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Brady v. Ralph M. Parsons Co.5/2/1990
shall be reasonably safe for employees. Every employer shall install, maintain and use such methods, processes, devices and safeguards, as are reasonably necessary to protect the life and safety of such employees, and shall do every other thing reasonably necessary to render safe such
employment and place of employment."
In so holding, the Court reasoned that the statute neither provided a remedy to an employee nor abrogated the defense of assumption of risk if the employer breached its duty to furnish a safe place to work. Lawrence, 249 Md. at 179, 238 A.2d 859.
Moreover, in Thompson, where we imposed a duty upon someone other than the injured employee's employer to maintain a safe workplace, we held that whether the employee assumed the risk was a question for the jury.
Other Courts adhere to this principle that a violation of a statute which requires employers to furnish a safe place to work does not deprive the employer of the defenses of contributory negligence and assumption of risk unless the statute expressly abrogates the defenses.
In light of the Lawrence and Thompson holdings, we would contradict established precedent if we were to adopt appellants' position. We are mindful, however, that Lawrence was decided before MOSHA was enacted and that in Thompson no exception was taken to the instructions, but instead the question was whether the employee assumed the risk as a matter of law. Hence, we are reluctant to use prior case law as the sole basis for our holding. We explain.
MOSHA was not enacted to create an action for damages in favor of an employee. This is manifest from the preventive and noncompensatory nature of MOSHA. The Act is designed not to punish but, rather, to achieve compliance with safety standards and the abatement of hazards. Under the Act, no remedy is provided to the employee. Instead, a penalty is imposed on the employer who has been cited for an unsafe condition. In fact, the statute may be violated even though no accident or injury occurs. To this end, we have held that the assumption of risk and contributory negligence defenses will not exculpate an employer who is charged with a violation under MOSHA. Mardo Homes, Inc. v. Commissioner of Labor and Industry, 35 Md. App. 260, 267, 370 A.2d 144 (1977).
Mardo Homes, however, does not apply in tort actions since it is only controlling to the extent that an employer, who has been cited with a violation under MOSHA, may not assert these defenses. A citation for a safety violation is
entirely distinct from the type of claim at issue here, namely, a civil cause of action for damages in a personal injury action against a third party who is not the decedent's employer.
Under this scenario, we do not believe that Parsons had the direct "employer" responsibility anticipated by MOSHA and OSHA in implementing the required safety measures. The underlying rationale for placing the primary responsibility on employers under MOSHA and OSHA is that the "employer" is best able to ascertain the risks involved in the work of its own employees and enforce safety regulations by its control over its employees. In fact, in the instant case, Rocky Mountain, the decedent's employer, was cited for the violation which resulted in the decedent's death. It is apparent that MTA and Parsons did not intend to place the entire responsibility on Parsons as an "employer" but only sought to incorporate MOSHA and OSHA into their contract as discernible standards for safe construction. When Parsons undertook independent safety responsibilities pursuant to its cont
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