ANNAPOLIS, Md. (Legal Newsline) - The City of Baltimore isn’t liable for the death of a worker who was suffocated under tons of dirt while working on a broken pipe, Maryland's highest court ruled, saying the city had no duty to protect employees of an independent contractor.
In a decision it said aligned Maryland law with the majority of other states, the Maryland Court of Appeals upheld the dismissal of lawsuits against the city and Sutton Building Systems, a minority subcontractor working for R.F. Warder Inc., which had a multiyear contract with Baltimore to maintain its heating and plumbing systems.
In May 2018, the city told Warder to unclog a pipe at the Clifton pool. Kyle Hancock and a plumber went to the jobsite, and the plumber decided the pipe needed to be excavated at a depth of about 15 feet. A city official approved the plan, and plumbers dug a trench about 40 feet long and 24 feet wide at the surface. At some point one of the walls collapsed, trapping Hancock, 20, under tons of dirt. It took 10 hours to recover his body.
Hancock’s family sued Baltimore and Sutton, accusing the city of failing to exercise due care in hiring its contractors and Sutton of failing to warn Hancock about the hazardous conditions at the job site. They were barred from suing Warder, the primary contractor and operator of the job site, because of worker compensation laws.
The city moved to dismiss the case for failure to state a cause of action, citing the general rule that it had a duty to hire competent contractors, but the duty didn’t extend to employees of an independent contractor that created the unsafe conditions that caused Hancock’s death.
The Court of Special Appeals upheld the dismissal, as did the Court of Appeals. Defendants can be liable to “third persons” injured by a contractor, the Court of Appeals explained, but only in specific circumstances. Examples included a customer injured by a merchant’s “rough and violent” collection agent, or a pedestrian run over by a teamster hired to haul materials. In each case, the court said, the plaintiff came into contact with the contractor only because of the defendant’s hiring decision.
Adding employees of independent contractors to the list would frustrate the purpose of worker compensation laws, the court went on, since it would allow that class of employee to file tort suits while others were blocked.
“We join the majority of states that have considered the issue in holding that the duty of one who hires an independent contractor to exercise due care in doing so does not extend to the contractor’s employees who are engaged in the work for which the contractor is retained.”
The plaintiffs argued Maryland courts should follow the lead of a minority of states that allow such lawsuits by employees of contractors. But the Court of Appeals declined the offer, saying that was “a policy question that the General Assembly is much better suited to address than this court.”
The court upheld the dismissal of Sutton from the case because he had no control over the job site, rejecting the plaintiffs’ argument he still had a duty to inform Hancock of any dangers there.
“We are unwilling to place on contractors who have not accepted any contractual or supervisory responsibility for the safety of work performed by others at a jobsite—based merely on their status as contractors—a duty enforceable in tort to protect others from potential hazards that the contractors neither created nor exercised any control over,” the appeals court ruled.