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Brady v. Ralph M. Parsons Co.5/2/1990
This case presents the question whether the defenses of contributory negligence and assumption of risk were properly submitted to the jury in an action based upon an independent contractor's alleged violation of an assumed duty to ensure a safe workplace for someone other than its own employees. We hold that these defenses were properly submitted to the jury.
On January 18, 1981, Donald C. Brady (decedent), died as a result of injuries he sustained in a fall from a scaffold erected during construction at the Cold Spring Lane Station of the Baltimore Region Rapid Transit System. The decedent was employed as a sheet metal worker with the Rocky Mountain Skylight Co., one of the subcontractors hired to assist in the construction of the station. The Mass Transit Administration (MTA), owner of the Baltimore Subway and its subsidiary stations, entered into three main contracts for the construction of the Cold Spring Station. First, MTA contracted with Hensel-Phelps Construction Company (Hensel-Phelps) to be the general contractor on the project. Hensel-Phelps subcontracted a portion of the construction work to the decedent's employer, Rocky Mountain. MTA also contracted with the Baltimore Regional Insurance Transit Services (BRITS) to design and administer a safety program for the site. The third contract was with the Ralph Parsons Co. (Parsons), appellee herein, to provide, inter alia, inspection and safety services for MTA.
Schematically, the contractual relationship among the various parties is shown by the following diagram:
This appeal arises from Parsons' alleged violation of its contractual safety duties and responsibilities as they relate to events surrounding the decedent's death.
At trial, Edward Kennel, the decedent's co-worker, testified that he and the decedent worked together erecting skylights and cladding. On the day of his death, the decedent had gone up on the scaffolding by himself to prepare the surface in order to replace a piece of cladding which had been improperly fabricated. In preparation for replacing the cladding, the decedent, Kennel and another co-worker erected scaffolding. Kennel stated that, although the use of safety rails or belts would have prevented the fall, they did not have a safety rail on the scaffolding nor did they wear safety belts. Kennel added that they could have spent three to four hours to build or weld something in place of a safety rail but it was not practical since it was only a five- to ten-minute job to install the cladding. Kennel pointed out that in placing the cladding on the columns it was necessary to erect the scaffolding in a certain way and in doing so they could not use safety rails. He also stated that they did not wear safety belts because they could not hook a rope onto a fixed structure.
Although it was possible to tie off to the columns covered with cladding, that would run the risk of scarring the cladding. Kennel further stated that, if the scaffolding had been moved back, a safety rail could have been installed but he did not know if they could have accomplished the job from that position. Kennel averred that they had erected and used the scaffolding in the same fashion for the past 11 months while installing the cladding. During that time, no safety personnel stopped them from proceeding in that manner.
In April of 1982, the decedent's survivors and the personal representative of his estate filed suit against Parsons for negligent performance of its contractual safety responsibilities at the construction site. The trial court granted summary judgment in favor of Parsons on the basis that MTA was the decedent's statutory employer under the Worker's
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