Brady v. Ralph M. Parsons Co.

ROSALYN B. BELL, Judge. This case presents the question whether the defenses of contributory negligence and assumption of risk were properly submitted to the jury in an action based upon an independent contractor’s alleged violation of an assumed duty to ensure a safe workplace for someone other than its own employees. We hold that these defenses were properly submitted to the jury. On January 18, 1981, Donald C. Brady (decedent), 1 died as a result of injuries he sustained in a fall from a scaffold erected during construction at the Cold Spring Lane Station of the Baltimore Region Rapid Transit System.

The decedent was employed as a sheet metal worker with the Rocky Mountain Skylight Co., one of the subcontractors hired to assist in the construction of the station. The Mass Transit Administration (MTA), owner of the Baltimore Subway and its subsidiary stations, entered into three main contracts for the construction of the Cold Spring Station. First, MTA contracted with Hensel-Phelps Construction Company (Hensel-Phelps) to be the general contractor on the project. Hensel-Phelps subcontracted a portion of the construction work to the decedent’s employer, Rocky Mountain.

MTA also contracted with the Baltimore Regional Insurance Transit Services (BRITS) to design and administer a safety program for the site. The third contract was with the Ralph Parsons Co. (Parsons), appellee herein, to provide, inter alia, inspection and safety services for MTA. Schematically, the contractual relationship among the various parties is shown by the following diagram: ⁵²² [[Image here]] This appeal arises from Parsons’ alleged violation of its contractual safety duties and responsibilities as they relate to events surrounding the decedent’s death. At trial, Edward Kennel, the decedent’s co-worker, testified that he and the decedent worked together erecting skylights and cladding. 2 On the day of his death, the decedent had gone up on the scaffolding by himself to prepare the surface in order to replace a piece of cladding which had been improperly fabricated.

In preparation for replacing the cladding, the decedent, Kennel and another co-worker erected scaffolding. Kennel stated that, although the use of safety rails or belts would have prevented the fall, they did not have a safety rail on the scaffolding nor did they wear safety belts. Kennel added that they could have spent three to four hours to build or weld something in place of a safety rail but it was not practical since it was only a five- to ten-minute job to install the cladding. Kennel pointed out that in placing the cladding on the columns it was necessary to erect the scaffolding in a certain way and in doing so they could not use safety rails.

He also stated that they did not wear safety belts because they could not hook a rope onto a fixed structure. ⁵²³ Although it was possible to tie off to the columns covered with cladding, that would run the risk of scarring the cladding. Kennel further stated that, if the scaffolding had been moved back, a safety rail could have been installed but he did not know if they could have accomplished the job from that position. Kennel averred that they had erected and used the scaffolding in the same fashion for the past 11 months while installing the cladding. During that time, no safety personnel stopped them from proceeding in that manner.

In April of 1982, the decedent’s survivors and the personal representative of his estate filed suit against Parsons for negligent performance of its contractual safety responsibilities at the construction site. 3 The trial court granted summary judgment in favor of Parsons on the basis that MTA was the decedent’s statutory employer under the Worker’s Compensation Act and Parsons shared MTA’s statutory immunity. 4 In Brady v. Ralph Parsons Co., 308 Md. 486 , 520 A.2d 717 (1987), the Court of Appeals reversed and remanded, holding that MTA was not the statutory employer of the decedent and hence Parsons could not cloak itself with the immunity protection. Brady, 308 Md. at 508 , 520 A.2d 717 . On remand, in a special verdict, the jury found Parsons negligent and also found the decedent was contributorily negligent and had assumed the risk. The jury also returned money judgments for appellants.

Based on the jury determination of contributory negligence and assumption of ⁵²⁴ risk, the trial court entered judgment in favor of Parsons. Appellants, the decedent’s surviving family and the personal representative of his estate, appeal from that judgment, alleging that the trial judge erred by instructing the jury on contributory negligence and assumption of risk. As a second assignment of error, appellants allege the trial court erred in excluding the testimony of Carl Silver, Ph.D., an expert in the field of human engineering. PARSONS’ DUTY Appellants’ primary contention is that the trial judge erred by instructing the jury on the issues of contributory negligence and assumption of risk.

The basis of this contention is that the statutory safety obligations Parsons contracted to assume constituted a nondelegable duty to ensure compliance with the applicable safety regulations. They further argue that this duty to provide safety measures was absolute and, therefore, Parsons cannot assert that the decedent was contributorily negligent or assumed the risk. Although we agree with appellants that Parsons owed the decedent a duty, we see the nature and extent of the tort duty owed differently than appellants. The problem with appellants’ argument is that the principles they rely upon and cite do not apply to the instant case.

Before we explain why appellants’ argument is misplaced, we must first discuss the nature and extent of Parsons’ duty to maintain a safe workplace pursuant to its contract with MTA. THE CONTRACT MTA entered into a contract with Parsons to be the construction manager during the construction of the station. In this role, Parsons was to provide construction management, supervisory, inspection and safety services for MTA. MTA also contracted with the Baltimore Regional Insurance Transit Services (BRITS) to design and administer a ⁵²⁵ safety program.

To this end, BRITS prepared a safety and reporting procedure manual (MTA Construction Safety Manual) to establish a “practical, sound and effective program for the prevention of accidents, as well as the assignment of specific responsibilities to contractors for program compliance.” According to the contract with MTA, Parsons was required to “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 [construction manager] 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.” Parsons’ contract § 2.02.2HH. The MTA Construction Safety Manual set forth a safety program to be administered and required that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et seq.

(OSHA) and the Maryland Occupational Safety and Health Act of 1973, Art. 89, §§ 28 et seq. (MOSHA) regulations be followed on all work. During the construction phase of the project, Parsons was required to “[p]rovide a qualified, full-time, on-site supervisory staff for the management and inspection of all construction work being performed on the Project.” Among other responsibilities, the staff was supposed to “[r]ecommend construction techniques to expedite the Project and assure job safety.” Parsons' contract at § 2.02.2G(5). Pursuant to its contract, Parsons prepared a Manual for Construction Management Services which provided policies and procedures to be followed to ensure compliance with its contractual obligations with MTA.

The manual is replete with references to Parsons’ safety responsibility. Parsons’ ⁵²⁶ chief safety engineer was responsible for the implementation and enforcement of the safety plan for the overall construction program. His specific duties included: “a) Implement the MTA’s safety program to eliminate accidents, promote maximum efficiency through safe work methods and conditions and the reduction of direct and indirect costs of accidents. “b) Make frequent and unscheduled inspection of the work in progress and report hazards or unsafe practices to the Resident Engineers for immediate action or remedy. “c) Conduct regular safety meetings with the Contractor’s foreman and representatives of the various crafts employed on the construction program. “d) Assure compliance with OSHA and MOSHA safety requirements and applicable codes. 4c $ * 4c 4< 4c “f) Ensure the contractors’ compliance with the provisions of the MTA Construction Safety Manual. “The Chief Safety Engineer will coordinate the safety program with the MTA’s insurance representatives to develop, monitor, and ensure a uniform system of safety, accident prevention, and reporting procedures. “Construction plans will be reviewed to identify and eliminate possible hazards, and to assure compliance with MOSHA standards.” Parsons’ manual 4.2.1. In addition, the chief safety engineer was authorized to order a work stoppage if unsafe conditions existed.

Parsons’ manual at 4.2.2(d). Appellants contend that Parsons owed a duty to the decedent as a result of its assumption of the contractual responsibility to comply with OSHA and MOSHA regulations. To the contrary, Parsons alleges that the duty to maintain a safe workplace under OSHA and MOSHA exists only between employers and their own employees. Hence, Parsons argues, since it was not the employer of the decedent, OSHA and MOSHA imposed no duties upon it with respect to the decedent.

We disagree. ⁵²⁷ In Murphy v. Stuart M. Smith, Inc., 58 Md.App. 640 , 455 A.2d 69 , cert. denied, 296 Md. 61 (1988), we stated that, generally, the duty created by MOSHA runs from the employer to its own employees. We pointed out, however, that there are circumstances under OSHA where the employer’s duty to maintain a safe workplace may be owed to someone other than its own employees. One of these circumstances is where the employer “voluntarily assumed a duty to comply with OSHA regulations for the benefit of persons other than his own employees.” Murphy, 53 Md. App. at 643 , 455 A.2d 69 . 5 In Murphy, appellant was injured allegedly due to defective lighting on the premises which were leased to his employer by appellee in that action. Appellant alleged that the owner of the premises owed him a duty under MOSHA to provide a safe place of employment.

In holding that the owner of the premises had no duty under MOSHA, we stated: “[W]e are a Court purposed to decide cases on the facts presented rather than proclaim in black letter the applicability of law for all purposes.... It will suffice that under the facts of this case the Maryland Act is clearly limited, placing the duty on the ‘employer’ for the benefit of ‘his employees.’ ” Murphy, 53 Md.App. at 644 , 455 A.2d 69 . We acknowledged, however, the “assumed duty exception” in Murphy, although it was not factually relevant ⁵²⁸ there. (See Baltimore Gas & Electric Co. v. Thompson, 57 Md.App. 642, 651 , 471 A.2d 768 (1984), noting that Murphy implicitly acknowledges the hazardous condition/control of the work area exception, discussed in n. 5.) This exception is relevant here since Parsons assumed the responsibility for safety on the construction site.

Moreover, although we have not expressly adopted the “assumed duty exception,” Maryland appellate courts have utilized the policy behind it as a basis for imposing liability: that is, where a duty of due care has been assumed by contract or conduct, a worker not in privity is protected. This policy was examined in Krieger v. J.E. Greiner Co., 282 Md. 50 , 382 A.2d 1069 (1978), where the Court of Appeals addressed the law relative to contracts of engineers and their liability to an employee injured on the job. In Krieger , a construction worker employed by a subcontractor of the general contractor was injured while working on the Harbor Bridge construction project. The subcontractor and general contractor were immune under worker’s compensation laws.

The owner of the project, the State of Maryland, was not immune under the worker’s compensation laws, but was entitled to sovereign immunity. Krieger, therefore, filed suit against the project engineers who had been hired by the State to perform engineering services. Krieger alleged that the engineers owed a duty of care to him by reason of their contracts with the State. Krieger further alleged that the engineers had assumed a duty to stop work whenever they observed improper construction practices because they had done so on prior occasions.

The Court stated that, in order for the engineers to be liable to an injured worker, it was necessary to find a breach of a duty by the engineer to the worker. The Court added that such duty must arise either from a contractual provision placing that responsibility on the engineer or that the engineer had assumed responsibility for safety. Krieger, 282 Md. at 69 , 382 A.2d 1069 . Also, in Cutlip v. Lucky Stores, Inc., 22 Md.App. 673 , 325 A.2d 432 , cert. denied, 273 Md. 719 (1974), an architec ⁵²⁹ tural firm contracted with Lucky Stores to design and supervise the construction of a department store.

Cutlip, while employed by a structural subcontractor on the project, was killed on the job when a portion of the building collapsed. As in Krieger , both Cutlip’s employer and the general contractor were immune under workers’ compensation law. Cutlip’s representatives filed a wrongful death action against Lucky Stores and the architect. We held that the supervisory authority assumed by the architect under his contract to the County subjected him to a duty which covered the deceased.

Cutlip, 22 Md.App. at 694 , 325 A.2d 432 . Hence, under Maryland law, supervising and consulting engineers and architects may owe a duty to workers with whom they have no privity, by virtue of the terms of the contract or by a voluntary assumption of duties. Imposing a duty on those who have assumed the responsibility to comply with safety regulations simply reinforces the policy of holding liable those who have assumed a duty of due care. This is particularly true where, as here, there is a multi-employer worksite where employees of a number of contractors are present.

In light of the policy set forth in Krieger and Cutlip , we conclude that one who assumes the contractual obligation to supervise and enforce safety on a multi-employer worksite owes a duty of reasonable care to a worker even though he or she has no contractual privity. Since the “assumed duty exception” encompasses this conclusion, we hereby adopt that exception. In applying the “assumed duty exception” to the instant case, it is obvious that the provisions in Parsons’ contract with MTA and its related documents required Parsons to supervise, implement and enforce safety programs in connection with the construction project. In fact, Parsons does not contest this.

See Brady, 308 Md. at 493 , 520 A.2d 717 . We therefore hold that, by assuming these responsibilities, Parsons owed the decedent a duty to enforce safety mea ⁵³⁰ sures on the worksite in compliance with OSHA and MO-SHA regulations. Since the jury found Parsons negligent, we proceed to the crux of appellants’ argument: are the defenses of contributory negligence and assumption of risk barred in this case? —The Affirmative Defenses— Appellants suggest that, since OSHA and MOSHA were designed to protect workers from injury and to ensure a workplace free from recognized hazards, it would be inconsistent with the purpose of the statutes to allow the interposition of these defenses. The purpose of these types of statutes is to protect a particularly vulnerable class of people from hazards in a definable environment which they themselves are incapable of avoiding.

Workers earning their livelihood in dangerous occupations are rarely in a position to protect themselves from accidents, having the choice of working with the equipment or conditions at hand or not working at all. To permit the employer to assert contributory negligence or assumption of risk would, in large measure, defeat the object of the statute. See Prosser & Keeton on Torts § 65 at 461-62 (contributory negligence) and § 68 at 493 (assumption of risk) (5th ed. 1984). Based on this reasoning, a number of courts have held these defenses unavailable in cases where the defendant’s liability is premised upon the violation of a statute requiring employers to furnish a safe place to work. 6 This is further ⁵³¹ supported by Restatement (Second) of Torts §§ 483 and 496F which also preclude contributory negligence (§ 483) and assumption of risk (§ 496F) as defenses to a violation of a statute if the effect of the statute is to place the entire responsibility for the harm that has occurred upon the defendant.

Maryland, however, has not taken this position. Prior to the enactment of MOSHA, the Court of Appeals was faced with the question of what defenses were available where a safe workplace was not provided. In Lawrence v. Cavanaugh, 249 Md. 176, 179 , 238 A.2d 859 (1968), the Court of Appeals held that the defense of assumption of risk is not barred if the employer breaches his or her duty to furnish a safe place of employment under Md.Code Ann.Art. 89, § 29 (1957) which provided: “Every employer shall furnish and maintain employment and a place of employment which shall be reasonably safe for employees. Every employer shall install, maintain and use such methods, processes, devices and safeguards, as are reasonably necessary to protect the life and safety of such employees, and shall do every other thing reasonably necessary to render safe such ⁵³² employment and place of employment.” 7 In so holding, the Court reasoned that the statute neither provided a remedy to an employee nor abrogated the defense of assumption of risk if the employer breached its duty to furnish a safe place to work. 8 Lawrence, 249 Md. at 179 , 238 A.2d 859 .

Moreover, in Thompson , where we imposed a duty upon someone other than the injured employee’s employer to maintain a safe workplace, we held that whether the employee assumed the risk was a question for the jury. Other Courts adhere to this principle that a violation of a statute which requires employers to furnish a safe place to work does not deprive the employer of the defenses of contributory negligence and assumption of risk unless the statute expressly abrogates the defenses. 9 ⁵³³ In light of the Lawrence and Thompson holdings, we would contradict established precedent if we were to adopt appellants’ position. We are mindful, however, that Lawrence was decided before MOSHA was enacted and that in Thompson no exception was taken to the instructions, but instead the question was whether the employee assumed the risk as a matter of law. Hence, we are reluctant to use prior case law as the sole basis for our holding.

We explain. MOSHA was not enacted to create an action for damages in favor of an employee. This is manifest from the preventive