Gardenvillage Realty Corp. v. Russo

Thompson, J., delivered the opinion of the Court. After a jury trial in the Superior Court of Baltimore City, the appellees Gertrude Russo and Tony Russo, her husband, obtained judgments totaling $98,716.44, and the appellee Gertrude Sajdak, individually and as personal representative of the estate of her husband, George Sajdak, obtained judgments totaling $26,978.30 against the appellants, Gardenvillage Realty Corporation (Garden) and the Arkwell Company, n/k/a The Thunderwood Company (Thunderwood). The judgments were also entered against Alex Luciano and Alex Luciano Company, Inc. by the direction of the trial judge, but no appeal has been filed by the Lucianos. Garden filed a cross-claim against Alex Luciano and Alex Luciano Company, Inc. which was ²⁷ submitted to the judge without intervention of the jury and he gave a judgment in favor of the cross-defendants.

Garden also appeals from the denial of its cross-claim. Regional Management Incorporated was originally a defendant but received a directed verdict in its favor. There is no appeal from the judgment entered on that verdict. On September 25, 1971, Gertrude Sajdak was standing on a concrete slab which constituted the base of the rear porch of the dwelling located at 5911 Laclede Road, Baltimore, and her daughter, Gertrude Russo, was standing beneath the porch attempting to unlock the cellar door, when the porch collapsed causing severe injuries to both of them.

Mrs. Russo and her husband at the time of the accident were tenants in the property and Gertrude Sajdak, her mother, was an invitee. The legal title to 5911 Laclede Road, Baltimore was held by Garden. Thunderwood held the “beneficial title.” The record shows that Regional Management Incorporated managed the property in question as well as some 7,000 houses in the City of Baltimore; Regional and the appellants were all part of the Macht group of companies which were engaged in large scale building, renting, and selling of homes. Thunderwood acted as general contractor and applied for the building permits.

Alex Luciano, individually, or as Alex Luciano Co., Inc., under a written order from Thunderwood dated July 22, 1960, undertook to manufacture and install, in accordance with the provisions of the Building Code of Baltimore City, precast concrete slab rear porches at all 600 homes in the Garden project, including 5911 Laclede Road. In 1964, Luciano, after initially measuring the size of the slabs required for these homes, manufactured and installed the slab for 5911 Laclede Road, using his own men and equipment, free of any direction, supervision or control from the appellants as builder and owner. The precast concrete slabs manufactured by Luciano, measured 3-1/2 feet by 5-1/2 feet by 4 inches for the porch in question. The slab was made by pouring concrete into a mold, then adding steel reinforcing rods.

The rods were then covered with more concrete to complete the slab. When the ²⁸ slab was completed, the rods were completely hidden from view. This type of precast slab was described by the appellees’ witness, Samuel Mortimer, Chief of Engineering of the City of Baltimore, as an “elementary type structure” which required no detailed plans or specifications. Donald Radcliff, an architect since 1954, testified that it was not a general practice in the trade to draw plans or submit specifications with regard to precast concrete porches.

The cause of the collapse of this slab, some six years following its construction and installation, was that the metal reinforcing rods within the concrete slab ran the wrong way. Proper construction required that the rods be placed lengthwise in order to properly support the weight of the slab. In the case of the slab furnished for 5911 Laclede Road, the rods were not so placed, and Luciano admitted that the precast concrete slab rear porch at 5911 Laclede Road failed through his negligence. According to Samuel Mortimer, the failure of Luciano to insert the metal reinforcing rods in the proper direction would constitute a violation of the Building Code.

The inspection by the City authorities of 5911 Laclede Road, after its completion, did pot reveal this defect. Luciano had manufactured precast concrete products in conjunction with his father and brother for a period of some 30 years prior to 1960 and had furnished companion companies of the appellants with various types of precast concrete products, including precast concrete front porches, precast steps and other precast concrete forms which required the use of metal reinforcing rods. The building permit for 5911 Laclede Road was issued on October 25, 1963. The appellants, Garden and Thunderwood, listed as owner and general contractor, respectively, became permit holders and, as such, were required to conform to and comply with the Baltimore City Code.

Mr. William H. Cohen, Vice President of Thunderwood, was responsible for purchasing and, in that capacity, was familiar with the Baltimore City Code and with building permits. Mr. Cohen would consider a supplier incompetent if the supplier did not have knowledge of the Code. Mr. Samuel Mortimer, whose ²⁹ job it is to enforce the Building Code, testified that it would be a prerequisite for any individual or corporation building prefabricated porches to be familiar with the Building Code. He, like Mr. Cohen, expressed an opinion that an individual or corporation building these porches, having no knowledge of the Code, would be incompetent.

Luciano does not now and never did have knowledge of the Baltimore City Code requirements for making concrete slabs. In making the precast concrete slab for 5911 Laclede Road, he did not refer to the Baltimore City Code. Mr. Cohen gave Luciano no details other than the size, price, and directions to comply with the Baltimore City Code. He did not ask if Luciano knew about the Code, nor did he ask if he knew anything about engineering manuals pertaining to the building of porches.

The order directed Luciano to adhere to the Code and Cohen did not check to see if, in fact, he did. Mr. Donald Radcliff, the architect who drew up the plans used by the appellants to get the building permit, included in the plans a reference to the concrete back porch, giving the size of 3-1/2 ft. x 5-1/2 ft., but gave no further details concerning the prefab' porch. Had he been asked, Mr. Radcliff would have supplied the details. In order to do so, he would have had to refer to the Baltimore City Code or an engineering manual concerning requirements of reinforcements.

Mr. Radcliff would not consider a supplier qualified who had no knowledge of the Code. Appellants’ Motion for Directed Verdict The appellants argue that their motion for directed verdict should have been granted because an owner-builder is not liable, as a matter of law, for injuries resulting from a latent defect. In making their argument the appellees concede that the slab in question was negligently manufactured by Luciano, an independent contractor, by improperly inserting the reinforcing bars in the wrong direction. They also concede that the negligence was the cause of the collapse six years after manufacture and installation by Luciano.

For the purposes of the argument they concede that there was a violation of the Building Code. ³⁰ It is well settled in Maryland that a violation of a building code can be evidence of breach of a duty owed. Stein v. Overlook Joint Venture, 246 Md. 75 , 227 A. 2d 226 (1967); Sezzin v. Stark, 187 Md. 241 , 49 A. 2d 742 (1946). The pertinent parts of the Building Code of Baltimore City, rev. 1962 Ed., are the following: “1010. General purpose of this Code is to establish standards and to make provisions and requirements regulating the design, construction, reconstruction, installation, alteration, repair, razing, demolition, moving, or removing of buildings-and other structures, or parts thereof, or additions or accessories thereto, or equipment therein, including methods of construction, reconstruction, installation, alteration, repair, razing, demolition, moving or removing, and the sufficiency of materials used in connection therewith, and also regulating the grading of and excavation of land and other changes in land or parts thereof, and also regulating the maintenance, operation, use and occupancy of all buildings and other structures and land, and all inspections thereof, and also regulating the height, area and bulk of all buildings and other structures and the density of population for the purpose of protecting the public health, safety and security of the people of the City of Baltimore.” “1032.

Responsibility of Owner. The owner of any property covered by this Code shall be responsible for the compliance with all of the provisions of this Code in all matters or things pertaining directly or indirectly to such property. Such owner shall be held liable for all violations, of this Code in connection with any land, buildings, structure, or matter or thing owned or controlled by him....” “1033. Responsibility of others.

Any person who violates any of the provisions of this Code shall be held liable for all such violations and shall be ³¹ subject upon conviction to all penalties prescribed herein for such violations in addition to the owner or owners of any property which may be involved.” “1400. Required Permits and Issuance Thereof. No matter, thing, operation or work mentioned in, regulated or provided for by any provisions of this Code shall be started or commenced, and no land, building or other structure shall be used for or in connection with any matter or thing mentioned in, regulated or provided for by any provisions of this Code, until and after a proper permit has been issued by and obtained from the Commissioner. “1408. Failure to comply with permit.

Failure to use the materials or the type or kind of equipment or the method of construction or the manner of installation approved by the Commissioner in any permit issued, or the failure to structurally comply with any and all of the requirements of an approved application and all other plans, drawings, specifications or any other approved data submitted with such applications, or the failure to comply with any of the requirements of this Code, shall constitute and be a violation of the. permit issued,. . .” “1902. Procedure for Violations of Permits. In the event that any land is altered, or building or other structure is built, started to be built, commenced in any way, used for or in connection with any matter or thing mentioned in, regulated or provided for by any provisions of this Code prior to the issuance of a proper permit by the Commissioner, the Commissioner shall order such work to be stopped immediately and no further work or operation shall be done or performed until and after the entire matter has been finally disposed of by the Commissioner. Such land, building, or other structure may not be used unless ³² it meets the requirements of this Code for the use involved and until a proper permit is in force. “In all cases where a permit has been issued for the doing of any work or the performance of any operation and such work or operation is being done or performed in violation of any of the provisions of this Code or any of the terms and conditions which form a part of any issued permit or of any of the approved plans and specifications for such work or operation, the Commissioner is hereby authorized and empowered to stop such work or operation by notifying in writing the person to whom the permit has been issued, or the person who is doing or performing the work or operation, to immediately cease said work or operation, and upon the receipt of such notice, no further work or operation shall be done or performed until and after the person to whom the permit has been issued, or the person who is doing or performing the work or operation, has been again notified in writing by the Commissioner that he may proceed.

Such violation shall subject the violator to the penalties and fines prescribed in this Chapter. “The Commissioner is further authorized to order any work or operation, which was not done in accordance with the requirements of this Code, to be torn down, dismantled or removed, and no further work or operation shall be permitted until all such nonconforming work or operations has been corrected as ordered by the Commissioner.” . “1922. General Violations. Any person (including, . but not by way of limitation, any occupant or tenant), firm or corporation violating any of the provisions of this Code, or any lawful order, rule or regulation made or adopted pursuant thereto, shall be guilty of a misdemeanor... .” “6000. General Design.

All buildings and structures and parts thereof shall be designed by a method of rational analysis according to the ³³ established principles of mechanics and engineering practices. They shall safely support and resist the dead loads, live loads and impact forces to which they may be subjected and as hereinafter required, and shall, in addition, be adequately braced against all lateral and all other forces to which they may be subject.” “6430. Metal Reinforcements used in concrete shall be billet steel, rail steel, axle steel, welded wire fabric, cold-drawn wire, and non-magnetic steel alloys or other materials that meet the requirements of this Section. “Reinforcement made from scrap iron ingots or rerolled steel other than rail or axle steel shall not be used.” “6500. General Requirements.

Reinforced concrete shall be designed by methods admitting of rational analysis according to established principles of mechanics, supplemented by the assumptions herein specified; to support loads and withstand the forces to which it is subject, without exceeding the stresses allowed in this Chapter for the various materials. “Except as otherwise specifically provided in this Code or in rules duly promulgated by the Commissioner, the provisions of the ‘Building Code Requirements for Reinforced Concrete’ (A.C.I. 318-56 and Appendix), shall be deemed to be generally accepted good practice and to comply with the requirements and provisions of this Code pertaining to reinforced concrete design.” “6580. General Requirements. Precast reinforced concrete members shall be designed as required for other concrete members in this Chapter and, in addition, as required in this section. “Precast concrete members shall be designed for construction stresses as well as for dead and live loads. ³⁴ “Controlled concrete shall be used in all precast reinforced concrete. . “All sleeves or openings shall be in the concrete at the time of manufacturing and, except for slabs, no drilling or chipping will be permitted on the job. “All precast concrete shall be subject to the approval of the Commissioner.” Initially, to determine what if any liability the Code places on the appellants, it must be determined whether