Strub v. C & M Builders

• Decision Date: 28 May 2010
• Docket Number: No. 53,2009.,53
• Parties: Kelly Lynn STRUB et al.v.C & M BUILDERS, LLC et al.
• Court: Court of Special Appeals of Maryland

193 Md.App. 1
996 A.2d 399

Kelly Lynn STRUB et al.
v.
C & M BUILDERS, LLC et al.

No. 53, Sept. Term, 2009.

Court of Special Appeals of Maryland.

May 28, 2010.

996 A.2d 400

Patrick A. Ferris of Baltimore, MD (Maria R. DeLacy of Baltimore, MD, Daniel J. Earnshaw of Edgewood, MD, on the brief), for appellant.

996 A.2d 401

William N. Zifchak (Sasscer, Clagett & Bucher, on the brief), Upper Marlboro, MD, for appellee.

Panel: DAVIS, WRIGHT and IRMA S. RAKER, (Retired, Specially Assigned), JJ.

DAVIS, J.

Kelly Lynn Strub, appellant/cross-appellee,¹ appeals from the judgment of the Circuit Court for Baltimore City in favor of C & M Builders, LLC (C & M), appellee/cross-appellant, and presents one question for our review:

Did the trial court err in granting [C & M's] motion in limine and precluding [Strub] from offering any evidence or testimony that [C & M] either owed or breached a duty of care under OSHA and MOSHA regulations and the Multi-Employer Doctrine?

C & M raises an additional question on cross-appeal:

Did the trial court err by denying C & M's Motion for Judgment, that Nocar assumed the risk of the occurrence, and was contributorily negligent as a matter of law?

For the reasons that follow, we answer Strub's question in the affirmative and C & M's question in the negative. Accordingly, we reverse, in part, and affirm, in part.

PROCEDURAL AND FACTUAL BACKGROUND

Strub filed a Complaint on behalf of her minor son, Sebashton Charles Nocar, in the circuit court alleging that C & M's negligence caused the death of his father, Wayne Barry Nocar, II (Nocar) who suffered fatal injuries after he fell from the third floor of a row home while working as an HVAC subcontractor in a renovation of a Baltimore City row home.

Prior to trial, C & M moved in limine to prevent Strub's expert witnesses from testifying that, in failing to cover the stairwell openings on the construction site, C & M violated MOSHA and OSHA standards; thus, it breached a statutory duty owed to Nocar. Specifically, the parties disagreed as to whether C & M owed a duty to Nocar when Nocar was an employee of Comfort Masters Cooling and Heating, Inc. (Comfort Masters). Appellant contended that C & M was obligated to protect not only its own employees from the fall hazard created by the open stair ways, but also the employees of other subcontractors because it created the hazard.

Strub proffered that Brent Leisenring, an engineer and former MOSHA inspector, would testify that C & M violated the statutes in failing to secure the openings on the construction site. Strub further explained, during the hearing on C & M's motion, that following his testimony, Strub intended to request that the trial court instruct the jury “that the violation of MOSH standards is evidence of negligence.” C & M argued that this Court held, in Murphy v. Stuart M. Smith, Inc., 53 Md.App. 640, 455 A.2d 69 (1983), that the statutes did not apply to this case, imposing a duty on C & M to a person who was not one of its employees. The trial

996 A.2d 402

court permitted Leisenring to testify, but restricted his testimony, ruling:

All Right. Here's how we're going to deal with this. I don't think you can properly use the MOSH [sic] expert to testify that-if he wants to testify on industry standards regarding the preparation of the job site as was done by the defendant, that's fine.

But if he's simply saying it violates MOSH [sic] standards, therefore there's a duty owed and there's negligence, I don't think he can do that based on what you gentlemen have told me.

The trial court then clarified its ruling, stating:

... if he's going to discuss industry standards, and that's what he's going to discuss, we'll allow him.

....

But I don't want him saying there's a legal duty owed.

....

He can say there was negligence based on industry standards.

Counsel for Strub sought clarification of the court's ruling and the following transpired:

Counsel for Strub: So as I understand your ruling Ken Johnson is excluded but Brent Leisenring is allowed to testify?

The Court: That's correct.

....

Counsel for Strub: You're probably not going to want to hear this. And I think this will be legal argument actually now that I think about it. Because I do have an argument-well, Mr. Leisenring, the other expert, is only going to be permitted to testify to industry standards. He's not going to be allowed to talk about MOSH [sic] or OSHA, am I correct?

The Court: Right.

The case proceeded to trial during which the following evidence was presented. C & M entered into an oral contract with Bayside Properties, Inc. (Bayside), the general contractor, to finish framing a row home on Fleet Street. Bayside began the renovation project, “gutting” the building and framing the first floor, leaving nothing but a “shell.” All that was in place at the time that C & M began its work was the exterior walls and a roof. The first floor had a rectangular opening prior to C & M's work, that was not guarded, for the steel staircase that was to be installed in the basement at a later date. C & M agreed to frame the second and third floors of the building and to leave openings in the floors for staircases to be installed directly above the existing opening in the first floor.

Prior to Leisenring's testimony, C & M moved to exclude him as a witness because, in light of the court's earlier ruling on its motion in limine, he was barred from testifying to OSHA and MOSHA standards and was limited to testifying to customary practices of the construction industry. C & M argued that Leisenring never testified to the practices of the industry generally during discovery and, thus, his testimony should be excluded. The court explained that the basis of its earlier ruling limiting Leisenring's testimony was that it agreed with C & M that the expert should not be permitted to testify that MOSHA or OSHA imposed a statutory duty on C & M to cover the openings in the floors because duty is a legal question and not something to which an expert can testify. The parties again disputed the applicability of MOSHA and OSHA and the trial court denied C & M's motion. The following transpired:

The Court: But how can you-you know, I don't know that OSHA and

996 A.2d 403

MOSH [sic] don't suggest grounds for arguing that there's a breech [sic]. They just don't establish to whom the duty is owed.

Counsel for Strub: That's why [Leisenring] should testify about OSHA and MOSH [sic].

The Court: He can't testify as to-see, you shouldn't be asking me these questions.

....

All right. Leave OSHA and MOSH [sic] out of this. If ... but I'm going to let him testify to what he has to say. And if you-

Counsel for C & M: And it will be standard usual and customary practices?

The Court: And if you-yeah, it will be practices.

Leisenring testified that in the process of framing the house, C & M created openings in the floors for staircases to be constructed at a later date. C & M did not cover the openings, exposing workers to “fall hazards greater than six feet, which violated the industry standards and was a cause of Wayne Nocar's death.” Leisenring further testified that it was “predictable” that other workers would be entering the premises after C & M completed its assigned job of framing and that it is the general practice of the industry to cover and guard such holes to protect others from falling through the openings in the floors.

Christopher Chavez, part owner of C & M, testified that, at the end of their framing job on May 5, 2006, C & M removed the ladders that they had constructed to access the floors of the building and left the openings exposed, expecting that Bayside's next sub-contractor would be the company installing the stairs. He further testified that Bayside never asked C & M to guard the openings to the stairwell for this job or any other jobs that C & M had done for Bayside in the past.

Three weeks later, on May 26, 2006, Comfort Masters sent three of its employees, Nocar, Joshua Tudor and Andrew Pfarr, to the building to install a heating and cooling system, despite the fact that the stairs had not yet been installed. The three worked for approximately three hours that morning before Nocar's fall. Throughout the morning, the three worked with only two step ladders, as they had left one behind at the shop. They planned to retrieve a third ladder from the shop on their lunch break.

Tudor testified that, in addition to forgetting a ladder, they had neglected to bring other materials necessary for the installation of a return on the third floor. He testified: “We had no collars to hook to it. So I told him, I say, ‘Wayne, there's no sense of putting this return box up just so that we have to take it down in an hour....’ ” Nocar agreed and Tudor went down to the second floor to begin another project. Tudor testified that soon thereafter Nocar had yelled down to him while he was working on the second floor to bring his ladder up to the third floor. Tudor testified that he told Nocar that he would give him his ladder in a minute after he finished the task he was working on when Nocar “leaned down in the hole ... and said ‘Oh. You using it. Never mind.’ ” Then, according to Tudor, Nocar said “Fuck it. I'll just climb the bitch.” Three or four minutes later, Tudor heard a loud noise and heard Pfarr scream. He walked to the opening of the second floor stairwell and saw the step ladder “dangling over the third floor” and realized that Nocar had fallen from the third floor into the basement. Tudor testified that, based upon the conversation minutes before the fall, he believed that Nocar had pulled the ladder

996 A.2d 404

that had been nailed into the stairwell up to the third floor to use it to install the return box on the third floor. He surmised:

The ladder was leaning right where the return box was supposed to go. The ladder was too tall to stand up in the hallway like straight. And the hallway was too narrow for

him to fit up there. So what he did is he leaned it across

...