Crews v. Hollenbach

HOLLANDER, Judge. This appeal arises from a gas explosion in Bowie, Maryland on March 23, 1996, which severely injured Lee James Crews, appellant, an employee of Washington Gas Company. 1 As a result of the occurrence, appellant filed a twenty-count complaint on August 1, 1997, in the Circuit Court for Prince George’s County, against various defendants, who are appel- ⁶¹³ lees here. 2 They are: John Hollenbach, Sr.; Honcho & Sons, Inc. (“Honcho”); Excalibur Cable Communications, Inc. (“Excalibur”); Maryland Cable Partners L.P. (“Maryland Cable”); and Byers Engineering Company (“Byers”). 3 After a motions hearing, the court determined that appel-lees were entitled to summary judgment, based on the doctrine of primary assumption of risk. From that ruling, appellant timely noted his appeal.

Crews has posed one question for our consideration, which we have rephrased slightly: Did appellant assume the risk of a gas explosion based on his occupation? For the reasons that follow, we conclude that appellant is barred from recovery under the doctrine of primary assumption of risk, because his injury was a foreseeable risk of his occupation. Therefore, we shall affirm the trial court’s order granting appellees’ motions for summary judgment. ⁶¹⁴ Factual Summary Maryland Cable retained Excalibur to install cable lines in Bowie, Maryland. Excalibur, in turn, hired Honcho to perform the necessary excavation.

Hollenbach was an employee of Honcho. Prior to the excavation, Byers was retained to locate and mark the buried utility lines in the area where the digging was scheduled to occur. See Md.Code (1991 Repl. Vol.), Art. 78, § 28A. 4 While Hollenbach was using machinery to dig a hole in the vicinity of 11405 Trillum Lane in Bowie, he struck a natural gas line owned by Washington Gas.

Apparently, neither the police nor the fire department was promptly notified about what had happened. Eventually, the fire department was notified of the situation by someone a mile and a half away, who smelled gas. More than two hours after the natural gas line was struck, Washington Gas was also notified of the leak. The incident caused the release of a large volume of natural gas that permeated the ground and necessitated the evacuation of the surrounding neighborhood.

Upon notification of the occurrence, Washington Gas dispatched a crew to the site to dissipate a volatile gas leak. Appellant, a veteran gas man with over twenty years of service, was the foreman of the crew in charge of repairing the leak. Unfortunately, while appellant and his crew were at ⁶¹⁵ tempting to repair the leak, an explosion occurred, severely injuring appellant. In his complaint, Crews alleged, inter alia, that Hollenbach negligently “shot” a hole through a natural gas line (Count I); Honcho is responsible for the negligent actions of Hollenbach, its employee (Count III); Excalibur negligently hired, selected, and supervised Honcho (Counts V, VI, and VII); Excalibur had the non-delegable duty to lay cable lines in the vicinity of utility lines (Count VIII); Hollenbach, Honcho, Excalibur, and Maryland Cable are strictly liable for injuries caused by the abnormally dangerous activity of digging around public utilities (Counts X and XVI); Maryland Cable is responsible for the negligent actions of its employee-agent, Honcho (Count XI); Maryland Cable negligently selected and supervised Honcho (Counts XII and XIII); Maryland Cable had the non-delegable duty to lay cable lines in the vicinity of utility lines (Count XIV); Byers failed to use due care in marking the utility lines in the vicinity where the digging occurred (Count XVII); and the combined negligence of Hol-lenbach, Honcho, Excalibur, Maryland Cable, and Byers led to appellant’s injuries (Count XIX).

Additionally, Byers filed cross-claims against Hollenbach, Honcho, Excalibur, and Maryland Cable; Hollenbach and Honcho filed cross-claims against Byers; and Excalibur filed a cross-claim against Byers. We turn to explore in more detail the events that culminated in appellant’s suit. On November 3, 1997, Excalibur filed a motion to dismiss the complaint, alleging that appellant’s claims were barred by the doctrine of primary assumption of risk. Maryland Cable moved for summary judgment on December 19,1997, adopting Excalibur’s legal argument.

The court denied Excalibur’s motion to dismiss on December 17, 1997, although the order was not docketed until February 6,1998. Thereafter, on April 21, 1998, appellant was deposed. He acknowledged that there was a pronounced smell of gas in the area when he arrived at the scene. The following colloquy between Maryland Cable’s counsel and appellant is pertinent: ⁶¹⁶ Q: Okay.

Now, you told us earlier that there was a heavy smell of gas in the area? A: At that particular area. Q: Well, you mean the area that you were working? A: Yes, yes.

Q: Is there a point that you recognize that gas smell to be so heavy that you know that it’s dangerous? A: Well, we always are taught that any type of gas leak or odor is always dangerous. And we understand that. Q: So when you smelled that heavy smell of gas that day on this job, you know that — you knew that the atmosphere was dangerous?

A: Well, yeah. We knew that that area that we was working in could be dangerous. Q: Okay. And you knew that that danger included the danger that a fire would start, correct?

A: We were aware that fire will start behind natural gas. Q: Okay. And you knew that there was that two-inch plastic pipe that had the static electricity problem, correct? A: That’s correct.

Q: And that static electricity problem you knew could cause sparks, correct? A: No. Q: No? A: The only time electric — it cause [sic] sparks when you deal with the pipe itself. As I stated before, that’s why we have to use what they call a spray on the pipe before you put a squeeze on it, because when you squeeze the pipe off, that’s when— almost gets shut off, that’s when the electronic takes over. ⁶¹⁷ Q: How about if you get into close proximity of the pipe or touch the pipe with the metal bucket of the backhoe?

A: No, it would not. Q: Are you sure? A: Well, I never knew it could set off like that. Q: All right.

A: I’m not saying that it won’t, but I never knew it to do that before. But, anything can set it off, gravels [sic] or rocks that hit together, hitting metal. That could set it off. Q: For instance, the metal bucket of your backhoe stringing a rock as you were digging— A: That’s correct.

Q: —you knew that that could create a spark? A: We knew that. Q: And you knew that if the spark occurs, you could have a fire and an explosion, correct? A: That’s correct, but as I said before, that it have to be worked [sic], regardless.

You know what I mean? It have to be repaired, [sic] It’s a chance you have to — that we go through. Then again, [sic] there’s the other exception to the rule, too. Q: So you know that there is this risk of fire, correct? * * * A: That’s correct.

Q: But you also know that part of your job is accepting that risk, correct? A: To the circumstance, yes. But on this occasion that it happened, it didn’t have to be this way. Q: What do you mean by that?

A: Because if the person, I’ll say, that dug — that did that had moved in the proper procedure their way, I wouldn’t ⁶¹⁸ have had to have been there to get into this thing. You know what I mean? Q: All right. But once something like that had happened, regardless of the reason, once damage has occurred to a gas pipe and you’re called out there to make the repair as part of your job, you know that there is a risk of fire and you know that it’s part of your job to accept that risk, correct? * * * A; Yes.

I accept that responsibility when we first got hired, but there is a control of gas that we usually deal with. (Emphasis added). On April 23, 1998, Excalibur filed a “Supplemental Motion to Dismiss or in the Alternative, Motion for Summary Judgment.” Attached to its motion was a partial transcript of appellant’s deposition, which it contended demonstrated that Crews “accepted the risk of fire and explosion as part of his job.” A motions hearing was held on April 24,1998. 5 At the hearing, appellant’s counsel suggested that the case concerned the issue of primary assumption of risk, in relation ⁶¹⁹ to “whether the policemen and firefighter’s rule applies to this case.” Crews’s attorney explained: [Tjhere’s two types of assumption of the risk. There’s assumption of the risk in the policemen and firemen’s rule, which says ... if I can paraphrase it, that any time a police officer or a firefighter enters on to a premises, that police officer or firefighter can’t sue the landlord for — any negligent acts that they’ve done or anybody associated with the premises, for any negligent act that they’ve done, even though he injures himself in the course of his duties.

Because, as a matter of public policy, we will not allow him to sue____ [H]e’s not an invitee. He’s not a ... licensee.... So there’s this ... broad general rule upon which they are relying ... by analogy, what [appellees are arguing] is that, since a gas man has to go out and fix gas leaks that he is covered by that very broad ... rule which, it’s our position, only applies to policemen and firemen. What I ... am trying to say is ... this entire issue turns on whether primary assumption of the risk applies or doesn’t apply.

Because in our view, ... [appellees] have not presented evidence that, in this particular case on this particular time, Mr. Crews voluntarily assumed ... this risk. Certainly, there’s inherent risk in any gas leak, and that’s part of [appellant’s] complaint. Appellant urged the court not to apply the primary assumption of risk doctrine, because it would amount to an improper extension of the so-called Fireman’s Rule. Appellant’s counsel explained that appellant, a civilian, primarily provided “general maintenance work to [the gas] lines,” and thus the public policy behind the Firemen’s Rule was not applicable to him.

To the contrary, appellant contended that various provisions in Maryland law evidenced a clear intent to “differentiate between police officers and firefighters and the rest of the world.” Further, appellant explained: ⁶²⁰ In this case we don’t have ... a public official performing a duty. We have a private citizen. Who is a gas man. Who’s sent by his employer.

The defense is under a statutory obligation in this case to call “Miss Utility” and — I think the Court has heard the commercials probably a thousand times by now, to — because there is an obligation on them to avoid striking utility lines. And — so there’s ... an affirmative duty placed on [appel-lees] to actually perform their job reasonably so they don’t create this kind of situation. ❖ * ❖ Gas men are not exposed to a risk of explosion all the time like fire and police are exposed to the numerous risks which they take. They are only exposed to risks when somebody messes up ... and damages their line, or, on very rare occasion [sic] I imagine, there’s an actual breakdown. We have special worker’s compensation laws which cover and compensate in some ways for the policemen and firemen’s inability to recover in tort in cases like this.

Appellant also asked the court to consider the “rescuer doctrine.” In his view, “a rescuer can leave a position of safety to go into save the lives and property of others, and we will judge that person not by what a cool ... reasonably prudent person would do ... we will judge that person very leniently, based on the facts and circumstances with which he is presented at the time.” Excalibur’s counsel argued that, for the purposes of its motion, it made no difference whether one spoke of primary or secondary assumption of risk. He argued that the undisputed facts showed that, “on March 23, 1996, ... a man with some 20 years experience with the Washington Gas Company ... went out to repair a known gas leak. It was leaking enough for the neighborhood to be evacuated ... [and] in the process of fixing this gas leak an explosion occurred. ' He was burned. His job was to go out and fix these leaks.” Further, Excalibur’s counsel said: ⁶²¹ The case law indicates in those situations that, because the risk is inherent to the job that [appellant] ... undertook, it does not matter what various causes brought him to this particular location where he had to perform his duties.

It simply means that, as long as he encounters the risk as part of his job and is injured because of that risk, he may not proceed. The issue, pure and simple, is primary assumption of risk. This man assumed the risk as part of his job. The allegations of the complaint make that abundantly clear.

If [we] accept them as true ... this case should be dismissed as a matter of law. According to Maryland Cable’s counsel, dismissal was warranted even under a secondary assumption of risk theory. He said: Mr. Crews clearly states that he knew the risk ... knew that the atmosphere in the location of the occurrence was dangerous, was heavy with gas, and he proceeded to— knowing that risk, he proceeded to excavate with a front-end loader, and a fire ensued while the location was under Mr. Crew’s control. He was the job foreman.

He was the senior Washington Gas person on the job at the time. The location was under his control, and the fire started while the location was under his control. Appellant countered that in neither Excalibur’s motion to dismiss, nor in Maryland Cable’s motion for summary judgment, which was filed without an affidavit or a deposition transcript, did appellees raise the issue of whether appellant had secondarily assumed the risk. Moreover, appellant’s lawyer claimed that Crews’s deposition did not provide all the facts necessary to decide the issue of secondary assumption of risk.

He pointed to the lack of information concerning appellant’s “knowledge about the length of time that the gas pipe had been hit,” and whether Crews voluntarily encountered the risk. He also suggested that appellant did not know that ⁶²² appellees failed promptly to notify the police or fire department about the occurrence. Further, appellant’s counsel asserted: Now, there’s a real difference — and we’ve got an expert reviewing this — I suggest that there can be a real difference in the level of risk between going to a gas leak which just happened and going to a gas leak which had been pouring gas into the ground ... for over two hours, which is what happened here. So when you talk about someone ... assuming a risk, they have to know and appreciate the full nature and extent of the risk.

Not just that there’s an inherent risk in gas. It’s intrinsic in the nature of natural gas that there could be an explosion. And, no matter what [appellant] does ... in his expert performance as a gas man who’s been doing this for 27 years and has been called on to repair gas leaks before, he certainly is the person who’s called out there to make the call ... and do what he’s supposed to do. But when you talk about knowing and appreciating the full nature of the risk, that piece of evidence, in and of itself, would — is critical to his knowledge — to his knowledge of the ... risk.

In the court’s view, appellant was “a fellow who is really in the business of remedying gas leaks,” who should not be characterized as an “ordinary citizen.” Rather, appellant was a “troubleshooter for the gas company.” Indeed, the court characterized appellant as “the Red Adair of the gas leak.” Accordingly, the court rejected appellant’s arguments, reasoning: [T]he central issue is whether or not the plaintiff in this case, Mr. James Crews, who worked for Washington Gas Company for some 20 years, assumed the risk of checking into a gas leak that had been reported to his company. He was an expert gas pipe repair technician, and he was sent to the property where the gas leak had occurred for ⁶²³ the specific purpose of inspecting and addressing the problem. That was his job. That he knew what he was doing and appreciated the risks associated with doing his job is clear in this case.

And that he specifically assumed the risk of his job is also clear, and I think that’s a matter, not for the jury to decide, but for the Court to decide. Accordingly, I see no issue with respect to Mr. Crews going to this jury. And so, I’m constrained to ... give judgment ... against the plaintiff — in favor of the defendants who raised this motion for summary judgment. Nevertheless, the judge declined to state whether he was specifically applying the Fireman’s Rule, explaining that his “opinion speaks for itself.” Appellant’s counsel noted that only Excalibur and Maryland Cable had moved for summary judgment. 6 Appellant’s counsel said: “I don’t know if the Court wants to act ... or if there are any other motions under the circumstances.” The court responded: “It ought to be cleaned up, really, once and for all.

I just could, maybe, sign the order in favor of — maybe the easy thing to do is just dismiss the — I don’t know, it ought to be done — we ought to clear it up. Why don’t you all present an order and I’ll sign the order. Get ... everybody’s name on, and I’ll sign it.” Consequently, counsel for Byers and counsel for Iiollenbach & Honcho each orally “mov[ed] that the case be dismissed ... under the theory [of] the Court in making its ruling.” For the record, appellant opposed their motions for the reasons previously asserted. ⁶²⁴ Thereafter, the court entered summary judgment in favor of appellees. Discussion In reviewing a trial court’s decision to grant a motion for summary judgment, we evaluate “the same material from the record and decide[] the same legal issues as the circuit court.” Lopata v. Miller, 122 Md.App. 76, 83 , 712 A.2d 24 , cert. denied, 351 Md. 286 , 718 A.2d 234 (1998).

We must determine if there is a genuine dispute of material fact and, if not, whether the moving party is entitled to judgment as a matter of law. See Murphy v. Merzbacher, 346 Md. 525, 531 , 697 A.2d 861 (1997); Bowen v. Smith, 342 Md. 449, 454 , 677 A.2d 81 (1996); Rosenblatt v. Exxon Company, U.S.A., 335 Md. 58, 68 , 642 A.2d 180 (1994); Lombardi v. Montgomery County, 108 Md.App. 695, 710 , 673 A.2d 762 (1996); see also Chicago Title Ins. Co. v. Lumbermen’s Mut. Cas.

Co., 120 Md.App. 538, 546 , 707 A.2d 913 (1998); Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996); Md. Rule 2-501(e). “A material fact is one that ‘will alter the outcome of the case depending upon how the factfinder resolves the dispute over it.’” Chicago Title Ins. Co., 120 Md.App. at 547 , 707 A.2d 913 (quoting Bagwell, 106 Md.App. at 489 , 665 A.2d 297 ); see also King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985). To be sufficient to generate a 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.” Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738 , 625 A.2d 1005 (1993). Moreover, in determining whether there is a genuine dispute of material fact, the trial court must view the facts in the light most favorable to the non-moving party and construe all inferences reasonably drawn therefrom in favor of that party.

See id. at 739 , 625 A.2d 1005 ; Himelfarb v. Hartford Fire Ins. Co., 123 Md.App. 456, 462 , 718 A.2d 693 , cert. granted, 352 Md. 398 , 722 A.2d 885 (1999); Chicago Title Ins. Co., 120 Md.App. at 547 , 707 A.2d 913 . Indeed, ⁶²⁵ ‘ “ ‘even where the underlying facts are undisputed, if those facts are susceptible of more than one permissible inference, the choice between those inferences should not be made as a matter of law, but should be submitted to the trier of fact.’ ” ’ King, 303 Md. at 111 , 492 A.2d 608 (quoting Porter v. General Boiler Casing Co., 284 Md. 402, 413 , 396 A.2d 1090 (1979)(quoting Fenwick Motor Co. v. Fenwick, 258 Md. 134, 138, 265 A.2d 256 (1970)).

If we determine that no genuine issue of material fact is present, then we must decide “whether the [trial] court reached the correct legal result.” Chicago Title Ins. Co., 120 Md.App. at 547 , 707 A.2d 913 ; see Rosenblatt, 335 Md. at 69 , 642 A.2d 180 ; Beatty, 330 Md. at 737 , 625 A.2d 1005 ; Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 591 , 578 A.2d 1202 (1990); Himelfarb, 123 Md.App. at 463 , 718 A.2d 693 . Moreover, we ordinarily review the grant of summary judgment based “only on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 , 659 A.2d 872 (1995); see Gross v. Sussex Inc., 332 Md. 247 , 254 n. 3, 630 A.2d 1156 (1993); Chicago Title Ins. Co., 120 Md.App. at 547 , 707 A.2d 913 ; Hoffman v. United Iron and Metal Co., Inc., 108 Md.App. 117,132-33 , 671 A.2d 55 (1996).

With these principles in mind, we turn to examine the principles of law that govern our resolution of this case. Central to appellant’s claim is his view that the court erred because it applied the doctrine of primary assumption of risk. He also contends that the court erred in applying the Fireman’s Rule, because appellant was merely a civilian employee of Washington Gas. With respect to the Fireman’s Rule, appellant admittedly engaged in a dangerous line of work that clearly affects public safety.

But, he argues that he is not a professional rescuer, or a public employee, and he claims that a gas man’s relationship to the public is not equal to that of a fireman or policeman. Moreover, he asserts that the Fireman’s Rule is premised on unique and important public policy considerations that are not implicated here. Further, Crews complains that the court failed to consider several important ⁶²⁶ issues, not yet explored, including: “[C]ould Mr. Crews have refused to attempt to dissipate the gas leak?”; “Did [appellant] apprehend the particular danger posed by a leak that had been leaking for over two hours?”; and “Is this type of leak abnormally dangerous or of a type normally handled by Mr. Crews?” Appellees seem to focus on the doctrine of primary assumption of risk, rather than the Fireman’s Rule. They assert that the injury Crews suffered was “a foreseeable risk inherent to his occupation.” In this regard, they note that Crews was called to the scene of the incident for the very purpose for which he was employed, i.e., to repair a gas leak, and he “suffered a well known and foreseeable risk of being a gas repairman — a gas explosion.” Further, appellees posit that it is irrelevant whether the particular situation was abnormally dangerous, whether appellant could have refused to attempt to dissipate the leak, or whether appellant knew of or appreciated the particular danger posed by the leak.

Instead, appel-lees contend that the dispositive issue is “whether the hazard or condition [appellant] encountered was a hazard generally recognized as being within the scope of dangers identified in the job.” Alternatively, appellees maintain that appellant’s recovery is barred by the “more traditional ‘secondary assumption of risk’ ” doctrine. They contend that appellant knew, appreciated, and voluntarily exposed himself to the specific risk he encountered. Appellant responds that his conduct in attempting to repair the gas leak did not constitute secondary assumption of risk, because he did not “appreciate the specific danger involved in the Bowie gas leak.” Primary assumption of risk is a concept distinct from secondary assumption of risk. A primary assumption of the risk defense generally applies when the defendant lacks any duty to protect the plaintiff from the particular risk, and thus the defendant cannot have breached a duty of care owed to the plaintiff.

In contrast, a secondary assumption of risk occurs when a plaintiff voluntarily chooses to encounter a particular ⁶²⁷ risk created by the defendant. In Schroyer v. McNeal, 323 Md. 275, 284 , 592 A.2d 1119 (1991), the Court of Appeals acknowledged: “Although the definition of assumption of risk is well settled in Maryland, ... [the] .application of the defense — determining when and how to apply it — is yet rather difficult.” In W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 480 (5th ed.1984)(hereinafter, Prosser and Keeton ), the authors posit that the doctrine of assumption of risk has been used in “several different senses, which traditionally have been lumped together under one name, often without realizing that any difference exists.” See also Schroyer, 323 Md. at 284 , 592 A.2d 1119 (citing Restatement (Second) of Torts § 496A, comment c, at 561). Prosser and Keeton articulate three different “senses” of assumption of risk: “the express consent perspective”; “the misconduct defense perspective”; and “the duty perspective.” Prosser and Keeton, § 68 at 480-81. The express consent perspective applies when a plaintiff, in advance, gives “express consent to relieve the defendant of an obligation toward him, and to take his chance of injury from a known risk arising from what the defendant is to do or leave undone.” Id. at 480.

The concept of the misconduct defense applies when a plaintiff “is aware of a risk that has already been created by the negligence of the defendant, yet chooses voluntarily to proceed to encounter it....” Id. at 481. The duty perspective, commonly referred to as “primary assumption of risk,” occurs when the plaintiff voluntarily enters into some relationship with the defendant, with the knowledge that the defendant will not protect him against one or more future risks that may arise from the relation. He may then be regarded as tacitly or impliedly consenting to the negligence and agreeing to take his own chances. Thus, he may accept employment, knowing that he is expected to work with a dangerous horse; or ride in a car with knowledge that the brakes are defective, or the driver incompetent.... [T]he legal result ⁶²⁸ is that the defendant is simply relieved of the duty which would otherwise exist.

Prosser and Keeton at 481. In Flowers v. Sting Security, Inc., 62 Md.App. 116, 135 , 488 A.2d 523 (1985), aff'd, 308 Md. 432 , 520 A.2d 361 (1987), the Court of Special Appeals quoted 2 F. Harper & F. James, The Law of Torts (1956) § 21.1 at 1162, to explain the different kinds of assumption of the risk: The term assumption of risk has led to no little confusion because it is used to refer to at least two different concepts, which largely overlap, have a common cultural background, and often produce the same legal result. But these concepts are quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiffs assumption of risk is only the counterpart of the defendant’s lack of duty to protect the plaintiff from that risk.

In such case plaintiff may not recover for his injuries even though he was quite reasonable in encountering the risk that caused it. Volenti non fit injuria. (2) A plaintiff may also be said to assume a risk created by a defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. Hereafter we shall call this ‘assumption of risk in secondary sense.’ (Footnotes omitted and emphasis added in Flowers).

The elements of the affirmative