Martin v. George Hyman Construction Co.

Decision Date21 November 1978
Docket NumberNo. 12356.,12356.
Citation395 A.2d 63
PartiesLee D. MARTIN et al., Appellants, v. GEORGE HYMAN CONSTRUCTION COMPANY, Appellee.
CourtD.C. Court of Appeals

Wayne M. Mansulla, Alexandria, Va., for appellants.

Walter J. Murphy, Jr., Wheaton, Md., for appellee George Hyman Construction Company. J. Harry Welch, Wheaton, Md., also entered an appearance for George Hyman Const, Co.

Before KELLY, NEBEKER and FERREN, Associate Judges.

NEBEKER, Associate Judge:

Appellant1 asserts that the trial judge erred in directing a jury verdict for appellee (hereinafter, Hyman)2 at the close of appellant's evidence upon a negligence action. We agree, and thus we reverse and remand for a new trial.

Appellant introduced evidence from which the jury could have found the following circumstances. Appellant was an iron-worker employed by a subcontractor of Hyman, the general contractor on a building under construction during the period relevant to this case. A steel staircase had been put into place between the ground level floor, which was concrete-decked, and the next higher level, which was plywood-decked. The treads of this staircase were formed with a vertical protruding lip designed to contain the concrete necessary to form a flat tread surface when the staircase was completed. Appellant had used a ladder to ascend to the plywood level during the course of his work, but he used the steel staircase to descend to the cement level. In the course of his descent, he caught his heel on the protruding lip of one of the treads, fell, and injured himself.

Appellant premised his negligence action upon the general allegation that Hyman breached its statutory duty to provide reasonably safe working conditions3 and, more particularly, a specific duty of care assertedly imposed by §§ 11-21090 and -21091(f) of the District of Columbia Safety Standards, Rules and Regulations — Construction. Section 11-21090 provides:

In the construction of buildings, a stairway — either permanent or temporary — shall be installed to each floor as soon as practicable. The stairways shall be maintained throughout the height of the building during all construction operations.

Section 11-21091(f) provides:

Stairways with steel treads and landings, which are later to be filled in with concrete or other tread surfacing, shall be provided with temporary wood treads carefully fitted in place and extending to the edge of the metal nosing and over the entire surface of the treads and landings. Skeleton iron stairs shall have wood treads not less than 1 inch in thickness.

These regulations "apply to construction projects, equipment, and operations in the District of Columbia for the purpose of safeguarding the wage earners on such projects. . . ." Id. § 11-21001. It is undisputed that, at the time appellant was injured, wood fillers had not been inserted in the steel treads.

The bases for the trial court's direction of a verdict for Hyman were, first, that the regulations cited had not yet become applicable to the stairs in this case because they were not yet either "substantially completed" or turned over by Hyman for general use; and, second, that appellant was barred from recovery upon the general duty to maintain safe working conditions by his own negligence or assumption of the risk.


The trial court's premise that the regulations became applicable only after the stairs had been, to some degree, "completed" is eminently reasonable. During their erection, for example, it is reasonable to assume that the stairs may be walked upon by ironworkers (who erect them) for that purpose, not for the purpose contemplated by the regulations, of ascent or descent in the course of other work. The pivotal question, therefore, is at what stage a staircase has become sufficiently completed to bring into force the safety regulations. On this question, the trial court heard and adopted, for the purpose of its ruling, the testimony of Mr. Charles Green, Director of Safety for the District of Columbia Minimum Wage and Industrial Safety Board, the agency which published the regulations. Mr. Green was proffered by appellant as an expert witness upon the applicability of the regulations to the instant factual situation. Mr. Green was not, however, permitted to testify as an expert. Rather, the trial court heard his testimony out of the presence of the jury4 and later indicated that, insofar as relevant, the testimony was accepted as an aid in construction of the regulations — i. e., as going to a legal rather than a factual issue. On the basis of this testimony, the court concluded that the regulations would become applicable only after the staircase had become "substantially completed" and had been "turned over to workers for their use" by Hyman.

We need not decide whether the deference given Mr. Green's testimony by the trial court was warranted by the general principle that agency interpretations "are entitled to weight . . . unless plainly unreasonable or contrary to ascertainable legislative intent." Williams v. W. M. A. Transit Co., 153 U.S.App.D.C. 183, 189, 472 F.2d 1258, 1264 (1972) (interpretation of statute by implementing regulation and formal opinion of the Corporation Counsel). Rather we accept, arguendo, this construction of the regulations and proceed to consider the factual basis for the directed verdict.

Uncontradicted evidence with respect to the "completeness" of the stairs was that the wooden treads had not been installed and that the stairway lacked handrails. The absence of the wooden treads becomes relevant only after a determination is made on the degree of completion of the stairway. If the stairway was substantially complete, the lack of wooden treads breaches the statutory duty; if the stairs were not substantially complete, no standard of care is violated. Therefore, in this case, presence or absence of wooden treads is extraneous in ascertaining the completeness of the stairs. Similarly, we cannot say that, as a matter of law, the absence of handrails is conclusive upon the factual question of whether the stairway was "substantially complete." Section 11-21092(b) of the cited regulations provides that "[s]tair railings shall be provided immediately after stairways are stripped or as soon as metal or temporary stairways are erected." The regulation contemplates that stairways may be erected before handrails are installed but requires the protection of handrails in contemplation of their use. Assuming, arguendo, that this regulation and the regulations respecting wooden treads should be construed in pari materia,5 then the duty to install handrails would, under the trial court's construction of the stairway regulations, arise only after the stairway had become "substantially complete." It would be erroneous to reason that the duty to install wooden treads does not arise in this case because handrails had not yet been positioned, since the duties to install both apparatus arise concurrently. Accordingly, appellee's argument to this effect fails.

Hyman argues that the stairway could not, as a matter of law, be regarded as "substantially complete" because certain evidence, introduced by appellant, showed that appellant, an iron worker, was still engaged in construction of the stairway in question. The only evidence on this point, however, was that appellant was engaged in plumbing columns for a stairway. Yet it is unclear from the record whether the stairway being worked on was that from the plywood-decked level (where appellant was working) to the next higher level or that from the plywood-decked level descending to the concrete level. In reviewing the record for the sufficiency of appellant's evidence, we must read the record in the light most favorable to him. Gaither v. District of Columbia, D.C.App., 333 A.2d 57, 59 (1975); Calloway v. Central Charge Service, 142 U.S.App.D.C. 259, 440 F.2d 287 (1971). It was for the jury, not the trial court, to resolve this ambiguity in Hyman's favor.

In contrast to this evidence cited by Hyman, appellant introduced other evidence which, if believed by the jury, would have established that the stairway was both substantially complete and turned over for the use of workers. Appellant's evidence was that the staircase was a prefabricated unit which had been plumbed and secured in place. This was sufficient to place before the jury the factual issue of whether the stairway was substantially complete. In addition, Hyman's own building supervisor testified that "[w]hen we completed our stairs and safety to a certain level, we put a barricade across the top of that [stairway]." The purpose of the barricade was "to prevent . . . anybody that had no function in the building or . . . on those steps from moving on up." Other testimony tended to establish that there had been a barricade to prevent ascent from the plywood-decked level but that there was none to prevent descent from that level. The jury, therefore, was entitled to consider whether Hyman had completed its stairs to the plywood-decked level (but not above that level) and whether Hyman had, by placing a barricade above that level, indicated the availability for use of the descending stairway upon which appellant fell.6

The trial court also held that appellant was barred from recovery based upon Hyman's general statutory duty to maintain safe working conditions because, as a matter of law, appellant was contributorily negligent or had assumed the risk of Hyman's negligence.7 Because the trial court had ruled that appellant had not borne his burden of proof to show that the safety regulations had become applicable, it did not rule that either of these defenses would bar recovery for injuries caused by breach of the duty imposed by these regulations — an issue addressed by both parties upon this appeal.

Our ultimate disposition of this case is remand for a new trial. Therefore, since...

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