Opinion
Civil No. JFM-03-526
May 20, 2004
MEMORANDUM
Plaintiff Gaylee Pindell Jones, individually and as personal representative of the estate of Ernest Oden Jones, has brought this wrongful death and survival action against Parsons Transportation Group, Inc. ("Parsons") for the death of her husband at a construction site. Plaintiff claims that Parsons negligently failed to monitor and enforce compliance with safety standards at the worksite, resulting in an accident in which her husband was electrocuted. Now pending before the court are cross motions for summary judgment. For the reasons stated below, summary judgment will be granted in favor of the defendant.
I.
This case arises from an accident that occurred at a construction site at Baltimore Washington International Airport ("BWI"). Ernest Jones was employed by Whiting-Turner Contracting Company ("Whiting-Turner") as a laborer at the site. The Maryland Aviation Administration ("MAA") contracted with Whiting-Turner to serve as the general contractor for the Terminal Curbside Expansion and Skywalks ("TCES") project undertaken by MAA to upgrade and expand BWI.
MAA hired Defendant Parsons Transportation Group, Inc. ("Parsons") to serve as the construction manager for the TCES project and to "perform and be responsible for full and complete inspection services as required to assure project documentation, compliance with contract documents and the intent of the design." In addition to monitoring the work of the contractors to assure quality workmanship in conformance with the plans and specifications for the projects, Parsons also agreed to review the safety plans developed by the contractors and observe their activities to assure compliance with safety standards. Def.'s Ex. 9, Consultant's Technical Proposal, at § 2.1.14. Ultimately, however, Whiting-Turner was "totally responsible for safety and health on the project." Def.'s Ex. 4, Whiting-Turner Contract, at 100.
Whiting-Turner's contract further provided: "The Contractor shall assume full responsibility for compliance with all applicable regulations pertaining to the health and safety of personnel during the execution of the work." Parsons's Technical Proposal, which was incorporated into its contract with MAA, states: "Although Parsons's personnel are trained in safety, the basic responsibility for safety rests with the contractor and each and every person working on the jobsite." § 2.1.14. Whiting-Turner's contractual safety responsibilities included developing a detailed accident prevention/safety program and designating individuals responsible for implementation of the program, indoctrination of new employees, project site inspection responsibilities, and the conduct of weekly safety meetings. Whiting-Turner Contract, at 105.
On October 15, 2002, Jones was working in an excavation pit in front of the main terminal building of BWI. Jones was assigned to chip a concrete storm pipe and level the bottom of the pit to prepare it for the installation of a grade beam, which was to be performed by Belfast Valley Contractors, Inc. ("Belfast"), a subcontractor of Whiting-Turner. According to plaintiff, after working in the pit for several hours, Jones was instructed by Earl Embrey, an employee of Belfast, to chip a piece of concrete that obstructed the area where Belfast planned to install the grade beam. While operating a chipping hammer in the area indicated by Embrey, Jones was electrocuted when the hammer penetrated a concrete utility duct bank and struck a high-voltage electrical line.
II.
The parties have filed cross-motions for summary judgment. Summary judgment is appropriate only where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A disputed fact presents a genuine issue "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Id.
III. A.
To prevail on a claim of negligence, a plaintiff must prove: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Muthukumarana v. Montgomery County, 370 Md. 447, 486, 805 A.2d 372, 395 (2002) (quoting BGEv. Lane, 338 Md. 34, 43, 656 A.2d 307, 311 (1995)).Plaintiff argues that Parsons assumed a duty of care pursuant to Restatement (Second) of Torts § 324A (1965), which provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if (a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.Brady v. Ralph M. Parsons Co., 327 Md. 275, 609 A.2d 297 (1992), is very much on point. There, the Maryland Court of Appeals strongly indicated in extensive dicta that a firm which has entered into a contract to provide safety engineering services to the owner of a property in connection with a construction project is not ordinarily liable for injuries suffered by the employee of a contractor during the course of construction. In expressing this view, the court stated that "a previously non-existent tort duty to third persons will not. . . be created" by virtue of the contract between the construction manager and the owner. Id. at 282, 609 A.2d at 300. The Court of Appeals found support for its position in Rowley v. City of Baltimore, 305 Md. 456, 505 A.2d 494 (1986), where it had held that the owner of a project is not liable to employees of an independent contractor for injuries sustained as the result of the contractor's negligence in repairing a defective condition that existed on the premises.
While recognizing the authority of Brady and Rowley, plaintiff argues that those cases left open the possibility that a third party may have a cause of action against an owner (or a construction manager, pursuant to a contract with the owner) where the owner or construction manager "retains significant control over, and responsibility for the safety of the workplace." See Rowley, 305 Md. at 475, 505 A.2d at 504. According to plaintiff, in that instance liability will lie because the construction contractor and its employees rely upon the undertaking of the owner or construction manager to perform its duties properly.
I will assume the correctness of plaintiffs contention. Her argument is nevertheless unavailing because in Brady the defendant assumed far more extensive safety obligations than did Parsons in the present case. These included the responsibility for providing safety engineering services to develop and ensure the application of a uniform system of safety, and the responsibility for designating a chief safety engineer whose duties included implementing the safety program. Id. at 281, 609 A.2d at 299. It follows that because Parsons contracted to do less than did the defendant in Brady and because the court in Brady indicated that even the more extensive duties contractually assumed by the defendant did not create a tort duty running to third parties, Parsons' contract with MAA did not create a tort duty in favor of Whiting-Turner and its employees.
Parsons also argues that it is entitled to sovereign immunity or, alternatively, public official immunity because it acted as an agent of the state. Because of my rulings, I need not reach these issues.
This conclusion is consistent with the decision in Trosclair v. Bechtel Corp., 653 F.2d 162 (5th Cir. 1981). There, the Fifth Circuit held that a prime contractor who required a subcontractor to implement detailed safety measures and inspected the worksite for compliance with the safety program was not liable under § 324A for injuries suffered by the subcontractor's employees on the job. The Court found that although the defendant had regularly inspected the work area for safety violations and made safety recommendations to the subcontractor, there was no evidence that the defendant undertook to perform these activities for the subcontractor or for anything other than its own interest in the proper administration of the project. Id. at 164; see also Roberson v. United States, 382 F.2d 714 (9th Cir. 1967) ("The safety inspection activities of the [prime contractor] did not relieve the [subcontractor] of any of its contractual duties . . . [I]t was designed only to make sure that the [subcontractor] performed those duties."). The defendant's performance of these services and its willingness to accept only partial performance of safety supervision by the subcontractor could not be converted into an assumption of the subcontractor's safety obligations to its employees. 653 F.2d at 165.
As in Trosclair, there is no evidence in this case that Parsons undertook safety inspection and enforcement responsibilities to serve Whiting-Turner or its employees. There is also no evidence that Parsons's services were necessary for the protection of Whiting-Turner's employees. Whiting-Turner agreed to assume complete responsibility for maintaining safe working conditions and ensuring compliance with all relevant safety regulations. Whiting-Turner, not Parsons, was responsible for developing a safety program, training employees in safety, and warning employees as to hazardous conditions at the worksite-for example by identifying and marking the location of utilities.
B.
Even if Parsons did owe a tort duty to Whiting-Turner and its employees, there is no evidence to establish the existence of any of the three conditions necessary to make Parsons's alleged negligence actionable under § 324A. Plaintiff contends that Parsons's failure to inspect the excavation site increased the risk of harm to her husband, and that Whiting-Turner and its employees relied on Parsons's safety monitoring to ensure a safe workplace. However, there is no indication that Parsons's actions or inactions increased the risk of harm that Jones would have otherwise faced. When Parsons inspectors viewed the site that morning, there was no indication of unsafe workmanship and no evidence that Jones would use the chipping hammer in an unsafe manner.
Plaintiff argues that Whiting-Turner relied on Parsons to identify safety hazards and ensure their correction. "To impose liability under Section 324A(c), there must be proof of actual reliance on a contractual undertaking or representations by the defendant that resulted in acts or omissions by the party relying on the defendant's undertaking." Trosclair, 653 F.2d 162, 165 (5th Cir. 1981). Plaintiff has presented no such evidence. Parsons neither undertook a contractual obligation to take affirmative safety measures at the worksite, nor did it make representations to Whiting-Turner that it would assume such obligations. Scott Peterson, Whiting-Turner's Senior Superintendent, acknowledged that Parsons would advise him of non-compliance with safety standards but testified that it was up to him to "provide the means and method" to conform to such standards. There is no evidence that Whiting-Turner relied on Parsons to fulfill Whiting-Turner's safety obligations, and therefore neglected to take its own safety precautions. See Ricci v. Quality Bakers of America Co-op. Inc., 556 F. Supp. 716, 721 (D.Del. 1983) ("To establish reliance under section 324A(c) the plaintiff must show that Schmidt's reliance on the defendant's inspection induced Schmidt to `forgo other remedies or precautions against such a risk.'") (citing §§ 324A cmt e). Both Peterson's testimony and the Whiting-Turner contract acknowledge that Whiting-Turner accepted ultimate responsibility for maintaining safety in the workplace.
Plaintiff cites a number of cases from other states that impose a duty on construction managers to employees of subcontractors. These cases are factually distinguishable and therefore inapposite with respect to the present case. Many of them involve construction managers who assumed affirmative obligations to implement safety programs and had full responsibility for compliance with safety standards. See Riggins v. BechtelPower Corp., 722 P.2d 819 (Wash.App. 1986) (construction engineer contracted to develop and execute safety program and had authority to stop contractor operations in case of noncompliance); Piccirillo v. Beltrone-Turner, 121 N.Y.S.2d 721 (App.Div. 2001) (construction manager had overall responsibility to maintain safety in construction area, including responsibility to take "every precaution against injuries to persons"); Lemmer v. IDS Properties, Inc., 304 N.W.2d 864 (Minn. 1980) (construction manager who possessed land, agreed to "take all reasonable precautions for the safety of. . . employees on the (job)," and knew of hazardous condition had a duty to injured employee).
Plaintiff further cites Parsons, Brinckerhoff, Quade Douglas, Inc. v. Johnson, 288 S.E.2d 320 (Ga.App. 1982), a case involving the injury of a subcontractor's employee by electric shock, for the conclusion that a construction manager owes a duty to inform and advise the general contractor with regard to the need to de-energize power lines. In Johnson, the defendant's contractual duties included performing a library study and compiling a matrix of statutory and advisory safety requirements, developing specific safety criteria and means by which they may be achieved, and working with authority staff and general counsel to analyze all phases of the long-range construction program "to inventory and codify all other subjects and areas where the degree of safety inherent in the system as it evolves is a variable to be consciously fixed." Id. at 324. These duties far exceed the safety inspection duties assumed by Parsons in the instant case. Unlike the construction manager in Johnson, Parsons did not undertake extensive duties involving research, development, and implementation of the safety program and had no responsibility for locating and de-energizing power lines. Those responsibilities remained at all times with Whiting-Turner.
IV.
Plaintiff further alleges that Parsons violated provisions of the Occupational Safety and Health Act ("OSHA") and the Maryland equivalent ("MOSHA") regarding construction safety and that such violations are evidence of negligence. She invokes OSHA's multi-employer doctrine for the proposition that Parsons was responsible for injuries to other contractor and subcontractor employees caused by Parsons's failure to comply with OSHA safety regulations. "[T]he general rule regarding multi-employer construction worksites is that employers will be liable . . . for hazards the employer either created or controlled, regardless of whose employees are threatened by the hazard." Universal Const. Co., Inc. v. Occupational Safety and Health Review Com'n, 182 F.3d 726, 730 (10th Cir. 1999). Thus, a contractor who is in control of a worksite and has the authority to abate hazardous conditions may be cited for OSHA violations if it unreasonably fails to correct a hazard it created or fails to direct a subcontractor to correct a hazard created by the subcontractor. Id.
Plaintiff argues that Parsons violated 29 C.F.R. § 1926.416, which provides:
(1) No employer shall permit an employee to work in such proximity to any part of an electric power circuit that the employee could contact the electric power circuit in the course of work, unless the employee is protected against electric shock by deenergizing the circuit and grounding it or by guarding it effectively by insulation or other means.
(2) In work areas where the exact location of underground electric powerlines is unknown, employees using jack-hammers, bars, or other hand tools which may contact a line shall be provided with insulated protective gloves.
(3) Before work is begun the employer shall ascertain by inquiry or direct observation, or by instruments, whether any part of an energized electric power circuit, exposed or concealed, is so located that the performance of the work may bring any person, tool, or machine into physical or electrical contact with the electric power circuit. The employer shall post and maintain proper warning signs where such a circuit exists. The employer shall advise employees of the location of such lines, the hazards involved, and the protective measures to be taken.
The theory underlying the multi-employer doctrine "is that since the contractor is subject to OSHA's regulations of safety in construction by virtue of being engaged in the construction business, and has to comply with those regulations in order to protect his own workers at the site, it is sensible to think of him as assuming the same duty to the other workers at the site who might be injured or killed if he violated the regulations." U.S. v. MYR Group, Inc., 361 F.3d 364, 366 (7th Cir. 2004). Although the Fourth Circuit has not expressly adopted it, the majority of circuits have expressed approval of the multi-employer doctrine. See Universal, 182 F.3d 726; United States v. Pitt-Des Moines, Inc., 168 F.3d 976 (7th Cir. 1999); R.P. Carbone Constr. Co. v. Occupational Safety Health Review Comm'n, 166 F.3d 815 (6th Cir. 1998); Beatty Equip. Leasing, Inc. v. Secretary of Labor, 577 F.2d 534 (9th Cir. 1978); Marshall v. Knutson Constr. Co., 566 F.2d 596 (8th Cir. 1977); Brennan v. Occupational Safety Health Review Comm'n, 513 F.2d 1032 (2d Cir. 1975).
I need not decide, however, whether Parsons ought to be considered an employer under the multi-employer doctrine. Regardless of the doctrine's application to Parsons, OSHA does not independently establish tort duties between a contractor and employees of other contractors or subcontractors. The Act explicitly states that it shall not be construed to supersede or affect any workmen's compensation law or to enlarge or diminish the common law or statutory rights, duties, or liabilities of employers with respect to injuries to their employees. 29 U.S.C.A. § 653(b)(4). Accordingly, as the Fourth Circuit has stated, "`[i]n a negligence action, regulations promulgated under . . . [OSHA] provide evidence of the standard of care exacted of employers, but they neither create an implied cause of action nor establish negligence per se.'" Albrecht v. Baltimore Ohio R. Co., 808 F.2d 329, 332 (4th Cir. 1987) (quoting Melerine v. Avondale Shipyards, Inc., 659 F.2d 706 (5th Cir. 1981)). Violations of OSHA regulations may, at most, be considered as evidence of negligence. Id. See also Ellis v. Chase Communications, Inc., 63 F.3d 473, 478 (6th Cir. 1995) ("Even if an OSHA violation is evidence of [defendant's] negligence . . . [defendant] must owe a duty to [plaintiff] under a theory of liability independent of OSHA, as OSHA does not create a private right of action. OSHA regulations can never provide a basis for liability").
Like OSHA, MOSHA was not designed to create an action for damages in favor of an employee. In Brady v, Ralph M, Parsons Co., 82 Md.App. 519, 534, 572 A.2d 1115, 1123 (Md.App. 1990), the Court of Special Appeals determined that the defendant construction manager did not have the direct "employer" responsibility anticipated by MOSHA and OSHA in implementing the safety measures it undertook. Rather, the safety responsibilities the defendant undertook in its contract with the state were independent and "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 . . . Parsons's source of tort liability does not stem from a statutory violation." Id. This reasoning applies with equal force in this case. Thus, in order for evidence of OSHA or MOSHA violations to have any bearing on Parsons's liability, plaintiff would first have to establish the existence of a tort duty independent of OSHA or MOSHA. As I have previously ruled, she has failed to do so.
I also note that while Whiting-Turner was cited for various MOSHA violations, Parsons was not. In fact, David Latham, the primary safety compliance officer dispatched to investigate the MOSHA violations, testified that, aside from Whiting-Turner, "it was determined that there was no other employer that was believed to be in violation of any of these [safety] standards." PL's Ex. 5, Latham Dep., at 36.
V.
Finally, even if it is assumed arguendo that Parsons did owe a duty to Jones, plaintiff has failed to present on the summary judgment record sufficient evidence that Parsons breached its duty.Parsons's contractual safety duties included: ensuring that the contractor prepare a construction safety plan; reviewing the safety plan and, where necessary, suggesting improvements to the plan; ensuring that the contractor abide by the plan over the course of construction; inspecting the worksite for compliance with safety standards; and notifying and requesting corrective action by the contractor of any unsafe condition of which Parsons became aware. Parsons fulfilled all of these duties. There is no dispute that Parsons reviewed Whiting-Turner's safety plan and made suggestions for changes where appropriate. Furthermore, Parsons's inspectors frequently walked the construction area and inspected for safety hazards. Parsons provided daily inspection reports which documented their observations of safety conditions on the worksite and noted unsafe practices.
There also is insufficient evidence that Parsons breached any of its duties on the day of the accident. Parsons's Senior Construction Inspectors John Byrne and Dan Harmesan and Inspector William Stevens testified that they each passed by the excavation pit two or three times on the day of the accident, and none of them saw a chipping hammer in the pit. Byrne testified that he knew an old storm drain had to be removed but did not see workers doing that or any other concrete removal in the pit. Pl.'s Ex. 13, Byrne Dep., at 37. Byrne and Harmesan stated that they saw Ernest and Damian Jones working in the pit, but that they saw them only hand-digging with shovels and a sledgehammer. Id. at 32; Def.'s Ex. 18, Harmesan Aff. None of the inspectors observed unsafe activity, and Dan Harmesan's daily inspection report noted that the site conditions and safety were normal. Byrne Dep., at 57. Plaintiff has presented no evidence that the Parsons inspectors observed, knew, or had reason to know that Ernest Jones would use a chipping hammer above the concrete utility duct bank.
Plaintiff argues that the jackhammer, compressor, and hose, which connects the jackhammer to the compressor, were in the excavation pit the whole morning, and Parsons inspectors should have noticed the presence of these tools. However, the mere presence of a jackhammer in the excavation pit would not necessarily constitute a safety hazard. Byrne Dep., at 42. Ernest and Damian Jones were instructed to use a chipping hammer to chip a sewer pipe in the excavation earlier that morning. There has been no suggestion that the use of a chipping hammer in that manner would have been unsafe. To the contrary, Byrne noted that the use of a jackhammer might be appropriate for the kind of grading and leveling work that was being done in the excavation in preparation for the installation of a grade beam. Thus, even if Parsons inspectors did see a chipping hammer, compressor, or hose in the pit, the presence of such tools would not necessarily arouse suspicion of unsafe activity.
Parsons could not be expected to guarantee safe construction practices by anticipating every unsafe use of a chipping hammer in an excavation pit. The use of power tools with potentially dangerous applications is common at construction sites. Parsons's safety inspection duties were limited to notifying the contractor of known hazards. It had no notice that Ernest Jones was going to use the chipping hammer for anything but the destruction of the sewer pipe. Likewise, Parsons could not be expected-and, in fact, it was not expected-to have inspectors present at all times at every construction site within the BWI project. While plaintiff argues that Parsons should have had an electrical inspector present at the excavation site, Parsons had no reason to believe that any electrical work would be performed there. Parsons fulfilled its safety duties upon inspecting the excavation site that morning and periodically throughout the day.
Plaintiff further contends that Parsons breached its safety duties by failing to observe and notify Whiting-Turner employees of the absence of warning markers around the utility duct bank. Plaintiff points out that neither Damian Jones, with whom Ernest Jones was working, nor Issac Jones, the Whiting-Turner foreman who assigned the two laborers to work in the pit that day, noted any markings warning of the presence of utilities in the area of the excavation pit. However, Scott Peterson explained that the duct bank had been marked numerous times throughout the construction project but that it may not have been marked on the day of the accident because the duct bank had been exposed. PL's Ex. 9, Peterson Dep., at 34. Byrne noted that there were markings on the jersey barriers around the pit and on the median at the edge of the excavation, and confirmed that the markings which were previously placed directly above the duct bank would not have been present on the day of the accident because the asphalt and dirt had been removed, partially exposing the duct bank. Byrne Dep., at 27-30. At the same time, Ernest Jones was assigned to backfill the pit with sand that morning. Id. at 31. Thus, if there were no visible markings, it was because the duct bank had been exposed and was in the process of being covered with sand. There was therefore no reason to mark the area directly above the duct bank with warning tape.
Moreover, Whiting-Turner was solely responsible for locating underground utilities and using the appropriate warning tape to mark utilities. Def.'s Ex. Rl, Whiting-Turner Specifications. Whiting-Turner, not Parsons, was responsible for training its employees to safely use equipment and take appropriate safety precautions around utility hazards. Whiting-Turner had an obligation to conduct periodic safety meetings with its employees and to ensure their compliance with the relevant health and safety regulations. While Parsons was responsible for providing quality assurance of Whiting-Turner's work, ultimate responsibility for safety rested with Whiting-Turner. Def.'s Ex. R2, Parson's Technical Proposal, § 2.1.32.
Parsons makes two remaining contentions: (1) assuming that it owed a tort duty to Jones and that there is sufficient evidence to establish a breach of that duty, Whiting-Turner committed intervening acts of negligence that negate proximate cause, and (2) Jones was contributorily negligent as a matter of law. I need not decide either of these issues. I note, however, that Harfordlns. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 642 A.2d 219 (1994) might well preclude granting Parsons summary judgment on the proximate cause issue but that the evidence of Jones's contributory negligence is quite strong.
A separate order is being entered herewith.
ORDER
For the reasons stated in the accompanying memorandum, it is, this 20th day of May 2004ORDERED
1. Defendant's motion for summary judgment is granted; and
2. Judgment is entered in favor of defendant against plaintiff.