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Builder owed no duty of care to subcontractor's employee

By Jessica M. Karmasek | Jul 6, 2011


ANNAPOLIS, Md. (Legal Newsline) - The Maryland Court of Appeals, in a ruling last month, found that a building company was not negligent in the death of a subcontractor's employee.

The state's highest court reversed the judgment of the Court of Special Appeals and reinstated the judgment of a trial court in favor of the builder.

Kelly Lynn Strub sued C&M Builders LLC on behalf of her son, alleging negligence in the death of her son's father, Wayne Barry Nocar II.

Prior to trial in Baltimore City Circuit Court, C&M successfully moved to preclude Strub from introducing expert testimony that the company either owed or breached a statutory duty of care to Nocar pursuant either to the Federal Occupational Safety and Health Act or the Maryland Occupational Safety and Health Act.

C&M moved to preclude that testimony on the theory that it did not owe a statutory duty to Nocar because he was not its employee.

Strub contended that the company was obligated to protect its own employees as well as the employees of other subcontractors from a fall hazard created by stairwell openings in floors that C&M built.

At the close of all the evidence, C&M also moved for judgment asserting that the evidence showed that Nocar assumed the risk of his fatal injury and was contributorily negligent as a matter of law.

The trial judge denied the motion and submitted the case to the jury. The jury determined that C&M was not negligent.

On appeal, the Court of Special Appeals held that the trial judge erred in precluding expert testimony regarding particular MOSHA and OSHA regulations because as a "creating employer" C&M owed a duty to Nocar to comply with MOSHA.

Additionally, the intermediate appellate court held that the case was properly submitted to the jury and could not have been resolved on C&M's motion for judgment.

The state's highest court granted certiorari to consider two issues raised by C&M:

- Did the Court of Special Appeals correctly hold that an employer owes a duty under MOSHA to provide a safe workplace to a person who is not his employee after the employer has left the work site and has no control over work site conditions?

- Also, did the Court of Special Appeals correctly hold that where a person is aware of an obvious risk of falling, and voluntarily exposes himself to that risk, and falls to his death, that the inability to show how he fell makes assumption of the risk a question of fact for the jury?

Justice Clayton Greene Jr. authored the Court's June 23 opinion.

The Court held that C&M did not owe a duty of care to Nocar pursuant to MOSHA and, therefore, regulations promulgated under MOSHA were inadmissible as evidence of the standard of care.

In addition, the Court held that the decedent assumed the risk of injury, as a matter of law, and, therefore, the trial judge erred in failing to grant C&M's motion for judgment.

"Nocar knowingly encountered the risk, regardless of whether he was standing on a ladder attempting to prepare the return-box apparatus as was testified by his co-worker or was doing something else, because the holes were an open and obvious hazard and the danger of falling through one or three of them would be foreseeable to a person of normal intelligence," the justices wrote.

"In our view, reasonable persons could not differ as to the conclusion to be reached, which is that Nocar's conduct released any duty that C&M might have owed under the circumstances. Thus, the issue could have been and should have been decided in C&M's favor by the court on Petitioner's motion."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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