Brady v. Ralph M. Parsons Co.

McAULIFFE, Judge. At common law an employee could sue his employer for negligence in failing to use reasonable care to provide a safe workplace. The employer-defendant could assert the defenses of contributory negligence and assumption of risk. In 1914 Maryland passed its first workers’ compensation law, providing compensation to employees and their dependents for accidental injuries which arose out of and in the course of employment.

This compensation scheme involves ²⁷⁹ certain trade-offs: employees and their dependents receive benefits according to a schedule which does not, however, include damages for pain and suffering, loss of enjoyment of life, or the like; on the other hand, the employer is required to provide benefits regardless of fault, 1 and the defenses of contributory negligence and assumption of risk may not be asserted to defeat a compensation claim. With the exception of certain narrow grounds not here relevant, workers’ compensation is the exclusive remedy of the injured employee and his dependents against an employer for an injury or death covered by the compensation law. The question presented by this case is whether a defendant who is not an employer of the worker involved, and thus does not have the protection of the “exclusive remedy” provisions of the workers’ compensation law, may assert the defenses of contributory negligence and assumption of risk when an action in negligence is brought by the dependents of the deceased workman who allege failure to provide a safe workplace and who claim the defendant violated safety regulations intended for the benefit of the deceased worker. Donald C. Brady (decedent) was working on the construction of the Cold Spring Lane Station of the Baltimore Regional Rapid Transit System when, on 18 June 1981, he suffered a fall that caused his death.

Brady worked for Rocky Mountain Skylight, Inc. (Rocky Mountain), a subcontractor of Hensel-Phelps Construction Company (HenselPhelps), the general contractor on the project. The owner of the property was the Mass Transit Administration (MTA), an instrumentality of the Maryland Department of Transportation and the owner of the Baltimore subway. In addition to hiring Hensel-Phelps as the general contractor, ²⁸⁰ MTA also contracted with the respondent herein, Ealph Parsons Co. (Parsons), to serve as construction manager, and with Baltimore Regional Insurance Transit Services (BRITS), a joint venture of insurance agencies, to design and administer a coordinated insurance program and safety program for the project. As a part of its contract, Parsons undertook to “provide the necessary consultant, coordinating, management, technical, supervisory and inspection services required by the MTA for construction of the project.” As construction manager, Parsons’ duties were extensive, and included the following responsibilities pertaining to safety: The CM shall provide safety engineering services, coordinated with BRITS, necessary to develop and ensure the application of a uniform system of safety and accident prevention and reporting procedures.

The CM shall also provide safety engineering services as required to ensure compliance with the provisions of the MTA Construction Safety Manual; the contractual obligations of MTA contractors, other applicable guidance. The CM shall also direct contractors to correct any unsafe acts or conditions that may be detected. The MTA Construction Safety Manual required that Parsons provide a qualified, full-time, on-site supervisory staff for the management and inspection of all construction work being performed on the project and required the staff, among other things, to recommend construction techniques to expedite the project and assure job safety. Parsons also prepared a manual for Construction Management Services which detailed a number of safety responsibilities.

Parsons was required to provide a chief safety engineer, whose duties included implementing the safety program, inspecting work in progress, reporting hazards or unsafe practices, and conducting regular safety meetings with the contractor’s foreman and with representatives of the various crafts. The safety engineer was also directed to assure compliance with federal and state safety requirements and applicable codes and to ensure the contractors’ compliance ²⁸¹ with the provisions of the MTA Construction Safety Manual. Brady’s survivors and the Personal Representative of his estate (plaintiffs) sued Parsons for negligent performance of its safety responsibilities. The trial court entered summary judgment against the plaintiffs on the ground that MTA was a statutory employer of Brady within the meaning of the workers’ compensation law and therefore entitled to the immunity from tort action provided by that law, and that Parsons, having assumed some of MTA’s duties, was entitled to the same “immunity.” This Court reversed, holding that MTA was not a statutory employer of Brady and that Parsons was not entitled to immunity under the workers’ compensation law.

Brady v. Ralph Parsons Co., 308 Md. 486, 508-13 , 520 A.2d 717 (1987). The action was then tried, and a jury returned a special verdict finding that Parsons was negligent, but also finding that Brady was contributorily negligent and had assumed the risk. The trial judge entered a judgment in favor of the defendant, and the plaintiffs appealed. The Court of Special Appeals affirmed.

Brady v. Parsons Co., 82 Md.App. 519 , 572 A.2d 1115 (1990). The intermediate appellate court agreed with plaintiffs that Parsons owed an “assumed duty” to Brady to supervise, implement, and enforce safety programs on the project, including the duty to enforce safety measures at the worksite in compliance with federal and state occupational safety and health regulations. That Court further held, however, that the affirmative defenses of contributory negligence and assumption of risk were properly submitted to the jury. The plaintiffs filed a petition for certiorari with this Court, arguing that the affirmative defenses should not have been available to the defendant because Parsons owed a nondelegable duty to Brady and because Parsons violated a safety regulation, and because the evidence was insufficient to support either defense.

Parsons did not file a cross-petition. We granted plaintiffs’ petition. ²⁸² We will decide this case on the issues presented to us by the parties—specifically, whether the defenses of contributory negligence and assumption of risk were available to Parsons under the facts of this case. We note in passing, however, that there are significant questions concerning the existence and extent of a tort duty owed by Parsons to Brady which are not before us and which we do not address. Parsons was not an employer of Brady— neither in the traditional sense nor as a “statutory employer” under the workers’ compensation law of this state.

With respect to any tort duty that Parsons may have owed to Brady as a result of duties Parsons assumed by virtue of its contract with MTA, this Court pointed out in Council of Co-owners v. Whiting-Turner, 308 Md. 18, 32 , 517 A.2d 336 (1986), and in Matyas v. Suburban Trust Co., 257 Md. 339, 344 , 263 A.2d 16 (1970), that when parties contract with one another to undertake a duty which neither of them is under a legal obligation to perform, they may have a responsibility to each other for a breach of that agreement, but a previously non-existent tort duty to third persons will not thereby be created. Although MTA could by contract share its tort duties with Parsons, their contract would not ordinarily create new tort duties in favor of third parties, 2 and the duties assumed by Parsons would not ordinarily exceed those owed by MTA to Brady. In Rowley v. City of Baltimore, 305 Md. 456 , 505 A.2d 494 (1986), we discussed at some length the duties of a landowner who had employed an independent contractor to perform certain work on the premises. We there noted the various provisions of Chapter 15 of the Restatement (Second) of Torts, dealing with the liability of an employer of an ²⁸³ independent contractor, and we reproduced comments by Dean Prosser suggesting the absence of intent by the drafters of the Restatement to expressly include employers of independent contractors within the protection of that chapter.

Id. at 466-75 , 505 A.2d 494 . We specifically pointed out the anomaly of providing greater protection to employees of an independent contractor than to the defendant’s own employees and the effect of workers’ compensation laws, and held that those provisions of the Restatement were generally intended for the protection of persons other than the independent contractors and their employees. Id. at 470-71 , 505 A.2d 494 . In analyzing the extent of any tort duty that MTA may have owed to employees of subcontractors, we note that MTA did retain some degree of control over the project by the terms of its contracts with Parsons, Hensel-Phelps, and BRITS.

Section 414 of the Restatement (Second) of Torts provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. Putting aside for the moment the question, discussed above, whether employees of subcontractors are within the class of persons to whom the duty referred to in this section may run, we note from the Comments to this section that the principle is intended to apply where there is retention of control over the operative detail of the work. Comment c states: In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe ²⁸⁴ alterations and deviations.

Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way. See generally Krieger v. J.E. Greiner Co., 282 Md. 50 , 382 A.2d 1069 (1978); Parker v. Neighborhood Theatres, 76 Md.App. 590, 598-602 , 547 A.2d 1080 (1988); Lunde v. Winnebago Industries, Inc., 299 N.W.2d 473, 479-80 (Iowa 1981). As noted above, the parties have proceeded on the assumption that the degree of control retained by MTA, and by contract shared with Parsons, was sufficient to give rise to a duty flowing from Parsons to the employees of subcontractors, and we shall indulge the same assumption for purposes of this case.

The jury having found that Parsons was negligent in the performance of its duties, 3 we turn to a consideration of whether the defenses of contributory negligence and assumption of risk are available to Parsons and if so, whether there was sufficient evidence to support the jury’s findings on those issues. Initially, plaintiffs contend that Parsons’ duty was “nondelegable,” and for that reason Parsons cannot advance defenses of contributory negligence and assumption of risk. Plaintiffs argue that allowing these defenses would be tantamount to placing some responsibility on Brady for his own safety, and thus “delegating” some of Parsons’ nondelegable duty. Plaintiffs misconstrue the meaning of the term “nondelegable duty.” As ordinarily ²⁸⁵ used in this context the term means a duty that cannot be avoided by the employment of an independent contractor.

There are ... situations wherein the law views a person’s duty as so important and so peremptory that it will be treated as nondelegable. Defendants who are under such a duty "... cannot, by employing a contractor, get rid of their own duty to other people, whatever that duty may be.” Duties imposed by statute are often found to be of this kind____ 5 Harper, James, and Gray, The Law of Torts § 26.11 at 83 (2d ed. 1986) (footnotes omitted). See also Council of Co-owners v. Whiting-Turner, supra, 308 Md. at 39-41, 517 A.2d 336 ; Rowley v. City of Baltimore, supra, 305 Md. at 466 , 505 A.2d 494 . We explained in Rowley that the term “nondelegable” is “something of a misnomer, as the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of non-performance of the duty.” Id.

Contrary to the plaintiffs’ contention, the defenses of contributory negligence and assumption of risk are ordinarily available in an action based upon a breach of a nondelegable duty. Next, plaintiffs contend that Parsons violated safety statutes or standards promulgated for the benefit of workers, and as a result Parsons should be held to strict liability without benefit of the defenses of contributory negligence or assumption of risk. The sources to which plaintiffs refer are the Occupational Safety and Health Act of 1970 (OSH Act), 29 U.S.C. §§ 651 through 678, the Maryland Occupational Safety and Health Act (MOSH Act), §§ 5-101 through 5-901 of the Labor and Employment Article, Maryland Code (1991 Repl.Vol.), and the standards adopted pursuant to those statutes. 4 ²⁸⁶ Plaintiffs contend there was evidence of failure to comply with several safety standards, including the following sections of 29 C.F.R.: § 1926.451(e)(10) requiring guardrails at all open sides and ends of scaffolds more than ten feet above the ground or floor. § 1926.451(e)(3) requiring proper bracing of scaffolds. § 1926.105(a) requiring that “[sjafety nets shall be provided when workplaces are more than 25 feet above the ground or water surface, or other surfaces where the use of ladders, scaffolds, catch platforms, temporary floors, safety lines, or safety belts is impractical.” Plaintiffs do not contend that inadequate bracing of the scaffold caused or contributed to Brady’s fall. 5 A citation was issued pursuant to the MOSH Act, charging Rocky Mountain with serious violations for alleged failure to comply with §§ 1926.451(e)(10) and 1926.451(e)(3). Rocky Mountain was not charged with a violation of § 1926.105(a).

The task that Brady was performing at the time he fell should have taken no more than ten or fifteen minutes. It involved attaching a prefabricated sheet of aluminum cladding to a horizontal beam that rested upon vertical columns and supported a skylight over the station platform. Brady, as the working leader of a three-man team, directed the construction of a scaffold from which he and another worker were to install the cladding. As erected, the scaffold was ten feet high, on eight inch wheels, for an overall deck height of 10'8" above the rail bed.

At this point, the railway was elevated. The rails and station platform were on the base of a “U”-shaped run, which was supported by vertical columns joined at the top by horizontal beams. The ²⁸⁷ vertical walls of the “U”-shaped run were approximately five feet high and were inside of and contiguous to the vertical supporting columns. The west end of the scaffold was placed 17 inches from the west vertical wall of the run.

Brady and his men erected the scaffold almost directly beneath, and parallel to, the horizontal beam to which they were to attach the cladding. The scaffold, which was approximately ten feet long, was placed parallel to the horizontal beam, and perpendicular to the tracks. A guardrail was attached on the south side of the scaffold along its full length, but no guardrails were erected on the north side or on the east or west ends. The explanation given by one of the workers for this omission was that if remaining guardrails had been attached, the top rails would have been higher than the horizontal beam above the scaffold, and no part of the scaffold could have been placed beneath the horizontal beam.

This, the workman explained, would have made the installation of the final piece of cladding more difficult, if not impossible, because a portion of the cladding had to be attached to the underside of the beam. The particular piece of cladding involved was one-eighth inch aluminum, approximately 7 feet long by 24 inches wide. The aluminum had been bent to an “L” shape along its length, with the legs of the “L” being approximately 18 inches and 6 inches respectively. When put into place along the horizontal beam, the 18-inch leg would cover a vertical face of the beam and the 6-inch leg would complete the coverage of the underside of the beam.

There were apparently clips on the underside of the beam into which the cladding had to be fit, as well as tabs on both faces of the beam to which the cladding would be rivetted. Silicone caulking was to be applied at the edges to ensure a watertight installation. All of the other cladding on the vertical and horizontal beams at this station had been installed earlier. This particular piece was missing because the material originally supplied had been improperly fabricated and did not fit. ²⁸⁸ The witnesses did not agree on the circumstances of Brady’s fall.

Edward Kennel, one of Brady’s co-workers, said that he saw Brady climb onto the scaffold and install the top rail of the scaffold along its south side. He said Brady then began scraping old silicone caulking (applied when the earlier installation was attempted) from the horizontal beam. Kennel, who was on the station platform near the base of the scaffold, was gathering tools and did not see Brady fall. He said he looked up only to see Brady’s hands disappearing outside the west wall