Baltimore Gas & Electric Co. v. Thompson

⁶⁴⁴ LOWE, Judge. Although Robert E. Thompson was hired by Insul-Temp/Airco, Inc. (Insul-Temp) as a pipe insulator, his employment was, for purposes of this case, at the Baltimore Gas and Electric Company’s (B.G. & E.) Gould Street Power Plant. His work assignments came from or through B.G. & E.’s foremen and supervisors for fifteen months, from the time he was employed until the time he was injured, although his skills and performances were subject to his employer’s supervision. Thompson had his own portable metal scaffolding which he used occasionally.

It contained a built-in ladder at the top of which was an access opening through protective siderails. Scaffolding was frequently necessary to reach and insulate the large overhead pipes. In August of 1979, a leak developed in an overhead steam pipe which required a scaffolding platform 10 feet above ground level to provide access for the pipe to be stripped, repaired (welded) and reinsulated. A substantial wooden scaffolding 4^2 feet wide and 6 feet deep was built by B.G. & E. using 4" X 4" beam supports, 2" X 12" lumber for the flooring and two 2" X 4" guardrails, the top rail 38y> inches and the other rail approximately 20 inches above the flooring; however, no access opening was provided through the railings.

Furthermore, a 1" X 10" “toe board” was installed along the flooring inside the 4" beams in order to keep tools and materials from falling. To reach the scaffolding from ground level, employees of both B.G. & E. and Insul-Temp commandeered a ladder from elsewhere in the plant and ascended it to the railings which they climbed in one of two ways. If a 16 foot ladder was available as described by a B.G. & E. foreman, he would ascend it to the top, sit on the top railing, swing his legs over the railing and drop the 38y2" to the platform. When only a 12 foot ladder was available as on the day when appellee was injured, the appellee following the customary manner of ascent of others with whom he worked (regardless of em ⁶⁴⁵ ployer), upon reaching the top of the ladder, took hold of the top guardrail and stepped on the toe board to gain sufficient elevation to step over the top rail.

Although on cross-examination appellee acknowledged that “toe boards” were intended to keep materials from falling and not as a “bearing surface” because they could break, he had always stepped on the toe board at this location since there was no other means of access from a 12 foot ladder. He “thought it [the toe board] was there to climb over, to use to get over the top of the rail. Like it was, everybody else did.” Furthermore, he thought it was safe to do so, not only because he had done so before, but because he had seen others — including B.G. & E. employees — do so. On the fateful day in August, 1979, the “toe board” broke under appellee’s weight as he prepared to step over the top rail.

He fell to the floor, was seriously and permanently injured, sued B.G. & E. in the Circuit Court for Baltimore City and was awarded $1,300,000 by a jury. Upon appeal, B.G. & E. does not contest the amount of damages but primarily rests its hopes upon its conclusion that appellee had assumed the risk or negligently contributed to his own injury by the manner he utilized in attempting to enter the scaffolding. With less intensity, but equal hope, B.G. & E. also contends that because Thompson was not an employee of B.G. & E., error was committed by the trial judge having instructed the jury that B.G. & E. was responsible for providing him with a safe place of employment and further erred by instructing as a standard of care the application of the Baltimore City Building Code and B.G. & E.’s own regulations regarding the use of ladders. Synoptically, appellant’s argument is that it is clear from the testimony that Thompson was of normal intelligence in his position as an insulator and must have understood the danger involved, thereby making his use of the scaffolding in the manner resulting in injury an assumption of risk as a matter of law.

Gibson v. Beaver, 245 Md. 418, 421 , 226 A.2d ⁶⁴⁶ 273 (1967). As appellant interprets the testimony, it contends that Thompson admitted that toe boards were for containment of materials, not for steps and, at least when asked, recognized that they were liable to break when stepped upon. In regard to the requirement that for a risk to be assumed the assumption must be voluntary it points to Burke v. Williams, 244 Md. 154, 158 , 223 A.2d 187 (1966), contending here as it was there that no evidence was produced that Thompson’s job would have been in jeopardy had he refused to ascend the scaffold in the manner he did. We find neither argument persuasive, nor do we consider the cases cited by appellant so factually apposite as to compel a holding of assumption of risk or contributory negligence as a matter of law.

As appellant itself points out, citing Bauman v. Woodfield, 244 Md. 207, 216 , 223 A.2d 364 (1966), the affirmative duty to provide an employee a reasonably safe place to work is discharged if the employer warns the employee of dangers that are not obvious or, even absent such warning, if the dangers are actually or constructively known to the employee. But what is glossed by appellant is the predicate that the employer’s duty “... is relative and conditional, and what would be a full discharge of the duty under one set of circumstances may not be under another.” Id. The circumstances in this case can by no means warrant a conclusion as a matter of law, either that the danger was or should have been obvious to Thompson. Certainly, there was no evidence that he was warned by B.G. & E. to whom the master-servant duty to provide a safe place of employment applies.

Id. and see LeVonas v. Acme Paper Board Co., 184 Md. 16, 19-20 , 40 A.2d 43 (1944). Thompson observed the erection of the scaffold by the company and watched company employees ascend it in that same manner for two weeks before the accident. It is inferable from that, together with Thompson’s own use of it during that period, that any danger that might initially have ⁶⁴⁷ been apparent to him was assuaged by company employee use without constraint or incident. This alone would overcome appellant’s reliance on Gibson, supra, that the danger should have been clear to one in Thompson’s position because it obviously was not clear to B.G. & E., or its employees in Thompson’s position.

This then leaves this case as “... the usual case, his knowledge and appreciation of the danger will be a question for the jury.” Gibson, supra 245 Md. at 421 , 226 A.2d 273 , quoting Prosser, Torts (2d ed. 1955) 310. Appellant’s supporting argument that appellee admitted his knowledge of the dangerous propensity of improper use of the toe board simply does not address itself to that circumstance at the time of the accident. The questioning pointed to by B.G. & E. clearly was to elicit Thompson’s present knowledge abstractly and did not address what he knew before the accident or what appeared to him under the pre-accident circumstances, only what abstractly he knew might result. “Q Just two other questions, Mr. Thompson, before I conclude. Before your eight years experience as an insulation mechanic, and having climbed and been on scaffolds on numerous jobs, you were aware that the purpose of a toeboard around the scaffold is to keep the tools and materials from falling off, and the toeboard itself is not intended to be a bearing surface, is that correct?

A Yes, sir. Q Mr. Thompson, when I say, a toeboard was not a bearing surface, what I meant, it is not there to bear weight, it is to keep things from going off the scaffold, you understood that, didn’t you? A Yes, I understood what you meant, yes. Q You know you are not supposed to stand on a toeboard, it is not intended to bear your weight?

A Not intended, no, sir. ⁶⁴⁸ Q What is improper about stepping on the toe-board? A Liable to break. Q And you were aware of that, weren’t you? You were aware when you stepped on it that it was improper because it is liable to break?

A Yes, sir.” But appellant leaves out the part of its own cross-examination wherein Thompson explained why he thought in this instance it must have been safe. First, while conceding that the normal toe board use is not generally intended as a step, the scaffold construction here left no alternative. Secondly, this particular toe board was obviously intended for that purpose because other people used it as the only means of ascent, as did he. “Q You were aware that this toe-board that you stepped on was not there for that particular purpose? A No, I didn’t.

Q You didn’t what? You didn’t know that? A I knew the toe-board was there to keep things from falling out from inside of the scaffolding. Q You were aware it was not a safe thing to step on, weren’t you?

A Since it wasn’t a passageway to get on the scaffold, I thought it was there to climb over, to use to