Cutlip v. Lucky Stores, Inc.

Lowe, J., delivered the opinion of the Court. The gambling instinct endemic to our former frontier society has been replaced by a quest for security with which onr contemporary society is identified. Even at law society is inclined toward certainty of result, not infrequently at the expense of unsurfeited recovery. Workmen’s Compensation, mandatory insurance programs and the trend toward no-fault insurance are but weathervanes of that direction.

Even the “plea bargain” in criminal law has as its genesis the desire for a secure result for both the State and defendant in place of the element of chance inherent in a trial. In retrospect, however, the hazards of a trial are forgotten, and thoughts of “what might have been” give heart to injured litigants who seek deeper pockets from which to make themselves whole. Pressed by those they represent, members of the legal profession during recent decades have more carefully perused disaster’s peripheries for contributing acts or omissions by professionals whose conduct might not measure up to an accepted standard. That lawyers have not shunned their brethren in this pecuniary pursuit is small solace to appellee MacDonald and Englehardt, an architectural firm (hereafter referred to as ⁶⁷⁶ Englehardt) or its principal Lucky Stores, Inc. (to whom we shall allude as owner 1 or Lucky), a California based corporation which retained Englehardt to design and supervise the construction of a department store in Prince George’s County.

Robert Lee Cutlip, a twenty-eight year old iron worker was killed on the job in the course of erecting the steel structure for the store when a portion of the nearly completed building collapsed. Mr. Cutlip was employed by Abbott Steel Erectors, Inc., the structural steel subcontractor on the job. Workmen’s Compensation provided his widow and children with a recompense of sorts. That limited recovery ($70 per week up to a maximum of $27,500.00) is the exclusive remedy against the employer, Abbott Steel Erectors, Inc., as well as against Kettler Brothers, the general contractor.

Thus restricted by the Act, Mr. Cutlip’s widow and children seek additional succor from Lucky and Englehardt through an action for the wrongful death of the husband and father. 2 Lucky had intended to have erected a “Memco” department store on the construction site. It engaged Englehardt to furnish plans acceptable to it and to the local authorities. Although the contract called for periodic inspection and supervision it did “ ... not constitute continuous personal supervision of construction as obtained by the employment of a clerk-of-the-works.” 3 Lucky contracted with Kettler Bros, to build the store for which ⁶⁷⁷ Englehardt had provided the plans and specifications. Those plans and specifications had been prepared by a structural engineer, Peter J. Caffes, whom Englehardt retained for that purpose.

Englehardt did not turn over the responsibility for the inspection and supervision of the structure to Caffes, however. He retained it for himself. Appellants attempt to hold the owner responsible through the architect for the death of Mr. Cutlip by taking us down one or all of three paths, each of which they contend arrives at their desired destination. The terminus they seek is marked by the maxim respondeat supeñor, let the master answer.

More aptly interpreted, that apothegm means that a master is responsible under certain circumstances for the acts of his servant or the principal is responsible for the acts of his agent within the scope of his employment. A contrary rule often viewed as an exception to that of respondeat supeñor, is that the employer of an independent contractor is not subject to liability for bodily harm caused to another by a tortious act or omission of the independent contractor. This aphorism has had appended to it some twenty exceptions, each of which would lead the appellants to their desired goal, of holding Lucky responsible for the death of Mr. Cutlip. To accomplish that purpose appellants must either establish that the architect Englehardt was an agent (servant) of Lucky or, failing that they must bring Lucky within one of the exceptions to the independent contractor rule.

See, Restatement of Torts, 2nd, §§ 410-429. Appellants assert only two of those exceptions as applicable here. One is expressed in Le Vonas v. Acme Paper Board Co., 184 Md. 16 , and the other brought to us in the language of the Restatement of Torts, 2nd, § 416, the principle of which is discussed in Weilbacher v. Putts Co., 123 Md. 249 . None of appellants’ three approaches has convinced us.

Agency The distinction between an independent contractor and a servant is not easily made, in part because neither term is capable of exact definition. The master-servant relation is ⁶⁷⁸ encompassed by the generic concept of principal-agent, but is unique in that the master exercises considerably more control over the activity of his servant than does the ordinary principal over his agent. There may be agents for example, who agree only to use care and skill to accomplish a result without subjecting themselves to control by or obedience to the principal in the manner of accomplishing that result. 4 In that situation, although a principal-agent relation may be said to exist, the control and supervision peculiar to the master-servant relation are absent, and thus the principal is ordinarily not subjected to the liability that would be imposed on a master for the tortious conduct of a servant within the scope of his employment. Similarly, an independent contractor — whether or not an agent — agrees only to accomplish physical results.

Thus in distinguishing an independent contractor from a servant, the quantum of the owner’s retained control and supervision is the determinative factor. Whatever we choose to call the architect, the purpose of our inquiry is to determine whether upon employing him, Lucky had the right to control the details of his movements during his performance of the business agreed to do. Greer Lines Co. v. Roberts, 216 Md. 69, 82 ; Gallagher’s Estate v. Battle, 209 Md. 592, 602 ; Globe Indemnity Co. v. Victill Corp., supra, 582. Unless Englehardt’s allegedly negligent actions were done in a manner directed or authorized by Lucky liability does not attach. 1 Restatement of Agency, § 250.

The key element of control, or right to control “ . . . must exist in respect to the very thing from which the injury arose.” Gallagher’s Estate v. Battle, supra, 602. Our inquiry then narrows to the question of what evidence was introduced by appellants indicating control by Lucky of the manner in which Englehardt performed his work. The ⁶⁷⁹ burden of proving this agency relationship is clearly appellants’. P. Flanigan & Sons, Inc. v. Childs, 251 Md. 646, 655 .

Appellants suggest three possibilities to show they have met that burden. Their first contention on the question of agency hinges upon a clause in the contract which stated that the contract would be controlled by the principal place of business of Lucky, i.e., California. They contend that adoption of foreign law by contract has the same effect as its adoption by rule of law. Appellants then state that because they relied on a reference in the American Jurisprudence encyclopedia, that an architect supervising construction is usually acting as an agent of the owner, which cited a California case as authority in the supplement, they were relieved of the Maryland burden of proving agency.

But appellants failed to comply with the requirement of Md. Code, Art. 35, § 50 requiring reasonable notice to adverse parties of an intent to rely on foreign laws nor did they assert such intent in their pleadings. Neither did appellants submit to the trial court evidence of the foreign law nor ask that judicial notice be taken of the law they would rely upon. It is certainly not enough that appellants sought to rely on the substance of an encyclopedic statement which incidentally cited in a footnote a California case. 5 The point not having been mentioned to the court below, let alone tried and decided, will not now be entertained. Md. Rule 1085. ⁶⁸⁰ Appellants’ next two arguments on the agency concept are presented in their entirety: “Aside from the stipulated reliance on foreign law, the jury could have found an agency relationship based on Englehardt’s almost daily contact with Lucky together with the elements of control present in the written contract.

Appellee-Englehardt’s own expert architect testified he could not imagine such frequent contact, and that it was unheard of. From these facts, the jury could have reasonably found that Englehardt was the agent of Lucky.” We can dispose of them as summarily as they were presented. The contract between Englehardt and Lucky contains not a single indication of control retained by Lucky over the areas of responsibility assigned to Englehardt. To the contrary, it shows Lucky’s total reliance on Englehardt not only to provide the plans and specifications but to protect Lucky’s interests vis a vis the contractor as well.

Each duty charged to Englehardt is couched in terms granting him absolute discretion save only the “ . .. approval of various colors, finishes and textures . ..,” which Lucky preserved to itself. Even then the architect is required to “assist the OWNER in [their] selection . .. .” While the contract is the primary source to seek any limitations upon the delegation of authority by owner to architect, the relation between them may be changed by words or actions outside the contract. Evidence thereof must be affirmatively shown by appellants however, and the record here is all but silent. The only testimony on the question was that of Ivor Donaldson who testified that he was property engineer in Lucky’s home office at the time of the accident.

He was asked: “Did you exercise any control over this architect in the manner in which he was to perform his work? to which he responded, “A. Did we exercise any control? The only control ⁶⁸¹ we exercised was that of the aesthetic beauty of the building to make sure that he laid it out properly and the store fixtures were functioning within the store.” He later added that Lucky had approved the plans and specifications submitted by Englehardt. There is no evidence in the record whatsoever to indicate any control. Nor does the procedure with which Englehardt inspected or the frequency with which he reported progress to Lucky vary his authority or indicate withdrawal by it of Englehardt’s control of the details and manner of his work.

The very purpose and intent of the inspection were expressed in the contract as being to “ ... expedite the progress of the construction and to .. . guard OWNER against defects and deficiencies . . . .” The emphasis is not that of the Court. It appears in the contract. Replying to an argument analagous to that of appellants in Ott v. Washington Gas Light Co., 205 F. Supp. 815, 820 , aff’d sub nom. J. H. DeVeau and Son, Inc. v. Ott, 317 F. 2d 138 , Judge Holtzoff summarized his reasoning by an application of simple logic: “Counsel for the plaintiff points to the fact that the Washington Gas Light Company had an inspector whose function was to visit the various jobs to determine that the work was being done in accordance with the contract contained in the repair order and to make any suggestions or give any advice that might appear proper.

Obviously his function was no different from that of an architect employed by a property owner in connection with supervising the construction of a building by a contractor, or the function of any inspector who represents the owner for whom a contractor is doing work. The activities of such an inspector do not constitute such control as to burden his employer with any liability for the negligence of the contractor’s employees. Were the law otherwise, it would be a dangerous matter for any property ⁶⁸² owner to have an architect supervising or representing him in connection with the construction of a building by a contractor, or for any property owner to have an inspector inspecting work that is being done for him.” (Emphasis added) That reasoning is apropos here as well. Lucky was a California based corporation.

There was, during the entire period of construction, only one visit by one company official to the “Memco” site and that arose out of incidental curiosity during the corporate officer’s honeymoon. The average property owner’s lack of expertise in construction requires the retention of experts to protect his interests. That need is enhanced in proportion to the distance which separates the owner from the construction site. All the more should an architect, the expert retained to protect one’s substantial investment, be expected not simply to make periodic inspections but to report frequently on the progress over which the owner lacks the power even to observe let alone control. “Owners are very much in the power of builders and architects.” McNulty v. Keyser Bldg.

Co., 112 Md. 638, 643. Evidence of Lucky’s control of the manner in which Englehardt performed his duties was as remote as Lucky’s proximity to the site — a continent away. Having found no retention of control of Englehardt’s duties, and hence no conduit of liability to Lucky on the agency premise, we look to “ . . . the Alternative Theories of the Appellants for the Imposition of Liability Against Lucky, the Lessee, Under Le Vonas vs. Acme Paper Board Company and/or Section 416, Restatement of Torts, 2nd.” Condition of the Premises An “alternative theory” of employer-owner liability is propounded by appellants through their interpretation of Le Vonas v. Acme Paper Board Co., 184 Md. 16 . The essence of Le Vonas is summarized at page 20 by Judge Delaplaine: “In other words, liability for injuries to a servant of ⁶⁸³ an independent contractor rests upon the owner when the premises on which the stipulated work is done remain under his control and the injuries arise out of the abnormally dangerous condition of the premises, the owner being chargeable with knowledge of the danger.” Le Vonas espouses no profound doctrine of unique origin.

It simply states that an owner may be liable for injuries to an employee of an independent contractor when the premises on which the contracted work is done remain under the owner’s control and the injury arises out of an abnormally dangerous condition of the premises, of which condition the owner is chargeable with knowledge. The ground of liability is the owner’s superior knowledge of the danger to persons going upon the property. Bohlen v. Glenn L. Martin Co., 193 Md. 454, 460-461 . The appellants point to the defective concrete pier which collapsed as “a pre-existing concealed peril” fulfilling Le Vonas’ “ ... abnormally dangerous condition of the premises . . . .” We do not consider that Le Vonas contemplated the work product of a contractor erected after he takes control of the premises, as a “dangerous condition of the premises” from which the contractor’s employees must be protected by the owner at his peril.

The “abnormally dangerous conditions on the premises” referred to in Le Vonas do not include conditions which arise after and as a result of the independent contract. The “conditions” are those latent dangers preexisting the contract and carrying over without the owner’s taking precautions to guard against the conditions before he permits others to occupy the premises. There is an additional prerequisite to an owner’s liability in Le Vonas — control of the premises. We see that ingredient of owner’s “control” appearing in Le Vonas as being based upon his knowledge or superior ability to know of the existence of the “abnormally dangerous condition of the premises,” from which “the injuries arise.” That superior vantage point to gain knowledge of latent peril is what gives ⁶⁸⁴ rise to his duty to act.

See Vail v. Walker, 199 Md. 441 . Here there is no evidence of a preexisting dangerous condition, either concealed or apparent, which leaves as moot any consideration of the element of control. If there was no latent peril, there can be no superior vantage from which to view it. Peculiar Risk The principle espoused in the Restatement of Torts, 2nd, § 416 is posed as the final alternative by appellants: “One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.” Le Vonas espoused a theory differing in emphasis from § 416 of the Restatement.

The Restatement deals with the liability of such employers for “ . . . work . . . likely to create ... a peculiar risk .. .,” the knowledge of which employer is charged. (Emphasis added.) The employer’s liability dealt with in Le Vonas is restricted to the “condition of the premises . . .” and negligence is assessed in the event of an abnormally dangerous condition of which the employer is chargeable with knowledge but is not readily apparent to an employee of the independent contractor. Appellants point out that a “peculiar risk” defined under § 416 in the Reporter’s Note (d) “is a risk differing from the common risk to which persons in general are commonly subjected by the ordinary forms of negligence which are usual in the community. It must involve some special hazard resulting from the nature of the work done, which calls for special precautions.” We agree and our review of the record gives no indication of a “peculiar risk” or “special hazard . . . ⁶⁸⁵ differing from the common risk” arising from the use of structural steel or concrete in the construction of a building.

Considerations to be given in determining the risk contemplated by § 416 were discussed in Weilbacher v. Putts Co., supra, 259-260: “In the case of Laffery v. Gypsum Co., 83 Kansas, 349, the Court, after referring to the general rule which exempts the employer from liability where the work is done by an independent contractor, and to the exception to that rule in cases where the work is intrinsically dangerous, however skillfully performed, said: ‘No effort will be made to define precisely the expressions ‘intrinsically dangerous’ or ‘inherently dangerous,’ or like phraseology, as used in the authorities. Regard must be had to the reason of the principle and the consequences flowing from its application in the given situation. The mere liability to injury from doing the work cannot be the test, for injuries may happen in any undertaking, and many are attended with great danger if carelessly managed, although with proper care they are not specially hazardous.’ After stating further that although the erection of buildings in cities is attended with hazards, such work has not been regarded as coming within the rule applicable to work intrinsically dangerous, the Court quotes with approval the statement of MR. CHIEF JUSTICE COCKBURN in Bower v. Peate, L. R.

(1876), 1 Q. B. Div. 321, that, ‘There is an obvious difference between committing work to a contractor to be executed from which, if properly done, no injurious consequences can arise, and handing over to him work to be done from which mischievous consequences will arise unless preventive measures are adopted.’ ” (Emphasis added.) The underlying principle of the Restatement of Torts § 416 is not interpreted by the Court of Appeals to apply so ⁶⁸⁶ broadly as we are urged by appellants. Were we to find customary phases of building construction so peculiarly hazardous as to create a nondelegable duty from the property owner to employees of an independent contractor, property owners improving their premises would become insurers. We are inclined to the view that “Ordinary building operations or activities, including both construction and demolition, are generally not considered work of an inherently or intrinsically dangerous character rendering the employer-owner liable for injuries resulting from the negligence of an independent contractor in doing the work.” 41 Am.Jur.2d, Independent Contractors, § 43. The record discloses only two theories of the cause of the accident, either a defective concrete base and/or the failure to stabilize the structural steel beams during erection with safety “guy” wires or cables.

Negligence in either instance, or both instances, is a “common risk” of structural steel construction. A review of the record convinces us that “ ‘The accident was caused by the act of the contractor in doing what it was not necessary for him to do, what he was not expected to do, and what he did not intend to do . . . [T]he work could not be classed as work which, if properly done, was ordinarily attended with danger to the public. The negligence, if any, was in the mere detail of the work.’ ” Weilbacher v. Putts Co., supra, 259, quoting from Boomer v. Wilbur, et. al, 176 Mass. 482 , 57 N. E. 1004 . The Architect’s Liability Having found the owner divested of liability, we are then left with the question of what if any responsibility the architect owed to the employees of the contractor who were lawfully on the premises.

Appellants’ theory, novel in Maryland, is based upon a statement in 5 Am.Jur.2d, Architects, § 25. “An architect’s liability for negligence resulting in personal injury or death may be based upon his supervisory activities .... The liability of the architect, moreover, is not limited to the owner who ⁶⁸⁷ employed him; the modern view is that privity of contract is not a prerequisite to liability.” (Footnotes omitted.) Appellants bolster this general premise by citing Clemens v. Benzinger, 211 App. Div. 586 , 207 N.Y.S. 539 , and quoting from Geer v. Bennett, Fla. App., 237 So. 2d 311 , 316: “An architect may be liable for negligence in failing to exercise the ordinary skill of his profession, which results in the erection of an unsafe structure whereby anybody lawfully on the premises is injured. Possible liability for negligence resulting in personal injuries may be based upon their supervisory activities, or upon defects in the plans or both.

Their possible liability is not limited to the owner who employed them. Privity of contract is not a prerequisite to liability. They are under a duty to exercise such reasonable care, technical skill and ability, and diligence as are ordinarily required of architects in the course of their plans, inspections and supervisions during construction for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to do so.” Appellants contend that even if we assume that contractual provisions regarding inspection or