Murphy v. Stuart M. Smith, Inc.

• Decision Date: 04 February 1983
• Docket Number: No. 723,723
• Citation: 53 Md.App. 640,455 A.2d 69
• Parties: , 11 O.S.H. Cas. (BNA) 1437 Reginald J. MURPHY et ux. v. STUART M. SMITH, INC.
• Court: Court of Special Appeals of Maryland

Page 640

53 Md.App. 640

455 A.2d 69, 11 O.S.H. Cas. (BNA) 1437

Reginald J. MURPHY et ux. v. STUART M. SMITH, INC.

No. 723.

Court of Special Appeals of Maryland.

Feb. 4, 1983.

Thomas M. O'Malley, Rockville, with whom were Gordon G. Ovington and Joseph D. Gallagher, Rockville, on the brief, for appellants.

William N. Zifchak, Upper Marlboro, with whom were Sasscer, Clagett, Channing & Bucher, Upper Marlboro, on the brief, for appellee.

Argued before MOYLAN, LOWE and ALPERT, JJ.

LOWE, Judge.

Reginald J. Murphy, the primary appellant in this case, is a route salesman for Tastykake, Inc. Daily, in the early morning hours, he drove his van to a facility maintained as a pickup point for distribution of Tastykake products, loaded his van according to his needs and distributed the bakery goods to retailers. The product was brought to the pickup point by appellee, Stuart M. Smith, Inc. (a common carrier), from its Baltimore warehouse where it had previously been hauled by Smith from Philadelphia for disbursal.

Appellant declared that while loading his truck one early morning, due to defective lighting at the pickup point he failed to see the "stepping place" on the back of his truck misstepped, fell, and was injured. The suit, filed by Reginald J. Murphy and his wife, appears to be predicated upon a single breach of alternate duties allegedly owed by appellee to Murphy. The premises upon which Murphy was properly present were owned by appellees, and leased to Murphy's employer, Tastykake. They were, according to appellant, negligently operated or maintained. Presumably, appellant intended to prove that appellee had retained control of the area where the fall occurred and thus owed business invitees such as himself the duties accorded that class. The alternate duty is a contention that appellee owed Murphy the duty of an employer to provide a safe place of employment, under the MOSHA ¹ Rule. This novel approach, that appellee owed Tastykake's employees such a duty, is, according to appellant set forth in Md.Ann.Code, Art. 89, § 32(a) (1979 Repl.Vol.), which reads in pertinent part that:

"Each employer shall (1) furnish to each of his employees employment and a place of employment which are safe and healthful as well as free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees ...."

Appellants' primary complaint concerns the trial judge's instruction to the jury that, as a matter of law, any duties owed to Mr. Murphy pursuant to that section of the Code, were not applicable in this case because appellee Smith was not Mr. Murphy's employer. They also complain that no assumption of risk or contributory negligence instruction should have been given, and that no evidence should have been admitted to show that Tastykake had assumed responsibility for the premises where the accident had occurred. The last two of appellants' issues are apparently (although not clearly) two-edged. The allegations of instructional error regarding assumption of risk and contributory negligence, as well as the evidentiary complaint regarding the testimony that Tastykake had assumed the responsibility for maintaining that portion of the premises wherein appellants claim neglect, are clearly predicated upon the MOSHA concept and only impliedly in the alternative under the business invitee theory. We will dispose of the MOSHA duty contention first since it clearly applies to all three issues.

Citing J.I. Hass Co. v. Dep't of Lic. and Reg., 275 Md. 321, 340 A.2d 255 (1975), and Mardo Homes, Inc. v. Comm'r, 35 Md.App. 260, 370 A.2d 144 (1977), appellants contend that in interpreting MOSHA we should be guided by the federal authorities interpreting OSHA (the federal Occupation Safety and Health Act, 29 U.S.C. § 651, et seq.). They then point to a series of federal cases which have applied a duty under certain circumstances upon someone other than an employer to maintain safe premises for another's employees.

One circumstance appeared where the local jurisdiction's OSHA statute specifically required the employer to keep the employment place safe "for employees." This was the statutory language before the D.C. courts in Hewitt v Safeway Stores, Inc., 404 F.2d 1247 (D.C.Cir.1968), and Martin v. George Hyman Construction Co., ² 395 A.2d 63 (D.C.App.1978), and which reveals these cases to be clearly inapposite.

A second circumstance was where the employer was, or could have been, found to have voluntarily assumed a duty to comply with OSHA regulations for the benefit of persons other than his own employees. To the extent that this circumstance was the basis for the court's holding in Kelly v. Howard S. Wright Constr. Co., 90 Wash.2d 323, 582 P.2d 500 (1978), and partly the basis for the court's holding in Rabar v. E.I. duPont de Nemours & Co., Inc., 415 A.2d 499 (Del.Super.1980), neither case is apposite.

The third and final circumstance relates to owners or employers who have either actually created a hazardous condition which violated specific OSHA regulations and to which its own and another's employees were exposed, Wendland v. Ridgefield Const. Services, Inc., 439 A.2d 954 (Conn.1981), or had actual and substantial physical control over the work area, and actual responsibility for the hazardous condition.

The "actual control of the work area" circumstance is wholly or partly the basis for the court's holdings in Brennan v. OSHC and Underhill, 513 F.2d 1032 (2nd Cir., 1975), Carroll v. Getty Oil Co., 498 F.Supp. 409 (D.C.Del.1980), Rabar v. E.I. duPont de Nemours & Co., Inc., supra. These cases are not apposite because, in the instant case, Smith did not create and did not have actual physical control of alleged inadequate lighting conditions at the pickup point.

On the other hand, appellee points out that Southeast Contractors, Inc. v. Dunlop, 512 F.2d 675 (5th Cir.1975); Horn v. C.L. Osborn Contracting Co., 591 F.2d 318 (5th Cir.1979); Barrera v. E.I. duPont de Nemours & Co., 653 F.2d 915 (5th Cir.1981); and Melerine v. Avondale Shipyards Inc., 659 F.2d 706 (5th Cir.1981), have flatly held that OSHA does not create a duty on behalf of an employer to any persons other than its own employees, regardless of any other factual circumstance...