Lead Opinion
Kelly Lynn Strub (“Strub”), Respondent, sued C&M Builders, LLC (“C & M”), Petitioner, on behalf of her son
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. Strub v. C & M,
1. 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 worksite and has no control over worksite conditions?
2. Did the Court of Special Appeals correctly hold that where a person is aware of an obvious risk of falling,*273 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?
C & M v. Strub,
We hold 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, we hold that the decedent assumed the risk of injury, as a matter of law, and, therefore, the trial judge erred in failing to grant Petitioner’s motion for judgment. Accordingly, we shall reverse the judgment of the Court of Special Appeals and direct reinstatement of the judgment of the trial court.
Factual and Procedural Background
The following evidence was presented at trial. In the spring of 2006, C&M entered into an oral contract with Bayside Builders, Inc. (“Bayside”) a general contractor, to finish framing what was to be a three story row house in Baltimore City, Maryland. As a subcontractor, C&M agreed to complete the framing work, which included framing the walls on the first floor and constructing the flooring, roof and walls for the second and third floors. When C&M arrived at the worksite, the first floor had been framed by Bayside and contained a rectangular 7 jé’ x 2 jé’ opening in the first floor above the basement that was not covered or guarded. C & M’s contract required it to create, and it did create, the same size openings in the second and third floors, so that a staircase system could be installed by the staircase subcontractor, who was scheduled to perform its work when C&M finished its framing responsibilities. C&M used the openings to move plywood, sheathing, lumber and other framing materials between the floors and the roof. The C&M workers built temporary ladders out of 2" x 4" lumber that were nailed at the top side rail into each opening in order to move workers and materials between floors. On approximately May 5, 2006, C&M finished the framing work, so the workers removed the ladders and put them in a trash pile on the site and covered up
Three weeks later, on May 24, 2006, Bayside entered into a contract with Comfort Masters Cooling and Heating, Inc. (“Comfort Masters”), an HVAC subcontractor, to provide and install all HVAC equipment and duct work for the property. Even though the staircases had not yet been installed, Bayside and Comfort Masters agreed that the HVAC work would proceed, i.e., before the staircase sub-contractor began its work. On May 26, 2006, Nocar and two other Comfort Masters’s employees, Joshua Tudor (another sheet metal mechanic) and Andrew Pfarr (a helper), arrived at the property to begin the HVAC work. When the Comfort Masters’s employees arrived the property was not as C & M had left it: the ladders had been reclaimed from the trash and one had been nailed into the third floor opening, the front door was open, and windows that had been covered with plywood were uncovered and open. Comfort Masters’s employees worked for the next three hours inside the row house, climbing up and down the ladders numerous times, through each of the three stairwell openings, carrying tools, duct work and other materials between floors.
Nocar was alone on the third floor of the row house at the time of his fatal accident. Tudor testified at trial that he had been working with Nocar on the third floor prior to the accident, but they could not complete the work required because they had neglected to bring all of the necessary parts with them. Therefore, Tudor climbed back down to the second floor to do work there, but, Nocar remained on the third floor. Tudor explained the accident as follows:
A. [Nocar] yelled down to hand up a ladder. I said, “Okay. Hang on one minute,” because I was—it only took me a minute to finish what I was doing. So in the meantime, I was—I was facing the wall. And in the meantime, he stuck his head down the hole, he leaned down in the hole*275 like this, and he said, “Oh. You (sic) using it. Never mind” I’m like, “Well, you can either take a break for a minute, because I’m only going to be a minute, or you take it and I’ll take a break for a minute.” And he said—do I say exactly what he said?
Q. Yep?
A. He said, “Fuck it. I’ll just climb the bitch.” So I said, “Well, be careful. Don’t do nothing to get yourself hurt.” And he said—the last words that he said to me was, “At least you care.”
Q. How long after that did you realize an accident had happened?
A. Well, maybe about three or four minutes later, I heard the strangest noise I never heard before.... So I started walking over toward the stairwell opening.... And that’s when I look (sic) down and saw Wayne [Nocar].
Q. At the time you heard this and looked, where was the ladder that had been on the second floor?
A. Dangling over top of the stairwell opening.
Q. And was anybody on the third floor besides Mr. Nocar? A. Nobody.
Tudor also stated in his testimony, that Nocar was “the only one that could have” removed the nail holding the ladder in place between the second and third floors and pulled the ladder up to the third floor because he (Tudor) did not do it and their third colleague was on the first floor attending to another task. Tudor testified that the “ladder was leaning right where the return box was supposed to go[,]” and that even after they had discussed that they could wait until they had all the required materials, Nocar had “cut a hole in the return box.” Tudor stated that “[Nocar] leaned [the ladder] across the hole up against the metal stud. And the metal studs are not made for structural [support]. So when he leaned on it, it bent and tipped the ladder.” Nocar fell approximately 26 feet from the third floor into the basement of the row house sustaining fatal injuries.
Mr. Leisenring is expected to testify, to a reasonable degree of probability, that the Defendants, who each had a hand in the construction of the basement floor and the three floors of the house, should have either ensured that the floor openings should have been covered or had hand rails that were at least 42" high. The OSHA regulations in reference to the floor openings that were applicable are 1926 (501)(b)(4)(i) and (502)(l)(2)(3)(4)(i), which required floor coverings over the stairwell openings and further requires them to be “secured.”
In his deposition, Leisenring testified that C&M was the “creating employer” pursuant to the “Multi-employer Work-site Citation Policy,” discussed infra, and, therefore, that C & M owed a duty of care to Nocar. Petitioner, however, moved to preclude that testimony on the grounds that the general duties and fall protection standards established by MOSHA and OSHA are owed by an employer only to its employees and that C&M was not Nocar’s employer, nor did it have any control or presence on the worksite at the time of Nocar’s fatal accident. The trial judge held that Respondent would not be permitted to present expert testimony that C&M owed Nocar a statutory duty under MOSHA or OSHA to have covered the stairwell openings. The trial judge did permit expert testimony that in not covering the stairwells there was evidence of “negligence based on industry standards[,]” but did not permit testimony that there was “a legal duty owed.”
At the conclusion of the evidence, Petitioner moved for judgment and argued that Nocar assumed the risk of injury and was contributorily negligent because he utilized the makeshift ladder inappropriately in close proximity to the stairwell opening in order to work on a task which his colleagues had already decided could not be completed without obtaining other materials. The trial judge denied the motion and submitted the case to the jury, which returned a verdict in favor of C & M finding no negligence on its part in Nocar’s death. Additional facts are supplied infra as needed.
I.
At trial, the judge granted C & M’s motion in limine precluding Strub’s expert witness from testifying that C&M had violated MOSHA or OSHA standards and that such violations caused Nocar’s fatal injury. The Court of Special Appeals held that the trial judge’s ruling was erroneous. Strub,
We have held that the admissibility of expert testimony is generally within the discretion of the trial judge, but when a ruling on the admissibility of evidence is based “on a pure conclusion of law” we review for legal correctness. Hall v. UMMS,
It is undisputed that Nocar was not an employee of C&M, thus the general duty provisions of MOSHA, § 5-104(a) and § 654(a)(1) do not apply.
Federal courts have concluded that OSHA, § 654(a)(2) “creates a specific duty to comply with standards for the good of all employees on a multi-employer worksite[,]” therefore the
Petitioner contends that it was not a “creating employer” according to the “multi-employer worksite doctrine,” as interpreted by federal and Maryland cases, so the trial judge properly excluded testimony about the statutes or regulations. Respondent asks that we affirm that C&M was a “creating employer,” and, therefore, was in violation of the specific duty clauses of MOSHA and OSHA. Accordingly, Respondent asserts that we should affirm the intermediate appellate court’s holding that Respondent’s expert witness should have been allowed to testify “about MOSHA requirements and whether the conditions of the construction site would have constituted a violation.” Strub,
In essence, MOSHA regulations should only have been introduced as evidence of a statutory duty if Nocar fell within the class of persons meant to be protected by the statute and the injury was one that the statute was designed to prevent. It is a well-established principle of common law that
a plaintiff may establish a prima facie case of negligence by showing: ‘(a) the violation of a statute or ordinance designed to protect a specific class of persons which includes*282 the plaintiff, and (b) that the violation proximately caused the injury complained of.’
Allen v. Dackman,
We know that neither OSHA, nor MOSHA, can be used to establish negligence per se. Solis,
In this case, the Court of Special Appeals determined that C & M had the duty of an employer because it created the holes in the flooring. Strub,
Thus, in federal cases reviewing the administrative adjudication of the application of the Secretary’s enforcement policy, “creating employers” are held to owe a duty to non-employees where there is evidence of continued presence, responsibility, maintenance, etc. at the worksite.
It was not contemplated that the scope of Custom Masters’s contract work was related to or dependent on the openings, as was the case in Pitt-Des Moines where the victim’s job was to follow PDM’s crew and “bolt-up the connections they made.” Pitt-Des Moines,
The Court of Special Appeals erred when it adopted and applied the “creating employer” citation policy in this case. Wendland v. Ridgefield Const. Services, Inc.,
[W]e follow the approach taken by the Court of Appeals for the Second Circuit in the Brennan case. Thus, where an employer is in control of an area and responsible for its*288 maintenance, as was the case here, a violation occurs if any employees working on the project have access to the hazard. ... Thus in the present case, the defendant [subcontractor] was responsible for complying with applicable excavation regulations. The defendant violated the applicable safety regulations when it failed either to shore up or to cut back to an angle of repose the excavated earthen wall which eventually caved in on the plaintiff.
Wendland,
Even though in Murphy and later in Thompson, the intermediate appellate court recognized an employer may be liable under MOSHA (or OSHA) for either creating or controlling a hazard, in both cases liability was ultimately determined by a combination of the two factors. For instance, in Thompson, the Court of Special Appeals stated that BG & E had a duty to a non-employee because it “erected and constructed the hazardous condition and retained actual control over the work area to which it had assigned Thompson.” Baltimore Gas & Electric Company v. Thompson,
While we agree that C & M did not exercise control in this instance, it was undisputed that C & M did create the hazard when it framed the second and third floors of the row home and left the stairwell openings uncovered and exposed its own employees to the hazard. Liability under these circumstances was recognized in both Murphy and Thompson, but in Thompson, it was the control aspect of the exception that applied.
Strub,
Leisenring was proffered as an expert witness to testify that C&M “violated the OSHA regulations and ANSI safety standards—general safety standards.” Even if C & M “created” a hazard that was in violation of a regulation, it did not exercise continuing control, or even a presence, at the work-site at the time of Nocar’s fatal accident. Thus, the facts of this case do not warrant this Court’s adoption or application of the “multi-employer worksite doctrine” or its “creating employer” citation policy. Accordingly, the trial court was legally correct in not permitting Respondent’s expert to testify that C&M owed a statutory duty to Nocar, as a “creating employer,” to comply with MOSHA or OSHA regulations or that C & M’s violation of the regulations caused Nocar’s death.
II.
At the close of all the evidence, C&M moved for judgment on the grounds that the evidence showed that Nocar assumed the risk of injury as a matter of law and was contributorily negligent as a matter of law. The trial judge was concerned: if “I grant this motion now and I’m wrong, then the case has to be tried completely over. If I deny it and then grant a motion [for judgment notwithstanding the verdict], then they have a verdict.” Accordingly, the trial judge denied Petitioner’s motion for judgment and the case was submitted to the jury, which found that Petitioner was not negligent. Before the Court of Special Appeals, C&M filed a
While we agree that there was no evidence presented that Nocar protested to working in and around the openings, we decline to hold that the court erred in submitting the issue to the jury became there was no direct evidence offered by either party of what Nocar was doing when he fell.
Whether Nocar actually climbed the ladder across to the opening, or whether he obeyed the instruction of his superi- or to wait until after lunch to install the return and fell for some other reason was for the jury to decide.
Strub,
In reviewing the trial judge’s ruling on C & M’s motion for judgment we consider the evidence and reasonable inferences drawn from the evidence in the light most favorable to the party against whom the motion was made. Md. Rule 2-519 (2011); see Wilkens Square, LLLP v. W.C. Pinkard & Co.,
Essentially, Petitioner’s position is that, even if the jury believed that C&M was negligent in causing Nocar’s fatality, as a matter of law, that negligence could not establish C & M’s liability because Nocar assumed the risk of his injuries. C & M contends that Nocar knew, appreciated and voluntarily encountered the risk of falling through the 26 foot deep unguarded hole. Petitioner notes prior Maryland cases where falling through an unguarded hole was recognized as a risk that “anyone of adult age must be taken to appreciate” citing ADM v. Martin,
In our view, assumption of risk was established as a matter of law by the evidence presented during the trial, thus, no determination of liability was required by the factfinder and Petitioner’s motion for judgment, at the close of all the evidence, should have been granted. We have often “stated in earlier cases involving the assumption of the risk defense, ‘where the facts are not in dispute and the plaintiff intentionally and voluntarily exposed [himself or] herself to a known danger, we will sustain the granting of a summary judgment or the direction of a verdict.’ ” Morgan State v. Walker,
Assumption of the risk “negates the issue of a defendant’s negligence by virtue of a plaintiffs previous abandonment of his or her right to maintain an action if an accident occurs.” Cotillo,
“In Maryland there are three requirements that the defendant must prove to establish the defense of assumption of the risk: (1) the plaintiff had knowledge of the risk of danger; (2) the plaintiff appreciated that risk; and (3) the plaintiff voluntarily confronted the risk of danger.” Cotillo,
We have held that in determining “whether the plaintiff had the requisite knowledge and appreciation of the risk ... an objective standard” is applied. Cotillo,
Commentators have noted that there is a subjective and objective aspect to the issue of a plaintiffs knowledge. For instance, professors Prosser and Keeton have stated:
The standard to be applied is, in theory at least, a subjective one, geared to the particular plaintiff and his situation, rather than that of the reasonable person of ordinary prudence who appears in contributory negligence.... At the same time, it is evident that a purely subjective standard opens a very wide door for the plaintiff who is willing to testify that he did not know or understand the risk; and there have been a good many cases in which the courts have said in effect that he is not to be believed, so that in effect something of an objective element enters the case, and the standard applied in fact does not always differ greatly from that of the reasonable person.
Prosser and Keeton, § 68 at 487-88 (footnote omitted); and cases cited therein; see also Speiser, Krause & Gans, The American Law of Torts § 12-53 at 431-33 (2008) (stating “[t]he standard to be applied is a subjective one—what the particular plaintiff, in fact, sees, knows, understands, and appreciates—as distinguished from the objective standard which is applied to contributory negligence.”). This Court has recognized implicitly in prior decisions the subjective undertones to the objective standard of knowledge, for example, in Imbragulio we stated:
‘In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied and a plaintijf will not be heard to say that he did not comprehend a risk which must have been obvious to him.’ Gibson,245 Md. at 421 ,226 A.2d at 275 . Thus, “when it is clear that a person of normal intelligence in the position of the plaintijf must have understood the danger, the issue is for the court.’ Schroyer,323 Md. at 283-84 ,592 A.2d at 1123 .
In prior opinions, we have noted, with approval, the proposition formulated by Prosser and Keeton that “there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects ... and doubtless many others.”
Prosser and Keeton have cited two cases for the proposition that the risk “of falling through [an] unguarded opening” is objectively appreciable by “anyone of adult age” in a position to encounter such a hazard, Moulton v. Gage,
*296 The plaintiff was employed to work upon the platform as it was constructed. There was no hidden defect in it; it was what it appeared to be. The absence of the railing and the risks consequent thereon were obvious, and as well known to the plaintiff as to the defendants; and, upon familiar principles, the plaintiff cannot recover for injuries sustained in consequence of it.
Moulton, 138 Mass, at 393. By analogy, in the case sub judice, the hole in the floor of the third floor of the worksite “was what it appeared to be” and the “absence of [a] railing and the risks consequent thereon were obvious[.]” Moulton, 138 Mass, at 393. Even more apropos is the case of Schwartz:
Giving the plaintiff the benefit of all the propositions urged in his favor, namely that the foreman put in charge of the men, including the plaintiffs intestate, was incompetent, that the defendants were remiss and negligent in not covering the hole through which the intestate fell, and did not, therefore, discharge the duties they owed to the workmen, nevertheless the evidence shows conclusively, not only that the intestate knew of the existence of the hole, but that in working near it he exposed himself to danger voluntarily, inasmuch as he was not obliged to do his work at that point, and apparently chose it because it was more convenient, and involved less labor____He is bound to protect himself by the use of his senses.
Schwartz,
The Court of Special Appeals summarized the pertinent facts of Nocar’s injury as follows:
On May 26, 2006, Comfort Masters sent three of its employees, Nocar, Joshua Tudor and Andrew Pfarr, to the building to install a heating and cooling system, despite the fact that the stairs had not yet been installed. The three worked for approximately three hours that morning before Nocar’s fall. Throughout the morning, the three worked with only two step ladders, as they had left one behind at the shop. They planned to retrieve a third ladder from the shop on their lunch break.
The ladder was leaning right where the return box was supposed to go. The ladder was too tall to stand up in the hallway like straight. And the hallway was too narrow for him to fit up there. So what he did is he leaned it across the hole up against the metal stud.
And the metal studs are not made for structural [sic]. So when he leaned on it, it bent and tipped the ladder.
During cross-examination, Tudor explained that he did not know for certain if Nocar fell as a result of positioning the ladder as he had described, but that he thought that he fell in that manner based on the circumstances and his knowledge of the task that Nocar was attempting to complete.
Strub,
Even in light of these additional facts, it is clear that Nocar was voluntarily working on the third floor, particularly when he and Tudor had discussed and decided that the work on the third floor could not be completed at that time and, therefore, Tudor descended safely to complete other tasks on the second floor. Moreover, Nocar objectively appreciated the “nature and magnitude of the potential injury” posed by falling through the unguarded openings in the floor because he undisputably poked his head through the third floor opening to communicate with Tudor and cannot be said to have remained unaware that just below him were two similarly sized holes with no guardrails or coverings in place. Cf. Imbraguglio,
The trial judge was appropriately cautious when considering C & M’s motion for judgment. But the facts of this case reveal that “any person of normal intelligence in [Nocar’s] position must have understood the danger” of performing work in the vicinity of large holes in the floors of an unfinished house. Cotillo,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REMANDED TO THAT COURT WITH DIRECTIONS TO REINSTATE THE JUDGEMENT OF THE CIRCUIT COURT FOR BALTIMORE CITY. COSTS IN THIS COURT AND COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENT.
Judge ADKINS joins in judgment only.
Notes
. While discussing C & M’s motion in limine, the trial judge expressed concern that the proffered expert witness, an engineer, should not be permitted to testify to the existence of a legal duty under Maryland Occupational Safety and Health Act, now codified at Md.Code (1991
. In Bethlehem Steel v. Comm. of Labor,
The general duty clause of OSHA, 29 U.S.C. § 654(a)(1), requires that each employer "shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees.”
The general duty clause of MOSHA, LE § 5-104(a), requires that each employer "shall provide each employee of the employer with employment and a place of employment that is: (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause death or serious physical harm to the employee.”
*279 OSHA’s specific duty clause, 29 U.S.C. § 654(a)(2), provides that each employer "shall comply with occupational safety and health standards promulgated under this chapter.” MOSHA’s specific duty clause, LE § 5—104(b)( 1), provides that "each employer shall comply with this title, each applicable regulation that, the Commissioner adopts to carry out this title, and each applicable order that the Commissioner passes under this title.”
Bethlehem Steel,
This Court has noted that “MOSHA and ... [OSHA], are substantially similar. When interpreting federal regulations enforced under MO-SHA, we look to federal cases for guidance.” Bethlehem Steel,
. The "area of the effect of a violation of a statute, ordinance, or administrative regulation in the law of negligence is one in which, indeed, angels fear to tread.” Speiser, Krause & Gans, The American Law of Torts § 9:8, 543 (2008) (citing Pope. An Essay on Criticism. Ill, 1. 625 (1711) ("For fools rush in where angels fear to tread.”)).
. The "Multi-Employer Worksite Citation Policy” ("multi-employer worksite doctrine”) has been used by the United States Secretary of Labor ("Secretary”) to enforce the specific statutory duty under OSHA, § 654(a)(2) to comply with OSHA regulations for the benefit of non-employees where the employer can be considered to have created, controlled, exposed, or corrected a hazard. Solis v. Summit Contractors, Inc.,
The validity of the doctrine has been questioned because it potentially exceeds the Secretary of Labor’s statutory authority. For example, the Eighth Circuit has noted:
Recently, the United States Court of Appeals for the District of Columbia Circuit has questioned whether the Secretary’s controlling employer citation policy violates OSHA's regulatory framework. See Anthony Crane Rental, Inc. v. Reich, 315 U.S.App. D.C. 86,70 F.3d 1298 , 1306 (D.C.Cir.1995); see also IBP, Inc. v. Herman,144 F.3d 861 , 865-66 (C.A.D.C.1998) . In Anthony Crane, the court stated in dicta that “it is not clear to us that the multi-employer [worksite] doctrine is consistent with the Secretary’s own construction industry regulation, 29 C.F.R. § 1910.12(a)----[T]he language of § 1910.12 ... is in marked tension with the multi-employer [worksite] doctrine. ...”70 F.3d at 1306 . However, because it was unnecessary to the outcome of the case, the court indicated that "we leave to a later date the critical decision of whether to apply the multi-employer [worksite] doctrine where an employer has been cited under the construction industry regulations of 29 C.F.R. § 1910.12." Id. at 1307. To date, the only court to have addressed this issue has held that the Secretary's multi-employer worksite policy did not exceed the scope of §§ 1910.12(a). Comm’r of Labor v. Weekley Homes, L.P.,169 N.C.App. 17 ,609 S.E.2d 407 , 414-15 (N.C.Ct.App.2005).
Solis,
. The "creating employer” citation policy arises from the "multiple-employer worksite doctrine.” A “creating employer” may be liable "for OSHA violations even when [the creating employer's] own employees were not exposed to any hazards related to the violations.” Solis,
. In Murphy v. Stuart M. Smith, Inc.,
The third and final circumstance relates to owners or employers who have either actually created a hazardous condition which violated specific OSHA regulations and to which its own and another’s employees were exposed, Wendland v. Ridgefield Const. Services, Inc.,184 Conn. 173 ,439 A.2d 954 (1981), or had actual and substantial physical control over the work area, and actual responsibility for the hazardous condition.
Murphy,
. The Court of Special Appeals concluded that the trial judge’s ruling precluded testimony that should have been allowed even though it had
We pause, however, to point out that the trial court did not err in ruling that Strub’s expert witness could not testify to the existence of a legal duty. As C & M aptly points out, "the existence of a legal duty is a question of law, to be decided by the court.” Doe v. Pharmacia & Upjohn Co.,388 Md. 407 , 414,879 A.2d 1088 (2005) (citations omitted). Nevertheless, Leisenring should not have been totally barred from testifying about MOSHA requirements and whether the conditions of the construction site would have constituted a violation.
Strub,
. The Fifth Circuit denied outright the authority of the Secretary to use the "multi-employer worksite doctrine” in Melerine v. Avondale Shipyards, Inc.,
[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. While they are evidence of a general standard of care due employees, they establish no standard of care due third persons. Therefore, in this negligence action, we reject the argument that the failure of a third party that was not the plaintiff's employer to follow OSHA regulations establishes that third party’s negligence.
Melerine,
. We note that the ''multi-employer worksite doctrine” becomes a relevant analytical framework in judicial proceedings when a regulated
. The scope of the multi-employer worksite doctrine has been apparently limited to reflect the traditional elements of negligence liability, e.g., foreseeable plaintiffs. For instance, the Seventh Circuit has noted that "the class of employees who will trigger liability under the multiemployer doctrine should be limited to those with regular access to the areas controlled or directly impacted by the employer accused of violating a safety regulation. Although the logical class is composed of those on a given work site, it may in certain circumstances be narrower.” Pitt-Des Moines, Inc.,
PDM could be liable for the death of [non-employee] Thormeyer under the multi-employer doctrine. Thormeyer was employed as an ironworker on the Post Office work site. His job was to follow PDM’s raising gang and bolt-up the connections they made. He belonged on the site and regularly worked within the zone of danger created by any unsafe connections. Thormeyer was an entirely foreseeable victim of any willful safety violations PDM may have committed and thus easily fell within the multi-employer doctrine.
Pitt-Des Moines, Inc.,
. Similarly, other commentators have noted that
[t]here are some risks as to which no adult will be believed if he says that he did not know or understand them. Thus, an adult who knowingly comes in contact with a fire will not be believed if he says that he was unaware of the risk that he might be burned by it; and the same is true of such risks as those as drowning in water or falling from a height in the absence of any special circumstances which may conceal or appear to minimize the danger.
Speiser, § 12-53 at 432-33.
Concurrence Opinion
concurring.
Respectfully, I join in the judgment only. The Majority rejects the Respondent’s contentions that C&M owed a duty