Brady v. Ralph M. Parsons Co.

• Decision Date: 21 July 1992
• Docket Number: No. 96,96
• Citation: 327 Md. 275,609 A.2d 297
• Parties: Eileen Marie BRADY, et al. v. RALPH M. PARSONS COMPANY.,
• Court: Maryland Court of Appeals

327 Md. 275

609 A.2d 297

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

No. 96, Sept. Term, 1990.

Court of Appeals of Maryland.

July 21, 1992.

William J. Blondell, Jr., argued and on brief (Edward T. Pinder and William J. Blondell, Jr., Chartered, on brief), Baltimore, for petitioners.

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

Argued before MURPHY, C.J., ELDRIDGE, RODOWSKY, McAULIFFE, CHASANOW, JJ., and CHARLES E. ORTH, Jr., Judge of the Court of Appeals (retired), Specially Assigned, and BRUCE C. WILLIAMS, Chief Judge of the Fifth Judicial Circuit of Maryland, Specially Assigned.

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 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 requiredto 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 (Hensel-Phelps), 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 MTA also contracted with the respondent herein, Ralph 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 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 enteredsummary 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.

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 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...