By James N. Rhodes, Esq.
ConstructionRisk Counsel, PLLC

The Maryland Court of Appeals affirmed a trial court’s exclusion of expert testimony relating to the violation of state and federal workplace safety regulations, in a negligence action stemming from the fatal fall of a worker.  The court explained that showing a violation of these regulations was irrelevant to the plaintiff’s claim because the regulations only established a safety duty towards its own employees.  The decedent was an employee of another subcontractor that worked on a later phase of the project than the subcontractor that created the allegedly unsafe conditions.  The court also found that the facts established that the worker “assumed a risk” of injury as a matter of law, which under Maryland precedent would negate any argument that the subcontractor was negligent.  C & M Builders, LLC v. Kelly Lynn Strub, 22 A.3d 867, 420 Md. 268 (2011).

C & M Builders entered into a subcontract with a general contractor in the spring of 2006 to complete the framing on the rehabilitation of a three story row house in Baltimore.  Around the same time, Comfort Masters also entered into a subcontract with the general contractor to install HVAC equipment for the property.  An employee of the HVAC subcontractor suffered fatal injuries at the jobsite when he fell three stories through openings where the staircases had not yet been installed.  The fatality occurred after the framing subcontractor had completed its portion of the project.  The family of the deceased filed a negligence action against the framing subcontractor, arguing that their negligence had caused the fatal accident.

At trial, the framing subcontractor moved to exclude the plaintiff’s expert testimony that it had failed to follow federal and state site safety regulations (i.e. federal OSHA regulations, and the Maryland “MOSHA” regulations).  The subcontractor argued that any violation of these regulations was irrelevant to plaintiff’s case because the regulations only created a duty from an employer towards its employees, and the decedent was not an employee of the subcontractor.  The trial court agreed to exclude testimony of the OSHA and MOSHA violations.  The intermediate appeals courts reversed, but Maryland’s highest court reaffirmed the trial court’s exclusion of this evidence.

The court began by reiterating that the violation of OHSA and MOSHA regulations itself does not establish a “per se” negligence claim.  These regulations are for the government’s enforcement of employment safety practices through the U.S. Department of Labor and Maryland’s equivalent state agency.  But a violation of applicable regulations can serve as vital evidence in a private party negligence action to show that a defendant breached the standard of care owed toward the plaintiff.  Here, however, the court found that any evidence of the subcontractor violating these regulations should not be allowed at trial because the regulations do not create duties of a company towards non-employees.

The court noted that there is a split of opinion among federal courts as to the extent that certain OSHA regulations can apply to non-employees in “multi-employer” workplace settings.  The Department of Labor has implemented a “Multi-Employer Worksite Citation Policy” to enforce workplace safety violations involving nonemployees, but some federal courts have found that this enforcement exceeds the agency’s authority.  However, to the extent that the regulations do apply towards non-employees, it is more limited in scope than towards employees.  The court explained that even if the subcontractor had created the hazard, they did “not exercise continuing control, or even a presence, at the worksite” at the time of the fatal accident.  As a result, the court explained that the facts did not warrant the “adoption or application” of the multi-employer worksite doctrine.

The other major issue on appeal involved the “assumption of risk”.  The high court found that the decedent’s actions met the legal requirements of assumption of risk, holding that the evidence showed as a matter of law that the worker knowingly disregarded the safety risk before the tragedy.  Under Maryland legal precedent, an assumption of risk “negates the issue of the defendant’s negligence by virtue of the plaintiff’s previous abandonment of his or her right to maintain an action if an accident occurs.”  Accordingly, the plaintiff’s suit could not proceed, even if the defendant had been negligent.


This article is published in Report, Vol. 16, No. 6 (June 2014).

Copyright 2014, ConstructionRisk, LLC