NEBEKER, Associate Judge:
Appellant introduced evidence from which the jury could have found the following circumstances. Appellant was an iron-worker employed by a subcontractor of Hyman, the general contractor on a building under construction during the period relevant to this case. A steel staircase had been put into place between the ground level floor, which was concrete-decked, and the next higher level, which was plywood-decked. The treads of this staircase were formed with a vertical protruding lip designed to contain the concrete necessary to form a flat tread surface when the staircase was completed. Appellant had used a ladder to ascend to the plywood level during the course of his work, but he used the steel staircase to descend to the cement level. In the course of his descent, he caught his heel on the protruding lip of one of the treads, fell, and injured himself.
Appellant premised his negligence action upon the general allegation that Hyman breached its statutory duty to provide reasonably safe working conditions
Section 11-21091(f) provides:
These regulations "apply to construction projects, equipment, and operations in the District of Columbia for the purpose of safeguarding the wage earners on such projects. . . ." Id. § 11-21001. It is undisputed that, at the time appellant was injured, wood fillers had not been inserted in the steel treads.
The bases for the trial court's direction of a verdict for Hyman were, first, that the regulations cited had not yet become applicable to the stairs in this case because they were not yet either "substantially completed" or turned over by Hyman for general use; and, second, that appellant was barred from recovery upon the general duty to maintain safe working conditions by his own negligence or assumption of the risk.
The trial court's premise that the regulations became applicable only after the stairs had been, to some degree, "completed" is eminently reasonable. During their erection, for example, it is reasonable to assume that the stairs may be walked upon by ironworkers (who erect them) for that purpose, not for the purpose contemplated by the regulations, of ascent or descent in the course of other work. The pivotal question, therefore, is at what stage a staircase has become sufficiently completed to bring into force the safety regulations. On this question, the trial court heard and adopted, for the purpose of its ruling, the testimony of Mr. Charles Green, Director of Safety for the District of Columbia Minimum Wage and Industrial Safety Board, the agency which published the regulations. Mr. Green was proffered by appellant as an expert witness upon the applicability of the regulations to the instant factual situation. Mr. Green was not, however, permitted to testify as an expert. Rather, the trial court heard his testimony out of the presence of the jury
We need not decide whether the deference given Mr. Green's testimony by the trial court was warranted by the general principle that agency interpretations "are entitled to weight . . . unless plainly unreasonable or contrary to ascertainable legislative intent." Williams v. W. M. A. Transit Co., 153 U.S.App.D.C. 183, 189, 472 F.2d 1258, 1264 (1972) (interpretation of statute by implementing regulation and formal opinion of the Corporation Counsel). Rather we accept, arguendo, this construction of the regulations and proceed to consider the factual basis for the directed verdict.
Uncontradicted evidence with respect to the "completeness" of the stairs was that the wooden treads had not been installed and that the stairway lacked handrails. The absence of the wooden treads becomes relevant only after a determination is made on the degree of completion of the stairway. If the stairway was substantially complete, the lack of wooden treads breaches the statutory duty; if the stairs were not
Hyman argues that the stairway could not, as a matter of law, be regarded as "substantially complete" because certain evidence, introduced by appellant, showed that appellant, an iron worker, was still engaged in construction of the stairway in question. The only evidence on this point, however, was that appellant was engaged in plumbing columns for a stairway. Yet it is unclear from the record whether the stairway being worked on was that from the plywood-decked level (where appellant was working) to the next higher level or that from the plywood-decked level descending to the concrete level. In reviewing the record for the sufficiency of appellant's evidence, we must read the record in the light most favorable to him. Gaither v. District of Columbia, D.C.App., 333 A.2d 57, 59 (1975); Calloway v. Central Charge Service, 142 U.S.App.D.C. 259, 440 F.2d 287 (1971). It was for the jury, not the trial court, to resolve this ambiguity in Hyman's favor.
In contrast to this evidence cited by Hyman, appellant introduced other evidence which, if believed by the jury, would have established that the stairway was both substantially complete and turned over for the use of workers. Appellant's evidence was that the staircase was a prefabricated unit which had been plumbed and secured in place. This was sufficient to place before the jury the factual issue of whether the stairway was substantially complete. In addition, Hyman's own building supervisor testified that "[w]hen we completed our stairs and safety to a certain level, we put a barricade across the top of that [stairway]." The purpose of the barricade was "to prevent. . . anybody that had no function in the building or . . . on those steps from moving on up." Other testimony tended to establish that there had been a barricade to prevent ascent from the plywood-decked level but that there was none to prevent descent from that level. The jury, therefore, was entitled to consider whether Hyman had completed its stairs to the plywood-decked level (but not above that level) and whether Hyman had, by placing a barricade above that level, indicated the availability for use of the descending stairway upon which appellant fell.
Our ultimate disposition of this case is remand for a new trial. Therefore, since retrial of this case will likely require that the trial court instruct the jury on the effect of appellant's own conduct upon his recovery for Hyman's alleged breach of these safety regulations, as well as on recovery for Hyman's alleged breach of the general duty to maintain safe working conditions, we will address both issues. Section II of this opinion deals with the general applicability of the defenses of contributory negligence and assumption of risk to actions premised upon breach of our employment safety statute and regulations thereunder. Part III treats the applicability of these defenses to the instant case.
A. In General
No binding precedent has dealt squarely with the issues raised here. The general rule established by our precedents is clear: either defense of assumption of risk or contributory negligence is, in general, a complete bar to recovery. See, e. g., Willis v. Stewart, D.C.App., 190 A.2d 814 (1963); Harris v. Plummer, D.C.App., 190 A.2d 98 (1963); S. S. Kresge Co. v. Kenney, 66 App. D.C. 274, 86 F.2d 651 (1936). None of the cases establishing this rule, however, distinguishes between claims based upon a common law duty of care and those based upon breach of a legislative or regulatory standard of care. Likewise, not one of the cases holds that the latter claims are barred by these defenses. Finally, neither Hewitt v. Safeway Stores, Inc., 131 U.S.App.D.C. 270, 404 F.2d 1247 (1968) (assumption of risk does not bar recovery under safety statute) nor Bowman v. Redding & Co., Inc., 145 U.S.App.D.C. 294, 449 F.2d 956 (1971) (ordinary contributory negligence does not bar recovery under safety regulation) serves as binding precedent establishing a different rule where violation of a safety statute or regulation is alleged; Hewitt was decided under the law of Maryland, and Bowman was decided after the effective date of the reorganization of the courts of the District of Columbia. See M. A. P. v. Ryan, D.C. App., 285 A.2d 310, 312 (1971). The question, therefore, is an open one, the resolution of which will not require the overruling of precedent.
The nearly universal rule is that neither contributory negligence nor assumption of risk bars recovery for breach of a duty imposed by statute, ordinance, or regulation if the purpose of the statute, ordinance, or regulation would be defeated by application of either defense. See Restatement (Second) of Torts §§ 483, 496F (1965); W. Prosser, Law of Torts 425-26, 453-54 (4th ed. 1971). As early as 1939, Judge Augustus N. Hand was able to note (and hold) that
Statutes and regulations should not be overborne by the common law. The common law was developed to fill the gaps between such non-judicial expressions of policy. Deference to the statutes and regulations is inherent in the separation of the branches of our government.
Therefore, where the judicially-developed defenses of contributory negligence and assumption of risk conflict with the purposes of the statutes and regulations, such defenses should not bar recovery.
To so state, however, is the beginning, not the end of our inquiry. The defenses of contributory negligence and assumption of risk may not conflict with the benefit intended by the statute or regulation. Moreover, the conflict between an intended statutory benefit and one of the defenses does not ipso facto bar the other defense. The effect of a statute or regulation depends upon analysis not only of the policies of the enactment but also the relation of those policies to each of the defenses individually.
B. Contributory Negligence
Contributory negligence is based upon a plaintiff's actions or omissions; if those actions or omissions are unreasonable and contribute to the injury, then they are deemed by the law to be the proximate cause of the injury. S. S. Kresge Co. v. Kenney, supra, 66 App.D.C. at 275-76, 86 F.2d at 652-53. Contributory negligence does not deny the negligence of the defendant but merely precludes recovery to a plaintiff who, in effect, failed to take due care for his own well-being. See Prosser, supra § 65 at 417.
The effect of a statutorily or regulatorily imposed duty of care upon this defense will vary with the intended purpose of the duty. Thus, a statute or regulation may impose a duty of care without increasing the protection due to the protected class. In Dougherty v. Chas. H. Thompkins Co., 99 U.S.App.D.C. 348, 240 F.2d 34 (1957), for example, the city, not the land occupier, was under a duty to maintain adjoining sidewalks in a reasonably safe condition. The occupier of the land blocked the sidewalk for its own purposes, thereby becoming subject to an administratively imposed duty to maintain a temporary sidewalk "in good repair and free from rubbish, dirt, and snow. . . ." Id. at 349, 240 F.2d at 35. Although the court did not specifically address the effect of this regulation upon the defense of contributory negligence, it might be inferred that the regulation intended no greater protection for the users of the sidewalk but merely shifted the duty of protection from the city to the land occupier. On the other hand, a statute or regulation may, as in the case of traffic regulations, serve only "to clarify and define the elements of due care." Bowman v. Redding & Co., Inc., supra, 145 U.S.App.D.C. at 304, 449 F.2d at 966. In neither case would the defense be affected.
On the other hand, a statutory or regulatory scheme may envision that certain classes of persons likely to be careless require greater protection than that which might be afforded at common law. For example, the negligence of children is often
D.C.Code 1973, Title 36, Subchapter II ("Industrial Safety") imposes a general duty to maintain "reasonably safe" conditions of employment (id. § 36-438(a)) and provides for the adoption of regulations which more specifically define this duty. Id. § 36-433. This statutory duty of due care is broader than its common law counterpart because it is incumbent not only upon employers as defined at common law but also upon "every person . . . having control or custody of any industrial employment, place of employment, or of any employee" (id. § 36-432(a) (definition of "employer")).
The congressional purpose in imposing this greater duty of care toward wage earners is evident from the legislative history of the subchapter. Congress was concerned with the "appalling numbers" of wage earners injured in employment-related "accidents." H.R.Rep. No. 918, 77th Cong., 1st Sess. 2 (1941); S.Rep. No. 675, 77th Cong., 1st Sess. 2 (1941). The congressional determination that "most of these accidents are due to lack of proper supervision and control" (id.) is an implicit recognition that wage earners will not always exercise due care for their own safety. Finding that these accidents "could be avoided if proper safety measures were taken" (id.), Congress imposed upon employers (as broadly defined) the sole responsibility for avoiding those accidents. In so doing, Congress established a new standard of care which encompasses and supercedes the foreseeable
We therefore hold that the contributory negligence of a wage earner
The unavailability of the defense of contributory negligence does not, however, mean that the wage earner's conduct is irrelevant under all circumstances. Where, for example, the wage earner's conduct exceeds ordinary contributory negligence and constitutes "that aggravated form of negligence, approaching intent, which has been characterized variously as `willful,' `wanton,' or `reckless,'" Prosser, supra at 426 (footnote omitted), the wage earner will be barred from recovery. We agree with the opinion in Bowman v. Redding & Co., Inc., supra, 145 U.S.App.D.C. at 304, 449 F.2d at 966, that "[a] safety system can be required to foresee and guard against the probability of occasional carelessness without having to extend protection to the case of reckless folly."
C. Assumption of Risk
Assumption of risk occurs when a plaintiff voluntarily consents to incur a risk. The consent may be express, as in the case of a contractual absolution from liability,
In cases where the defendant is charged with negligence, the defense operates to relieve "all legal duty [of the defendant] to the plaintiff; and being under no duty, he [the defendant] cannot be charged with negligence." Prosser, supra
Whether a wage earner's determination to encounter a known and appreciated risk is voluntary must depend not only upon the particular circumstances in which the determination was made but also upon the policies underlying the statutory safety scheme. Our deference to these policies must produce two limitations upon the validity of a wage earner's consent to relieve an employer of the duty to assure reasonably safe working conditions.
The first limitation respects the voluntariness of the wage earner's alleged assumption of risk. In general, a determination to encounter a risk is voluntary only if the plaintiffs' choice is unreasonable in light of the alternatives left available by the defendant's conduct. Mosheuvel v. District of Columbia, supra; Dougherty v. Chas. H. Thompkins Co., supra. "In this area [of plaintiff's voluntariness] it is reasonably clear that assumption of risk and contributory negligence always coincide, and that it is relatively unimportant which the defense is called." PROSSER, supra at 453. Because we have held that a wage earner's claim under the statutory safety scheme is not barred unless he incurred the injury in willful, wanton, or reckless disregard for his safety, his determination to encounter a situation of risk cannot be said to be voluntary unless his determination was, in light of available alternatives, willful, wanton, or reckless.
The second limitation affects the public interest in the avoidance of accidents. By enactment of the instant statutory safety scheme, Congress imposed an affirmative duty upon persons with control over places of employment or employees to provide reasonably safe working conditions. D.C.Code 1973, § 36-438(a). Even were this duty no greater than the employer's duty at common law, the duty imposed is no longer a private one, wholly subject to waiver by a private party. Congress' concern with industrial accidents, as embodied in this legislation, affects not only the interests of individual wage earners but also the interests of society "in the conservation of the lives and of the healthful vigor of its citizens. . . ." Johnston v. Fargo, 184 N.Y. 379, 385, 77 N.E. 388, 390 (1906). Congress has established but one means of waiving the public aspects of an employer's duties under this subchapter: the Minimum Wage and Industrial Safety Board may permit variance from a rule or regulation only if, "notwithstanding such variance, . . . the protection afforded by such rule or regulation will be [otherwise] provided." D.C. Code 1973, § 36-436. If that Board, a public body, is so restricted in its power to waive regulations, it would be wholly incongruous to deem a private individual capable of waiving, in toto, the public aspects of an employer's duty toward him. To the extent, therefore, that private waiver of the duty of employers "would tend to encourage on their part laxity of conduct in, if not an indifference to, the maintenance of proper and reasonable safeguards to human life and limb" (Johnston v. Fargo, supra at 385, 77 N.E. at 390), the private waiver cannot be given effect. See, e. g., Hartman v. Lubar, 77 U.S.App.D.C. 95, 133 F.2d 44
In sum, these two limitations combine to require that an alternative, available to the wage earner, to encountering the risk be one which would not tend to lessen the diligence of employers in their pursuit of the legislative objectives. For example, the wage earner always has, at least in theory, the alternative of foregoing an employment opportunity in order to avoid an unreasonable risk of injury. But were employers permitted to impose upon wage earners such a "take it or leave it" choice, and were we myopically to view the availability of this alternative as an indication of voluntariness, then there would be little incentive for employers to conform to the command of Congress that conditions of employment be made safe. Thus, in Johnston v. Fargo, supra, the court held invalid a condition in an employee's contract which purported to exonerate the employer from liability for all negligence. The court said in part:
Although once prevalent, the view that an employee impliedly assumed the risks of his employment merely by entering into that employment, belongs to another age. See, e. g., Dougherty v. West Superior Iron & Steel Co., 88 Wis. 343, 60 N.W. 274 (1894) (threat of discharge does not negate implied consent). Current thinking follows the reasoning of Johnston v. Fargo, supra, placing the responsibility to minimize risks upon the employer especially where the employee's consent to assume the risks of working is merely implied. This view is noted in Caspar v. Lewin, supra, 82 Kan. at 632, 109 P. at 667:
Such decisions recognize that employment, unlike entertainment at an amusement park, is not a situation in which "[t]he timorous may stay at home." Murphy v. Steeplechase Amusement Co., 250 N.Y. 479, 483, 166 N.E. 173, 174 (1929).
Even where the risk becomes apparent only during the course of employment, similar pressures to encounter the risk may exist. Although an express threat of discharge for failure to encounter a risk posed by an employer's breach of the duty to provide safe working conditions might now be rare, the fear of incurring the employer's displeasure by failing to encounter a job-related hazard may not be unfounded. See, e. g., Marshall v. P & Z Company, Inc., 106 Wash.D.L.Rep. 1021 (June 6, 1978) (pretext firing of employee who complained of safety violation). Indeed, the wage earner's own sense of loyalty to his employer may encourage a disregard for his own safety in order that he might more effectively go about his employer's business. To hold that the theoretical availability of the alternative of declining to continue in the normal activities of a wage earner's employment might relieve the employer of the duty to assure safe working conditions would be to
We perceive no bar, however, to proof of the availability of an alternative to encountering a risk where the wage earner's choice would not be influenced by any work-related concern. Thus, for example, a machine may lack a safety device in breach of a safety regulation. The employer might, however, specifically direct a wage earner not to use the unsafe machine. Arguably in such a situation, the wage earner no longer bears the burden of determining whether the risk of injury might be outweighed by other work-related factors, and there would be no bar to a finding that the wage earner voluntarily assumed the risk of injury by using the forbidden machine in willful, wanton, and reckless disregard for his own safety. Or the employer might show that, even though not forbidding the use of the known defective machine, there was fully available for the wage earner's use another machine, known to be safe. In this situation the wage earner might be found to have assumed the risk of injury if his determination to use the defective machine was, in light of the available alternative, made with willful, wanton, or reckless disregard for his safety.
The alternative shown to have been available must however, be an alternative which satisfies the employer's duty of care. Thus, where the employer's duty arises under the general language of the statute, the alternative must be reasonably safe — not merely by comparison to the risk to which it is an alternative, but in itself. Where the duty arises under a rule or regulation more specifically defining the general duty of care, the alternative must provide "[at least] the protection afforded by such rule or regulation. . . ." D.C.Code 1973, § 36-436. Proof of the availability of such alternatives conflicts neither with the requirement that the determination to encounter a risk be fully voluntary nor with the legislatively imposed duty to provide reasonably safe working conditions.
We hold, therefore, that the defense of assumption of risk is available to bar a claim based upon breach of a duty imposed by the statutory safety scheme only where the defendant bears the burden of proving (1) that there was available to the wage earner
We turn now to the evidence in this record.
With respect to appellant's conduct in the manner of encountering the risk posed by the absence of wooden treads, the only evidence is appellant's testimony that, in descending the staircase, "I was being as careful as I could." While the jury was free to discredit this testimony, the trial court was not, for there was no evidence which conclusively rebutted this evidence of due care, much less proving that appellant's manner of descending the stairs was so negligent as to have been reckless.
Appellant also testified that in determining to encounter the risk posed by the absence of wooden treads, he was not only aware of the defect but appreciated the risk created by the defect. Cf. Willis v.
For the foregoing reasons, the judgment is reversed and this case is remanded for a new trial.