UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

ROBERT C. SCOTT,
Plaintiff-Appellant,

v.

                                                                No. 98-1461
FORD MOTOR COMPANY,
Defendant-Appellee.

SAIID ANHARY,
Movant.

ROBERT C. SCOTT,
Plaintiff-Appellee,

v.

                                                                No. 98-1500
FORD MOTOR COMPANY,
Defendant-Appellant.

SAIID ANHARY,
Movant.

Appeals from the United States District Court
for the Eastern District of Virginia, at Norfolk.
Robert G. Doumar, Senior District Judge.
(CA-96-1042-2)

Argued: October 29, 1999

Decided: August 18, 2000

Before WIDENER and MURNAGHAN, Circuit Judges, and
James H. MICHAEL, Jr., Senior United States District Judge
for the Western District of Virginia, sitting by Designation.

_________________________________________________________________
Affirmed by unpublished per curium opinion.

_________________________________________________________________

COUNSEL

ARGUED: Douglas Early Ballard, Virginia Beach, Virginia, for
Appellant. Richard Joshua Cromwell, MCGUIRE, WOODS, BAT-
TLE & BOOTHE, L.L.P., Norfolk, Virginia, for Appellee. ON
BRIEF: Albert Littleton Fary, Jr., Portsmouth, Virginia, for Appel-
lant. Joseph K. Reid, III, MCGUIRE, WOODS, BATTLE &
BOOTHE, L.L.P., Richmond, Virginia, for Appellee.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Plaintiff-Appellant, Robert Scott, brought this diversity action
against Defendant-Appellee Ford Motor Company to recover in tort
for injuries he sustained while climbing a ladder at Ford's plant on
December 28, 1994. Scott asserted a claim for negligence and a claim
for negligence per se (based on the ladder's asserted non-compliance
with OSHA regulations).

The case was submitted to a jury in the United States District Court
for the Eastern District of Virginia (Norfolk Division) on June 18,
1997. The district court instructed the jury on the elements required
to establish a claim of negligence per se under Virginia law. Accord-
ing to the district court's instruction, Scott was required to prove (1)
that Ford had a duty to exercise reasonable care; (2) that Ford
breached its duty of care by installing a ladder that did not comply
with applicable OSHA regulations; and (3) that Ford's breach proxi-
mately caused Scott's injuries.

                     2
The jury returned a verdict in favor of Ford on June 18, 1997. Scott
filed a motion to set aside the verdict, arguing that the district court
misrepresented the law of negligence per se when it included a proxi-
mate cause element in the jury instruction. The district court denied
Scott's motion to set aside the jury's verdict.

Scott now appeals. He contends that proximate cause is not an ele-
ment of negligence per se. In Scott's view, the district court should
have instructed the jury that if the ladder violated the OSHA regula-
tions, the jury should automatically return a verdict for Scott and pro-
ceed to damages, bypassing the proximate causation analysis. We find
Scott's theory of negligence per se unsupportable. Accordingly, we
affirm the district court.

I.

Scott worked for Motorola as a radio technician. He had a long and
complex history of back problems, for which he had undergone
eleven surgeries. On December 27, 1994, Scott visited his physician
for continued lower back pain. His physician recommended that he
remain in bed for one week.

Nevertheless, Scott ignored his doctor's orders and went to the
Ford Motor Company plant in Norfolk, Virginia the following day to
participate in a radio survey test, during which Scott knew he would
have to scale a large ladder. While scaling the ladder, Scott severely
strained his back, exacerbating his preexisting back problems.

Scott contended that the ladder was unsafe because it allegedly did
not have side rails that extended beyond the last step, and that this
caused him to injure himself while alighting from the ladder. He
asserted that the absence of siderails, along with the fact that he had
to step back rather than off to the side when exiting the ladder, consti-
tuted OSHA violations.

In his Complaint, Scott used these alleged OSHA violations as the
basis for his negligence per se theory of liability. Now, on appeal, he
argues that Ford's liability should turn solely on whether the ladder
violated the OSHA regulations, even if the non-compliant ladder did

                     3
not proximately cause his injuries. Thus, he contends that the district
court erred by grafting a proximate cause element onto the negligence
per se jury instruction.

II.

We review challenges to the legal accuracy of a district court's jury
instructions de novo.

Scott has several grounds of appeal. The sole question for our pur-
poses, however, is whether the district court correctly included a
proximate cause element when instructing the jury on negligence per
se.

In Virginia (the state whose tort law governs in this diversity
action), negligence per se is a recognized tort doctrine. It simplifies
a plaintiff's burden of proof on the "breach" element of a prima facie
negligence case. Plaintiffs in negligence cases ordinarily have to pro-
duce detailed factual evidence regarding the precise manner in which
the defendant breached the duty of reasonable care. Negligence per
se, however, allows the plaintiff to prove "breach" by showing simply
that the defendant violated a statute or regulation that (a) covers the
class of activities giving rise to plaintiff's injuries, and (b) was
designed to protect the class of persons to which plaintiff belongs. See
Williamson v. Old Brogue, Inc., 232 Va. 350, 355 (1986).

While negligence per se simplifies a plaintiff's "breach" showing,
a plaintiff is still required to prove that the statutory violation was
both the legal and proximate cause of his injuries. See Karim v. Gro-
ver, 235 Va. 550, 554-55 (1988). We have held that "[a] negligence
per se instruction does not create strict liability; it would not remove
the issue of proximate cause from the jury. Properly instructed, the
jury still would be required to determine whether defendant's negli-
gence [in violating the statute or regulation] caused or contributed to
plaintiff's injury." Duty v. East Coast Tender Serv., Inc., 660 F.2d
933, 947 n.** (4th Cir. 1981) (en banc) (per curiam). See also Baxley
v. Fischer, 204 Va. 792, 798 (1964) ("It is well settled that a violation
of a statute . . . is negligence per se, but such negligence will not sup-
port a recovery for damages unless the violation was a proximate
cause of the injury.").

                     4
Scott objects to the presence of a proximate cause element in the
jury instruction despite the fact that Virginia law on negligence per
se clearly requires its inclusion. Scott's theory of the case, as evi-
denced in his requested jury instruction, is that a plaintiff is entitled
to recovery under negligence per se once he makes the bare showing
that the defendant violated a statute or regulation. In Scott's view, no
further evidence of causation between the statutory violation and the
plaintiff's injury is required.

In his brief, Scott cites no authority to support his novel theory of
negligence per se. The only authority consists of three cases Scott
cited in proceedings before the district court below. None of the
cases, however, justify the exclusion of proximate cause from the
negligence per se analysis.

In fact, Virginia Elec. & Power v. Savoy Construction, 224 Va. 36
(1982), states exactly the opposite. There, the Virginia Supreme Court
held that the Defendant was "entitled to an instruction properly
drafted which would have left to the jury the question whether the
negligence per se of [the Plaintiff] was a proximate cause" of Plain-
tiff's injuries. Id. at 45. The other two cases Scott cited below are also
inapposite. See Horne v. Owens Corning Fiberglass, 4 F.3d 276, 284
(4th Cir. 1993) (addressing OSHA as evidence of the standard of care
rather than as a basis for negligence per se), and MacCoy v. Colony
House Builders, 239 Va. 64 (1990) (addressing independent contrac-
tor problems in the negligence per se context, rather than proximate
cause problems).

III.

For the foregoing reasons, we find that the district court properly
included a proximate cause element in the jury instruction on negli-
gence per se. Scott's other grounds of appeal are also without merit.

AFFIRMED

                     5
