ANNAPOLIS, Md. (Legal Newsline) – The Maryland Court of Special Appeals affirmed a lower court’s decision that Marrick Homes was liable in a personal injury lawsuit.

The May 31 decision stems from the personal injury lawsuit brought by husband and wife, Adam Rutkowski and Sara Mastropole. Rutkowski was injured on Nov. 11, 2012, when a safety guardrail in his home failed, causing him to fall 12 to 13 feet to the concrete below. He suffered multiple broken bones and a traumatic brain injury as a result of the fall.

The couple filed suit against Marrick Properties Inc., the builder and general contractor that constructed their home in Dunkirk, Maryland, and against Creative Trim Inc., the subcontractor responsible for the construction and installation of the failed safety guardrail. 

They also sued the previous owners of the home. All parties were dismissed during trial proceedings except for Marrick. A jury found in favor of the couple, awarding $1,306,700 in damages. Marrick appealed. 

Marrick argued that under Maryland law, the general contractor/builder does not owe a nondelegable duty to unknown future owners, that the previous owner of the home had sufficient time to find any defect in the home before selling to Rutkowski and that Rutkowksi assumed the risk and/or was contributorily negligent by leaning on the safety guardrail.

The appellate court found that Marrick did owe a duty to all future owners because it failed to assure that building codes were not violated, which appears to be the case here.

"The extent to which general contractors and owners are liable for the negligence of subcontractors due to a violation of the building code has been addressed in a series of cases over the past several decades,” the court wrote.

The court also found that the passage of time had no relevance.

"We reject Marrick’s contention that its duty was extinguished as a matter of law due to the passage of time,” wrote the court. "First, Marrick misstates the law by suggesting that assigning liability in this case would be akin to holding that a builder has a continuing duty in perpetuity … the passage of time may indeed make a claim against a contractor less likely to succeed, but it does not preclude such a claim as a matter of law."

In whether Rutkowksi assumed the risk by leaning on the safety guardrail, the court found that it was a jury question.

"Ordinarily, the question of whether the plaintiff has been contributorily negligent is for the jury, not the judge, to decide," the court cited in its ruling.

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