Hancock v. Mayor & City Council of Balt.

480 Md. 588

281 A.3d 186

Andrea Jo HANCOCK, et al.

v.MAYOR AND CITY COUNCIL OF BALTIMORE, et al.

No. 57, Sept. Term, 2021

Court of Appeals of Maryland.

August 15, 2022

Argued by Todd W. Hesel (Andrew G. Slutkin and Ethan S. Nochumowitz, Silverman, Thompson, Slutkin & White, LLC, Baltimore, MD), on brief, for Petitioners

Argued by Brett A. Buckwalter (Craig D. Roswell, Niles, Barton & Wilmer, LLP, Baltimore, MD), and Argued by Louis C. Long (Charles B. Peoples, Thomas, Thomas & Hafer LLP, Washington, DC), on briefs, for Respondents

Amicus Curiae Maryland Association for Justice, Inc.: Emily Malarkey, Esquire, Bekman, Marder, Hopper, Malarkey & Perlin L.L.C., 1829 Reisterstown Road, Suite 200, Baltimore, MD 21208, Charles Michaels, Esquire, C. William Michaels Law Offices, 1579 Dellsway Road, Baltimore, MD 21286

Amicus Curiae Maryland Defense Counsel, Inc.: Gardner M. Duvall, Esquire, Whiteford, Taylor & Preston, L.L.P., Seven Saint Paul Street, Baltimore, MD 21202

Argued before: Fader, C.J., Watts, Hotten, Booth, Biran, Eaves, Irma S. Raker (Senior Judge, Specially Assigned), JJ.

Fader, C.J.

This appeal arises from the tragic death of 20-year-old Kyle Hancock, who was buried alive while working at an excavation site. At the time, Mr. Hancock was a laborer employed by R.F. Warder, Inc. ("Warder"), an independent contractor hired by the Mayor and City Council of Baltimore ("Baltimore City" or the "City") to perform the excavation work. Also on site at the time was Keith Sutton, the sole member and employee of Sutton Building Solutions, LLC ("SBS"; collectively with Mr. Sutton, "Sutton"). SBS was a subcontractor to Warder.

Mr. Hancock's mother and the personal representatives of his late father's estate (collectively, the "Hancocks")¹ filed a survivorship and wrongful death action in which they sought damages arising from Mr. Hancock's death. According to the complaint, Warder violated numerous laws, regulations, and industry safety standards in performing the excavation work and, as a result, the excavation caved in and killed Mr. Hancock. However, barred by Maryland's workers’ compensation laws from bringing negligence claims against Warder, the Hancocks brought their claims against only Baltimore City and Sutton. The Hancocks alleged that Baltimore City was liable because it failed to exercise reasonable care in hiring Warder, and that Sutton was liable because Mr. Sutton recognized the dangerous condition of the excavation site but failed to warn Mr. Hancock of the danger.

The circuit court granted the defendants’ respective motions to dismiss the complaint, and the Court of Special Appeals affirmed. Both courts concluded that although the City had a duty to exercise reasonable care in hiring Warder to perform the excavation work, that duty did not extend to Warder's own employees who were engaged in that work. The courts also determined that absent any allegation that Sutton had created the dangerous worksite condition or exercised control over it, Sutton did not have a legally enforceable duty to warn Mr. Hancock of the hazard.

We will affirm the well-written and well-reasoned decision of the Court of Special Appeals on both issues and hold that under the common law of Maryland: (1) one who hires an independent contractor is not liable to an employee of that contractor for injuries caused by the contractor's negligence in performing the work for which it was hired; and (2) the duty of a contractor or subcontractor on a construction job to exercise due care to provide for the protection and safety of the employees of other contractors or subcontractors is owed with respect to conditions that the contractor or subcontractor creates or over which it exercises control.

BACKGROUND

The Underlying Incident

We adopt the Court of Special Appeals’ concise statement of facts concerning the underlying incident, which was drawn from the complaint:²

In 2014, [Baltimore City] and [Warder] entered into a contract for Warder to perform repairs and maintenance for the City's plumbing and heating systems (the "Contract"). Appellee [SBS] was Warder's designated minority contractor under the Contract at all times relevant to this case.^{[ ] [3 ]} Pursuant to the Contract, on May 29, 2018, the City contacted Warder to unclog a pipe at the Clifton pool. The next day, Kyle Hancock^[] and Kenneth Walko, a journeyman plumber at Warder, went to the jobsite to assess the problem. Mr. Walko determined that the clog was likely caused by a collapsed pipe. As a result, the job was more complicated than originally anticipated, and Mr. Walko concluded that a rig would be necessary to excavate the area to reach the collapsed pipe. Warder assigned its Technical Services/Project Manager, Joseph Hren, to supervise the project. Mr. Walko told Mr. Hren that he anticipated that the excavation would need to be approximately 15 feet deep.

Later that same day (May 30), Mr. Walko spoke with Wallace Stephenson, the Facility Maintenance Coordinator for the Baltimore City [Department of] Recreation and Parks, about the plan to excavate the site. Mr. Stephenson approved this course of action without first inquiring "about R.F. Warder's and/or SBS’ experience digging excavations and never determined whether R.F. Warder and SBS had the requisite knowledge, education and experience to dig the required excavation."

The repair began on June 4, 2018. Kevin "Pat" Owens, a journeyman plumber at Warder, was assigned the task of operating the excavator. That afternoon, Mr. Owens used the excavator to dig while Mr. Walko used a bobcat to move the displaced dirt. By the end of the day, the excavation was eight feet deep, 20 feet long, and 15 feet wide.

Early the next morning, Mr. Stephenson toured the jobsite with Mr. Walko and [Mr. Hancock]. As they walked around the excavation site, Mr. Walko told Mr. Stephenson not to go "too close to a certain area" because the ground was very soft and had been breaking apart. Several hours later, Mr. Hren called [Mr.] Sutton to work on the jobsite, and informed him that "they had a big project going on involving an excavation."

Shortly thereafter, Mr. Owens moved the excavator away from the hole, and decided "that the crew would need to enter the hole to dig a better channel for water that was leaking from a pipe that was broken during the excavation process."

At approximately 1:15 p.m., Mr. Walko was the first person to enter the excavation. At that point, the excavation was at least 15 feet deep, and at ground level, it was approximately 40 feet long, and 24 feet wide. The west side of the excavation was sloped and the east side was nearly vertical. As a result, the bottom of the excavation was only ten to twelve feet long and six to eight feet wide.

Mr. Owens and [Mr. Hancock] joined Mr. Walko in the excavation and began digging around the pipe with hand shovels. Mr. Sutton arrived at approximately 1:45 p.m. and was updated on the job by Warder's crew. Mr. Sutton was instructed to "assist with the excavation, including clearing the dirt around the crushed pipe at the bottom of the excavation." [Mr. Hancock] was digging on the east side of the excavation—the side that wasn't sloped. Mr. Sutton "was to dig on the west end of the excavation," the sloped side. Mr. Sutton looked at the site and stated "out loud, but to no one in particular, that this was not safe." Nobody responded to his comment. Mr. Sutton proceeded to enter the excavation using the ramp on the west side. "Despite recognizing the dangerousness of the situation, including the unsafe nature in which the excavation had been dug and the significant risk that the east wall that was nearly vertical could collapse," Mr. Sutton took no action to stop the work "and/or advise [Mr. Hancock] to exit the excavation until all applicable laws, regulations, industry standards and the standard of care regarding excavations had been met and the danger had been eliminated." Instead of taking such action or speaking up, "Mr. Sutton consciously decided that he was going to stay a safe distance away from the vertical east wall so that if it collapsed, he would not be hurt."

At approximately 3:15 p.m., Mr. Sutton finished the work on his side and was looking at [Mr. Hancock] when he noticed the vertical east wall starting to give way. He yelled for [Mr. Hancock] to run. [Mr. Hancock] turned around, recognized the danger, and tried to run. Unable to escape, [Mr. Hancock] was buried alive under tons of dirt and debris from the collapse of the east wall. Mr. Sutton called 911, and others jumped into the excavation and attempted to dig by hand to rescue [Mr. Hancock], but after the fire department arrived, they were instructed to stop their efforts because the excavation was unsafe. [Mr. Hancock] was discovered approximately ten hours later, 18 feet into the excavation. He died of asphyxiation.

Hancock v. Mayor & City Council of Baltimore , No. 440, Sept. Term, 2020, 2021 WL 4496505, at *1-2 (Md. Ct. Spec. App. Oct. 1, 2021).

The Complaint

In February 2020, the Hancocks filed a four-count complaint in the Circuit Court for Baltimore City against the City and Sutton. Counts I through III were survivor actions against, respectively, the City, Mr. Sutton, and SBS. Count IV was a wrongful death action against all three defendants. The Court of Special Appeals summarized the claims as follows:

As to the negligence count against the City, the complaint alleged that the City had a duty to [Mr. Hancock] to use reasonable care in hiring a qualified contractor to properly and safely perform the excavation work. The complaint alleged the "laws, regulations and [applicable] industry standards" for excavations of this kind required some combination of "sloping, shoring, benching and/or the use of trench boxes" to prevent a calamity of the sort that claimed [Mr. Hancock's] life. These standards, the complaint alleged, all of which were designed to protect "a specific class of persons which included [Mr. Hancock],"

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