Certified for the Front Lines: Brett Wolfson’s OSHA 10 Training Enhances Defense in Construction and Workplace Accident Litigation

July 2025 • Source: Zarwin Baum

In May 2025, Brett Wolfson attended a two-day OSHA 10 training and received his OSHA 10-hour Construction Safety and Health Certification. This enhances his skills for defending construction and workplace accident matters, including products liability accidents that occur at a workplace. Some of the topics covered during Brett’s OSHA 10 training included fall protection, personal protective equipment (PPE), confined spaces, lockout tagout, scaffolding, electricity, housekeeping, power tools, and machine guarding.

OSHA is the Occupational Safety and Health Administration. Despite its intention of providing a workplace free from recognized hazards, OSHA regulations are frequently used as a sword by skilled plaintiffs’ attorneys to build a case against a defendant. OSHA regulations are also at times used in defending claims where fault of the accident is with the injured plaintiff or plaintiff’s employer.

Employers typically have immunity from direct liability for workplace injuries through the exclusive remedy provision of the Workers’ Compensation law of the employer’s respective state. Plaintiffs’ attorneys search for a 3rd party to name in a lawsuit to seek a recovery beyond the limited compensation provided through Workers’ Compensation benefits, sometimes a contractor and sometimes a product manufacturer. That 3rd party is the insured of the various insurance carriers who retain us.

It is imperative for defense counsel to be capable of identifying relevant OSHA regulations that may play a role in a plaintiff’s case so as to properly investigate and inform companies and insurance carriers of liability, ability to defend, and exposure. Effective defense counsel must understand how OSHA operates with respect to investigations, issuing citations for violations, and disposition and/or resolution of OSHA citations.

Brett can be reached at 1-484-823-9264 and/or [email protected]

Circuit Court Split Alert: The Sixth Circuit Court of Appeals Rules That Negligent Selection Claims Against Freight Brokers Are Not Preempted by the FAAAA Because They Are Saved by the “Safety Exception”

July 2025 • Source: Gallagher Sharp LLP

On July 8, 2025, the Sixth Circuit Court of Appeals held that a plaintiff’s claim for negligent selection/hiring against a freight broker was: 1) preempted by the 1994 Federal Aviation Administration Authorization Act (“FAAAA”) found in 49 U.S.C. § 14501(c)(1), and 2) saved by the “safety exception” found in 49 U.S.C. § 14501(c)(2)(A). See Cox v. Total Quality Logistics, Inc., 6th Cir. No. 24-3599 (July 8, 2025).

In Cox, the freight broker, Total Quality Logistics, Inc. (“TQL”), hired/selected a motor carrier, Global Transit, Inc. (“Global Transit”), to transport a load from Illinois to California. Global Transit was involved in an accident with the decedent and her husband filed a wrongful death lawsuit against numerous defendants, including TQL, claiming it negligently hired/selected Global Transit.

Though the United States District Court for the Southern District of Ohio granted the freight broker’s motion to dismiss, the Sixth Circuit reversed on the basis that plaintiff’s negligent hiring/selection claim fell within the scope of the “safety exception,” which is defined as “the safety regulatory of a State with respect to motor vehicles.” 49 U.S.C. § 14501(c)(2)(A).

The Sixth Circuit concluded that plaintiff’s negligent hiring/selection claim meets the definition of the “safety exception” because the claim encompasses the “safety regulatory of a State” as it seeks “to enforce a standard of care on brokers, which in turn, requires brokers to do their due diligence in ensuring that they are hiring safe motor carriers. This type of tort claim is, therefore, ‘genuinely responsive to safety concerns.’”

Next, the court concluded that the plaintiff’s negligent hiring/selection claim is “with respect to motor vehicles” because “[s]imply put there is no way to disentangle motor vehicles from [plaintiff’s] claim…Plaintiff’s claim seeks to enforce a common law requirement that brokers exercise reasonable care in selecting a safe motor carrier to transport goods by motor vehicle. This requirement would necessarily constitute an exercise of a state’s regulatory authority ‘with respect to,’ or concerning, ‘motor vehicles.’”

Though this decision is certainly disappointing, we hope the Supreme Court of the United States will now recognize the split between the circuits and the need to address whether the “safety exception” indeed applies to tort claims against a broker. Compare Cox v. Total Quality Logistics, Inc., 6th Cir. No. 24-3599 (July 8, 2025); Miller v. C.H. Robinson Worldwide, Inc., 976 F.3d 1016, 1030–31 (9th Cir. 2020) (holding that negligent hiring claims against brokers fall within the safety exception and are thus not preempted by the Act), with Aspen Am. Ins. Co. v. Landstar Ranger, Inc., 65 F.4th 1261, 1272 (11th Cir. 2023) (concluding that negligent hiring claims against brokers are preempted because they are not “with respect to motor vehicles”); Ye v. GlobalTranz Enters., Inc., 74 F.4th 453, 464 (7th Cir. 2023) (agreeing with Aspen that the Act preempts negligent hiring claims against brokers.)

We also recommend that freight brokers continue to assert the FAAAA preemption defense early, file dispositive motions, and file appeals until the Supreme Court of the United States addresses this issue.

What Should Texas Construction Companies Know About OSHA’s Reporting and Recordkeeping Requirements?

July 2025 • Source: Pappas Grubbs Price

The Department of Energy’s Occupational Safety and Health Administration (OSHA) imposes certain reporting and recordkeeping requirements on Texas construction companies. It is important for construction employers to understand the scope of their recordkeeping and reporting obligations in order to protect themselves from costly fines and other consequences associated with OSHA compliance violations. 

Recordkeeping Requirements

Construction employers with more than 10 employees at any point during a given year are required to keep a record of serious work-related injuries and illnesses. Serious injuries and illnesses are generally defined as those requiring medical treatment beyond first aid, or those that resulted in loss of consciousness, days away from work, restricted work, or transfer to another job. Employers must track these injuries and illnesses using OSHA Form 300: Log of Work-Related Injuries and Illnesses and Form 301: Injury and Illness Incident Report. These records must be maintained at the worksite for at least five years, and each year, from February through April, employers must post a summary of the reportable injuries and illnesses from the previous year. 

Electronic Submission of Injury and Illness Data

Construction employers with a peak of 20 or more employees during a calendar year are required to submit injury and illness data electronically to OSHA using Form 300A: Summary of Work-Related Injuries and Illnesses, by March 2 of the following year. This submission must be made whether or not the company had any reportable injuries or illnesses. 

In addition, as of January 1, 2024, employers in certain “high-hazard” industries with 100 or more employees must electronically submit Form 300 and Form 301 data. This requirement applies to certain subsets of the construction industry, including “Foundation, Structure and Building Exterior Contractors”; click here for a full list of industries.

Reporting Fatalities and Severe Injuries

All Texas employers, regardless of size or industry, are required to report a worker fatality to OSHA within eight hours and any severe injuries – including an amputation, loss of an eye, or an in-patient hospitalization – within 24 hours. To report a fatality or severe injury, call the nearest OSHA office, call the OSHA 24-hour hotline at 800-321-6742, or report online. Be prepared to provide the business name, name(s) of impacted employee(s), location and time of the incident, a brief description of what happened, and a contact person with phone number. 

Employers do not have to report events that resulted from a motor vehicle accident on a public street or highway, unless it occurred in a construction work zone. Similarly, deaths and injuries resulting from incidents on a commercial or public transportation system, such as an airplane or bus, do not need to be reported. In addition, hospitalizations for diagnostic testing or observation only need not be reported. 

The OSHA lawyers at Pappas Grubbs Price PC assist employers with the complex OSHA compliance process and help clients assert their rights throughout the OSHA inspection process. With offices in Houston, Dallas, Austin and San Antonio, our OSHA defense lawyers have successfully represented hundreds of clients in OSHA investigations and litigation, and we are able to perform 24/7 rapid response on-site coordination with our clients, often arriving before the OSHA inspector. For assistance with your OSHA matter, contact Pappas Grubbs Price.

Justin T. Woods Successfully Argues Traditional and No Evidence Motion for Summary Judgment

June 2025 • Source: Pappas Grubbs Price

Shareholder Justin T. Woods has successfully argued a Traditional and No Evidence Motion for Summary Judgment, resulting in a dismissal of all claims against the Defendants, a large, national convenience store chain. The suit involved a Plaintiff who tripped and fell over an empty pallet on the floor in front of the check-out counter and sued the store and related entities for claimed personal injuries. Relying on several appellate court decisions which have held a pallet on the floor of a convenience or grocery store is not an unreasonably dangerous condition, the Motion argued that the Plaintiff’s trip was not caused by any dangerous condition and Defendants, therefore, had no duty to either move the pallet or warn Plaintiff of its presence. Moreover, the presence of the pallet was readily apparent, and the Plaintiff should have seen and avoided tripping over it. The Court agreed and granted the Motion, dismissing the suit in its entirety.