Crews v. Hollenbach

⁶³³ HARRELL, Judge. A natural gas leak led to an explosion in Bowie, Maryland on 23 March 1996. As a result of the explosion, Lee James Crews, the foreman of a gas line repair team sent to the scene of the gas leak by his employer, Washington Gas Light Company (Washington Gas), was injured seriously. Mr. Crews and his wife, Theresa, (Petitioners) filed a complaint, sounding in negligence and strict liability, in the Circuit Court for Prince George’s County seeking damages against numerous parties, Respondents here, 1 claimed to have played roles in causing the gas leak.

After ruling that Petitioners were barred from recovery by the principles of the doctrine of assumption of the risk, the Circuit Court granted summary judgment in favor of Respondents. The Court of Special Appeals affirmed. 2 We granted Petitioners’ request for a writ of certiorari 3 to consider the following questions posed by Petitioners: 1) Did Petitioner, Lee James Crews, assume the risk of a gas explosion merely by virtue of his occupation? 2) Does Maryland apply the doctrine of primary assumption of the risk to employees of the gas company? 3) Does the doctrine of assumption of the risk apply to this matter? 4) Does the Petitioner benefit from the “rescue doctrine”? FACTS On 23 March 1996, John Hollenbach, Sr. (Hollenbach), an employee of Honcho & Sons, Inc. (Honcho), was excavating land located near 11405 Trillium Lane, Bowie, Maryland. Honcho was a sub-contractor of Excalibur Cable Communica ⁶³⁴ tions (Excalibur).

Excalibur was engaged by Maryland Cable Partners, L.P. (Maryland Cable) to carry out a cable installation project. The area that Hollenbach excavated was marked previously by Byers Engineering Company (Byers), pursuant to the “Miss Utility” statute, to facilitate the excavating contractor’s avoidance of known buried utility lines. 4 Despite Byers’ markers, Hollenbach struck a buried natural gas line owned by Washington Gas. The strike created a leak in the line.

Neither Hollenbach nor anyone at the scene immediately contacted anyone regarding the leak, and natural gas released freely into the air and ground for a period of time. Two hours later, a resident, located approximately one mile from the leak, recognized the smell of gas in the air and notified the fire department. The governmental authorities evacuated the surrounding neighborhood. Washington Gas was contacted and dispatched a repair crew to the scene of the leak.

Mr. Crews, a Washington Gas employee for over twenty years, was the foreman in charge of the crew. Upon arrival at the scene, Mr. Crews and his co-employees commenced the process of dissipating the gas that had permeated the ground. While he and his crew were engaged in closing off the leak, the gas ignited and an explosion occurred. Mr. Crews was injured severely.

The cause of the spark that ignited the gas was unknown, but no allegation was made that Respondents were the cause of the ignition source. ⁶³⁵ PROCEDURAL BACKGROUND On 1 August 1997, Petitioners filed a twenty-count complaint in the Circuit Court for Prince George’s County against Respondents. The causes of action asserted by Mr. Crews ranged from various themes of negligence, including negligent hiring and negligent supervision, to strict liability for the abnormally dangerous activity of Respondents “shooting a hole in the vicinity of utility lines.” Mrs. Crews joined her husband in a loss of consortium claim. Excalibur filed a motion to dismiss on 3 November 1997. In the motion and accompanying memorandum, Excalibur argued that the doctrine of so-called “primary” assumption of the risk barred Petitioners’ suit because Mr. Crews’s injuries resulted from a risk that was inherent in his employment.

Excalibur asserted that Mr. Crews necessarily appreciated the dangerous nature of his occupation and knew, upon arrival at the scene of the gas leak, that he was to confront a hazardous situation. Excalibur reasoned that Mr. Crews “cannot recover for an alleged negligent act for which he was specifically employed to correct.” On 19 December 1997, Maryland Cable filed a motion for summary judgment incorporating the legal arguments of Excalibur’s motion to dismiss. By order docketed 6 February 1998, the Circuit Court denied Excalibur’s motion to dismiss. On 3 March 1998, the Clerk of the Court sent to the parties written notice that a hearing on Maryland Cable’s motion for summary judgment would be held on 24 April 1998.

Mr. Crews was deposed by Respondents on 21 April 1998. 5 In the course of the deposition, Respondents initially established that Mr. Crews was not down in the hole repairing the gas leak on 23 March 1996, but rather was standing apparently on the edge of the excavation supervising the members of his crew who were in the hole attempting to repair the leak. Accordingly, Mr. Crews was not wearing a fire retardant hood ⁶³⁶ at the time as he had been trained this was necessary only when one was “in the hole working with the gas.” The following exchanges then occurred between Mr. Crews and counsel for Maryland Cable: 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 in the area that you were working? A. Yes, yes. Q. Is there a point that you recognize the 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.

Q. All right. A. And we always try to work it in a safe manner. Q. Okay. So— A. And we understood that.

Q. So when you smelled that heavy smell of gas that day on the 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. * * * $ * A. ... But anything can set [the gas] off, [sparks] from gravels or rocks that hit together, hitting metal. That could set it off.

Q. For instance, the metal bucket of your backhoe striking a rock as you were digging— A. That’s correct. Q. —you knew that that could create a spark? A. We knew that. ⁶³⁷ Q. And you knew that if the spark occurs, you could have a tire and an explosion, correct? A. That’s correct, but as I said before, that it have to be worked, regardless.

You know what I mean? It have to be repaired. It’s a chance you have to—that we go through. Then again, there’s the other exception to the rale, too. % % Q. 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? sj; ij: % ❖ # THE WITNESS: To the circumstances, 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 have had to have been there to get into this thing.[ 6 ] You know what I mean? Q. Sure. I mean, if nobody ever hit a pipe that then required repair, you might not even have to work for Washington Gas, isn’t that true? A. No. Q. They wouldn’t need you, would they?

A. Well, I don’t—I’ll say, well, true—yes and no. You know what I mean? Q. All right. But once something like that has 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 ⁶³⁸ 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? * * i{i * * THE WITNESS: Yes.

I accept that responsibility when we first got hired, but there is a control of gas that we usually deal with. On 23 April 1998, Excalibur filed a supplemental memorandum in support of a renewed motion to dismiss or alternatively, a motion for summary judgment. In addition to reasserting that Petitioners’ claims were barred by “primary” assumption of the risk, Excalibur stated that “[i]t is also undisputed that [Mr. Crews] knew of the risk of fire and explosion on the day that he was working to repair the gas leak, yet he voluntarily encountered the risk. His claim is barred by assumption of risk.” From this, it may be inferred that Excalibur also was contending that Petitioners’ claims were barred by the conventional doctrine of assumption of the risk as recognized previously in Maryland common law.

Excalibur attached to its motion the partial transcript of Mr. Crews’s deposition, which included the above quoted exchanges, in support of its motion. After hearing arguments on 24 April 1998 from the parties regarding the applicability of any theory of assumption of the risk, the trial court granted Excalibur’s and Maryland Cable’s motions for summary judgment, as well as oral motions for summary judgment submitted by Byers, Honcho, and Hollenbach at the hearing. The judge explained: [Mr. Crews] was an expert gas repair technician, and he was sent to the property where the gas leak had occurred for 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 ... Accordingly, I see no issue with respect to Mr. Crews going to this jury ... ⁶³⁹ Invited by Petitioners’ counsel to clarify whether he was applying the fireman’s rule to this case, the trial judge declined, stating that he thought his oral ruling spoke for itself. The Court of Special Appeals affirmed the Circuit Court’s judgment.

After reviewing the policy basis underlying so-called “primary” assumption of the risk (as recognized by jurisdictions other than Maryland), the fireman’s rule, and so-called “secondary” assumption of the risk, the intermediate appellate court concluded that the risk of an explosion was within the scope of dangers that Mr. Crews assumed when he accepted employment as a gas leak repairman. Specifically, the court held that: [Mr. Crews] ‘accepted] that responsibility when ... [he] first got hired.’ Clearly, there was a direct causal relationship between the performance of [Mr. Crews’] duties as a gas leak repairman and the cause of his injuries. Because [he] knew that his occupation carried with it certain risks, he may not now be heard to complain when one of those job-related foreseeable risks materialized. Crews, 126 Md.App. at 638, 730 A.2d at 758-59.

As the Court of Special Appeals explained its ruling that Petitioners’ suit was barred by the doctrine of “primary” assumption of the risk, it did not reach the question of whether application of “secondary” assumption of risk would have justified the grant of summary judgment. ANALYSIS I. Petitioners urge us to reverse because, in their view, the Circuit Court applied “primary” assumption of the risk, a subspecies of the generic doctrine of assumption of the risk not recognized by this Court. Petitioners assert that “Maryland has never applied the doctrine of primary assumption of risk to [bar suit by] a private citizen” and “the Fireman’s Rule cases are the only cases in Maryland where the doctrine of primary assumption of the risk has been applied [as a bar].” Petitioners reason that because Mr. Crews was not a fireman, ⁶⁴⁰ police officer, or any of the other types of similar professional rescuers compensated by government, the Circuit Court’s application of the fireman’s rule and/or the doctrine of primary assumption of the risk was improper. 7 Petitioners’ analysis is correct in part. We agree with them that the fireman’s rule does not apply to this case.

For a different reason than offered by Petitioners we also shall decline to recognize and apply the so-called doctrine of “primary” assumption of the risk as a basis to affirm the judgment. For reasons we shall explain below, we hold that the Circuit Court correctly ruled that Petitioners’ suit, under the undisputed material facts presented to that Court, is barred otherwise by the doctrine of assumption of the risk. Assumption of the risk serves as a complete bar to a plaintiffs recovery. See ADM Partnership v. Martin, 348 Md. 84, 91 , 702 A.2d 730, 734 (1997); Saponari v. CSX Transp.

Inc., 126 Md.App. 25, 31 , 727 A.2d 396 , 399 (1999) cert. denied Saponari v. CSX Transp. Inc., 353 Md. 473 , 727 A.2d 382 (1999). The defense is grounded on the theory that a plaintiff who voluntarily consents, either expressly or impliedly, to exposure to a known risk cannot later sue for damages incurred from exposure to that risk. See Imbraguglio v. Great Atlantic & Pacific Tea Co., 358 Md. 194, 212-13 , 747 A.2d 662, 672 (2000); Schroyer v. McNeal, 323 Md. 275, 282 , 592 A.2d 1119, 1122 (1991); Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549, 554 (1970); Boddie v. Scott, 124 Md.App. 375, 380 , 722 A.2d 407, 409 (1999).

In defining the defense of assumption of the risk, we have stated that: [the defense] rests upon an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of ⁶⁴¹ conduct toward him and to take his chances from harm from a particular risk. Rogers, 257 Md. at 243 , 262 A.2d at 554 . This Court has not parsed the doctrine of assumption of the risk into primary and secondary categories. Treatise writers and a few other state supreme courts, however, have addressed such a distinction.

The perceived doctrinal differences between the two defenses were discussed in Harper, James and Gray, The Law of Torts § 21 at 187-89 (1986) as follows: 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 nevertheless quite distinct rules involving slightly different policies and different conditions for their application. (1) In its primary sense the plaintiffs assumption of a risk is only the counterpart of the defendant’s lack of duty to protect the plaintiff from that risk. In such a case plaintiff may not recover for his injury even though he was quite reasonable in encountering the risk that caused it.

Volenti non fit injuria. [There is no injury to one who consents.] (2) A plaintiff may also be said to assume a risk created by defendant’s breach of duty towards him, when he deliberately chooses to encounter that risk. Hereafter we shall call this ‘assumption of risk in a secondary sense.’ Id. (footnotes omitted). As Harper, James, and Gray see it, the legal application of the two defenses is quite different.

In applying “secondary” assumption of the risk, a court inquires as to whether a plaintiff assumed a particular risk based on a case-by-case or risk-by-risk analysis. See Flowers v. Sting Sec., Inc., 62 Md.App. 116, 135 , 488 A.2d 523, 533 (1985), aff'd. by Flowers v. Rock Creek Terrace Ltd., 308 Md. 432 , 520 A.2d 361 (1987). The court must determine whether a particular plaintiff intentionally and voluntarily exposed himself or herself to a known risk of danger. See Baltimore Gas and Elec.

Co. v. Flippo, 348 Md. 680, 705 , 705 A.2d 1144, 1158 (1998); ⁶⁴² ADM Partnership v. Martin, 348 Md. 84, 91 , 702 A.2d 730, 734 (1997); Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549, 554 (1970). Assumption of the risk in its “primary” sense, on the other hand, is a judicially-crafted policy decision, recognized in some states, 8 designed to limit the duty of care that the public owes to certain classes of plaintiffs. See Harper, James and Gray, § 21, at 199-200. The duty owed to the plaintiff is limited based on the nature of the plaintiffs occupation and the relationship between his or her occupation and paramount interests of the general public.

Petitioners suggest that this Court has applied a semblance of the doctrine of “primary” assumption of the risk in our fireman’s rule cases. Under our common law, the fireman’s rule bars firefighters (and police officers) from recovering tort based damages inflicted by a negligently created risk that required their presence on the scene in their professional capacity. See Tucker v. Shoemake, 354 Md. 413 , 731 A.2d 884 (1999). The instant case shall not serve as a vehicle for this Court to recognize in Maryland a. category of the doctrine of assumption of the risk to be known as primary assumption of the risk.

This is so because this matter may be decided based on existing Maryland jurisprudence that makes no such distinction.

II

Flowers v. Rock Creek Terrace Ltd., 308 Md. 432 , 520 A.2d 361 (1987) is our seminal case applying the fireman’s rule iteration of assumption of the risk. In Flowers, a firefighter plunged twelve floors down an elevator shaft while fighting a fire in an apartment building. The firefighter sued ten different defendants to recover damages for his injuries. We held ⁶⁴³ that the fireman’s rule barred the plaintiff from recovery because he was injured by an accident “within the range of anticipated risks of firefighting.” Flowers, 308 Md. at 451 , 520 A.2d at 370 .

Flowers was based, in part, on certain public policy considerations that are not present in this case. In particular, we explained in Flowers that the unique relationship between firefighters and the public serves as a basis of the fireman’s rule. Flowers, 308 Md. at 446 , 520 A.2d at 368 . The relationship is premised on the fact that firefighters (or police officers) are trained to confront hazardous situations everyday in order to fulfill their societal and legal duty of protecting the public.

We further noted in Flowers that firefighters are entitled to enhanced compensation and benefits in the form of special disability pay, workers’ compensation, and retirement benefits and that this special compensation is charged to the taxpayers. See id. at 447, 520 A.2d at 368 . We reasoned that taxpayers should not be subjected to a double charge for mistakenly causing a fire; one charge in the form of state tax and the second in paying damages in civil suit. See id.

Because Mr. Crews was a privately-compensated gas line repairman at the time he suffered his injuries, it is evident the foregoing public policy considerations do not apply to the present case and, hence, the fireman’s rule is inapplicable as such. We are not inclined to fashion a private employee variation, a private fireman’s rule, as it were, for the present case. This does not mean, however, that we shall not find instructive in the present case other aspects of our fireman’s rule jurisprudence in our assumption of the risk analysis that follows. Our task in a conventional assumption of the risk analysis is to determine whether the plaintiff 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) ⁶⁴⁴ voluntarily exposed himself or herself to that risk. 9 ADM Partnership, 348 Md. at 91 , 702 A.2d at 734 ; see also Flippo, 348 Md. at 706 , 705 A.2d at 1156 ; Schroyer, 323 Md. at 283 , 592 A.2d at 1123 ; Liscombe v. Potomac Edison Co., 303 Md. 619, 630 , 495 A.2d 838, 843 (1985); Rogers, 257 Md. at 243 , 262 A.2d at 554 .

In deciding whether a plaintiff had knowledge and appreciation of a particular risk, we apply an objective standard. See ADM Partnership, 348 Md. at 92 , 702 A.2d at 734 . We will not be swayed by a plaintiffs subjective denial that he or she did not comprehend the extent of a clearly obvious danger. See Gibson, 245 Md. at 421, 226 A.2d at 275.

The question of whether a plaintiff knew and understood the risk in a case is generally one for the trier of fact, but if a person of normal intelligence, in the same position as the plaintiff, would clearly have comprehended the danger, the question is one for the court. See Schroyer v. McNeal, 323 Md. 275, 283-84 , 592 A.2d 1119, 1123 ; Saponari, 126 Md.App. at 32 , 727 A.2d at 399 . As to the element of voluntariness, we seek to ascertain whether the plaintiff freely exposed herself or himself to a known danger. ADM Partnership, 348 Md. at 92-93 , 702 A.2d at 735 .

The simple fact that a plaintiff proceeds to confront a danger after he or she has paused to consider the extent of the risks involved does not establish conclusively that the plaintiff acted voluntarily. To satisfy the element of voluntariness, a defendant must show that: there [was] no restriction on the plaintiffs freedom of choice either by the existing circumstances or by coercion emanating from the defendant. This is so because ... [e]ven where the plaintiff does not protest, the risk is not assumed ⁶⁴⁵ where the conduct of the defendant has left him no reasonable alternative. Where the defendant puts him to a choice of evils, there is a species of duress, which destroys the idea of freedom of election.

Id. (quoting Prosser and Keeton on Torts § 68 at 490-91 (5th ed.1984)). Using these principles as our guide, we shall resolve whether the Circuit Court erred in granting summary judgement on the record before it in this case. A. KNOWLEDGE OF THE RISK Mr. Crews plainly knew of the risks inherent in working on the gas leak on 23 March 1996.

At his 21 April 1998 deposition, Mr. Crews admitted that he was aware of the heavy smell of gas near the gas leak. In response to a question asking whether there was a point when he recognized the smell of gas to be so heavy that he knew it was dangerous, Mr. Crews responded, “Well, we always are taught that any type of gas leak or odor is always dangerous.” Later Mr. Crews conceded again that “we knew that [ ] the area we were working in could be dangerous.” The forgoing acknowledgments establish that Mr. Crews possessed the requisite knowledge that risks were present while he worked at the scene of the gas leak. B. APPRECIATION OF THE RISK Petitioners argue that although Mr. Crews may have been aware of the dangers involved in working with gas leaks generally, his deposition statements show that he did not appreciate the specific risks involved in addressing the gas leak that ultimately contributed to his injuries. Petitioners highlight the following excerpt to support their position: Q. And that static electricity problem you know could cause sparks, correct?

A. No. Q. No? A. The only time electric-it causes sparks when you deal with the pipe itself. As I stated before, that’s why we have ⁶⁴⁶ 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. Q. How about if you get into close proximity of the pipe or touch the pipe with the metal bucket of a backhoe?

A. No, it would not. Q. Are you sure? A. Well, I never knew it could set off like that. Petitioners suggest that these statements demonstrate that he did not have “the appreciation of danger that is contemplated by Maryland law.” We disagree.

As we stated above, “[i]n determining whether a plaintiff had ... appreciation of the risk, [the] plaintiff will not be heard to