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Brady v. Ralph M. Parsons Co.5/2/1990
may owe a duty to workers with whom they have no privity, by virtue of the terms of the contract or by a voluntary assumption of duties.
Imposing a duty on those who have assumed the responsibility to comply with safety regulations simply reinforces the policy of holding liable those who have assumed a duty of due care. This is particularly true where, as here, there is a multi-employer worksite where employees of a number of contractors are present.
In light of the policy set forth in Krieger and Cutlip, we conclude that one who assumes the contractual obligation to supervise and enforce safety on a multi-employer worksite owes a duty of reasonable care to a worker even though he or she has no contractual privity. Since the "assumed duty exception" encompasses this conclusion, we hereby adopt that exception.
In applying the "assumed duty exception" to the instant case, it is obvious that the provisions in Parsons' contract with MTA and its related documents required Parsons to supervise, implement and enforce safety programs in connection with the construction project. In fact, Parsons does not contest this. See Brady, 308 Md. at 493, 520 A.2d 717. We therefore hold that, by assuming these responsibilities, Parsons owed the decedent a duty to enforce safety measures
on the worksite in compliance with OSHA and MOSHA regulations. Since the jury found Parsons negligent, we proceed to the crux of appellants' argument: are the defenses of contributory negligence and assumption of risk barred in this case?
-- The Affirmative Defenses --
Appellants suggest that, since OSHA and MOSHA were designed to protect workers from injury and to ensure a workplace free from recognized hazards, it would be inconsistent with the purpose of the statutes to allow the interposition of these defenses. The purpose of these types of statutes is to protect a particularly vulnerable class of people from hazards in a definable environment which they themselves are incapable of avoiding. Workers earning their livelihood in dangerous occupations are rarely in a position to protect themselves from accidents, having the choice of working with the equipment or conditions at hand or not working at all. To permit the employer to assert contributory negligence or assumption of risk would, in large measure, defeat the object of the statute. See Prosser & Keeton on Torts § 65 at 461-62 (contributory negligence) and § 68 at 493 (assumption of risk) (5th ed. 1984). Based on this reasoning, a number of courts have held these defenses unavailable in cases where the defendant's liability is premised upon the violation of a statute requiring employers to furnish a safe place to work. This is further
supported by Restatement (Second) of Torts §§ 483 and 496F which also preclude contributory negligence (§ 483) and assumption of risk (§ 496F) as defenses to a violation of a statute if the effect of the statute is to place the entire responsibility for the harm that has occurred upon the defendant.
Maryland, however, has not taken this position. Prior to the enactment of MOSHA, the Court of Appeals was faced with the question of what defenses were available where a safe workplace was not provided. In Lawrence v. Cavanaugh, 249 Md. 176, 179, 238 A.2d 859 (1968), the Court of Appeals held that the defense of assumption of risk is not barred if the employer breaches his or her duty to furnish a safe place of employment under Md.Code Ann.Art. 89, § 29 (1957) which provided:
"Every employer shall furnish and maintain employment and a place of employment which
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