Hastings v. Mechalske

BELL, Judge. We granted certiorari to consider when a supervisory coemployee may avoid liability to an injured employee under the Workers’ Compensation Act (“the Act”), Maryland Code (1957, 1985 Repl.Vol.) Article 101, §§ 1 to 102. 1 Specifically, we are asked whether the respondent, Steven L. Mechalske, the supervising foreman on the worksite, is entitled, by virtue of section 58 of the Act, to the immunity of the supervisory coemployee and, thus, may avoid liability to the petitioner, Ronald Hastings, 2 a worker at the site, who was injured by another worker on the site acting pursuant to the respondent’s instructions. In an unreported opinion, the Court of Special Appeals held that the respondent was so entitled. We shall affirm.

I. In early 1990, William H. Knott, Inc. (Knott), a general contractor, began work under a construction contract to build ⁶⁶⁹ a loading dock and modify structures at the Point Breeze Business Center in Baltimore County. One of its employees, Craig Allen, was project manager. The respondent, also a Knott employee, was assigned as the foreman superintendent of the project. As project manager, Allen was responsible for: negotiating contracts with the subcontractors, ensuring that the project progressed on time, and within its budget, and supervising the foreman on the job.

As the foreman, the respondent supervised the day-to-day activities of the project, including hiring and firing temporary employees and renting equipment needed for the job. One of the subcontractors on the job was Glen Arm, by whom the petitioner was employed. Its contract was to complete exterior brickwork, the task in which the petitioner was engaged when injured. In addition to subcontractors, Knott used temporary employees, hired through Labor World U.S.A., Inc., a temporary labor broker.

Labor World neither supervised nor instructed the laborers it supplied for the Point Breeze Project. On April 26, 1990, the respondent assigned two temporary workers to break up old concrete in an electrical pit. At first, the temporary workers were instructed to use jack hammers. When this proved unsatisfactory, the respondent, after consultation with Allen, rented a backhoe, equipped with a hoe-ram.

On the morning of April 27, the respondent began using the backhoe to break up the pit. The petitioner was on scaffolding a short distance away, laying bricks. Subsequently, the respondent assigned one of the temporary laborers, Robert H. Wilkinson, to operate the backhoe. The evidence showed Wilkinson had little experience using a backhoe of this type and that his last use of any kind of backhoe was nearly a decade earlier.

Although the respondent observed Wilkinson operating the backhoe with its “outriggers” or “stabilizer arms” down, he never saw him drive or move the equipment. Thereafter, Wilkinson operated the backhoe for about two hours, moving it at one point to within two or three feet of the scaffold on which the petitioner was working. When Wilkinson attempted once again to move the backhoe, for disputed ⁶⁷⁰ reasons, 3 the front bucket of the backhoe hit the scaffold. The petitioner was knocked twenty-five to thirty feet to the ground and injured.

The petitioner brought suit against Knott, 4 the respondent, Robert H. Wilkinson, Labor World, U.S.A., Inc. (Wilkinson’s employer), and ABC Rental, Inc. (the backhoe supplier). Knott filed a motion for summary judgment, which was granted. Moreover, at the end of the petitioner’s case, motions for judgment were granted as to all defendants except Wilkinson, against whom judgment was rendered in favor of the petitioner by default. The theory underlying the count against the respondent was negligent entrustment of the backhoe to Wilkinson.

At the close of plaintiffs case, the respondent filed, and the trial judge granted, the respondent’s motion for judgment.

II

The petitioner argues that the respondent is not entitled to the immunity of a supervisory coemployee. He asserts that, while managing and supervising, pursuant to a delegation of authority, the affairs of his employer, the respondent committed against him the affirmative and direct act of negligently delivering to Wilkinson’s possession and control a dangerous instrumentality, which he knew, or should have known, Wilkinson was not competent to operate safely. Thus, he says, the respondent breached a personal duty owed to the petitioner, ⁶⁷¹ over and above any duty that may have been owed to his employer. The petitioner maintains that, because the respondent clearly breached the duty that one coemployee owes to another, he cannot escape liability simply because he may have also breached a duty owed to his employer, namely, his obligation as a supervisor to fulfill the latter’s duty to provide a safe workplace.

Furthermore, the petitioner points out that, since he was employed by Glen Arm and the respondent by Knott, the respondent is not the petitioner’s actual supervisor. Reasoning that, under Athas v. Hill, 300 Md. 133 , 476 A.2d 710 (1984), employer immunity extends only to supervisory coemployees of the employer of the injured employee—the supervisory coemployee and the injured employee must be employed by the same employer—and that Knott was not the petitioner’s employer, he posits that the respondent, even if entitled to his employer’s immunity, cannot escape liability to the petitioner. The respondent sees it differently. Regardless of the factual merits of the negligent entrustment claim, he asserts that all of his actions were undertaken as supervisor on behalf of his employer; therefore, the respondent urges that he enjoys the same immunity from civil liability as his employer.

Moreover, relying on Athas , the respondent maintains that the correct analysis is whether the respondent has acted as a supervisor or mere coemployee, not whether he has committed an affirmative or direct act of negligence. Additionally, the respondent contends that, where his employer is, as Knott was, the statutory employer, see § 62, 5 the determination whether a supervisor has immunity depends not on the conduct of the supervision, i.e., was the supervisor acting on behalf of the immunized employer. ⁶⁷² III. The Maryland Workers’ Compensation Act “embodies a comprehensive scheme to withdraw all phases of extra-hazardous employments from private controversy and to provide sure and certain relief for injured workmen, their families and dependents regardless of questions of fault.” Athas v. Hill, 54 Md.App. 293, 297 , 458 A.2d 859, 862 (1983) (citing Continental Casualty Co. v. Mirabile, 52 Md.App. 387, 395 , 449 A.2d 1176, 1181 , cert. denied, 294 Md. 652 (1982)), aff'd, 300 Md. 133 , 476 A.2d 710 (1984). The Act, in other words, provides employees, and their dependents, with the right to compensation from their employer as their exclusive remedy against the employer.

See § 15. 6 See also, e.g., South Down Liquors, Inc. v. Hayes, 323 Md. 4, 11 , 590 A.2d 161, 164 (1991); Hauch v. Connor, 295 Md. 120, 127 , 453 A.2d 1207, 1211 (1983); Wood v. Aetna Cas. & Sur. Co., 260 Md. 651, 660-61 , 273 A.2d 125, 131 (1971); American Radiator & Standard Sanitary Corp. v. Mark Engineering Co., 230 Md. 584, 590 , 187 A.2d 864, 867 (1963); Cox v. Sandler’s, Inc., 209 Md. 193, 198-99 , 120 A.2d 674, 677 (1956); Baltimore Transit Co. v. State, 183 Md. 674, 677 , 39 A.2d 858, 859 (1944); Barrett v. Indemnity Ins. Co., 152 Md. 253, 259 , 136 A. 542, 544 (1927); Hagerstown v. Schreiner, 135 Md. 650, 653 , 109 A. 464, 465 (1920). Where a person other than the employer is liable for an employee’s death or injuries, for which compensation is payable, the employee may file a claim for compensation against the employer or bring an action for damages against the liable third party.

See § 58. See also Gray v. State Rds. ⁶⁷³ Comm’n, 253 Md. 421, 424-25 , 252 A.2d 810, 812 (1969); Baltimore Transit Co. v. Worth, 188 Md. 119, 141 , 52 A.2d 249, 259-60 (1947); Hagerstown, supra, 135 Md. at 655 , 109 A. at 465 . Brocker Mfg. & Supply Co. v. Mashburn, 17 Md.App. 327, 332-33 , 301 A.2d 501, 504 (1973). In the case of the former, the employee is limited to worker’s compensation as his or her exclusive remedy against that employer.

On the other hand, the employee who seeks to obtain relief over and above worker’s compensation may do so by choosing the latter course; he or she could bring suit against the liable third party, even one who is a coemployee of the injured party. In that event, proof that the defendant is a third party tortfeasor, who was not acting on behalf of the employer, will preclude a finding that the defendant is immune from suit. Leonard v. Sav-A-Stop Servs., 289 Md. 204, 208 , 424 A.2d 336, 337 (1981); Hutzell v. Boyer, 252 Md. 227, 232 , 249 A.2d 449, 452 (1969); Connor v. Hauch, 50 Md.App. 217, 222 , 437 A.2d 661, 664 (1981), aff'd, 295 Md. 120, 121 , 453 A.2d 1207, 1208 (1983). In Athas v. Hill, 300 Md. 133, 134 , 476 A.2d 710, 710-11 (1984), we considered “whether ...

Article 101, § 58 authorizes an employee to sue a supervisory coemployee for negligently discharging the employer’s duty to provide a safe place to work.” We concluded that “supervisory coemployees may be subject to liability only for negligently breaching a duty of care which they personally owe to the employee.” Id. Stated differently, we held that a supervisory coemployee performing a nondelegable duty of the employer—such as providing a safe place to work—does not thereby assume a personal duty toward his or her fellow employees. Id. at 148, 476 A.2d at 718 . Such an employee is entitled to the benefit of the employer’s immunity, even though he or she negligently performed the employer’s duty.

We recognized, on the other hand, that “if a supervisory employee commits an affirmative, direct act of negligence toward an employee, and therefore negligently breaches a personal duty of care which is reasonably owed by him to the fellow employee, then he would not be immunized from liability.” Id. at 149 , 476 A.2d at 718 . ⁶⁷⁴ The facts of Athas are instructive in determining the applicability of its teachings to the case sub judice. There, a restaurant employee, Nicholas Athas, brought suit against three supervisors of the country club by which they all were employed. Athas suffered permanent disability and facial disfigurement as a result of being attacked with a butcher knife by another fellow employee, a chef, of the country club. He alleged that the supervisors knew or should have known of the chefs violent propensities, yet failed to warn, or otherwise protect him from the danger.

The supervisors conceded that they had negligently discharged their duty to exercise care in hiring and retaining competent, nonviolent employees. The three supervisors in Athas held the positions of managing agent/president, vice-president, and House Chairman. Their responsibilities included “the supervisory and immediate duties of personnel management and direction,” as well as hiring, discharging and otherwise directing the activities of the employees. Id. at 135, 476 A.2d at 711 .

As such, they were responsible for discharging their employer’s duty to provide a safe place to work. It was in consideration of the above-mentioned facts that we determined that the supervisors qualified for employer immunity under the Act. To reach that result, we adopted the “Wisconsin approach” to employer immunity. 7 Under that approach, ⁶⁷⁵ a corporate officer or supervisory coemployee is subject to liability for negligence if he breaches a duty of care which he personally owed to the plaintiff. The negligence must have been directed toward the particular plaintiff and the tortious act must have been outside the scope of the employer’s responsibility.

The coemployee is not liable merely for breaching a duty that the employer owed the injured employee. Athas, 300 Md. at 143-43 , 476 A.2d at 715 . See also Kruse v. Schieve, 61 Wis.2d 421 , 213 N.W.2d 64, 67 (1973) (“Liability of a corporate officer in a third-party action must derive from acts done by such officer in the capacity of a coemployee, and may not be predicated upon acts done by such officer in his capacity as corporate officer.”); Laffin v. Chemical Supply Co., 77 Wis.2d 353 , 253 N.W.2d 51, 53 (1977) (“When an officer or supervisor fails to perform the employer’s duty, the failure is that of the employer, not the officer or supervisor”). The rationale [for] this view “is that worker’s compensation is the exclusive remedy against an employer, and if there is a failure of an officer or employee to perform a duty owed to the employer, the employee’s recourse is solely against the employer.

When an officer or supervisor fails to perform the employer’s duty, the failure is that of the employer, not the officer or supervisor.” Athas, 300 Md. at 144 , 476 A.2d at 716 (quoting Laffin v. Chemical Supply Co., 77 Wis.2d 353 , 253 N.W.2d 51, 53 (1977)). ⁶⁷⁶ Athas thus makes clear that a supervisor’s negligence in the performance of his or her supervisory duties is not enough to subject him or her to personal liability. Only if the supervisor directs a negligent act toward a particular fellow employee will the supervisor be held personally liable. Thus, in order for a supervisory coemployee to avoid liability under the Act, at the time of the accident, the supervisor must be: (1) performing a nondelegable duty of the employer; and (2) acting within the course of his or her employment. We consider first the requirement that the coemployee be performing a nondelegable duty of the employer.

A nondelegable duty is a duty which the employer is “primarily and absolutely obliged” to perform properly. See Wood v. Abell, 268 Md. 214, 238-39 , 300 A.2d 665, 677 (1973) (quoting F. Jarka Co. v. Gancl, 149 Md. 425, 431 , 131 A. 754, 756 (1926)). As we explained in Rowley v. City of Baltimore, 305 Md. 456, 466 , 505 A.2d 494, 499 (1986), and again in Brady v. Ralph M. Parsons Co., 327 Md. 275, 285 , 609 A.2d 297, 302 (1992), the term “nondelegable” is “something of a misnomer, as the [employer] is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of non-performance of the duty.” In other words, the employer remains liable with respect to the duty, regardless of the acts or omissions of the person entrusted to perform it. See Brady v. Parsons Co., supra, at 302-02, 609 A.2d 297 .

See also Security C. & L. Co. v. Bowers, 124 Md. 11, 16 , 91 A. 834, 835-36 (1914); Barlett-Hayward Co. v. State, 120 Md. 1, 5-6 , 87 A. 499, 500 (1913); Penn. Steel Co. v. Nace, 113 Md. 460, 484-85 , 77 A. 1121, 1132-33 (1910); State ex rel. Hamelin v. Malster, 57 Md. 287, 308 (1881). Under the Act, an employer has the nondelegable duty to “provide each employee of the employer with employment and a place of employment that are: (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause death or serious physical harm to ⁶⁷⁷ the employee.” 8 The duty to provide a safe place to work includes other duties.

For example, in Ramey v. Martin-Baker Aircraft Co. Ltd., 874 F.2d 946, 952 (4th Cir.1989), reh’g denied, (June 6, 1989), the court, citing Athas, concluded that “routine work assignments and supervision are aspects of the nondelegable duty of providing employees a safe place to work.” See also Athas, 300 Md. at 148 , 476 A.2d at 718 (retain competent, nonviolent employees); Chesapeake Stevedoring Co. v. Hufnagel, 120 Md. 53, 60 , 87 A. 4, 6 (1913) (same); Norfolk & West. R.R. v. Hoover, 79 Md. 253, 262 , 29 A. 994, 995 (1894) (same); State ex rel. Hamelin v. Malster, 57 Md. 287, 306 (1881) (same); Tyler v. Fuller, 132 N.H. 690 , 569 A.2d 764, 768, 769 (1990) (provide safe equipment); Kranig v. Richer, 98 Wis.2d 438 , 297 N.W.2d 26, 28 (1980) (furnish proper tools and machinery); Crawford v. Dickman, 72 Wis.2d 151 , 240 N.W.2d 165, 167 (1976) (control employees). The second prerequisite for employer immunity is that the supervisor act in the course of his or her employment.

The words “in the course of” employment essentially refer to the time, place, and circumstances under which an injury occurred. See Knoche v. Cox, 282 Md. 447, 455 , 385 A.2d 1179, 1183 (1978); Maryland Cas. Co. v. Insurance Co. of N. Am., 248 Md. 704, 707 , 238 A.2d 88, 90 (1968); Miller v. Coles, 232 Md. 522, 526 , 194 A.2d 614, 615 (1963). Thus, the supervisor must have acted “during the period of employment at a place where the employee reasonably may be in the performance of his [or her] duties ‘and while he [or she] is fulfilling those ⁶⁷⁸ duties or engaged in ... something incident thereto.’ ” May Dept.

Stores Co. v. Harryman, 307 Md. 692, 695 , 517 A.2d 71, 72 (1986) (quoting Dep’t of Correction v. Harris, 232 Md. 180, 184 , 192 A.2d 479, 481 (1963)) (quoting Watson v. Grimm, 200 Md. 461, 466 , 90 A.2d 180, 183 (1952)). IV.' The respondent meets both prongs of the test articulated in Athas and, as such, is entitled to the immunity of his employer. The respondent did not commit an affirmative direct act of negligence toward the petitioner. On the day that the petitioner was injured, and, in fact, at the moment of the accident, the respondent was acting as the “working foreman superintendent” 9 of the Point Breeze project.

As foreman on the job site, the respondent was responsible for discharging Knott’s duty to provide the petitioner with a safe place to work and to retain competent employees. There is no dispute that among the duties encompassed within that job description was the assignment of workers on site to perform tasks in furtherance of the completion of the project. That responsibility, in turn, involved ensuring that those workers have the ability to perform the tasks and, with regard to the other workers on site, to do so safely. These duties are required to be performed by the foreman in furtherance of his employer’s responsibility to provide a safe workplace for its employees.

Thus, the very act upon which the petitioner relies to establish a breach of duty owed to him—the respondent’s assignment to Wilkinson of the task of operating the backhoe—is one that was undertaken in fulfillment of a nondelegable duty the employer owed