dissent">NEBEKER, Associate Judge,

dissenting:

The majority concludes that by their terms, the OSHA regulation and the ACI provision are applicable to the facts at hand. I would hold that they are inapplicable as a matter of law. By their terms, the regulation and the provision relate only to the ability to endure the pouring of concrete. See italicized portions of regulations quoted in footnotes 2 and 3 of the majority opinion. While there is evidence in the record that the injured worker was directing the pouring of concrete at the time he fell, the record is clear that the concrete was not being poured on the framework from where the workman fell. The majority opinion side-steps this issue by stating that “the record contains testimony [that] concrete was in fact being poured . in the immediate area of the appellee’s fall.” Ante at 938 (emphasis added). The appellee testified that, at the time of the accident, only columns were being poured and that he was the foreman in charge of pouring these columns. He had positioned himself about 50 to 60 feet from where the pouring was taking place. A co-worker placed his distance at 40 to 60 feet from the columns being poured. The area from which the appellee fell was not ready to receive concrete. An excerpt from the record will help to demonstrate my point.

THE COURT: ... It says that the forms are supposed to be sufficiently strong to hold the concrete as it is poured [Reading:] “Formwork and shoring shall be designed, erected, supported, braced, and maintained so that it will safely support all vertical and lateral loads that may be imposed upon it during placement of concrete.” That wouldn’t seem to me to have anything to do with the walking on the plywood planks prior to the placing of the concrete.

[PLAINTIFF’S ATTORNEY]: Until— until such loads can be supported by concrete.

THE COURT: It doesn’t say until. I’m reading from OSHA now.

[The regulation was reread.]

That wouldn’t seem to me to have anything to do with the walking on the plywood planks prior to the placement of the concrete.

[PLAINTIFF’S ATTORNEY]: Your honor, I guess this isn’t coming through clear. Mr. Maloney is a labor foreman in charge of pouring the concrete on this job site. He’s in charge of placing the concrete on this job site. He’s in charge of placing the concrete — he, himself, and the George Hyman workers that came into this courtroom and testified today. That is their job, pouring the concrete, so they are in the process of pouring concrete on this floor and they are part of the vertical load—

THE COURT: Yes, but not at this particular place where he is walking.

[PLAINTIFF’S ATTORNEY]: This is the beginning. They are supervising the pouring of concrete. That is their job; that is their job, to pour the concrete and two experts have testified to this, Your Honor. Charlie Green has testified that this does apply once the formwork is put up, immediately.

At this point, the trial court ruled that the OSHA regulation was inapplicable by its terms, to the situation.

*940Following the defense’s case, the appel-lee’s attorney urged the trial court to allow this OSHA regulation as a standard in the industry, despite his having earlier ruled it inadmissible as a regulation. The appellant’s attorney challenged the propriety of the proposal, to which the trial court responded:

I can see this is a very confusing matter and I can see your consternation and your concern about there being a conflict, a basic conflict, or inherent conflict in my ruling.

If they’re not governed by this regulation, you say, then how can it be a standard by which they must be guided. It’s a logical question.

Quite frankly, I’m not — in this particular area even now in this very confusing case, I’m not sure where we stand.

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I’m afraid what we’re trying to do to you, what I’m trying to do to you, [plaintiff’s attorney], is something that I really can’t do. Maybe I’m trying to be on both sides of the fence in order to avoid error, and in doing so, I’m making the error worse.

^PLAINTIFF’S ATTORNEY]: If I may say something?

THE COURT: Can you explain to me how we can logically use these regulations as standards and at the same time say that they are not regulations which apply to this situation?

[PLAINTIFF’S ATTORNEY]: Yes, Your Honor, we can, because regulations, recommendations and standards are just that, they’re standards. If they were regulations, which I tried to prove and which I still maintain that I did prove they were regulations in effect, but assuming arguendo that they weren’t in effect regulations, that hurts the plaintiff’s case to the extent that he can’t prove a violation of safety regulations and assumption of risk—

THE COURT: You can’t prove violations of regulations.

[PLAINTIFF’S ATTORNEY]: Yes, sir.

THE COURT: I’ve ruled that.

[PLAINTIFF’S ATTORNEY]: That’s correct. But what I’m saying, Your Hon- or, is that after giving that I can still use those regulations to show a standard in the industry as my experts testified to. * * * * * *

THE COURT: Well, I ruled that they were not regulations which governed this situation because I ruled that by their language they didn’t apply to this situation. That’s the basis for my ruling, so you see if I’m saying they don’t apply to this situation, how can I say they are standards for this situation?

[PLAINTIFF’S ATTORNEY]: Well, guidelines, Your Honor, standards. I think—

THE COURT: If you name a rose by any other name, it would smell as sweet. Guidelines or standards or what have you, they’re synonymous for our purposes here, aren’t they?

[The appellee’s counsel addressed the ramifications of Bowman v. Redding & Co., 145 U.S.App.D.C. 294, 449 F.2d 956 (1971), whereupon the judge responded:]

THE COURT: I know, but you get back to the point, [plaintiff’s attorney], that I’ve said that they don’t by their language apply to this situation. That’s the reason I’ve said they’re not regulations which govern this situation, so if they don’t by their language cover this situation, how can they be even standards or guidelines for this situation? That’s the conundrum; that’s the difficulty.

[The appellee’s attorney then discussed the possibility of the appellant’s calling an expert from OSHA, whereupon the court asked:]

THE COURT: What did I do with these regulations? Did I admit them or not . . . . All right. There it goes, error or not.

Thus the regulation was admitted as a standard in the trade. It was not admitted as a regulation, however, because “they are not regulations which apply to this situation.” All agreed that the regulation was valid *941and currently in force. As a matter of law, the ruling to admit the regulation, while holding that it was inapplicable to the facts, was erroneous. Therefore, the trial court erred in making its second and incongruous ruling in the face of its earlier correct one. I am reminded of the lines from Gilbert and Sullivan’s The Pirates oí Penzance : “How quaint the ways of paradox. At common sense she gaily mocks. ... A paradox, a paradox, a most ingenious paradox.”

As a matter of law, the OSHA and ACI provisions are inapplicable by their terms. The facts underlying these conclusions are simple. No one contends that concrete was being poured on the framework overlying the deckwork through which the appellant fell. No one argues even that it was in a sufficiently advanced stage so that it could arguably have been considered as appearing that it was ready to receive concrete. All agree that the concrete was being poured into a column and not onto the deckwork. There is no dispute that the appellee was injured at approximately 50 feet from the column being poured. On these facts, the OSHA regulation and the ACI recommendation are inapplicable. They were designed only to assure that the framework and deckwork would remain in place while under the weight of wet concrete together with the weight of the men and tools used to pour that concrete. Accordingly, I dissent.

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