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Brady v. Ralph M. Parsons Co.5/2/1990
Compensation Act and Parsons shared MTA's statutory immunity. In Brady v. Ralph Parsons Co., 308 Md. 486, 520 A.2d 717 (1987), the Court of Appeals reversed and remanded, holding that MTA was not the statutory employer of the decedent and hence Parsons could not cloak itself with the immunity protection. Brady, 308 Md. at 508, 520 A.2d 717.
On remand, in a special verdict, the jury found Parsons negligent and also found the decedent was contributorily negligent and had assumed the risk. The jury also returned money judgments for appellants. Based on the jury determination of contributory negligence and assumption of
risk, the trial court entered judgment in favor of Parsons. Appellants, the decedent's surviving family and the personal representative of his estate, appeal from that judgment, alleging that the trial judge erred by instructing the jury on contributory negligence and assumption of risk. As a second assignment of error, appellants allege the trial court erred in excluding the testimony of Carl Silver, Ph.D., an expert in the field of human engineering.
PARSONS' DUTY
Appellants' primary contention is that the trial judge erred by instructing the jury on the issues of contributory negligence and assumption of risk. The basis of this contention is that the statutory safety obligations Parsons contracted to assume constituted a nondelegable duty to ensure compliance with the applicable safety regulations. They further argue that this duty to provide safety measures was absolute and, therefore, Parsons cannot assert that the decedent was contributorily negligent or assumed the risk. Although we agree with appellants that Parsons owed the decedent a duty, we see the nature and extent of the tort duty owed differently than appellants.
The problem with appellants' argument is that the principles they rely upon and cite do not apply to the instant case. Before we explain why appellants' argument is misplaced, we must first discuss the nature and extent of Parsons' duty to maintain a safe workplace pursuant to its contract with MTA.
THE CONTRACT
MTA entered into a contract with Parsons to be the construction manager during the construction of the station. In this role, Parsons was to provide construction management, supervisory, inspection and safety services for MTA.
MTA also contracted with the Baltimore Regional Insurance Transit Services (BRITS) to design and administer a
safety program. To this end, BRITS prepared a safety and reporting procedure manual (MTA Construction Safety Manual) to establish a "practical, sound and effective program for the prevention of accidents, as well as the assignment of specific responsibilities to contractors for program compliance."
According to the contract with MTA, Parsons was required to
"provide safety engineering services, coordinated with BRITS, necessary to develop and ensure the application of a uniform system of safety and accident prevention and reporting procedures. The CM [construction manager] shall also provide safety engineering services as required to ensure compliance with the provisions of the MTA Construction Safety Manual; the contractual obligations of MTA contractors, other applicable guidance. The CM shall also direct contractors to correct any unsafe acts or conditions that may be detected."
Parsons' contract § 2.02.2HH.
The MTA Construction Safety Manual set forth a safety program to be administered and required that the Occupational Safety and Health Act of 1970, 29 U.S.C. §§ 651 et s
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