Brady v. Ralph Parsons Co.

• Decision Date: 01 September 1986
• Docket Number: No. 44,44
• Citation: 520 A.2d 717,308 Md. 486
• Parties: Eileen Marie BRADY et al. v. The RALPH PARSONS COMPANY. ,
• Court: Maryland Court of Appeals

Page 486

308 Md. 486

520 A.2d 717

Eileen Marie BRADY et al. v. The RALPH PARSONS COMPANY.

No. 44, Sept. Term, 1986.

Court of Appeals of Maryland.

Feb. 2, 1987.

William J. Blondell, Jr. (Stephen W. Lafferty, William J. Blondell, Jr., Chartered, 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 MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, COUCH, McAULIFFE and ADKINS, JJ.

COUCH, Judge.

I

On January 28, 1981, Donald C. Brady, Jr. sustained serious injury in a fall from a scaffold erected during construction at the Cold Spring Lane Station of the Baltimore Region Rapid Transit System (Baltimore Subway or BRRTS). He died several hours later. At the time of his death, Brady (the decedent) was an employee of the Rocky Mountain Skylight Company (Rocky Mountain), one of several companies hired to assist in the construction of the Cold Spring Lane Station. The Cold Spring construction was part of a large project, partially funded by the federal government, to construct approximately twenty eight miles of track and twenty stations along the northwest and south corridors of a specified region. ¹

The Mass Transit Administration (MTA), an instrumentality of the Maryland Department of Transportation, ² is the owner of the Baltimore Subway and its subsidiary stations. ³ The MTA entered into three main contracts for the construction of the Cold Spring Lane Station. First, MTA contracted with the Baltimore Regional Insurance Transit Services (BRITS) to develop and recommend, inter alia, a coordinated safety program "to protect the MTA, its contractors, invitees and the public during the construction and testing of the PHASE I BRRTS." To this end, BRITS produced a safety and reporting procedure manual (Construction Safety Manual or Manual) which, the document suggested, outlined a "practical, sound and effective program for the prevention of accidents," and assigned "specific responsibilities to contractors for program compliance." ⁴ All contractors were required to insure that all employees, subcontractors and suppliers, while on the job site and in the conduct of MTA contracts, would comply with the provisions of the Manual.

Secondly, MTA contracted with the appellee, The Ralph Parsons Company (Parsons), to be the Construction Manager (CM) of the project site. In this role, Parsons was to provide construction management, supervisory, inspection and safety services for MTA. Finally, MTA contracted with Hensel-Phelps Construction Company (Hensel-Phelps) to be the principal contractor on the project. Under the Construction Safety Manual, Hensel-Phelps had specific safety duties, including the appointment of a Safety Superintendent who would be in charge of performing safety inspection services. Construction Safety Manual § 1.4.2b. ⁵ Hensel-Phelps subcontracted a portion of the construction work to the decedent's employer, Rocky Mountain, a sheet metal contractor.

Schematically, the contractual relationship among the various parties is the following:

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

In April of 1982, the decedent's surviving family, the appellants, ⁶ filed (and later amended) the present tort action in the Circuit Court for Baltimore City against the appellee ⁷ for the latter's negligent performance of its contractual safety responsibilities at the construction site. As construction manager of the project, the appellee had specific contractual safety duties and responsibilities. According to its contract with MTA:

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.

Parsons Contract § 2.02.2HH. See id at § 1.05.2B ("The CM shall enforce compliance with the safety program.") ⁸

During the construction phase of the project, the appellee was required to

Provide a qualified, full-time, on-site supervisory staff for the management and inspection of all construction work being performed on the Project. Responsibilities assigned the staff shall include, but not necessarily be limited to, the following:

(1) Coordinate the activities of contractors.

(2) Continuously monitor contractor schedules and manpower usage to insure compliance with contract terms.

* * *

(4) Coordinate the movement of equipment and material through job sites.

(5) Recommend construction techniques to expedite the Project and assure job safety.

Id. at § 2.02.2G. The contract further specified that the appellee was to prepare a monthly report on the individual construction contracts and on the construction program in the aggregate, including the status of safety programs. Id. at § 2.02.2H(1)(a).

Both parties agree that, at a minimum, the appellee had to oversee all safety programs developed for the project, to report any violations of federal, state and local laws or of the Construction Safety Manual, and to direct contractors to correct unsafe acts that may have been detected. ⁹

On November 12, 1985, the appellants moved for summary judgment on the issue of liability. They argued, inter alia,

By contractually assuming responsibility for safety on the construction project, Parsons is liable for the failure to properly implement the applicable safety regulations, including those promulgated and executed by contractors and subcontractors.

* * *

Parsons had a duty to take reasonable precautionary steps to protect the employees on the subway, such as Donald Brady, from ... clearly foreseeable dangers.

* * *

Since the Construction Manager, Parsons took no precautions to prevent the fatal fall, it is liable for the negligence which caused Donald Brady's death.

Nine days later, the appellee answered the appellants' motion and filed a cross motion for summary judgment. ¹⁰ Among its various arguments, the appellee contended that it was entitled to statutory immunity under the Workmen's Compensation Act for the injuries and death of the decedent. The gist of the appellee's argument was as follows:

Pursuant to Annotated Code of Maryland, Article 101, Section 62, ... Hensel-Phelps was the statutory employer of all employees of its subcontractors, and as such had the duty to provide them with a safe place to work. As such statutory employer, it is immune from tort suit by such statutory employees. The Ralph M. Parsons Company, as exercising the duty of Hensel-Phelps to provide a safe place to work, not only shares that duty but shares also the immunity accorded to Hensel-Phelps by the Workmen's Compensation Act. [citing Athas v. Hill, 300 Md. 133, 148-9, 476 A.2d 710, 718 (1984) ].

The reasoning of [Athas v. Hill ] is as fully applicable to an independent contractor who "performs the nondelegable duty" as it is to an employee who performs the same. The independent contractor likewise "does not thereby assume a personal duty toward" the employees of the employer whose nondelegable duty it has assumed.

The Ralph M. Parsons Company, therefore, is immune from tort suit by these [appellants].

After hearing arguments, the circuit court (Pines, J.) granted the appellee's motion for summary judgment. The court concluded sua sponte that MTA was the decedent's "statutory employer," and that the appellee shared the MTA's statutory immunity under the Workmen's Compensation Act. ¹¹ Accordingly, the present tort action was barred, and the appellants' exclusive remedy was under the Act. The court reasoned:

Though the massive court file generated by this case is difficult to handle physically, the central issue can be precisely identified and reduced to a narrow inquiry: "Can suit be maintained by plaintiffs against a third party (Parsons) based on Parsons' alleged failure to perform the statutory employer's (MTA) nondelegable duty to provide a safe workplace?" We think not--Parsons, who contracted with MTA to assist the statutory employer in performing the employer's non-delegable safe workplace duty, is entitled to the same immunity as the employer.

Defendant Parsons is being sued for its alleged assumption and breach of MTA's duty to provide a safe workplace. The Court finds that the plaintiffs' cause of action against Parsons is barred because the remedy afforded the plaintiffs is contained within the Maryland Workmen's Act. ¹²

Judgment was entered on December 12, 1985.

The appellants filed a Motion to Alter Judgment, ¹³ arguing, inter alia, that MTA was not the statutory employer of the decedent. On February 26, 1986, the motion was denied. Appellants appealed the lower court's decision to the Court of Special Appeals, and concurrently filed a petition for writ of certiorari with this Court. Before review by the intermediate appellate court, we granted the appellants' petition. We now reverse the judgment of the circuit court.

II Scope of Review

A word is needed about our role in reviewing the circuit court's entry of summary judgment for the appellee. According to Md.Rule 2-501(e), summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, admissions, and affidavits show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." In determining whether any factual issues exist, the trial court must resolve all inferences against the moving party. Honaker v. W.C. & A.N. Miller Development Co., 285 Md. 216, 231-32, 401 A.2d 1013, 1020-21 (1979) (Honaker II ). Our job in reviewing the grant of summary judgment is...