C & M Builders v. Strub

• Citation: 22 A.3d 867,420 Md. 268
• Decision Date: 23 June 2011
• Docket Number: No. 77,Sept. Term,2010.,77
• Parties: C & M BUILDERS, LLCv.Kelly Lynn STRUB.
• Court: Court of Appeals of Maryland

420 Md. 268

22 A.3d 867

C & M BUILDERS, LLC

v.Kelly Lynn STRUB.

No. 77

Sept. Term

2010.

Court of Appeals of Maryland.

June 23, 2011.

William N. Zifchak (Sasscer, Clagett & Bucher, Upper Marlboro, MD), on brief, for Petitioner.Patrick A. Ferris (Maria Roussos Delacy, Baltimore, MD; Daniel J. Earnshaw, Edgewood, MD), on brief, for Respondent.Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, MURPHY, ADKINS and BARBERA, JJ.GREENE, J.

Kelly Lynn Strub (“Strub”), Respondent, sued C & M Builders, LLC (“C & M”), Petitioner, on behalf of her son alleging negligence in the death of her son's father, Wayne Barry Nocar, II (“Nocar”). Prior to trial in the Circuit Court for Baltimore City, C & M successfully moved in limine to preclude Strub from introducing expert testimony that C & M either owed or breached a statutory duty of care to Nocar pursuant either to the Federal Occupational Safety and Health Act, 29 U.S.C. § 651 et seq. (2006) ( “OSHA”) or the Maryland Occupational Safety and Health Act, Md.Code (1991 Repl.Vol., 2006 Supp.), § 5–101 et seq. of the Labor and Employment Article (“MOSHA”). C & M moved to preclude that testimony on the theory that it did not owe a statutory duty to Nocar because he was not its employee. Strub contended, however, that C & M was obligated to protect its own employees as well as the employees of other subcontractors from a fall hazard created by stairwell openings in floors that C & M built. Additionally, at the close of all the evidence, C & M moved for judgment asserting that the evidence showed that Nocar assumed the risk of his fatal injury and was contributorily negligent as a matter of law. The trial judge denied the motion and submitted the case to the jury. The jury determined that C & M was not negligent.

On appeal, the Court of Special Appeals held that the trial judge erred in precluding expert testimony regarding particular MOSHA and OSHA regulations because as a “creating employer” C & M owed a duty to Nocar to comply with MOSHA. Strub v. C & M, 193 Md.App. 1, 22, 996 A.2d 399, 412 (2010). Additionally, the intermediate appellate court held that the case was properly submitted to the jury and could not have been resolved on C & M's motion for judgment. Strub, 193 Md.App. at 27–28, 996 A.2d at 415. We granted certiorari to consider two issues raised by C & M:

1. Did the Court of Special Appeals correctly hold that an employer owes a duty under MOSHA to provide a safe workplace to a person who is not his employee after the employer has left the worksite and has no control over worksite conditions?

2. Did the Court of Special Appeals correctly hold that where a person is aware of an obvious risk of falling, and voluntarily exposes himself to that risk, and falls to his death, that the inability to show how he fell makes assumption of the risk a question of fact for the jury?

C & M v. Strub, 415 Md. 607, 4 A.3d 512 (2010).

We hold that C & M did not owe a duty of care to Nocar pursuant to MOSHA, and, therefore, regulations promulgated under MOSHA were inadmissible as evidence of the standard of care. In addition, we hold that the decedent assumed the risk of injury, as a matter of law, and, therefore, the trial judge erred in failing to grant Petitioner's motion for judgment. Accordingly, we shall reverse the judgment of the Court of Special Appeals and direct reinstatement of the judgment of the trial court.

Factual and Procedural Background

The following evidence was presented at trial. In the spring of 2006, C & M entered into an oral contract with Bayside Builders, Inc. (“Bayside”) a general contractor, to finish framing what was to be a three story row house in Baltimore City, Maryland. As a subcontractor, C & M agreed to complete the framing work, which included framing the walls on the first floor and constructing the flooring, roof and walls for the second and third floors. When C & M arrived at the worksite, the first floor had been framed by Bayside and contained a rectangular 7 1/2' x 2 1/2' opening in the first floor above the basement that was not covered or guarded. C & M's contract required it to create, and it did create, the same size openings in the second and third floors, so that a staircase system could be installed by the staircase subcontractor, who was scheduled to perform its work when C & M finished its framing responsibilities. C & M used the openings to move plywood, sheathing, lumber and other framing materials between the floors and the roof. The C & M workers built temporary ladders out of 2? x 4? lumber that were nailed at the top side rail into each opening in order to move workers and materials between floors. On approximately May 5, 2006, C & M finished the framing work, so the workers removed the ladders and put them in a trash pile on the site and covered up the basement and first floor window openings with plywood. C & M workers agreed not to cover the stairwell openings before leaving the site because Bayside, who inspected and approved the work, wanted the openings left uncovered for its staircase subcontractor.

Three weeks later, on May 24, 2006, Bayside entered into a contract with Comfort Masters Cooling and Heating, Inc. (“Comfort Masters”), an HVAC subcontractor, to provide and install all HVAC equipment and duct work for the property. Even though the staircases had not yet been installed, Bayside and Comfort Masters agreed that the HVAC work would proceed, i.e., before the staircase sub-contractor began its work. On May 26, 2006, Nocar and two other Comfort Masters's employees, Joshua Tudor (another sheet metal mechanic) and Andrew Pfarr (a helper), arrived at the property to begin the HVAC work. When the Comfort Masters's employees arrived the property was not as C & M had left it: the ladders had been reclaimed from the trash and one had been nailed into the third floor opening, the front door was open, and windows that had been covered with plywood were uncovered and open. Comfort Masters's employees worked for the next three hours inside the row house, climbing up and down the ladders numerous times, through each of the three stairwell openings, carrying tools, duct work and other materials between floors.

Nocar was alone on the third floor of the row house at the time of his fatal accident. Tudor testified at trial that he had been working with Nocar on the third floor prior to the accident, but they could not complete the work required because they had neglected to bring all of the necessary parts with them. Therefore, Tudor climbed back down to the second floor to do work there, but, Nocar remained on the third floor. Tudor explained the accident as follows:

A. [Nocar] yelled down to hand up a ladder. I said, “Okay. Hang on one minute,” because I was—it only took me a minute to finish what I was doing. So in the meantime, I was—I was facing the wall. And in the meantime, he stuck his head down the hole, he leaned down in the hole like this, and he said, “Oh. You (sic) using it. Never mind” I'm like, “Well, you can either take a break for a minute, because I'm only going to be a minute, or you take it and I'll take a break for a minute.” And he said—do I say exactly what he said?

Q. Yep?

A. He said, “Fuck it. I'll just climb the bitch.” So I said, “Well, be careful. Don't do nothing to get yourself hurt.” And he said—the last words that he said to me was, “At least you care.”

* * *

Q. How long after that did you realize an accident had happened?

A. Well, maybe about three or four minutes later, I heard the strangest noise I never heard before.... So I started walking over toward the stairwell opening.... And that's when I look (sic) down and saw Wayne [Nocar].

Q. At the time you heard this and looked, where was the ladder that had been on the second floor?

A. Dangling over top of the stairwell opening.

Q. And was anybody on the third floor besides Mr. Nocar?

A. Nobody.

Tudor also stated in his testimony, that Nocar was “the only one that could have” removed the nail holding the ladder in place between the second and third floors and pulled the ladder up to the third floor because he (Tudor) did not do it and their third colleague was on the first floor attending to another task. Tudor testified that the “ladder was leaning right where the return box was supposed to go[,]” and that even after they had discussed that they could wait until they had all the required materials, Nocar had “cut a hole in the return box.” Tudor stated that “[Nocar] leaned [the ladder] across the hole up against the metal stud. And the metal studs are not made for structural [support]. So when he leaned on it, it bent and tipped the ladder.” Nocar fell approximately 26 feet from the third floor into the basement of the row house sustaining fatal injuries.

At trial, Respondent also sought to present evidence, through the testimony of its expert witness, a civil engineer, Brent Leisenring, that C & M violated MOSHA and OSHA regulations that require holes to be guarded and covered at a worksite when any other workers will be foreseeably exposed to them. In a letter to Petitioner's counsel, Respondent asserted that

Mr. Leisenring is expected to testify, to a reasonable degree of probability, that the Defendants, who each had a hand in the construction of the basement floor and the three floors of the house, should have either ensured that the floor openings should have been covered or had hand rails that were at least 42? high. The OSHA regulations in reference to the floor openings that were applicable are 1926 (501)(b)(4)(i) and (502)(1)(2)(3)(4)(i), which required floor coverings over the stairwell openings and further requires them to be “secured.”

In his deposition, Leisenring testified that C & M was the “creating employer” pursuant to the “Multi-employer Worksite Citation Policy,” discussed infra, and, therefore, that C & M owed a duty of care to Nocar. Petitioner, however, moved to preclude that testimony on the...