Hewitt v. Safeway Stores, Inc.

• Decision Date: 06 February 1968
• Docket Number: No. 20717.,20717.
• Citation: 404 F.2d 1247,131 US App. DC 270
• Parties: William J. HEWITT, Appellant, v. SAFEWAY STORES, INC., Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

131 US App. DC 270, 404 F.2d 1247 (1968)

William J. HEWITT, Appellant, v. SAFEWAY STORES, INC., Appellee.

No. 20717.

United States Court of Appeals District of Columbia Circuit.

Argued June 7, 1967.

Decided February 6, 1968.

Mr. Joseph H. Koonz, Jr., Washington, D. C., with whom Messrs. Lee C. Ashcraft and Martin E. Gerel, Washington, D. C., were on the brief, for appellant.

Messrs. James A. Hourihan and Frank F. Roberson, Washington, D. C., for appellee.

Before BAZELON, Chief Judge, and LEVENTHAL and ROBINSON, Circuit Judges.

PER CURIAM:

On January 10, 1959, appellant was directed by his employer, the Atlantic Box & Basket Company, to go to Safeway's salvage warehouse at Landover, Maryland to pick up a truck load of empty egg crates. While placing these crates in his truck, appellant fell off the loading platform and was severely injured. He sued Safeway in the district court, alleging that his accident was caused by the unsafe working area provided by Safeway.

The district court directed a verdict against appellant, holding as a matter of (Maryland) law that since appellant admitted prior knowledge of the allegedly unsafe working area he assumed the risk of his injury. When asked by counsel, the district court conceded that appellant had only two alternatives: to assume the risk or quit his job. The question is whether the district court properly directed the verdict.

It is often difficult to ascertain the state of the law in another jurisdiction. In this case the difficulties are heightened by the fact that due to the adoption of Workmen's Compensation in 1914, there are few recent Maryland cases dealing with assumption of the risk in an employment context. We believe, however, that the direction of Maryland law points away from the directed verdict entered by the district court.

1. Under Maryland law, the employee of an independent contractor is owed the same duty of care as one's own employee. Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43 (1944). Thus, for purposes of this negligence suit, appellant must be considered an employee of Safeway.

The last Maryland holding on the point seems to be that where an employer has failed to provide a safe place to work, this carves out an exception to the doctrine that the employee assumed the risk. Frizzell v. Sullivan, 117 Md. 388, 390, 83 A. 651, 652 (1912). This decision seems to us to override the earlier contrary Maryland rulings¹ that it is assumption of risk that carves out an exception to liability for negligent failure to provide a safe place to work.

The Frizzell doctrine is not inconsistent with the settled law that an employee cannot recover from his employer where the dangerousness of conditions at work is considered part of the normal hazards associated with hazardous employment.² It applies where a substantially new hazardous dimension, that cannot be avoided by the employee on the job, is added by the failure to take reasonable care in providing a safe place to work.

We have considered the authorities cited by appellee. Le Vonas v. Acme Paper Board Co., supra, is not meaningful on the assumption of risk since the holding was lack of negligence. A similar explanation disposes of Morrison v. Suburban Trust Co., 213 Md. 64, 130 A. 2d 915 (1957).

Finkelstein v. Vulcan Rail & Construction Co., 224 Md. 439, 168 A.2d 393 (1961), is a construction site case. The Maryland court has made clear that these are a separate category with higher hurdles confronting the injured employee.³Finkelstein itself points out that the duty to provide a safe place to work has but "limited application" in cases involving "the erection and construction of buildings."

2. The Restatement (Second) of Agency § 523, comment b (1958) states that economic coercion does not preclude the defense of assumption of the risk. This, of course, is the traditional common law doctrine. But there is some indication that the Maryland Court of Appeals is moving away from that doctrine. In Burke v. Williams, 244 Md. 154, 158, 223 A.2d 187, 189 (1966), the court said:

The appellant argues * * * that if he assumed the risk it was not voluntary in that the appellees provided him with only one means of ingress and egress to and from the house and that the economic necessity of keeping his job and not being discharged for failure to deliver the sink tops forced him to involuntarily assume the risk of crossing the slippery walkway. The contention is clearly without merit because there is no evidence that the owners of the house, or anyone else, ever demanded that the appellant use the walkway against his will. Nor is there any evidence that his job would have been in jeopardy had he left the sink tops on the construction site instead of taking them into the house. (Emphasis added.)

The implication of the italicized passage is that if there was evidence that appellant's job was in jeopardy this fact would have a bearing on whether he voluntarily assumed the risk. In the instant case, there was some evidence that plaintiff's job was in jeopardy. Indeed, the district court indicated that it was directing a verdict against appellant even assuming that his only alternative to working under the allegedly unsafe conditions was to quit.

3. In 1955 Maryland passed a law which provides that "Every employer shall furnish and maintain employment and a place of employment which shall be reasonably safe for employees." Md. Code art. 89, § 29. Section 29 is part of a comprehensive statutory scheme to protect workingmen. Sections 31-32 of art. 89 provide for a Safety Advisory Board to promulgate rules and regulations for "the prevention of accidents in every employment or place of employment." Any violation of these rules and regulations or of § 29 can be punished by a fine of up to $5,000 and a five-year jail sentence. Md. Code art. 89, § 43. Clearly this statutory scheme reinforces the Frizzell doctrine and the economic coercion argument by demonstrating that it is the policy of the state that workingmen be accorded added protection from unsafe working conditions.

Even more significant is the fact that many states have construed occupational safety statutes as abrogating the defense of assumption of the risk. (California and Connecticut courts have held that any safety statute, including automobile speed limits, abrogates the defense).⁴ The Restatement of Torts (Second) § 496 F, comment d (1965) says that such a construction is particularly valid "where the purpose of the statute is found to be to protect a particular class of persons, in which the plaintiff is included, against their own inability to protect themselves. Thus * * * a factory act, requiring precautions to insure safe working conditions, may be found to be intended to protect workmen against the economic pressure which might force them into unsafe employment; and if so * * * the defense would not be permitted."

The Maryland courts have not yet ruled on the question of whether a violation of a safety statute precludes the defense of assumption of the risk. The decisions discussed above suggest they would rule that the defense is precluded. If violation of the statutory duty is excused by resort to an absolute defense of assumption of risk by employees, it leads to the result that the legislature did not impose a duty to provide a safe place to work, but only imposed a duty to advertise with gross blatancy the fact that the employer had deliberately chosen to leave the working conditions unsafe. Whatever the courts may have ruled as to legislation passed in the 19th century, that result is unreasonable enough not to be presumed to have been intended by a legislature concerned with industrial safety in the 1950's.

We conclude that if plaintiff can prove unsafe working conditions the defense of assumption of the risk is barred as a matter of law. We therefore remand for a new trial on the issues of negligence, contributory negligence and damages.

SPOTTSWOOD W., ROBINSON, III, Circuit Judge (concurring in the result):

Like my colleagues, I have endeavored to ascertain the principles of Maryland law which control this litigation, and have encountered thorny problems along much of the way. While, in my view also, the District Court erred in directing a verdict for Safeway, our appellee, I arrive at that conclusion by a route quite different from that traveled by the court. What follow are the issues and the resolutions I think the Maryland guideposts develop.

I

A cause of action for negligence under the law of Maryland embraces the traditional elements of duty, breach of duty, and injury and damages consequent thereupon.¹ No more in Maryland than elsewhere does liability for negligence arise beyond a duty to protect the party injured.² So the starting point in this case, it seems to me, is an investigation as to the obligation Safeway owed appellant while he was loading the egg crates at its salvage warehouse.

Throughout its opinion, the court has treated appellant as Safeway's employee. Even legislation, applicable only to an "employer," requiring the furnishing and maintenance of "employment and a place of employment" reasonably safe "for employees," is deemed to have controlling significance.³ On the hypothesis that the relationship between Safeway and appellant was one of employment, the court relies on Maryland authority in the master-servant field to support its ultimate holding "that if plaintiff can prove unsafe working conditions the defense of assumption of the risk is barred as a matter of law."⁴ This analysis, basic to the court's exposition, is incorrect in my judgment.

When injured, appellant was employed and paid by Atlantic Box and Basket Company. He had been employed by Atlantic for about two years. His tasks included pickups at various warehouses on Atlantic's order. Describing them more broadly, appellant said, "I went to the warehouses and picked up orders for them; I delivered orders for them; and I...