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Brady v. Ralph M. Parsons Co.5/2/1990
ract with MTA, it assumed a duty to exercise reasonable care in performing this obligation. See Restatement (Second) § 324A. This assumed duty was separate although collateral to the duty imposed upon the "employer" under MOSHA and OSHA. Hence, since MOSHA and OSHA did not apply to Parsons by their own force, see Rabar, 415 A.2d at 505, Parsons' source of tort liability does not stem from a statutory violation. Rather, we conclude that Parsons' negligence resulted from its
failure to exercise due care in its duty to the decedent to monitor safety. Since contributory negligence and assumption of risk are normally complete bars to an action for negligence and since we are cited to no Maryland authority to the contrary, we hold appellants' claim of error without merit. Hence, the instructions were properly submitted to the jury.
We cannot conclude, however, without commenting on why the principles appellants rely on are misplaced. We initially point out that
" he nature and extent of a tort duty recognized by law depends in part on the status of the party upon whom it is sought to be imposed and upon his relationship to the party claiming the benefit of it."
Parker v. Neighborhood Theatres, Inc., 76 Md. App. 590, 595, 547 A.2d 1080, cert. denied, 314 Md. 193, 550 A.2d 381 (1988).
Appellants first posit that Parsons "assumed a non-delegable duty of safety," relying principally on Gardenvillage Realty v. Russo, 34 Md. App. 25, 366 A.2d 101 (1976). In Gardenvillage, we imposed a nondelegable duty on the
owner of the premises in favor of tenants and their invitees, resulting from the collapse of a defective concrete porch slab. The slab had been constructed and installed by a subcontractor. We held that the Baltimore Building Code imposed upon the owner a nondelegable duty to build the structure in accordance with the Code. Appellants assert that the reasoning in Gardenvillage is the source of Parsons' duty. They argue that Parsons assumed a nondelegable duty of safety since it was charged with compliance with OSHA and MOSHA. As previously discussed, we do not see a nondelegable duty as a source of Parsons' liability. In addition, the factual situation in Gardenvillage is clearly inapposite to the instant case. In Gardenvillage a statutory nondelegable duty was imposed on the owner for the benefit and protection of innocent members of the public. By contrast, Parsons was not the owner of the project, nor was the decedent an innocent member of the public.
In addition to a landowner, a nondelegable duty also makes an employer liable for the negligence of an independent contractor in failing to maintain premises in a reasonably safe condition, irrespective of whether the employer is at fault. Such a duty requires the employer to answer for the care exercised by the one to whom the performance of the duty is entrusted. Rowley v. Mayor of Baltimore, 305 Md. 456, 463, 505 A.2d 494 (1986) (nondelegable duty of employers is for the benefit of members of the public and adjacent landowners). Moreover, this principle is inappropriate under the facts in the instant case since MTA entrusted the performance of safety compliance to Parsons. Hence, the nondelegable duty theory would only apply in an action against MTA and MTA was immune.
Finally, appellants assert that Parsons' alleged violation of a safety statute constitutes negligence per se. From this, appellants proceed to the conclusion that the defenses of contributory negligence and assumption of risk are barred. Both appellants' assertion and c
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