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An employee of an HVAC subcontractor, while working on a house, fell to his death from the third floor to the basement through an open stairwell.  The framing of the house had been completed three weeks earlier by the framing contractor who left an unprotected hole in each floor for the stairwell to be installed later.  On the day of the accident, the HVAC subcontractor let himself into the house and placed ladders into the openings so  he could move between the three floors.  The framing subcontractor was not at the site on the day of the accident and did not control the conditions of the site or how the HVAC work was performed.  The HVAC worker fell when he apparently became impatient waiting for his coworker to bring him a ladder to complete some work he was doing, and instead decided to take matters into his own hands by removing a nail that held a wooden makeshift ladder to the side of the stairwell and pulling the ladder up to his floor where he apparently leaned it against a metal stud that collapsed under his weight when he began to climb the ladder.  In holding that the framing contractor did not control the jobsite conditions and work at the time of the accident and owed no duty pursuant to the multi-employer worksite doctrine of OSHA, the court ruled that expert testimony concerning the applicable of the OSHA and state regulations was inadmissible.  The court also found that the laborer intentionally assumed the risk and was contributorily negligent when it knowingly performed under the conditions and that this barred recovery under Maryland law.

In analyzing the facts of the case, the court said the laborer was not an employee of the Framer and the duties of OSHA and MOSHA (the state Maryland state regulations) requiring a general duty of an employer to maintain a safe workplace for its employees were, therefore, inapplicable.  The question then was whether “specific duty” clauses of the regulations applicable to multi-employer worksites were applicable to the situation.  This duty has been found by OSHA and numerous courts to mean that “creating employers” owe a duty to non-employees where there is evidence of responsibility or duty to maintain the worksite, and it is feasible that the employer would be in a position to remedy the hazard.  A key to imposing liability, however, is that the contractor must be found to have created the hazard and then maintained the areas in which the hazard was located.  If the contractor has control over the areas in which the hazards are located and the duty to maintain those areas, liability can be imposed.

In this current case, the Framer argued it was not a “creating employer.”  It acknowledges that it created the holes in the floor.  But it testified that when it left the jobsite several weeks prior to the accident, it had removed makeshift ladders from the stairwell holes and thrown them in the trash before boarding up the door and window openings of the house so no one could enter.  Either the HVAC contractor or someone else removed the boarding and took the wooden ladders from the trash bins and put them back into the stairwell holes to have access to the three floors.   Despite these intervening acts by others, the first level of the appellate court (Court of Special Appeals) found that the Framer was a “creating employer” under OSHA.  In reversing that decision, the highest court of appeals (Court of Appeals of Maryland) explained its reasoning as follows:

 

 [C]reating employers” are held to owe a duty to non-employees where there is evidence of continued presence, responsibility, maintenance, etc. at the worksite. C & M does not fit into this scheme. The unguarded openings (alleged violations of MOSHA and/or OSHA regulations) in the floors on the second and third stories were undisputably created by C & M, pursuant to their contract, three weeks prior to the arrival of Nocar and the Comfort Masters workcrew. C & M, however, retained no control or oversight at the worksite, and indeed, at the time of the accident, had completely finished its responsibilities under its contract with [Project Developer] and relinquished control of the premises back to [Project Developer].

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 Leisenring was proffered as an expert witness to testify that C & M “violated the OSHA regulations and ANSI safety standards—general safety standards.” Even if C & M “created” a hazard that was in violation of a regulation, it did not exercise continuing control, or even a presence, at the worksite at the time of Nocar’s fatal accident. Thus, the facts of this case do not warrant this Court’s adoption or application of the “multi-employer worksite doctrine” or its “creating employer” citation policy. Accordingly, the trial court was legally correct in not permitting Respondent’s expert to testify that C & M owed a statutory duty to Nocar, as a “creating employer,” to comply with MOSHA or OSHA regulations or that C & M’s violation of the regulations caused Nocar’s death.

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Essentially, Petitioner’s position is that, even if the jury believed that C & M was negligent in causing Nocar’s fatality, as a matter of law, that negligence could not establish C & M’s liability because Nocar assumed the risk of his injuries. C & M contends that Nocar knew, appreciated and voluntarily encountered the risk of falling through the 26 foot deep unguarded hole. Petitioner notes prior Maryland cases where falling through an unguarded hole was recognized as a risk that “anyone of adult age must be taken to appreciate”

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In our view, assumption of risk was established as a matter of law by the evidence presented during the trial, thus, no determination of liability was required by the factfinder and Petitioner’s motion for judgment, at the close of all the evidence, should have been granted. We have often “stated in earlier cases involving the assumption of the risk defense, where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed [himself or] herself to a known danger, we will sustain the granting of a summary judgment or the direction of a verdict.’ ”

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Assumption of the risk “negates the issue of a defendant’s negligence by virtue of a plaintiff’s previous abandonment of his or her right to maintain an action if an accident occurs.” (citations omitted).  Thus, when a plaintiff can be shown, through words or conduct, to have expressly or impliedly consented to “voluntarily proceed to encounter [a known risk] … as where … he proceeds to walk over debris on the sidewalk carelessly strewn and left there by a construction contractor. If these are voluntary choices, the plaintiff may be found to have accepted the situation, and consented to relieve the defendant of his duty.” Prosser and Keeton on Torts, § 68 at 481 (5th ed. 1984). Therefore, questions about the defendant’s duty are irrelevant to an assumption of risk analysis because “any duty the defendant owed the plaintiff to act reasonably for the plaintiff’s safety is superseded by the plaintiff’s willingness to take a chance.” (citation omitted).

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In Maryland there are three requirements that the defendant must prove to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger. (citation omitted).

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The court concluded that the worker “was voluntarily working on the third floor” and “objectively appreciated the ‘nature and magnitude of the potential injury’ posed by falling through the unguarded openings in the floor because he undisputably poked  his head through the third floor opening to communicate with [his coworker], and cannot be said to have remained unaware that just below him were two similarly sized holes with no guardrails or coverings in place.”

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 Finally, Nocar knowingly encountered the risk … because the holes were an open and obvious hazard and the danger of falling through one or three of them would be foreseeable to a person of normal intelligence. In this case, Nocar ‘knew and appreciated the risk of danger, and voluntarily confronted that risk,’ because a person of normal intelligence in Nocar’s position as a member of an HVAC installation work crew would have understood the danger of working around unguarded holes in the floors of a row house that was in the process of being rehabilitated. ‘In the usual case, [plaintiff’s] knowledge and appreciation of the danger will be a question for the jury; but where it is clear that any person in his position must have understood the danger, the issue may be decided by the court.’

In its final conclusion, the court stated:  “[T]he facts of this case reveal that ‘any person of normal intelligence in [Nocar’s] position must have understood the danger’ of performing work in the vicinity of large holes in the floors of an unfinished house.  (citation omitted)  In our view, reasonable persons could not differ as to the conclusion to be reached, which is that Nocar’s conduct released any duty that C & M might have owed under the circumstances. Thus, the issue could have been and should have been decided in C & M’s favor by the court on Petitioner’s motion.”

C&M Builders, LLC v. Strub, 420 Md. 268, 22 A.3d 867 (2011).

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No.3 (Mar 2012).

Copyright 2012, ConstructionRisk.com, LLC