A standard railing shall consist of a top rail, intermediate rail, toeboard and posts, and shall have a vertical height of approximately 42 inches from upper surface of top rail to floor, platform, runway or ramp level. At oral argument counsel for defendant admitted defendant knew the ropes placed around the perimeter of the open-sided third floor did not comply with 29 CFR 1926.500. Defendant apparently elected, for whatever reason, not to comply with OSHA standard 29 CFR 1926.500. The question presented by this appeal is whether reasonable jurors could find, by a preponderance of the evidence, that the cumulative effect of defendant's actions constituted reckless disregard for the rights and safety of Sloan or, alternatively, constituted intentional failure to follow safety regulations necessary to ensure his safety. It is well settled that the contributory negligence of a plaintiff does not preclude recovery when defendant's conduct amounts to willful or wanton negligence and is a proximate cause of plaintiff's injuries.
Willful negligence requires only constructive intent.
Constructive intent to injure exists where conduct threatens the safety of others and is so reckless or manifestly indifferent to the consequences that a finding of willfulness and wantonness equivalent in spirit to actual intent is justified. Wanton and reckless negligence gives rise to constructive intent. Plaintiffs contend evidence of defendant's conduct at the time of the fall and evidence of defendant's history of noncompliance with OSHA standards are relevant to the question of whether defendant's conduct rose to the level of willful or wanton negligence. We conclude the cumulative effect of defendant's negligence in three different areas creates a genuine issue of material fact sufficient to foreclose the entry of summary judgment. First, plaintiffs' forecast of evidence indicates defendant had little regard for workplace safety.