Nocar was employed by Comfort Masters, an HVAC (Heating, Ventilating, and Air Conditioning) company. He and three other Comfort Masters employees worked on the row home that was the subject of this lawsuit. When Nocar worked at the property, there was a gaping hole, from the third floor, to the basement, where a staircase would later be installed. The row home had been gutted and weeks before, C & M had left openings in the floors where staircases would be constructed. C & M believed that the staircase-installer would be the next subcontractor to work on the property. Instead, Nocar and two other Comfort Masters employees arrived to install the heating and cooling system. Just before he fell, Nocar was standing on a ladder on the third floor of the property. He fell off the ladder, through the empty staircases, to his death, in the basement of the property.

Strub's expert witness, an engineer and former Maryland Occupational Safety and Health Act ("MOSHA") inspector, was prepared to testify that C & M violated MOSHA by failing to secure the staircase openings at the property. Under MOSHA, an "employer shall provide each employee" with a safe place of employment that is free from recognized hazards likely to cause death or serious physical harm. Md. Code, Lab. & Empl. § 5-104 (1991 Rep. Vol., 2006 Supp.) (hereinafter "MOSHA § 5-104"). In a Motion in Limine, C & M argued that under Murphy v. Smith, 53 Md. App. 640 (1983), MOSHA did not apply, because C & M's only duty of care was to its own employees, not to employees of other subcontractors. Because Nocar was employed by Comfort Masters and not C & M, C & M owed him no duty of care under MOSHA. The trial court agreed with C & M, and Strub's expert witness was forbidden to testify about C & M's MOSHA violations. At the end of the trial, the jury returned a verdict in favor of C & M, finding no negligence on its part.

Strub appealed the verdict, and the primary issue for the Court of Special Appeals of Maryland was the testimony of Strub's expert. C & M contended that by its plain language, MOSHA § 5-104, limits the duty of care to the employer-employee relationship. The Court disagreed, explaining that in Murphy, it carved out several exceptions to the general rule that MOSHA is limited to placing a duty on an employer for the benefit of his employees. One of Murphy's exceptions was the "creating employer" exception. Under the "creating employer" exception, an employer is liable to someone other than its own employees under MOSHA, when it creates a hazardous condition, to which its own and another's employees are exposed. The Court held that C & M's activities fell within the "creating employer" exception. C & M created the hazard when it framed the upper floors of the row home and left the stairwell openings uncovered, exposing its own employees, and later Nocar, to the hazard. The Court had never applied Murphy's "creating employer" exception before, but adopted it as "clearly applicable" in this case. Strub at *21. As such, the Court of Special Appeals held that the trial court erred by preventing Strub's expert from testifying about C & M's MOSHA violations, and remanded the case.