Appiah v. Hall

DAVIS, Judge. Appellants, Betty A. Appiah, as personal representative of the Estate of Stephen A. Appiah, deceased, and Veronica Agyarko, appeal from the grant of summary judgment in favor of the Maryland Port Administration (MPA) and P & 0 Ports of Baltimore, Inc. (P & 0), appellees, by the Circuit Court for Baltimore City, dated December 14, 2007. Appellants present two questions for our review, which we have rephrased as follows: 1. Did the circuit court err in finding that MPA and P & 0 retained insufficient control to subject them to liability under Restatement (Second) of Torts § 414? 2.

Did the circuit court err in granting summary judgment by disregarding disputes of material fact? ⁶¹² Appellees present the following two questions for our review: 1. Was appellants’ appeal premature? 2. Is appellants’ suit barred by the statute of limitations? For the reasons that follow, appellants’ appeal was not filed prematurely and we answer both of appellants’ questions in the negative.

Because of the manner of the circuit court’s disposition of appellees’ claim that suit was barred by limitations, we are constrained to comment upon the procedure employed. We shall, in the final analysis, affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND The case arises from an accident at Seagirt Marine Terminal (Seagirt) on September 30, 2003, in which a longshoreman-mechanic, Stephen Appiah (Mr. Appiah), was struck and fatally injured by a truck owned by Den-El Transfer, Inc. (DenEl) and driven by Bruce Hall. At the time of the accident, Mr. Appiah was working for his employer, Marine Repair Services, Inc. (Marine Repair), who, in turn, was working for Mediterranean Shipping. 1 Seagirt is owned by MPA, which is a State agency established by the legislature to own, promote and develop Maryland’s port facilities.

Md.Code, Transp. §§ 2-107; 6-202 (2006 Repl. Vol., 2008 Supp.). Although the State of Maryland owns Seagirt, MPA does not conduct stevedoring (vessel loading and unloading) or terminal operations there. Instead, MPA contracts that work out to private entities.

On February 16, 2001, MPA entered into a lease agreement (the Lease Agreement) with Marine Repair, under which MPA leased a small space at Seagirt to Marine Repair in an area known as Reefer Row. Under the terms of that lease, Marine Repair was to use the premises exclusively for the repairing of containers and chassis and other associated work. Other than ⁶¹³ Marine Repair’s Lease Agreement with MPA, Marine Repair had no other contracts of any kind with either P & 0 or MPA. On October 25, 2001, MPA entered into an operating agreement (the Seagirt Agreement) with P & O. Under the terms of the agreement, P & O, as an independent contractor, was to provide stevedoring services, operate an entry gate and perform other related terminal work for the MPA on 190 acres of the total 284 acres comprising Seagirt, including the Reefer Row area.

At the time of the accident, P & 0 acted as “terminal operator” at Seagirt pursuant to the Seagirt Agreement. P & 0 has been the operator of Seagirt since the facility opened in 1990. A few days prior to the date of the accident, P & O unloaded a refrigerated container, or “reefer,” of Bailey’s Irish Creme from a vessel owned by Mediterranean Shipping and brought that reefer to a slot in Reefer Row. On the day of the accident, the reefer in question was to be delivered to Washington Wholesale Liquors (WWL) in Washington, D.C. After a customs broker notified WWL that the reefer had arrived in Baltimore and was available for pick up, WWL hired Den-El to transport the reefer from Seagirt to WWL’s D.C. warehouse.

On the afternoon of September 30, 2003, Den-El’s driver, Hall, showed up at Seagirt to pick up the reefer and was directed by P & O to proceed to the Marine Repair office trailer. When Hall arrived at the office trailer, he was met by a Marine Repair mechanic supervisor, Pat Ciociola, who had hooked up another reefer for Hall earlier that same day. Ciociola instructed Hall to find Mr. Appiah to hook up the reefer for him. Hall drove his truck over to the location in Reefer Row where, from having made an earlier trip, he knew the reefer of Bailey’s was located and backed his truck up close to the reefer.

Hall then found Mr. Appiah and gave him some paperwork. Mr. Appiah retrieved a forklift, ladder and generator (genset), parked the forklift behind Hall’s truck and proceeded to install the genset on the reefer and disconnect ⁶¹⁴ the shore power. As Hall waited in his truck for some time, Ciociola arrived on the scene, removed the forklift parked between the truck and the reefer and drove away with the ladder. Hall saw Ciociola driving the forklift away with the ladder on board and thought he saw Ciociola giving him an “all clear wave.” Hall then drove his truck in reverse in order to latch onto the reefer, unaware that Mr. Appiah was still rolling up the power cord from the shore power source.

In the process of backing up, the truck that Hall was driving struck Mr. Appiah, severely injuring him. Mr. Appiah died four days later. On June 28, 2005, Mr. Appiah’s surviving spouse and personal representative, Betty Appiah (Ms. Appiah), filed a wrongful death and survivorship action in the Circuit Court for Baltimore City. Ms. Appiah sued four defendants: (1) Hall, the truck driver who struck Mr. Appiah; (2) Den-El, Hall’s employer; (3) P & O, the stevedoring and terminal operations company of the site where the accident occurred and; (4) MPA.

Ms. Appiah filed two amended complaints and, on September 28, 2006, Mr. Appiah’s mother, Veronica Agyarko, filed her own complaint in the Circuit Court for Baltimore City. She sued the same six defendants 2 named in Ms. Appiah’s Second Amended Complaint and essentially replicated the same allegations. On March 22, 2007, the circuit court ordered that Ms. Appiah’s and Agyarko’s cases be consolidated. On October 26, 2007, Ms. Appiah — as did Agyarko — filed a Third Amended Complaint, citing new allegations and facts in support of appellants’ cause of action.

Appellees moved for summary judgment at the close of discovery. A hearing was held on December 14, 2007, in which the circuit court granted appellees’ motions for summary judgment. ⁶¹⁵ As to the other two defendants, Hall and Den-El, in May 2007, appellants agreed to settle all claims they had against them. On October 12, 2007, however, appellants filed a Motion to Enforce Settlement Agreement against Hall and DenEl. On November 28, 2007, the circuit court issued an Order granting the Motion to Enforce Settlement Agreement.

On December 7, 2007, appellants filed a Motion to Vacate Order Enforcing Settlement Agreement 3 and, on December 17, 2007, appellants filed a Reply to the Opposition to [Appellants’] Motion to Vacate Order Enforcing Settlement filed by Hall and Den-El on December 13, 2007. On January 7, 2008, the circuit court denied appellants’ Motion to Vacate the Order Enforcing Settlement Agreement. Ms. Appiah timely filed a Notice of Appeal on January 16, 2008, which stated: Please enter an appeal of [appellant], [Ms.] Appiah in her various capacities as to all judgments entered in the above-captioned action and as to the Order of November 28, 2007 granting plaintiffs Motion to Enforce Settlement and the Order of January 7, 2008 denying [Ms. Appiah]’s Motion to Vacate the Order of November 28, 2007. Agyarko timely filed a Notice of Appeal on January 25, 2008.

On August 14, 2008, appellants dismissed Den-El and Hall as defendants in the suit. Additional facts will be discussed infra as warranted. STANDARD OF REVIEW A trial court may grant summary judgment where the motion and response show there is no dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. See Md. Rule 2-501(f)- We review the grant of a motion for summary judgment de novo.

Stanley v. American Fed’n of State and Mun. Employees Local No. 553, 165 Md.App. 1, 13 , 884 A.2d 724 ⁶¹⁶ (2005) (citing Coroneos v. Montgomery County, 161 Md.App. 411, 422 , 869 A.2d 410 (2005)). Where there is no dispute as to a material fact we determine if the trial court’s decision was legally correct. Id.

(citing Rockwood Cas. Ins. Co. v. Uninsured Employers’ Fund, 385 Md. 99, 106 , 867 A.2d 1026 (2005); Faith v. Keefer, 127 Md.App. 706, 734 , 736 A.2d 422 (1999)). A material fact is one that will alter the outcome of the case, depending upon the factfinder’s resolution of the dispute.

Faith, 127 Md.App. at 734 , 736 A.2d 422 (citing King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985)). “To generate a material factual dispute, the evidence adduced by the non-moving party must be more than ‘mere general allegations which do not show facts in detail and with precision.’ ” Id. (quoting Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993)). In reviewing the grant of summary judgment, we construe the facts properly before the court and any reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party. Id.

We generally limit our review to the grounds relied upon by the trial court. Id. (citing Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995)). Ordinarily, we will uphold the grant of summary judgment only on the grounds relied on by the trial court.

Stanley, 165 Md.App. at 13 , 884 A.2d 724 (citing Pac. Employers Ins. Co. v. Eig, 160 Md.App. 416, 428 , 864 A.2d 240 (2004)). With these considerations in mind, we turn to the case sub judice.

LEGAL ANALYSIS I Appealability Appellees contend that the circuit court’s December 14, 2007 Order was not a final appealable judgment. Specifically, they argue that, in its December 14 order, the trial court adjudicated “the rights and liabilities of fewer than all of the parties to the action” by granting appellees, two of the four remaining defendants, summary judgment; consequently, the court’s order does not constitute a final judgment. See Md. Rule 2-602. Pursuant to § 12-301 of Md.Code Ann., Courts ⁶¹⁷ and Judicial Proceedings Article (C.J.) (2006 Repl.

Vol., 2008 Supp.), 4 “a party may appeal from a final judgment entered in a civil or criminal case by a circuit court.” See also § 12-101(f) (defining “final judgment” as “a judgment ... or other action by a court ... from which an appeal, application for leave to appeal, or petition for certiorari may be taken”). “[T]o be appealable, an order or judgment ordinarily must be final.” Baltimore Police Dep’t v. Cherkes, 140 Md.App. 282, 298 , 780 A.2d 410 (2001) (internal citations omitted). When an order of summary judgment does not resolve all claims, any “appeal must be dismissed as prematurely taken, since ... the [summary] judgment remain[s][] interlocutory.” Brooks v. Ford Motor Credit Co., 261 Md. 278, 282 , 274 A.2d 345 (1971). See also County Com’rs for St. Mary’s County v. Lacer, 393 Md. 415, 427 , 903 A.2d 378 (2006) (holding that partial summary judgment is not a final appealable judgment when it “did not settle completely any of the matters in controversy or adjudicate completely the rights and liabilities of the parties”). The crux of appellees’ argument is that appellants’ claims against Hall and Den-El were not settled until August 14, 2008, which was the date when appellants filed a Stipulation of Dismissal.

Consequently, there could be no final judgment prior to that date. Appellees are correct in their assertion that, as of December 14, 2007, the trial court had adjudicated “the rights and liabilities of fewer than all of the parties to the action.” At that time, appellants’ Motion to Vacate the Order Enforcing Settlement Agreement with Hall and Den-El, and appellees’ opposition thereto, were still pending; however, on January 7, 2008, the circuit court determined that the settlement agreement should be enforced and, on January 16, 2008, Ms. Appiah appealed “all judgments entered in the above-captioned action and as to the Order of November 28, 2007 granting [Ms. Appiah’s] Motion to Enforce Settlement and the Order of January 7, 2008,” denying Ms. Appiah’s motion to vacate. ⁶¹⁸ As of January 7, 2008, there were no remaining rights or liabilities of any parties that the circuit court could adjudicate. There was no further action that the court could take and any argument that the dismissal of Hall and Den-El marked the adjudication of the rights and liabilities of all parties is without merit. When appellants filed their appeals on January 16 and 24, 2008, respectively, the rights and liabilities of all parties had been adjudicated.

Furthermore, in light of appellants’ dismissal of the actions against Den-El and Hall on August 14, 2008, the only remaining issue on appeal is the December 14, 2007 grant of summary judgment. We have discretion under Md. Rule 8-602(e) to enter a final judgment. The Rule provides, in pertinent part: (1) If the appellate court determines that the order from which the appeal is taken was not a final judgment when the notice of appeal was filed but that the lower court had discretion to direct the entry of a final judgment pursuant to Rule 2-602(b), the appellate court may, as it finds appropriate, (A) dismiss the appeal, (B) remand the case, for the lower court to decide whether to direct the entry of a final judgment, (C) enter a final judgment on its own initiative or (D) if a final judgment was entered by the lower court after the notice of appeal was filed, treat the notice of appeal as if filed on the same day as, but after, the entry of the judgment. (2) If, upon remand, the lower court decides not to direct entry of a final judgment pursuant to Rule 2 — 602(b), the lower court shall promptly notify the appellate court of its decision and the appellate court shall dismiss the appeal.

If, upon remand, the lower court determines that there is no just reason for delay and directs the entry of a final judgment pursuant to Rule 2-602(b), the case shall be returned to the appellate court after entry of the judgment. The appellate court shall treat the notice of appeal as if filed on the date of entry of the judgment. (8) If the appellate court enters a final judgment on its own initiative, it shall treat the notice of appeal as if filed on the ⁶¹⁹ date of the entry of the judgment and proceed with the appeal. (Emphasis added).

Prior to the December 14, 2007 grant of summary judgment, appellees had filed cross claims and amended cross claims against Hall and Den-El, primarily seeking indemnification and contribution for any liability arising out of the death of Mr. Appiah. These cross claims were stricken on August 3, 2007 and November 28, 2007. Appellees concede that we have discretion under Rule 8-202(e) and our decision in Crowder v. Master Financial, Inc., 176 Md.App. 631, 644-45 , 933 A.2d 905 (2007), to retroactively enter a final judgment to avoid imposing hardship on the parties or based on a finding that the parties had no intent to circumvent the final judgment rule. In Crowder , the plaintiffs dismissed several defendants, who had yet to enter an appearance in the matter, in order to obtain a final judgment and perfect their appeal.

Id. at 644 , 933 A.2d 905 . We held that, [bjecause it is clear that appellants did not voluntarily dismiss the various defendants in order to circumvent the final judgment rule, secure an advisory opinion, and re-file the same claims against the voluntarily dismissed defendants at a later date, we conclude that the court’s September 26, 2006, orders of dismissal constitute final, appealable judgments. Id. at 645 , 933 A.2d 905 . Appellees argue that, unlike the dismissed defendants in Crowder , they would suffer prejudice from a retroactive entry of final judgment because, pursuant to Md. Rule 8-202(e), they would be prevented from filing cross appeals against Hall and Den-El in that the Rule required the cross appeals to have been filed within ten days of the filing of appellants’ appeal. 5 Appellees assert that they did not file ⁶²⁰ their cross appeals within ten days of appellants’ appeal because such a filing would have been premature and “there was no point to filing.” 6 Appellees’ attempt to distinguish Crowder is unpersuasive.

They do not contend, nor does the record indicate, that appellants, in violation of our holding in Crowder , were attempting in any way to circumvent the final judgment rule, secure an advisory opinion or re-file the same claims against Hall or Den-El. Furthermore, nothing prevented appellees from filing cross appeals against Hall and Den-EI within ten days of appellants’ appeal. If appellees believed that the appeals were premature, they could have timely filed their cross appeals and simultaneously requested dismissals. 7 The objective of requiring that an appeal be from a final judgment is to avoid piecemeal appeals which are burdensome on the judicial system and create financial hardship for litigants. There is no question that the Motions to Enforce Settlement Agreement, to Vacate the Settlement Agreement ⁶²¹ and in Opposition to Motion to Vacate the Settlement Agreement are now all resolved.

There is no other basis upon which P & 0 and the MPA can assert that the instant appeal is not from a final judgment and we see no valid basis which would preclude our exercise of discretion under 8-602(e) to enter a final judgment. 8 II Restatement (Second) of Torts § 414 Appellants contend that the circuit court erred in finding that MPA and P & 0 retained insufficient control to subject them to liability under Restatement (Second) of Torts § 414. We disagree. The Restatement (Second) of Torts § 414 provides: One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care. (Emphasis added).

Comment c to Restatement § 414 provides the most finely-honed explicative statement of the “control” intended in order to subject an independent contractor to liability for physical harm to others: In order for the rule stated in this section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he [or she] has merely a general right to order ⁶²² the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his [or her] methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his [or her] own way.

(Emphasis added). We need look no further than Comment c for the framework of our analysis, infra, in a determination of whether appellees were subject to the requisite control. Within that framework, we are guided ineluctably to the conclusion that appellees were not. Under Maryland law, as the circuit court iterated, liability is imposed in cases where the control is over the specific type of work being performed.

See Brady v. Ralph M. Parsons Co., 327 Md. 275, 283 , 609 A.2d 297 (1992). The principle is intended to apply where there is retention of control over the operative detail of the work. Parker v. Neighborhood Theatres, Inc., 76 Md.App. 590, 601 , 547 A.2d 1080 (1988). “A determination of liability under the retention of control doctrine requires a showing that the owner ‘had the right to control the details of his [contractors’] movements during his performance of the business agreed upon.’ ” Id. (citing Cutlip v. Lucky Stores, Inc., 22 Md.App. 673, 678 , 325 A.2d 432 (1974)). “The key element of control, or right to control, ‘must exist in respect to the very thing from which the injury arose.’ ” Id.

(quoting Gallagher’s Estate v. Battle, 209 Md. 592, 602 , 122 A.2d 93 (1956)). The “thing out of which the injury arose” was the act of connecting a container to a truck at reefer row. Consequently, in order to impose liability on appellees, the critical issue is whether appellees retained sufficient control over the act of connecting shipping containers to trucks to impose liability under Restatement (Second) of Torts § 414. ⁶²³ A. Control The § 414 element of “control” over the work retained by appellees is at the crux of the parties’ contentions and we here recount the relevant evidence adduced at the summary judgment hearing. i. Appellants’ Contentions Appellants assert that appellees’ liability arises out of the Seagirt Agreement.

The Seagirt Agreement provides, inter alia, that Safety ... [is a] keynote area[ ] for any quality stevedore/terminal operator. Safety directs its attention toward preventing occurrences. P & 0 Ports has a long history of being on the forefront of Safety ... and our goals are based on how they relate to ... customers. [We] rigidly express[ ] and exert[ ] efforts ... to create a safe workplace. Our multifaceted safety program has 10 essential points that further support our objectives.

P & 0 ... is and has been the only stevedore in Baltimore to have a full time Safety Director that has no other responsibilities. [O ]ur standards try to anticipate hazards and human error and control them through planning. [T]he Safety Director [conducts periodic inspections of] continuous operations where hazards can form and cause injury and damage. ⁶²⁴ Our supervisory personnel ... continuously inspect ... for hazards or unsafe acts ... and have full authority to correct them. When an accident occurs, the P & 0 ... superintendent on site is required to ... investigate ... for causation and future prevention____ The superintendent then is required to take corrective action. While zero accidents is our intent, they do periodically happen. [I]f the accident is serious ..., the Vice President, General Manager, [and] Safety Manager are notified via phone — 24 hours a day. They then proceed to the terminal.

(Emphasis added). As further indicia of appellees’ control over the operations and activities over the Seagirt area, appellants point to deposition testimony of Mark Montgomery, corporate designee of P & 0, who stated 9 that P & 0 had the authority to revoke a truck driver’s right to enter Seagirt if he or she broke any terminal rules. Appellants’ further assert that appellees retained control over the operations at Seagirt pursuant to (1) MPA’s lease with Marine Repair that required “Marine Repair ... [to] comply with all applicable prevailing rules and regulations of MPA pertaining to its port facilities,” (2) MPA’s corporate designee who testified that he would have expected P & 0, as operator of “day-to-day” operations at Seagirt, to investigate the accident and (3) the approval Marine Repair would be required to obtain from appellees in order to impose or approve safety rules. ⁶²⁵ Appellants finally assert that, pursuant to the Lease Agreement, Marine Repair could not post their post-accident safety protocol without first obtaining permissions from appellees and that this limitation evidences a retention of control with regard to the very situation that caused Mr. Appiah’s death. See Welker v. Kennecott Copper Co., 1 Ariz.App. 395 , 403 P.2d 330, 341 (1965) (evidence of precautions taken after an accident tends to show right of control over the safety program). ii.

Appellees’ Contentions Appellees counter, setting forth Montgomery’s deposition testimony that, although he conceded that appellees could revoke a truck driver’s right to enter Seagirt, this authority was very limited in scope: Q. Suppose a truck driver is operating at clearly excessive and dangerous rates of speed in the Reefer Row area and you are made aware of that. A. What would happen is— Q. Are you suggesting you have no responsibility for that? A. No. What would happen is typically — that has occurred. A reefer mechanic, one of the companies may call and complain that trucking company X, Y, Z has been speeding in the area.

We will send a marine letter to that trucking company about speeding. Q. Suppose it happens again. A. Then we ban them. Q. So you do have control over truckers’ operations in Reefer Row?

A. At the direction of the reefer mechanic to keep their people safe, they would come to us and say these folks are speeding, send them a message and that happens. That happens. ⁶²⁶ Q. Suppose one of your yard staff saw a truck driver operating very dangerously in or about Reefer Row and reported that to you. Same effect, right? A. If one of our staff saw somebody speeding in any part of the facility, then we would send that truck driver a warning.

Q. And if he did it again, he would be barred, right? A. He would be banned potentially. Depending. Q. So if you received — so I guess the bottom line is if you received information from let’s say Marine Repair about unsafe trucking actions, you would take action to correct that?

A. We would — if we got communications from Marine Repair about unsafe trucking, we would issue them a letter, yes, the trucking company. Montgomery continued, stating that, although P & 0 could make recommendations to Marine Repair about behavior and safety, “ultimately it is still up to [Marine Repair] to operate safely in their areas” and that “in order for [Marine Repair] to create a safe practice for their employees, they don’t need a blessing from us.” Furthermore, even if P & 0 saw a truck driver running a stop sign, P & 0 is not “able to go in to one of the reefer vendors and tell them to stop doing something [and] that it’s within their control. They are going to tell me to bug off.” Montgomery recounted an instance when P & 0 saw a Marine Repair employee coming off a vessel without the appropriate Personal Protective Equipment (PPE). P & 0 attempted to counsel the man about the value of the PPE, but the man refused the advice and stated, “I don’t work for you.” Appellees further argue that they had no control or authority over Marine Repair’s operations and cite the deposition testimony of Shawn Olshefski, Marine Repair’s corporate designee, to the effect that Marine Repair worked independently: Q. Okay, Now, within the reefer row area, is there any other entity that has any say in how Marine Repair conducts its business in that area?

A. Can you rephrase the question? ⁶²⁷ Q. Yeah. When Marine Repair is performing its services in the reefer row area, is there any other company that’s supervising the work of Marine Repair? A. No. Q. Is there any other company when Marine Repair is doing its business in the reefer row area that dictates to Marine Repair how that work should be done? A. The work itself?

Q. Yes. A. No, ma’am. Olshefski further conceded that, once P & 0 drops off a container in the reefer area, P & 0 is “out of the picture” and Marine Repair takes over all of the work. Additionally, according to deposition testimony of David Thomas, corporate designee of MPA, “The vendor has responsibility over his safety program, not the MPA,” and although MPA may enact rules as to traffic flow and “general things,” they do not control any “specific[s] as to how they operate ... [because] we are not the expert.” Furthermore, Thomas stated that “if [P & 0] had discussions with Marine Repair about their specific operations, Marine Repair would tell him ... it’s none of your business.” Finally, in response to appellants’ contention that they could not post signs without approval, appellees posit that, although approval was required to post signs, such a restriction was general and not specifically confined to safety measures.

The relevant lease provision that restricted signage stated: No signs or other advertising matter, symbols, canopies or awnings (“Advertising Matter”) shall be attached to or painted on or within the Premises, including the windows and doors thereof, without the prior written consent of MPA, which consent shall not be unreasonably withheld. Marine Repair shall, at its expense, maintain such Advertís ⁶²⁸ ing Matter as may be permitted hereunder in good condition and repair at all times. (Emphasis added). Appellees argue that appellants rely on a “blatant misreading” of the lease provision and transpose a strict meaning and interpretation that was never intended.

Although Marine Repair was prevented from putting up signs without approval from P & 0, the primary purpose of the lease provision was to restrict the posting of “advertising” material and, even if the provision prevented Marine Repair from posting a safety protocol, appellants have failed to indicate how the provision related to control over that which caused the injury-the connecting of a shipping container to a truck. B. Delegation Appellants next argue that appellees’ retention of control over safe operating procedures at Seagirt subjects MPA and P & 0 to liability under Restatement (Second) of Torts § 414. P & O’s duty was imposed on it by the terms of its contract with MPA and MPA’s duty emanated from its status as landowner and proprietor of Seagirt; therefore, the risk of non-performance of MPA’s duty to its business invitee Mr. Appiah, under § 414, was non-delegable. In support of this proposition, appellants cite to Rowley v. Mayor and City Council of Baltimore, 305 Md. 456 , 505 A.2d 494 (1986): It is generally held that employees of an independent contractor are invitees on the property of the landowner.

The duty of a landowner to an invitee is often referred to as “non-delegable.” That is something of a misnomer, as the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of nonperformance of the duty. [WJhere one invites another to come onto premises ostensibly maintained by him, his duty to the invitee cannot be ⁶²⁹ circumscribed by the employment of an independent contractor. Id. at 466 , 505 A.2d 494 (internal citations omitted). Although appellants briefly cite to a section of the Court of Appeals’ holding in Rowley , they make no further argument as to the relevance of the decision and they fail to take into account the applicability of the Rowley holding. MPA argues that, because appellants rely on § 414, the Rowley holding is inapposite to the case sub judice.

In Rowley , the Court of Appeals further opined that [t]he generally recognized exceptions to the rule of non-liability are collected at §§ 410-429 of the Restatement. Sections 410-415 deal with liability imposed by reason of actual fault on the part of an employer of an independent contractor. Appellant does not suggest the City is liable upon any such theory. Rather, she relies upon a theory of vicarious liability pursuant to one or more of the principles collected in §§ 416-429.

The introductory note to that portion of the Restatement is instructive: The rules stated in ... §§ 416-429 ... are rules of vicarious liability.... The liability imposed is closely analogous to that of a master for the negligence of his servant. Id. at 462-63, 505 A.2d 494 (emphasis added). In the case sub judice, appellants initially asserted § 343 as the basis for their cause of action in their complaint and first and second amended complaints; however, appellants asserted § 414 as the basis for appellees’ liability in their third amended complaint and, at the hearing on the motion for summary judgment, conceded that their cause of action was under § 414 and not § 343.

THE COURT: All right. Are you abandoning your statement 343 argument? [COUNSEL FOR APPELLEES]: We’re not claiming under 343. It’s 414 Your Honor. We agree with MPA’s assertion that Rowley is inapplicable.

The non-delegation of duties discussed by the Rowley Court apply to duties that arise under § 343, id. at 497, 505 A.2d 494 , which apply, as the title to § 343 states, to “Dangerous ⁶³⁰ Conditions Known To Or Discoverable By Possessor.” Conversely, § 414 presumes the delegation of duties because it imposes liability only when “[o]ne who entrusts work ... retains the control of any part of the work.” Presumably, one who does not retain control of the work is free to delegate without liability. 10 Accordingly, any argument that MPA could not delegate their duty of care is without merit 11 and the appropriate basis for our review is under § 414. 12 C. Wajer The trial court granted summary judgment to appellees and opined that appellants failed “to produce any more evidence of control by [appellees] here than was produced as to the defendants in Wajer v. Baltimore Gas & Elec. Co., 157 Md. App. 228 , 850 A.2d 394 (2004), in which the Court of Special Appeals affirmed the granting of summary judgment.” The trial court summarized the factual backdrop in Wajer : In Wajer , [BGE] contracted with a general contractor to construct a generator at a power plant. The general contractor subcontracted some of the electrical work to H.P. ⁶³¹ Foley Company, employer of the plaintiff Wajer, who allegedly was exposed to asbestos during his work. A BGE employee, Mr. Sweeney, remained at the site to supervise the contracting work.

Sweeney would instruct the general foreman on what electric work to perform, and had the authority to stop anyone who was not working safely. The contract that pertained to the work of the independent contractors at the site required that the contractor shall meet with BGE’s engineer before beginning work and shall comply with his precautionary instructions; BGE may make inspections of the work and the Contractor shall correct a condition or method of operation that contravenes safe practices or operations; and BGE may bar any of the Contractor’s employees that were acting negligently or carelessly. See id. at 241-43 , 850 A.2d 394 (internal citations omitted) (emphasis added). In affirming the trial court’s grant of summary judgment in Wajer , we opined that, [although appellants are correct that appellee retained some measure of control, the type of