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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
The same ten foot minimum height before guardrails are required is found in the OSHA regulations dealing with scaffolds in the construction industry. There a scaffold similarly is defined as "any temporary elevated platform (supported or suspended) and its supporting structure ... used for supporting employees or materials or both." 29 C.F.R. § 1926.450(b). A pallet suspended on a forklift, used to support an employee, fits this definition of a scaffold. Indeed, the regulations contemplate the use of forklifts to support scaffolds, saying, "Fork-lifts shall not be used to support scaffold platforms unless the entire platform is attached to the fork and the fork-lift is not moved horizontally while the platform is occupied." 29 C.F.R. § 1926.451(c)(2)(v) (emphasis added). That is how the forklift was being used to support the scaffold in the case before us. As to the risk of falls, the regulations require only that " ach employee on a scaffold more than 10 feet (3.1 m) above a lower level shall be protected from falling to that lower level." 29 C.F.R. § 1926.451(g)(1).
IV.
To summarize, the principal relevant circumstances, construed most favorably to Petitioner as the non-moving party on summary judgment, are these. Imbraguglio had worked at the warehouse for about thirty-five years. Workers there were required to be elevated by forklift to align or count inventory. Workers there regularly did not use cages when being so elevated, despite a management rule requiring cages, and, instead, the workers used pallets without guardrails. The immediate cause of Imbraguglio's falling was a shifting in the content of a bin, an event that may or may not have been expected to occur. A trier of fact further could find that Imbraguglio fell from a height of six or seven feet while the pallet and forklift were stationary and while Imbraguglio was using the platform as a scaffold. Reference to OSHA regulations dealing with scaffolding indicates that a guardrail is not required at elevations of ten feet or less (measured from the scaffold platform to the floor or ground, and not from the top of the worker's head to the floor or ground). Triers of fact might or might not find that a worker in Imbraguglio's position, by choosing an unguarded pallet on which to work, so appreciated the risk of falling, or of being caused to fall, from a height of six to seven feet, that the worker in effect consented to relieve the Respondents of any alleged obligation for the worker's safety, for example, to erect a barrier between bins. Accordingly, we cannot say that Imbraguglio assumed the risk as a matter of law.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT FOR THE ENTRY OF A JUDGMENT REVERSING THE JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY AND REMANDING THIS CASE TO THAT COURT FOR FURTHER PROCEEDINGS. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY THE RESPONDENTS.
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