Brady v. Ralph M. Parsons Co.

• Decision Date: 01 September 1989
• Docket Number: No. 1090,1090
• Citation: 572 A.2d 1115,82 Md.App. 519
• Parties: Eileen M. BRADY, et al. v. The RALPH M. PARSONS COMPANY. ,
• Court: Court of Special Appeals of Maryland

Page 519

82 Md.App. 519

572 A.2d 1115

Eileen M. BRADY, et al. v. The RALPH M. PARSONS COMPANY.

No. 1090, Sept. Term, 1989.

Court of Special Appeals of Maryland.

May 2, 1990.

William J. Blondell, Jr. (Edward T. Pinder, on the brief), Baltimore, for appellants

Edward C. Mackie and Paul J. Weber (Rollins, Smalkin, Richards & Mackie, on the brief), Baltimore, for appellee.

Argued before GILBERT, C.J., and MOYLAN and ROSALYN B. BELL, JJ.

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:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

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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.

                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[572 A.2d 1118]  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

                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 According to the contract with MTA, Parsons was required to

                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."
                

"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' "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.

                chief safety engineer was responsible for the implementation and enforcement of the safety plan for the overall construction program.   His specific duties included
                

"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.

* * * * * *

"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)....