Barclay v. Briscoe

GREENE, J. A motorist was seriously injured when another car, operated by Christopher Richardson, crossed the center line, causing a head-on collision. The facts presented in the pleadings indicated that Richardson, a longshoreman, fell asleep at the wheel while traveling home after working a twenty-two hour shift at his job site located at the Port of Baltimore. The injured motorist, Sergeant Michael Barclay, and his wife, Robin Barclay, (collectively, “Petitioners” or “the Barclays”) filed a complaint in the Circuit Court for Carroll County against several parties, including Richardson’s employer, Ports America Baltimore, Inc. (“Ports” 1 or “Respondent”). ²⁷⁴ The complaint alleged that Ports was liable for Sgt. Barclay’s injuries under two theories, respondeat superior, and primary negligence in failing to protect the general motoring public from an employee driving home following an unreasonably long shift.

Ports filed a motion for summary judgment asserting that neither theory was grounds for relief under the facts presented. First, Ports argued that respondeat superior was inapplicable because Richardson was not acting within the scope of his employment while commuting home from work. Second, Ports contended' that it could not be held primarily liable for the injuries because it owed no duty to the public to ensure that an employee was fit to drive his personal vehicle home. The trial court agreed with Ports and granted the motion.

The Court of Special Appeals affirmed. We agree with the judgments entered in both courts and affirm the judgment of the Court of Special Appeals. FACTS AND PROCEDURAL HISTORY On January 17, 2006, Christopher Richardson was traveling home from work in his personal vehicle, westbound on New Windsor Road in Carroll County, after completing a twenty-two hour shift as a longshoreman at Dundalk Marine Terminal located in the Port of Baltimore. At approximately 7:28 a.m., Richardson fell asleep at the wheel and crossed the center dividing line, causing a head-on collision with Sgt.

Michael Barclay of the Anne Arundel County Police Department, who was traveling eastbound on his way to work. Richardson died in the collision and Sgt. Barclay suffered catastrophic injuries. Richardson was a longshoreman, employed by Ports to operate machinery in order to load and unload vessels that entered the Port of Baltimore.

On January 13, 2006, the captain of one such vessel, the “Saudi Tabuk,” notified Ports that it would be late arriving to Baltimore. In an effort to put the ship back on schedule for its next destination, Ports agreed to have longshoremen working around the clock. In ²⁷⁵ order to assign longshore work, Ports would issue a “work order” to the Steamship Trade Association (“the STA”) directing it to dispatch longshoremen who were members of the International Longshoremen’s Association (“the ILA”) and possessed particular skills that would be required on the specific job. The STA would then offer the shifts to the longshoremen, according to their union seniority.

Under the collective bargaining agreement (“CBA”) in place at the time of the collision, a longshoreman could accept or decline a shift, and those who accepted could stay on for as many consecutive shifts 2 as desired, in order to maximize earnings, or alternatively, “check up,” ie., leave work and go home, at which point the ILA would send the next most senior qualified longshoreman to finish the shift. Although a previous CBA had included a sixteen-hour limit on the workday, the provision had been removed under the agreement in effect at the time of the collision. Ports maintained that the limitation was removed at the insistence of the ILA, because it interfered with the assertion of the longshoremen’s seniority rights. Richardson was initially offered a shift beginning on January 15, 2006, which he declined, and instead accepted an offer to work starting at 8 a.m. on Martin Luther King Day, 3 January 16, 2006.

He stayed on the job until he finally “checked-up,” at 6:00 a.m. on January 17th and began the commute that culminated in the tragic incident. The Barclays filed a complaint in the Circuit Court for Carroll County on January 24, 2008. The complaint named as defendants Lena Briscoe, Personal Representative of the Estate of Christopher E. Richardson, Ports, the STA, and the ILA. The complaint alleged that defendants Ports, the STA, ²⁷⁶ and the ILA 4 were vicariously liable for Richardson’s negligence under the doctrine of respondeat superior, and that they also “breached their duty to the general public not to allow and/or encourage their employees to work in excess of a reasonable number of hours beyond the normal human tolerance,” knowing that the employees commuted to and from work in their personal vehicles.

On April 9, 2008, Briscoe filed cross-claims against the same defendants for indemnification. Ports and the STA moved for summary judgment on Barclay’s direct claims and Briscoe’s cross-claims. Following a hearing, the Circuit Court for Carroll County granted the motion on November 10, 2009. The court ruled first that Ports 5 could not be held vicariously liable for Richardson’s acts under the applicable ease law.

The Circuit Court judge stated: [I]t is only when the employee is using his vehicle while carrying out the duties of his employment at the time of the accident that liability may be imposed on an employer. As P&O Ports correctly argues, Plaintiffs have not presented any evidence to demonstrate that P&O Ports expressly or impliedly consented to Mr. Richardson using his vehicle, let alone for a business purpose, at the time of the accident. Furthermore, the facts admissible as evidence do not indicate that Mr. Richardson’s car was of such vital importance to P&O Ports’ business that employer control over the vehicle could be inferred. (Internal citation omitted.) The Circuit Court judge also rejected Petitioners’ contention further discussed infra, that the “special mission” exception, developed within workers’ compensation law, could be applied in the respondeat superior context. ²⁷⁷ Lastly, the court rejected Barclay’s argument that Ports was primarily, as opposed to vicariously, liable for allowing its employees to work an unreasonable amount of hours and then endanger the public by driving their personal vehicles home.

The Court noted that, under Maryland law, Ports had no duty to protect third parties from fatigued employees acting outside the scope of employment in the absence of a “special relationship.” The Circuit Court judge explained: The only special relationship in which an employer could be liable for harm caused to third parties by his employee acting outside the scope of employment is provided in Section 317 of the Restatement (Second) of Torts. Section 317 explains that an employer may have a duty to protect third parties if an employee committed a tortious act on the employer’s property or by using the employer’s chattel. Furthermore, the employer must know or have reason to know that he has control over the employee and understands the necessity of exercising control. None of these requirements are met in this case, in that the automobile accident occurred on a public road while Mr. Richardson was driving his own vehicle.

Plaintiffs have not introduced any facts to show that P&O Ports had the authority to control Mr. Richardson’s driving to and from work. This Court does not find that a special relationship existed which would create a duty by P&O Ports to protect a third party. Following this disposition, and pursuant to the Barclays’ motion, the Circuit Court judge stayed proceedings between the Barclays and Briscoe, Personal Representative of the Estate of Christopher Richardson, and entered final judgments 6 in favor of the STA and Ports. The Barclays then ²⁷⁹ noted a timely appeal. 7 The Court of Special Appeals affirmed the trial court’s grant of summary judgment.

Barclay v. Ports Am. Baltimore, Inc., 198 Md.App. 569 , 18 A.3d 932 (2011). We granted Petitioners’ request for a writ of certiorari, and now address the following questions, restated and reordered for brevity and clarity: 1) Did the Circuit Court err in granting the motion for summary judgment when disputes of material fact existed? 2) Can an employer be vicariously liable, under the “special circumstances” exception to the coming and going rule, for injuries suffered by a third party when an employee falls asleep at the wheel while driving home from an unreasonably long shift? 3) Do employers owe a duty to the motoring public to ensure that an employee not drive home when an extended work schedule caused sleep deprivation, increasing the likelihood that the employee could fall asleep at the wheel and cause injury to a third party? ²⁸⁰ Respondent also filed a cross-petition for certiorari, which asked two questions. The first asked, in essence, whether the Court of Special Appeals erred by suggesting, in dicta, that an employer may be liable for injuries caused by a fatigued employee during the commute home where the employer scheduled the employee to work unexpectedly long hours.

The second inquired, essentially, whether Petitioners’ claim that Ports allowed its employees to work in excess of a reasonable number of hours is so intertwined with the terms of the Collective Bargaining Agreement (“CBA”) that state law in this case is preempted by federal labor law. We do not reach the questions raised by the cross-petition. 8 ²⁸¹ STANDARD OF REVIEW Under Maryland Rule 2-501, the grant of a motion for summary judgment is appropriate only “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Rule 2-501(f). As we recently stated in Muskin v. State Dep’t of Assessments & Taxation, 422 Md. 544 , 30 A.3d 962 (2011), “[w]hether a circuit court’s grant of summary judgment is proper in a particular case is a question of law, subject to a non-deferential review on appeal.” Muskin, 422 Md. at 554 , 30 A.3d at 967 (citing Conaway v. Deane, 401 Md. 219, 243 , 932 A.2d 571, 584 (2007); Charles Cnty. Comm’rs v. Johnson, 393 Md. 248, 263 , 900 A.2d 753, 762 (2006)).

Thus, “[t]he standard of review of a trial court’s grant of a motion for summary judgment on the law is ... whether the trial court’s legal conclusions were legally correct.” Messing v. Bank of Am., N.A., 373 Md. 672, 684 , 821 A.2d 22, 28 (2003) (citations omitted). “In reviewing a grant of summary judgment, we independently review the record to determine whether the parties generated a dispute of material fact and, if not, whether the moving party was entitled to a judgment as a matter of law.” Charles Cnty. Comm’rs, 393 Md. at 263 , 900 A.2d at 762 (internal quotation omitted). In determining whether a fact is material we have said that “a dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” O’Connor v. Baltimore Cnty., 382 Md. 102, 111 , 854 A.2d 1191, 1196 (2004) (quoting Lippert v. Jung, 366 Md. 221, 227 , 783 A.2d 206, 209 (2001)); see Matthews v. Howell, 359 Md. 152, 161 , 753 A.2d 69, 73 (2000) (“A material fact is a fact the resolution of which will somehow affect the outcome of the case.” (quotation omitted)); Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502, 509 (1974) (noting that a material fact is that which is “necessary to resolve the controversy as a matter of law[.]”). ²⁸² We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-pled facts against the moving party. D’Aoust v. Diamond, 424 Md. 549, 574 , 36 A.3d 941, 955 (2012) (citations omitted).

Further, an appellate court ordinarily should limit its review of a grant of a motion for summary judgment to “only the grounds upon which the trial court relied in granting summary judgment.” MRA Prop. Mgmt. v. Armstrong, 426 Md. 83 n. 17 , 43 A.3d 397 (2012) (citing River Walk Apartments, LLC v. Twigg, 396 Md. 527, 542 , 914 A.2d 770, 779 (2007)); accord Messing, 373 Md. at 684 , 821 A.2d at 28 (“[W]e review the trial court’s ruling on the law, considering the same material from the record and deciding the same legal issues as the circuit court.” (citation omitted)). Petitioners contend that there were material issues of fact that precluded the grant of summary judgment in this case. Specifically, they note disputes surrounding the extent of Ports’ ability to control the work schedule of its employees and whether Ports had knowledge of both Richardson’s fatigue and the fact that he was planning on driving home.

Although we agree that these are factual disagreements, none of them rise to the level of materiality under our case law as the resolution of those facts would not affect the outcome of this case. See D'Aoust, 424 Md. at 575 , 36 A.3d at 956 ; O’Connor, 382 Md. at 111 , 854 A.2d at 1196 ; Matthews, 359 Md. at 161 , 753 A.2d at 73 ; Lynx, 273 Md. at 8 , 327 A.2d at 509 . This is evident upon the consideration of the applicable precedent, to which we now turn. DISCUSSION I. This Court has recognized consistently the doctrine of respondeat superior, as “it is hornbook law that an employer is ordinarily responsible for the tortious conduct of his employee committed while the servant was acting within the scope of the employment relationship.” Embrey v. Holly, 293 ²⁸³ Md. 128, 134 , 442 A.2d 966, 969 (1982); accord S. Mgmt.

Corp. v. Taha, 378 Md. 461, 480-81 , 836 A.2d 627, 638 (2003); Oaks v. Connors, 339 Md. 24, 30 , 660 A.2d 423, 426 (1995); Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 627 , 506 A.2d 224, 226 (1986); Restatement (Second) of Agency § 219 (1958). The doctrine is based on the principle that “[bjecause ‘the master holds out his servant as competent and fit to be trusted, ... he in effect warrants his servant’s fidelity and good conduct in all matters within the scope of his employment.’ ” Oaks, 339 Md. at 30 , 660 A.2d at 426 (quoting Globe Indem. Co. v. Victill Corp., 208 Md. 573, 580 , 119 A.2d 423, 427 (1956)). We have stated that, “[fjor an employee’s tortious acts to be considered within the scope of employment, the acts must have been in furtherance of the employer’s business and authorized by the employer.” Taha, 378 Md. at 481 , 836 A.2d at 638 (citing Sawyer v. Humphries, 322 Md. 247, 255 , 587 A.2d 467, 470 (1991)).

Ordinarily, the issue of whether a particular act is within the scope of employment is properly decided by a jury, however, “where there is no conflict in the evidence relating to the question and but one inference can be drawn therefrom, the question is one of law for the court.” Sheets v. Chepko, 83 Md.App. 44, 47 , 573 A.2d 413, 414 (1990) (quotation omitted); see Drug Fair of Md., Inc. v. Smith, 263 Md. 341, 346-347 , 283 A.2d 392, 396 (1971) (“We recognize that the issue of whether a servant is acting within the scope of his employment is ordinarily a question for the jury but this is so, only if there is a factual dispute.” (citations omitted)); Lewis v. Accelerated Express, Inc., 219 Md. 252, 256 , 148 A.2d 783, 785 (1959) (“[Ujnder proper circumstances, the question of an act being within the scope of an employee’s employment may become one of law.”). We have twice considered, in depth, how the rule functions with respect to an employee’s use of his or her personal automobile during a commute. In Dhanraj v. Potomac Electric Power Co., 305 Md. 623 , 506 A.2d 224 (1986), we said: [Ojn account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injus ²⁸⁴ tice____ It is now held by the great weight of authority that a master will not be held responsible for [the] negligent operation of a servant’s automobile, even though engaged at the time in furthering the master’s business unless the master expressly or impliedly consents to the use of the automobile, and ... had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master’s business that his control over it might reasonably be inferred. Dhanraj, 305 Md. at 627-28 , 506 A.2d at 226 (quoting Henkelmann v. Insurance Co., 180 Md. 591, 599 , 26 A.2d 418, 422-23 (1942)).

In Dhanraj , the plaintiff attempted to hold an employer hable for injuries an employee caused while operating his personal vehicle during a commute from his home to an employer-operated training facility. We upheld summary judgment in favor of the employer because the doctrine of respondeat superior could only “be properly invoked if the master has, expressly or impliedly, authorized the [servant] to use his [or her] personal vehicle in the execution of his [or her] duties, and the employee [wa]s in fact engaged in such endeavors at the time of the accident.” Dhanraj, 305 Md. at 628 , 506 A.2d at 226 (internal quotation and citations omitted). Under the facts presented, it was clear that [a]side from the initial request for attendance ... [the employer] was completely uninvolved in the travel aspect of the temporary assignment. [The employer] did not specify the mode of transportation or the route of travel.... [The employees’] workday started when they arrived at the training center and ended when they departed. All commuting was done on their own time.

Dhanraj, 305 Md. at 625 , 506 A.2d at 225 . Indeed, we emphasized that “[i]t is essentially the employee’s own responsibility to get to or from work.” Dhanraj, 305 Md. at 628 , 506 A.2d at 226 (citing Restatement (Second) of Agency § 229 cmt. d (1958)). Therefore, we announced that “the general rule is that absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling ²⁸⁵ to or from work.” Dhanraj, 305 Md. at 628 , 506 A.2d at 226 . The employee in Dkanraj argued that the travel allowance was a “special circumstance” sufficient to establish the employer’s consent to the use of the automobile and thereby invoke the doctrine of respondeat superior.

Dhanraj, 305 Md. at 628-29 , 506 A.2d at 226-27 . We rejected that argument, noting that the allowance was not tied to a particular mode of transportation, but was paid to an employee merely for reporting to work, or leaving work from, a location outside of his or her “base zone.” Id. It was clear under the facts: There was no consent, express or implied, by [the employer] to the use of [the employee’s] automobile as the means of transportation to the training facility; [the employer] was not concerned with how he got there or how he got home at the close of the workday. [The employee] was entitled to the same allowance had he traveled in his own car, or as a passenger in another’s car, or hired a taxicab, or walked, or even if he stayed for the [six-week training period] in a nearby motel. He used his automobile by his own choice and for his personal convenience; he was under no instruction, direction or duty to use it.

The expense of the operation of the automobile was not born by [the employer], and [the employer] had no right of control over [the employee] in regard to it. The allowance paid did not represent maintenance of the automobile, nor was it based on the expense of its operation. In short, he could travel to and from the facility as he pleased, by any means or route he chose. [The employer’s] only concern was that he take the course, not how he got there. Dhanraj, 305 Md. at 630 , 506 A.2d at 227 .

We reviewed and reaffirmed the same principles in Oaks v. Connors, 339 Md. 24 , 660 A.2d 423 (1995), where we again upheld a summary disposition in favor of the employer after a third party was injured by the alleged negligence of an employee commuting to work. In that case, the employer, Giant Food, Inc., required the employee to have a personal vehicle available for use in his duties as an ATM Sergeant, and would reimburse him for travel between his “home store” and ²⁸⁶ the stores he visited. At the time of the collision, however, the employee was commuting from his residence to his “home store” and therefore had not yet begun his workday. We again pointed out that “[d]riving to and from work is generally not considered to be within the scope of a servant’s employment because getting to work is the employee’s own responsibility and ordinarily does not involve advancing the employer’s interests.” Oaks, 339 Md. at 32 , 660 A.2d at 427 (citing Dhanraj, 305 Md. at 628 , 506 A.2d at 226 , and Restatement (Second) of Agency § 229 cmt. d (1958)).

We applied the rule enunciated in Dhanraj that, “absent special circumstances, an employer will not be vicariously hable for the negligent conduct of his employee occurring while the employee is traveling to or from work.” Oaks, 339 Md. at 32 , 660 A.2d at 427 (quoting Dhanraj, 305 Md. at 628 , 506 A.2d at 226 ). The plaintiffs in Oaks argued that the employee was executing his duties for Giant at the time of the collision because he was transporting his vehicle to the job site, which Giant required him to have for use in the course of the workday. Oaks, 339 Md. at 32-33 , 660 A.2d at 427 . We found this argument unavailing, focusing instead on the fact that the employee in driving to work “was not actually performing any of his designated job responsibilities at the time of the accident,” and therefore, “was not furthering any business purpose” of his employer.

See Oaks, 339 Md. at 32 , 660 A.2d at 427 . We explained further: Giant exerted no control over the method or means by which [the employee] operated his vehicle. It did not supply or pay for the vehicle that [the employee] used or for its maintenance, fuel or repair. It also did not specify the type of vehicle to be used or the route to be taken from the [home store].

Finally, the use of an automobile was not of such vital importance in furthering Giant’s business that Giant’s control over it, as [the employee] commuted to work, [could] reasonably be inferred. Oaks, 339 Md. at 32-33 , 660 A.2d at 427 . Petitioners draw a distinction between the instant case and Dhanraj and Oaks , namely that “the precipitating cause of the ²⁸⁷ accident, fatigue, manifested while Richardson was on the job and was directly related to the number of hours he worked” whereas “the employees in both Oaks and Dhanraj were in the automobile accidents prior to their shifts and the precipitating cause of the accidents did not manifest on the job.” While Petitioners identify correctly this factual distinction, the timing of the collision is immaterial under the explicit language of those cases. See Oaks, 339 Md. at 32 , 660 A.2d at 427 (“Driving to and from work is generally not considered to be within the scope of a servant’s employment.... ” (emphasis added)); Dhanraj, 305 Md. at 628 , 506 A.2d at 226 (“[Ajbsent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.” (emphasis added)).

Further, on-the-job fatigue is not a “special circumstance” sufficient to prevent application of the general rule that “an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.” 9 Dhanraj, 305 Md. at 628 , 506 ²⁸⁸ A.2d at 226 . Petitioners misconstrue Dhanraj as announcing, but failing to delimit, some type of “special circumstances” exception, which they argue was met in this case. It is clear that under Dhanraj and Oaks , any “special circumstances” must simply prove that the employee is, in fact, not only commuting to or from work, but additionally, is using his personal vehicle, as authorized by the employer, to engage in the execution of his duties on behalf of the employer. 10 Dhan ²⁸⁹ raj, 305 Md. at 628 , 506 A.2d at 226 ; Oaks, 339 Md. at 31 , 660 A.2d at 427 . Thus, even assuming, arguendo, that Ports forced Richardson to work for an unreasonable amount of time, and thereby contributed to the impairment which ultimately caused the collision, this would be insufficient, as a matter of law, to create respondeat superior liability when it is undisputed that Richardson was traveling home from work, and not in any way attending to his employer’s business. 11 It ²⁹⁰ is not, as Petitioners argue, a question of Ports’ control over Richardson’s fatigue, ie., scheduling him to work long hours, rather, the pertinent inquiry centers on the employer’s influence over the operation of the vehicle.

See Dhanraj, 305 Md. at 628 , 506 A.2d at 226 (“The application of the doctrine rests ²⁹¹ upon the power of control and direction which the superior has over the subordinate, and ... does not arise when the servant is not actually or constructively under the direction and control of the master.” (internal quotation omitted)); Oaks, 339 Md. at 31 , 660 A.2d at 426-27 (“The ‘right to control’ concept is key to a respondeat superior analysis in the motor vehicle context.”); Henkelmann, 180 Md. at 599 , 26 A.2d at 423 (noting that in order to be vicariously liable an employer must have “the right to control the servant in [the vehicle’s] operation .... ”); Restatement (Second) of Agency § 219 cmt. a (1958) (noting that “[a] master’s liability to third persons appears to be an outgrowth of the idea that within the time of service, the master can exercise control over the physical activities of the servant.... The assumption of control is a usual basis for imposing tort liability when the thing controlled causes harm.”). Further, we note that the facts as to scope of employment in the instant case are even less persuasive than those presented in Dhanraj and Oaks . Unlike the employer in Dhanraj , Ports neither provided any type of travel allowance 12 to Richardson, nor did it, as in Oaks , mandate that the employee have a personal vehicle for use in the course of employment.

Richardson chose to drive to and from work for his own convenience. Even after his shift, there were any number of other options open to Richardson if he felt too tired ²⁹² to drive, including traveling home by bus, calling a cab, phoning a family member or friend for a ride, or resting in a nearby motel room. Ports paid none of the expenses associated with operating the automobile, and Ports had no control over Richardson in regard to its operation nor was its use “of such vital importance in furthering the master’s business that his control over it might [be] reasonably inferred.” See Dhanraj, 305 Md. at 631 , 506 A.2d at 228 . Thus, Ports did not consent either expressly or impliedly to the use of Richardson’s automobile as a means of transportation, and it had no interest in either how he got to work “or how he got home at the close of the workday, ” Dhanraj, 305 Md. at 630 , 506 A.2d at 227 (emphasis added).

In short, in accordance with our holdings in Dhanraj and Oaks , because Richardson was neither authorized to use his personal vehicle in the execution of his duties, nor engaged in those duties at the time of the collision, Ports may not be held vicariously liable for Richardson’s motor vehicle tort. See Dhanraj, 305 Md. at 628 , 506 A.2d at 226 ; Oaks, 339 Md. at 31 , 660 A.2d at 427 .

II

Petitioners next argue that Respondent is primarily, as opposed to vicariously, liable for Sgt. Barclay’s injuries due to Respondent’s own negligence in failing to prevent the risk that a fatigued employee posed to the general motoring public. 13 In order to prevail on a claim of negligence in Maryland, a plaintiff must prove the existence of: (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty, and (c) injury proximately resulting from that breach. Pendleton v. State, 398 Md. 447, 458 , 921 A.2d 196, 202-03 ²⁹³ (2007). As we recently said in Pace v. State, 425 Md. 145 , 38 A.3d 418 (2012): Duty is a foundational element in a claim of negligence because, as we have said, “negligence is a breach of a duty owed to one, and absent that duty, there can be no negligence.” Ash burn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078, 1083 (1986); accord Pendleton, 398 Md. at 461 , 921 A.2d at 204 (“[W]hen analyzing a negligence action it is customary to begin with whether a legally cognizable duty exists.” (citations omitted)); Bobo [v. State], 346 Md. [706] at 714, 697 A.2d [1371] at 1375 [ (1997) ] (“[T]he existence of a duty is the threshold question.”); W. Va.

Central R. Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669, 671 (1903) (“[T]here can be no negligence where there is no duty that is due.... ”). This Court has adopted Prosser and Keeton’s definition of duty as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” See Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18, 26 (2003) (quoting W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 at 356 (5th ed. 1984)); Horridge [v. St. Mary’s County Dept. of Social Services], 382 Md. [170] at 182, 854 A.2d [1232] at 1235 [ (2004) ]; Ashburn, 306 Md. at 627 , 510 A.2d at 1083 . As Prosser and Keeton note, “duty is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 53 at 358 (5th ed. 1984) (internal quotation marks omitted). We have explained that in order to determine whether a duty exists, relevant considerations necessarily include “the nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties.” Jacques v. First Nat’l Bank, 307 Md. 527, 534 , 515 A.2d 756, 759 (1986).

Pace, 425 Md. at 155-56 , 38 A.3d at 424 . In the instant case, Petitioners assert that Ports had “a duty because the risk a fatigued employee poses to the ²⁹⁴ motoring public is foreseeable and the fatigue arose within the scope of [Ports’] employment relationship with Richardson.” As we made clear in Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986), however, “ ‘foreseeability’ must not be confused with ‘duty.’ The fact that a result may be foreseeable does not itself impose a duty in negligence terms.” Ashburn, 306 Md. at 628 , 510 A.2d at 1083 ; accord Pendleton, 398 Md. at 462 , 921 A.2d at 205 (“While foreseeability is often considered among the most important of [the] factors, its existence alone does not suffice to establish a duty under Maryland law.” (quotation omitted)); Valentine v. On Target, Inc., 353 Md. 544, 551 , 727 A.2d 947, 950 (1999) (“Notwithstanding the fact that foreseeability is a critical element in ascertaining whether or not a duty exists, not all foreseeable harm gives rise to a duty____”). For this reason, the general rule followed in most jurisdictions, including Maryland, is that “there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a ‘special relationship’ exists either between the actor and the third person[ 14 ] or between the actor and the person injured.” Ashburn, 306 Md. at 628 , 510 A.2d at 1083 (citing Lamb v. Hopkins, 303 Md. 236, 242-44 , 492 A.2d 1297, 1300-01 (1985); Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548, 552 (1976); Restatement (Second) of Torts § 315 (1965)). This legal principle is set forth in Restatement (Second) of Torts § 315, which states that [t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person’s conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection. ²⁹⁵ We have adopted § 315, as reflective of our common law, and as a special application of the general principle found in Restatement (Second) of Torts § 314 that “[t]he fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.” Lamb, 303 Md. at 242 , 492 A.2d at 1300 ; Restatement (Second) of Torts § 315 cmt. a (“The rule stated in this Section is a special application of the general rule stated in § 314.”).

As we emphasized in Valentine, 353 Md. 544 , 727 A.2d 947 , “[o]ne cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists.” Valentine, 353 Md. at 553 , 727 A.2d at 951 . Therefore, [i]n the absence of either one of the kinds of special relations described in [§ 315], the actor is not subject to liability if he fails, either intentionally or through inadvertence, to exercise his ability so to control the actions of third persons as to protect another from even the most serious harm. This is true although the actor realizes that he has the ability to control the conduct of a third person, and could do so with only the most trivial of efforts and without any inconvenience to himself. Lamb, 303 Md. at 242 n. 4, 492 A.2d at 1300 n. 4 (quoting Restatement (Second) of Torts § 315 cmt. b (1965)).

It is evident in the instant case that Ports had no special relationship with Sgt. Barclay, as it had no familiarity with or knowledge of him prior to learning of the collision. Further, Ports had no special relationship with its employee, Mr. Richardson, that would allow it to be responsible for his motor vehicle tort under the applicable facts. The Restatement (Second) of Torts § 317 explains the circumstances sufficient to establish a “special relationship” between an employer and an employee when the employee is acting outside the scope of his or her employment.

See Lamb, 303 Md. at 243 , 492 A.2d at 1301 (noting that “§ 317 establishes a master’s duty to control the conduct of his servant.... ”). It states: ²⁹⁶ A master is under a duty to exercise reasonable care so to control his servant while acting outside the scope of his employment as to prevent him from intentionally harming others or from so conducting himself as to create an unreasonable risk of bodily harm to them, if (a) the servant (i) is upon the premises in possession of the master or upon which the servant is privileged to enter only as his servant, or (ii) is using a chattel of the master, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control. Restatement (Second) of Torts § 317. It is not, nor can it be, asserted in the instant case that Richardson was on Ports’ property or that he was using its chattel at the time of the collision.

Rather, the collision happened on a public road, while Mr. Richardson was driving his own vehicle. Further, as the trial court aptly noted, “[Petitioners] have not introduced any facts to show that P&O Ports had the authority to control Mr. Richardson’s driving to and from work.” 15 See ²⁹⁷ Lamb, 303 Md. at 242 , 492 A.2d at 1300 (1985) (“[Ajbsent a special relation between the actor and the third person, the actor has no duty to control the conduct of a third person and therefore no liability attaches for the failure to control that person.” (footnote omitted)); Pilgrim v. Fortune Drilling Co., 653 F.2d 982, 985-86 (5th Cir.1981) (holding that, under Texas law, an employer was not liable for injuries caused by an exhausted employee in commuting home, because the circumstances did not demonstrate the requisite relationship under Restatement (Second) of Torts § 317). Petitioners’ argument was rejected by the intermediate appellate court in Kuykendall v. Top Notch Laminates, Inc., 70 Md.App. 244 , 520 A.2d 1115 (1987), considering the analogous situation of an employee incapacitated by alcohol at a work-related function. Kuykendall relied in large part on our decision in Felder v. Butler, 292 Md. 174 , 438 A.2d 494 (1981), which held that, absent a dram shop statute, injured third parties have no cause of action against a vendor of alcoholic beverages for the negligence of an intoxicated patron.

Felder, ²⁹⁸ 292 Md. at 183-84 , 438 A.2d at 499-500 . In Kuykendall , two employees of Top Notch Laminates, Inc., were driving in separate cars while intoxicated, engaging in “horse play” on the road, when one crossed the center line, colliding with and killing a third party. Kuykendall, 70 Md.App. at 246 , 520 A.2d at 1115 . For approximately five-and-a-half hours prior to the collision, the employees were consuming alcohol at a company Christmas party.

Id. The complaint averred that Top Notch knew that the employees were intoxicated, but continued to serve them alcoholic beverages, and then permitted them to drive their automobiles away from the party. Id. Even so, the trial court granted the motion to dismiss filed by the employer.

Kuykendall, 70 Md.App. at 246-47 , 520 A.2d at 1116 . The intermediate appellate court affirmed, and made clear that Top Notch could not be held primarily negligent for the accident because it did not have a “special relationship” with either the victim or its employees sufficient to create a legal duty to protect a third party. The Court stated: The Court of Appeals has adopted the principle that there is no liability to a third person absent a “special relationship” with a clear right to control. Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986); Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985).

There is nothing in the matter sub judice to suggest that Top Notch had a right to control [the employee’s] actions after business hours. Kuykendall, 70 Md.App. at 249 , 520 A.2d at 1117 . Petitioners marginalize the applicability of Kuykendall , and attempt to bolster their argument by citing to two out-of-state cases in which the courts determined that employers owed a duty to third parties injured by fatigued employees commuting home from work. In Robertson v. LeMaster, 171 W.Va. 607 , 301 S.E.2d 563 (1983) the Supreme Court of Appeals of West Virginia reversed a trial court’s determination that an employer owed no duty to the general public when its employee caused a traffic accident while commuting home after working for 27 hours.

The case, however, is factually distinguishable from the instant case. In Robertson , the employer ²⁹⁹ had knowledge of the employee’s fatigue because the employee notified the employer several times that he (the employee) was tired and wanted permission to go home. Further, the employer provided transportation for the employee to his vehicle following his shift, and while en route, “the obviously exhausted [employee] fell asleep with a [lit] cigarette in his hand in the presence of ... [co-]employees.” Robertson, 301 S.E.2d at 568 ; see Berga v. Archway Kitchen & Bath, Inc., 926 S.W.2d 476, 482 (Mo.Ct.App.1996) (“In finding a duty, the [Robertson] court focused on the affirmative acts of requiring the worker to continue, despite the workers’ verbal indications of his [fatigue], and driving the employee to his vehicle, despite obvious indications of his [fatigue].... ”). The case is also legally distinct because the West Virginia Court identified the issue as being whether “[the employer’s] conduct in requiring its employee to work such long hours and then setting him loose upon the highway in an obviously exhausted condition [created] a foreseeable risk of harm to others which the [employer] had a duty to guard against.” Robertson, 301 S.E.2d at 569 .

The court’s answer to this question, to the extent that it suggested that an employer could be liable for scheduling the employee to work unreasonably long hours, belies the court’s predilection to expand liability in order to largely equate a legal duty with “an original moral duty.” See Robertson, 301 S.E.2d at 567 . While the West Virginia court cited the Restatement (Second) of Torts § 317, and recognized the traditional principle “that an employer is normally under no duty to control the conduct of an employee acting outside the scope of his employment,” it did not analyze the presence of a special relationship under the facts. Robertson, 301 S.E.2d at 567 . Rather, the court stated that the central consideration