions. Id. We also review the district courts interpretation of chapter 677 for legal error. Harris v. Olson, 558 N.W.2d 408, 409 (Iowa 1997). On the question whether the deposition costs are "necessarily incurred" within the meaning of Iowa Rule of Civil Procedure 1.716, we review the district courts determination for an abuse of discretion. EnviroGas, L.P. v. Cedar Rapids/Linn County Solid Waste Agency, 641 N.W.2d 776, 786 (Iowa 2002). III. Negligence Instructions Regarding Alleged OSHA Violation Where employers violate an OSHA or IOSHA standard, the violation is negligence per se as to their employees. Koll v. Manatt's Transp. Co., 253

N.W.2d 265, 270 (Iowa 1977). The per se negligence standard is appropriate because "one of the primary purposes of OSHA standards is to protect a certain class of persons, employees, from the kind of harm the standards are designed to prevent: workplace injuries." Wiersgalla v. Garrett, 486 N.W.2d 290, 293 (Iowa 1992). An OSHA violation is some ",,evidence of negligence as to all persons who are likely to be exposed to injury as a result of the violation. " Wiersgalla, 486 N.W.2d at 293 (citing Koll, 253 N.W.2d at 270).

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Doty argues the district court erred in rejecting his request to instruct the jury using either Iowa Civil Uniform Jury Instruction Number 700.10 2 or Number 700.11.3 The first of these uniform instructions would have allowed the jury to find the defendants conduct was per se negligent based on an OSHA violation. The second requested instruction would have allowed the jury to consider the evidence of an OSHA violation as relevant, but not conclusive proof of negligence. Olson contends that because Doty was an independent contractor and not Olsons employee, Doty was not entitled to the per se negligence instruction. As for Uniform Instruction Number 700.11, Olson argues that the essence of the instruction was sufficiently embodied in two other instructions the trial court submitted to the jury. Specifically, Instruction Number 16 advised the jury as follows: The plaintiff claims the defendant was at fault by being negligent. The ground of fault has been explained to you in other instructions. The plaintiff must prove all of the following numbered propositions: A. The defendant was at fault. In order to prove fault, the plaintiff must prove any one or more of the following alternative assertions of negligence: B. Defendant owner failed in his duty to exercise ordinary care in the maintenance of his premises for the protection of lawful visitors. C. Defendant failed to keep the premises in a reasonably safe condition for an independent contractor.

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700.10 Safety Code - Negligence Per Se. (Name of Safety Code) requires (Substance of Safety Code). A violation of this law is negligence. 3 700.11 Safety Code/Custom - Evidence Of Negligence. You have received evidence of . . . [applicable safety code provisions]. Conformity with . . . [the provisions of a safety code] is evidence that (name of party) was not negligent and . . . [violations of its provision] is evidence that (name of party) was negligent. Such evidence is relevant and you should consider it, but it is not conclusive proof.

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1. The defendants fault was a proximate cause of the plaintiffs damage. 2. The amount of damage. If the plaintiff has failed to prove any of these numbered propositions, the plaintiff is not entitled to damages. If the plaintiff has proven all of these propositions, you will consider the defense of comparative fault . . . . And Instruction Number 18 provided: Persons who hire an independent contractor to do work on their property have the duty to exercise reasonable care to keep portions of the property under their control in a reasonably safe condition for the independent contractor. A failure to do so is negligence. Olson also points out that the district court allowed evidence concerning his alleged OSHA violation into the record through expert witness testimony and did not restrict Dotys counsel from asserting in his closing argument that the OSHA violation was evidence of Olsons negligence. As a fallback position, Olson asserts that any error in declining to instruct the jury regarding the legal significance of an alleged OSHA violation was harmless. Olson notes that Dotys requested instructions would have provided the jury guidance only on the question of negligence and the jury, in fact, found Olson negligent. Olson claims the OSHA instructions would not have made any difference to the jurys assessment of comparative fault. Turning first to Dotys request for Uniform Instruction Number 700.10, we agree with the district court that Dotys status as an independent contractor (rather than an employee) precludes a fact finder from determining that Olsons alleged violation of OSHA or IOSHA standards constituted negligence per se. See Iowa Code

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