Mardo Homes, Inc. v. Commissioner of Labor & Industry

Menchine, J., delivered the opinion of the Court. On October 16, 1975, three employees of Mardo Homes, Inc. (employer) were instructed to clean the leaves from rainspouts in one of its townhouse rental developments. The employer provided its employees with an aluminum ²⁶¹ extension ladder consisting of two fifteen foot sections, without a pulley leader, for use in the work. In the absence of a pulley leader, it was necessary to carry the ladder by hand to the scene of the work and make the section assemblage at that point.

Upon assembly, the workmen placed it on the ground at a 90° angle facing the townhouses and after rotating the ladder, raised it to a vertical position, and moved it toward the roof of the building. In the course of that movement the extended metal ladder came in contact with uninsulated electric wires carrying 7600 volts. One employee was killed, and a second severely injured. The uninjured third employee had released his hold upon the ladder an instant before contact was made with the charged wires.

The wires in question, consisting of three strands running parallel to the building, were approximately at rooftop level, approximately 16 feet from the ground, and separated from the building by about 15 feet. On October 28, 1975, the assistant commissioner for occupational safety and health issued a citation 1 to employer, alleging that it had violated the Maryland Occupational Safety and Health Act of 1973, codified as Maryland Code Article 89, §§ 28-49A (MOSHA). MOSHA is substantially similar to and interconnected with the Federal Ocupational Safety and Health Act (OSHA), 29 U.S.C. 651, et seq. as was clearly and succinctly pointed out in J. I. Hass Co. v. Dept. of Lic. and Reg., 275 Md. 321 , 340 A. 2d 255 (1975), at 327-28 [259]: “The Maryland Occupational Safety and Health Law, Art. 89, §§ 28-49B, was enacted as Chapter 59 of the Laws of 1973, effective July 1 of that year. It is substantially similar to the Federal Act.

It vests in the Commissioner of Labor and Industry ‘the power and authority to administer and enforce the provisions of this subtitle and [the duty to] prescribe such rules and regulations as he may deem necessary to carry out his responsibilities ²⁶² under this subtitle.’ Art. 89, § 30. Essentially, it tracks the Federal Act in providing for the promulgation of occupational safety and health standards, and in fixing the duties of the employers and employees, and in establishing citation and enforcement procedures. Additionally, the State Act adopts the same civil penalties that are specified in the Federal Act. With particular reference to the standards, § 31 (c) of the State Act provides that: ‘. . . [T]he Board shall recommend or propose occupational safety and health standards which are or will be at least as effective in providing safe and healthful employment and places of employment as any standard promulgated under the federal Occupation Safety and Health Act of 1970....’ “Having met the applicable federal requirements, the State Act received the approval of the Secretary of Labor on July 5, 1973. 38 Fed. Reg. 17834 .

Thereafter, the Commissioner, acting on the recommendation of the Occupational Safety and Health Advisory Board created pursuant to § 31(a) of the State Act, adopted as standards under the state plan the general industry standards ( 29 C.F.R. § 1910 ) and the construction standards ( 29 C.F.R. § 1926 ) promulgated by the Secretary of Labor under the Federal Act.” The citation charged that employer violated general industry standard 29 C.F.R. 1910.26(c)(3)(viii), incorporated into the State plan, and reading as follows: “§ 1910.26 Portable Metal Ladders (c) Care and Maintenance of ladders (3) Use of ladders (viii) Users are cautioned to take proper safety measures when metal ²⁶³ ladders are used in areas containing electric circuits to prevent short circuits or electrical shock.” The citation contained the following description of the alleged violation: “Employer/Employees did not take proper safety measures when using a 30 ft. metal ladder near 7600 volt electric line at the following location: a) 5000 block of Carmine Avenue, 3 employees exposed.” and recommended that employer be declared in “serious violation” and be subjected to a penalty of $330.00. 2 On December 1, 1975, a hearing was had before a hearing examiner appointed by the Commissioner of Labor and Industry. 3 On March 16, 1976, the hearing officer made the following determination: “1. That in Case No. J1370-009-76, the Citation for a violation of Maryland Occupational Safety and Health Standard 29 CFR 1910.26 (c) (3) (viii) issued against the ‘Employer’, Mardo Homes, Inc., is herewith affirmed. 2. That the violation of the Standard was a ‘Serious’ violation. 3. That the proposed penalty of $330.00 for violation of the foregoing standard is herewith affirmed.” Employer requested a review by the Commissioner of Labor and Industry. 4 On March 30, 1976, the Commissioner, on the basis of a review of the record made before the hearing examiner, 5 passed an order affirming the latter’s determination. ²⁶⁴ Employer, aggrieved by the order of the Commissioner, appealed to the Baltimore City Court. 6 That court affirmed the order of the Commissioner.

Employer now has appealed to this Court asking: “1. Was the providing of an aluminum ladder by Mardo Homes, Inc., to its employees, without a specific warning not to touch an unobstructed high tension wire, a violation of 29 CFR 1910.26 (ci (31 (viiii?” We think the question posed by appellant too narrowly restricts the meaning and purpose of the cited standard and too narrowly limits the duty imposed upon employers by other provisions of MOSHA. 7 Article 89, § 32 reads as follows: “Duties of employers and, employees. (a) Each employer shall (1) furnish to each of his employees employment and a place of employment which are saje and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees, and (2) comply with the rules, regulations, standards and orders promulgated under this subtitle. (b) Each employee shall comply with the provisions of this subtitle and all rules, regulations, standards and orders issued pursuant to the authority of this subtitle which are applicable to his own actions and conduct in the course of his employment.

(c) Each employer shall, through posting of notices at the place or places where notices to employees are normally posted or other appropriate means keep his employees informed of their ²⁶⁵ protections and obligations under this subtitle, including provisions of applicable standards.” (Emphasis'added.) Additional Evidence The descriptive facts of the incident causing death and injury hereinbefore recited are not in dispute. In addition to those facts, other significant evidence before the hearing examiner bore upon the issue whether the employer breached a statutory duty. In summary, there was testimony that the workmen did not know that uninsulated electrically charged wires existed at the point where the unfortunate accident occurred but were “totally unaware of the three electric wires running the full length of the houses because they were hidden by autumn leaves”; that employer’s general manager, although declaring that he “informed the men that cleaning should be done in the rear of the building away from the line,” 8 acknowledged that there were “[no] specific instructions given to avoid these particular wires” or to indicate the fact of their existence at the point where the work was to be undertaken. Such a limited warning, directed as it was to a part of the building complex other than the accident site, reasonably implied that the area wherein the workmen were assigned to work was free of hazards incident to the use of a metal ladder.

The tragic event proved otherwise. The lines in question had been installed at the sixteen foot level in this development when the buildings were constructed and “[In m]ost of [employer’s] apartment developments the lines are usually thirty feet above the ground and nothing as low as I found this wire to be.” The hearing examiner reached the following conclusions from the evidence presented before him: “The employees engaged in raising the ladder included the Assistant Supervisor of the ²⁶⁶ development and the Superintendent of Maintenance, both of whom, are by their positions, the ‘Employer’s’ representatives; and their activities and knowledge within the scope of their employment are the activities and knowledge of the ‘Employer.’ “In examining the actions and knowledge of the ‘Employer’, we find that he knew, or should have known, that there were wires near the building and also that he knew, or should have known, that a metal ladder coming into contact with the wire could cause an electrical charge to be drawn down the ladder to the ground. “The ‘Employer’ provided his employees with an aluminum ladder without a pulley and rope for extending it to a raised position, thus making it necessary to extend the ladder before raising it. “While the wires may have been partially obstructed by foliage, the pictures taken by the Inspector at the location where the accident is alleged to have happened, clearly shows the wires without any type of foliage hiding them. “From the evidence in this case, it is clear that the ‘Employer’ violated the standard as cited.” Judge Levine, speaking for the Court of Appeals in Hass, supra, pointed out that: “Since the Maryland Act is patterned on the Federal Act... we look to the federal cases for guidance.” 275 Md. at 330 , 340 A. 2d 260 . We shall do likewise. The nature of the general duty imposed upon employers under OSHA was briefly but cogently stated in Brennan v. Butler Lime and Cement Company, 520 F. 2d 1011 (7th Ci 1975), wherein it was said at 1017: “An employer must take reasonable precautionary steps to protect its employees from reasonably