Barclay v. PORTS AMERICA BALTIMORE, INC.

⁵⁷² MATRICCIANI, J. On January 24, 2008, Michael S. Barclay, individually and jointly with his wife Robin Barclay, filed a complaint in the Circuit Court for Carroll County. The complaint named as defendants Lena Briscoe, personal representative of the estate of Christopher E. Richardson, Ports America Baltimore, Inc. (“Ports”), 1 the Steamship Trade Association of Baltimore, Inc. (the “STA”), and the International Longshoremen’s Association and the Local No. 333 International Longshoremen’s Association (collectively, the “ILA”). On April 9, 2008, Briscoe filed cross-claims against Ports, the STA, and the ILA. On August 1, 2008, Barclay voluntarily dismissed the ILA as a defendant on his direct claims.

On January 30, 2009, STA moved for summary judgment as to Barclay’s direct claims and Briscoe’s cross-claims, and on February 2, 2009, Ports moved for the same relief. The court granted both the STA’s and Ports’ motions on November 10, 2009. The court then stayed proceedings between Barclay and Briscoe and entered final judgments in favor of the STA and Ports on December 22, 2009, which appellants timely appealed. On May 28 and June 7, 2010, appellants voluntarily dismissed their respective appeals of the judgments in favor of STA, leaving Ports as the sole appellee.

Questions Presented Appellants present three questions for our consideration, which we have consolidated and edited for clarity: I. Did the trial court err when it granted summary judgment in favor of Ports? For the reasons set forth below, we answer no and affirm the judgment of the Circuit Court for Carroll County. ⁵⁷³ Background Factual History Christopher Richardson was a stevedore, who worked loading and unloading ships arriving in Baltimore. Ports manages and operates marine cargo facilities in Baltimore. On January 13, 2006, the captain of the ship “Saudi Tabuk” notified Ports that it was delayed and would arrive later than scheduled, during the night.

Ports determined what labor it required to unload the Tabuk, and Ports’ labor coordinator issued a “work order” to the STA to dispatch longshoremen. The STA used a computer program to assign longshoremen according to seniority, based upon information provided by the ILA. Richardson was initially offered a shift beginning on January 15, 2006, which he declined, and instead he accepted an offer to start at 8 a.m. on the Martin Luther King, Jr. holiday, January 16, 2006. Richardson’s terms of employment were governed by a collective bargaining agreement (“CBA”) between the ILA and maritime employers, including Ports.

A basic agreement was made at the national level, and regional groups worked with employers to supplement the national agreement with local agreements. Under the relevant CBA, a longshoreman who accepted an offer to work could stay on for as many consecutive shifts as he desired, or he could “check up” and go home, at which point the ILA would send the next most senior qualified longshoreman to take over his work. Shift lengths varied according to the time of day they would begin, and the CBA provided for a one-hour meal break every six hours. According to the CBA, no employees could demand to work through a meal hour.

The CBA had previously imposed a limit of sixteen hours on the working day, but neither the national nor local version of the CBA in place at the time of these facts included any limit on the working day. Representatives of Ports maintained that this change occurred at the insistence of the ILA, whose ⁵⁷⁴ members did not want their workday to be limited because it would interfere with seniority rights. Ports’ representatives further maintained that for the same reason, Ports could not interfere with the individual’s right to work as few or as many consecutive shifts as he or she desired. Ports’ representatives also testified that workers regularly “check up” and go home during or at the end of a shift before exhausting all the work they could perform under an offer from the STA.

One of Richardson’s fellow longshoreman, Rikar McKenzie testified that, contrary to Ports’ position, laborers were pressured to work long shifts. He testified that he was “always” asked to work more than sixteen hours, and that he would face action or poor evaluations if he should “check up” when no replacement longshoreman was available to take over for him. 2 Under the CBA, hourly wages did not necessarily increase with the duration of a worker’s time on the job. Overtime pay would go into effect at 5 p.m. on workdays, but shifts starting as late as 3 p.m. would be entitled to overtime beginning at 5 p.m. 3 Additionally, any workers on the midnight shift who worked past 7 a.m. received extra pay, and all workers received overtime pay for work in excess of forty hours in a given week. Workers could receive a bonus for “exceptional work,” which was awarded at the discretion of their supervisor.

Ports maintained that this was not tied to shift duration. The only record evidence of these bonuses is one payroll form dated January 16, 2006, the date of Richardson’s last shift. It indicates that out of thirty-one longshoremen on duty that day, twelve received bonuses, and that each of those twelve worked at least seventeen hours. However, eight longshoremen worked at least fourteen hours and did not receive bonuses.

Richardson was one of eight workers whose shift ⁵⁷⁵ lasted at least twenty hours; out of those eight, five received bonuses while three did not. Richardson had reported to work at 8 a.m. on the morning of January 15, 2006. He remained on the job for twenty-two hours, eventually “checking up” at 6 a.m., the following day, January 16, 2006. 4 At some point, Richardson began his journey home to Carroll county, approximately forty-five miles from where he worked. At approximately 7:30 a.m., Richardson’s vehicle crossed the center line of New Windsor Road and collided, head-on, with a vehicle driven by Anne Arundel County Police Sergeant Michael Barclay.

Dr. Alan Schwartz, an expert in sleep medicine, opined via affidavit “that Mr. Richardson fell asleep due to fatigue caused by his work as a maritime laborer[.]” 5 Sergeant Barclay suffered grievous injuries that required over $1.5 million in medical expenses to treat, and his injuries left him unable to work as a police officer. Richardson did not survive the accident. Procedural History Barclay filed a complaint in the Circuit Court for Carroll County on January 24, 2008, naming as defendants Briscoe, as Richardson’s personal representative, the ILA, the STA, and Ports. Barclay’s complaint alleged that Richardson was negligent in operating his motor vehicle, thereby causing Barclay’s injury and damage, as well as loss of consortium as set forth in a separate count.

Barclay’s complaint further alleged that Ports, the STA, and the ILA “were negligent in that their ⁵⁷⁶ agent, servant and/or employee, Christopher Eugene Richardson, was operating his vehicle in a careless, reckless negligent manner[.]” Barclay further alleged that Ports, the STA, and the ILA “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.” The complaint averred that the three institutional defendants “engaged in a habitual and customary practice of allowing, requiring and/or encouraging their employees to work in excess of a reasonable number of hours for a mature adult human being.” Specifically, Barclay alleged that those defendants “were negligent in that they permitted and encouraged the Defendant, [Richardson], Deceased, to work twenty-two hours beginning sometime on January 15, 2006,” 6 and that those defendants “knew or should have known that [Richardson], Deceased would have operated his vehicle when leaving the workplace.” Briscoe filed cross-claims against Ports, the STA, and the ILA, claiming that Barclay’s injuries and damages were solely caused by their “negligence and want of care.” Barclay voluntarily dismissed the ILA as a defendant on August 1, 2008. 7 On February 2, 2009, Ports filed a motion for summary judgment on Barclay’s direct claims and Briscoe’s cross-claims. Ports argued that it was not vicariously liable because Richardson was driving his personal vehicle outside the scope of his employment. Ports further argued that it did not owe the direct duty to the general public alleged in Barclay’s complaint. After a hearing on the matter, the court granted the motion on November 10, 2009.

The court explained its ruling in a ⁵⁷⁷ memorandum opinion determining that Ports is not vicariously liable according to the “going and coming” rule of respondeat superior. The court further ruled that because actors in Maryland have “no duty to protect another unless a special relationship ... exists,” Ports owed no duty to Barclay as alleged in his complaint. The court stayed proceedings between Barclay and Briscoe and, pursuant to Maryland Rule 2-602, entered final judgments against them and in favor of Ports on December 22, 2009; 8 appellants then filed timely notices of appeal. Discussion Standard of Review Summary judgment is proper where 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.

Md. Rule 2-501(f). We review summary judgment de novo and ask whether the trial court was correct as a matter of law. Chesek v. Jones, 406 Md. 446, 458 , 959 A.2d 795 (2008) (citations omitted). In doing so, we review the factual record independently and view all facts and inferences in a light most favorable to the non-moving party.

David A. Bramble, Inc. v. Thomas, 396 Md. 443, 453-54 , 914 A.2d 136 (2007) (internal citations omitted). I. We first address appellants’ argument that the trial court erred when it ruled that Ports was not vicariously liable for Richardson’s alleged negligence. Appellants’ theory of liability depended on the doctrine of respondeat superior, which holds an employer vicariously — and jointly and severally — liable for the tortious conduct of an employee, where it has ⁵⁷⁸ been shown that the employee was acting within the scope of the employment relationship at that time. S. Mgmt.

Corp. v. Taha, 378 Md. 461, 480-81 , 836 A.2d 627 (2003). “For 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.” Id. at 481 , 836 A.2d 627 . First, appellants cite Sawyer v. Humphries, 322 Md. 247, 260-61 , 587 A.2d 467 (1991), which in turn cites Cox v. Prince George’s County, 296 Md. 162, 170-71 , 460 A.2d 1038 (1983), to argue that “[wjhether an individual’s conduct falls within the scope of employment is normally a question for the jury.” But this is not a rule or principle of law; appellants have merely asserted a statistical fact that, based on two cases, is nothing more than speculation. While it may well be true that in “most” cases — i.e. “normally” — the scope of employment is a question that must go to the jury, that nevertheless depends upon the facts alleged. Appellants would have us abandon the rules of summary judgment simply because the complaint alleged, baldly, that Richardson’s tortious conduct occurred within the scope of his employment by Ports.

This cannot be so, as that would obviate review as a matter of law. Thus, we resort to the underlying rule of summary judgment and we must determine, de novo, whether appellants’ allegations and the limited evidence could, taken in the most favorable light, establish that the accident occurred within the scope of his employment by Ports. The parties agree that there is a general principle, known as the “going and coming” rule, holding that “absent 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.” Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 628 , 506 A.2d 224 (1986) (emphasis added). There are two possible interpretations of the “special circumstances” exception in Dhanraj .

The first, as appellants argue, is that it includes the “special mission” exception from ⁵⁷⁹ cases applying what is now the Workers’ Compensation Act, such as Reisinger-Siehler Co. v. Perry, 165 Md. 191 , 167 A. 51 (1933), and Director of Finance v. Alford, 270 Md. 355 , 311 A.2d 412 (1973). See Maryland Code (1991, 2008 RepLVol.), § 9-101 et seq. of the Labor and Employment Article. In broad strokes, the “special mission” exception holds an employer liable if an employee is injured while commuting to or from “an extra, after-hours duty.” See Alford, 270 Md. at 362 , 311 A.2d 412 (quoting Maryland Paper Products Co. v. Judson, 215 Md. 577, 585 , 139 A.2d 219 (1958)). Appellants acknowledge that, “[ajlthough analysis under Workmen’s Compensation law differs from that conducted under tort law due to policy considerations, Dhanraj, 305 Md. at 630-31 [ 506 A.2d 224 ], the Barnes [v. Children’s Hosp., 109 Md.App. 543, 564 , 675 A.2d 558 (1996),] special mission or errand exception should be applied.” We cannot discern why appellants chose our opinion in Barnes to make this point, because that case was decided under the law of worker’s compensation.

Had it been a tort case, Barnes would support appellants’ proposition, but it would also contradict the Court of Appeals’ holding in Dhanraj , which expressly refused to apply a “special mission” exception to respondeat superior: Appellants urge us to apply the special mission exception to the workmen’s compensation version of the “going and coming” rule. They cite to Reisinger-Siehler Co. v. Perry, 165 Md. 191 , 167 A. 51 (1933) and Director of Finance v. Alford, 270 Md. 355 , 311 A.2d 412 (1973). We see no need to resort, in the circumstances here, to cases under the Workmen’s Compensation Act and comparable employee compensation statutes to determine the applicability of the doctrine of respondeat superior in this tort action. Dhanraj, 305 Md. at 630-31 , 506 A.2d 224 .

We therefore reject appellants’ contention that the “special mission” exception applies to respondeat superior cases. Instead, the Dhanraj Court rested its analysis on three factors that indicate “special circumstances,” thus attaching ⁵⁸⁰ vicarious liability even though an employee is merely “coming and going” from work: We conclude that if Sandy was negligent as alleged, PEPCO was not vicariously liable for his tortious conduct under the doctrine of respondeat superior. PEPCO did not expressly or impliedly consent to the use of the automobile; it had no right to control Sandy in its operation, and the use of the automobile was not of such vital importance in farthering PEPCO’s business that the control over it might reasonably be inferred. Id. at 631 , 506 A.2d 224 (emphasis added).

Under the holding in Dhanraj , the requisite “special circumstances” must admit some express or implied control over the vehicle or consent to its use in performing work duties. 9 This theme was reinforced by Oaks v. Connors, 339 Md. 24, 31 , 660 A.2d 423 (1995), where the Court of Appeals, citing Dhanraj (among other authorities), explained: The “right to control” concept is key to a respondeat superior analysis in the motor vehicle context. The doctrine may only be successfully invoked when an employer has either expressly or impliedly, authorized the servant to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident. (Internal citations and quotation marks omitted; emphases added.) The Oaks Court reviewed the record facts and upheld judgment in favor of the employer based on the Court’s conclusion that the facts did not suffice for respondeat superi- or. 10 339 Md. at 30-33 , 660 A.2d 423 . The facts and allega ⁵⁸¹ tions in this case compel a similar conclusion and distinguish it from cases in which “special circumstances” were present.

As in Oaks , Richardson was not furthering Ports’ business purposes because he was not “performing designated job responsibilities at the time of the accident.” See id. at 32-33 , 660 A.2d 423 . Ports did not require Richardson to have a vehicle available for use in the execution of his duties. Id. Ports did not exercise control over the method or means by which Richardson operated his vehicle. 11 Id.

Finally, Ports did not reimburse Richardson for his transportation expenses. Id. The sole fact that distinguishes the present case — and this is perhaps only because it was not raised and considered in previous cases — is that Ports provided a parking lot for its employees. Appellants point to the size of the parking lot and the lack of other rest facilities at the shipyard to bolster their claim that it was wholly foreseeable that commuting longshoremen would pose a risk of harm to others.

Foreseeability, however, is not the relevant test. According to the principles reviewed above, employee parking would only satisfy the special circumstances test if it indicated express or implied control over the vehicle as a means of transportation or consent to its use in performing work duties. The test would be satisfied if, for example, Ports offered parking because it required employees to drive to and from work, or because its employees used their vehicles in the actual loading and unloading of ships at port. In any event, the parking lot is ancillary to a more fundamental issue of control.

As it happened, employee parking was no more than a convenience offered to those who chose to drive; it did not indicate any degree of control, the touchstone of respondeat superior. For the forgoing reasons, we cannot accept appellants’ argument that the “special mission or errand” exception to respondeat, superior applies; nor can we accept the argument ⁵⁸² that the record facts establish “special circumstances” that override the “coming and going” rule. Appellants have thus demonstrated no error in the trial court’s ruling that Ports is not vicariously