Krieger v. J. E. Greiner Co.

Smith, J., delivered the opinion of the Court,. Levine and Kldkibge, JJ., concur in the result and Levine, J., filed a concurring opinion in which Elbribge, J., joins at page 70 infra. We shall here hold that the contracts of the supervising engineers in this controversy have not made them responsible for construction methods and hence for safety precautions in the building of a bridge, although we shall further hold that in the light of the allegations of the declaration, an opportunity should be afforded the plaintiffs to attempt to draw a declaration which will withstand demurrer. ⁵² In Cutlip v. Lucky Stores, 22 Md. App. 673 , 325 A. 2d 432 (1974), about which we shall have more to say later, Judge Lowe, after philosophizing for that court on the fact that “[t]he gambling instinct endemic to our former frontier society has been replaced by a quest for security with which our contemporary society is identified,” referred to the fact that “injured litigants ... seek deeper pockets from which to make themselves whole.” One may suspect that this litigation was produced by a desire for “deeper pockets” to supply compensation for the injuries sustained. Leroy E. Krieger (Krieger), one of the appellants, was injured in an accident in the construction of the bridge across the Baltimore outer harbor, now known as the Francis Scott Key Bridge (the bridge).

J. E. Greiner Company, Inc. (Greiner), one of the appellees, was the engineer responsible for the design of the bridge and overall supervision of its construction. (Its corporate name has been changed but that is unimportant to this litigation.) Zollman Associates, Inc., et al. (collectively referred to as Zollman), the other appellees, were consulting engineers relative to construction of the bridge. Krieger was injured on the job on May 4, 1973. He sued Greiner and Zollman to his own use and to the use of Aetna Casualty and Surety Company (apparently the workmen’s compensation insurer).

In a second count Krieger and his wife (the Kriegers) sued for injury to their marital relationship. The Kriegers appeal from the judgment for costs entered against them when a trial judge sustained a demurrer to the declaration. Because of the public importance of the issue here presented and the lack of Maryland cases on the subject, we granted certiorari prior to consideration of the appeal by the Court of Special Appeals. For the purpose of determining whether a trial judge has erred in sustaining a demurrer without leave to amend we are required to assume the truth of all material facts which are well pleaded as well as all inferences which can reasonably be drawn from those well pleaded facts.

Zion Evang. Luth. Ch. v. St. Hwy. Adm., 276 Md. 630, 632 , 350 A. 2d 125 (1976); Schwartz v. Merchants Mort.

Co., 272 Md. 305, 307-08 , 322 A. ⁵³ 2d 544 (1974). The facts alleged in the declaration relevant to our decision here are: The State Roads Commission (the Commission) entered into a contract with Greiner in which Greiner agreed to perform certain engineering work in connection with the construction of the bridge. The Commission also entered into a contract with Zollman concerning detailed field inspection of workmanship and materials for conformance with the plans and specifications. Under Maryland Rule 326 Greiner and Zollman each demanded production of their contracts with the Commission, copies of which were duly filed.

Thus, the contracts are to “be treated as if incorporated in the pleading.” The declaration alleged that Greiner covenanted in its contract to “ ‘[pjlan, direct and coordinate construction layout surveys, detailed field inspection of workmanship and materials for conformance with the plans and specifications’ ”; to “ ‘[fjurnish such periodic and special reports as shall be deemed advisable as may be required by the Commission’ and to “ ‘[pjerform the services stipulated to be performed by the Consultant during the construction phase of the project,’ ” including “ ‘preparation of progress reports and statements [, ajpproval of all construction plans and specifications [, and cjertification of the final completion of the project.’ ” It referred specifically to Greiner’s obligation to “ ‘[ojbserve and comply with all Federal, State, and local laws or ordinances that affect those employed or engaged by him on the project... or the conduct of the work ....’” We shall have more to say later about this “obligation.” The declaration said that under the contract Greiner was to “be responsible for all damage to life and property due to its activities or those of its agents or employees in connection with the services required under the contract.” The declaration said as to Zollman that under its agreement to provide “ ‘[a]ll detailed construction, engineering and inspection of workmanship and materials for the entire bridge project, including the approach, girder spans and the three span through truss unit,’ ” it was to supply “ ‘[rjesident inspection of workmanship and materials incorporated in the ⁵⁴ construction of the entire bridge project, including the furnishing of a staff of engineers and inspectors capable of performing all normal on-site inspection of materials furnished and workmanship by the construction contractors to insure compliance with the requirements of the plans and specifications.’ ” The Kriegers pointed to an agreement similar to that of Greiner relative to observance and compliance with laws and ordinances and responsibility for damage to life and property. Several corporations combined as the general contractor. Under their agreement with the Commission they were to construct the bridge under the day to day supervision and inspection of Greiner. 1 The general contractor in turn entered into a subcontract with Bildot Steel Corp. (Bildot) relative to the erection of the steel reinforcing in the concrete piers and columns at one end of the bridge. Bildot was engaged in the placement of iron reinforcement bars at the time of Krieger’s injury.

The Kriegers alleged that Bildot “performed its work under the continuous and uninterrupted supervision and inspection of ... Greiner ... and [Zollman], and numerous of their agents, servants and employees,” who “either saw or had reason to have seen that... Bildot... was performing its work in a defective and ultra-dangerous manner, in that [it] erected, in a vertical position, upon each of several bases or footers of columns, forty reinforcing bars, which were approximately fifty feet long and weighed approximately 780 pounds apiece, without properly securing said steel so that it would not topple over, either by welding the reinforcing bars into place or properly stabilizing the erection with guy cables.” It was said that this was a “defective and ultra-dangerous condition” which directly resulted in the ⁵⁵ injuries to Krieger. The Kriegers claimed that the “injuries and damages ... were caused solely by the negligence and want of care of the Defendants,...

Greiner... and [Zollman], and their agents, servants, and employees ....” Reasons assigned are: that Greiner and Zollman “were under a duty to exercise such reasonable care, technical skill, and ability and diligence, as is ordinarily required of engineers in the course of their plans, inspections, and supervision during the construction, for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to exercise such care.” It was alleged that Greiner and Zollman “assumed said duty of care by their contract with the ... Commission, wherein they duly covenanted not only to see that the bridge conformed to contract specifications, but they also agreed to control the day to day methods and procedures utilized by the contractors in doing the work,” specifying that each of them “expressly agreed to see that the method of the construction work conformed to all Federal, State, and local laws and ordinances”; agreed “to maintain a staff of engineers and inspectors continuously on the job at all times”; that they “did, in fact, maintain such a corps of engineers and inspectors on the job at all times and said persons maintained a constant vigil over the progress and course of the work”; that these “inspectors and engineers had exercised their right to stop the work on numerous other occasions when said work either did not conform to the plans and specifications or was being performed in a negligent and dangerous manner which was unsafe for the workmen employed on the project”; that the contract between the Commission and the general contractor, “which was duly approved for execution by ... Greiner ... reserved the right of the Defendant engineers to reject any work and order the work to be performed anew in the event it was not performed to the satisfaction of the engineers”; that Greiner and Zollman “expressly agreed, by their respective contracts to be responsible for all damage to life and property due to their activities or those of their agents or employees”; and that the Commission, “acting on behalf of the State of Maryland, required the Defendants to supervise the work as aforesaid in order to insure the safety ⁵⁶ of the public in general and the workmen on the job.” It was further alleged that Greiner and Zollman “knew or had reason to know” as early as the day prior to the accident in question that Bildot was erecting the iron reinforcing bars in question “in a dangerous and unsafe manner,” claiming that an inspector “actually saw that said reinforcing bars were improperly supported, in that only six of thirty-two reinforcing bars which had been erected upon the concrete footers, had been welded into place, and [Greiner and Zollman], as professional engineers, had the skill and expertise to appreciate that only six to eight reinforcing bars could safely be stood on end without being welded into place, and that the safe and proper manner of erection was to erect only between six to eight reinforcing bars at a time, and weld those so erected before continuing to erect more.” It was also claimed that Greiner and Zollman as early as May 3 knew or had reason to know “that the column of steel which ultimately collapsed was improperly supported with guy wire, as No. 9 wire was used for support and such wire is too thin and fragile to support a structure consisting of thirty-two reinforcing bars, each weighing approximately 780 pounds.” The Kriegers alleged that this latter action was in direct contravention of a federal regulation of which it was said Greiner and Zollman knew or should have known. It was further stated that once having knowledge of these conditions they had a duty to stop the work until the unsafe condition had been remedied and a further duty to point out to Bildot such conditions, but in each instance they failed to do so. 1.

The law For there to be liability here on the part of Greiner and Zollman, they must have breached a duty which they owed to Krieger. In the facts of this case such duty must arise either under the respective contracts of Greiner and Zollman with the Commission, or by virtue of some assumption of responsibility by the engineers by their conduct. The declaration contains no allegation of a duty imposed upon them by law other than the contractual duties to which reference has been made. It is elementary that for there to ⁵⁷ be liability on the part of these engineers such liability would have to arise by virtue of a duty under contract, conduct, or law.

Our research has revealed but three Maryland cases which even remotely touch upon the problem presented in this case. The most recent is Cutlip v. Lucky Stores, 22 Md. App. 673 , to which we have already referred. In that case the Court of Special Appeals found it unnecessary “to decide whether the professional responsibility of an architect of public buildings ... extend[s] to the public, or more particularly ... to the builder’s employees obviously exposed to the results of his neglect,” because it found the architect’s “contract with the county to assume additional supervisory responsibilities clearly subjected him to a duty which encompassed the decedent.” The architect there had made a contractual guarantee that a building permit would be issued. In order to obtain that permit he was required to provide Prince George’s County with certain field inspections and reports.

The court found “that the supervisory authority given [the architect] under his contract when coupled with his inspection and notice commitments to the County, were sufficient to allow him to perceive the danger implicit in neglectful construction, at the very least to an employee in the hazardous field of structural steel erection, if indeed not to the public for whose use the structure was intended.” Id. at 695 . State v. City of Baltimore, 199 Md. 289 , 86 A. 2d 618 (1952), presents an analogous situation, although it was not a suit against an engineer. There the Court noted “that an owner may be liable to the employees of an independent contractor for injuries arising out of the abnormally dangerous condition of the premises” but pointed out that in that case “the injury was not due to the condition of the premises or any defect in the equipment.” Judge Henderson said for the Court: “The City also retained the right to inspect the work and to pass upon the safety, efficiency and adequacy of methods or appliances for securing the safety of workmen. Nevertheless, the control retained did not ⁵⁸ constitute the City a guarantor against negligence on the part of [the employee’s] fellow servants.

The power retained by the City was obviously for the purpose of securing strict compliance with the terms of the contract and all proper safety precautions, not to direct the employees of the contractor in details of the work.” Id. at 296-97 . The third case is that of Otis Elevator Co. v. Embert, 198 Md. 585 , 84 A. 2d 876 (1951), where an individual sued the owner of a building for injuries sustained in a passenger elevator. The owner impleaded Otis Elevator Company as a third party defendant, claiming that it was liable to the owner for breach of a contract to furnish maintenance on the elevator in question. The case was tried on its merits.

Judge Markell said for the Court relative to the liability of Otis: “The scope of Otis’s undertaking does not depend upon the terms of its contract with the building company, though the contract is the first place to look for what it did undertake. It might, however, have actually undertaken more than its contract obligated it to do.” Id. at 600. The Court held, however, “There is no evidence that Otis actually undertook more than it contracted to undertake.” There is a decided split of authority as to whether an architect or engineer responsible for day to day supervision of a construction project is liable to a workman for unsafe working conditions or liable to others for yet other shortcomings of a contractor. See Annot., 59 A.L.R.3d 869 (1974); Hoeveler, Architects, Engineers & Insurance Agents Professional Liability, 1966 ABA Section on Ins., N. & C.L. 222 (1966); Allen, Liabilities of Architects and Engineers to Third Parties, 22 Ark.

L. Rev. 454 (1968); Witherspoon, Architects'and Engineers’Tort Liability, 16 Defense L.J. 409 (1967); Miller, The Liability of the Architect in his Supervisory Function, 1 Forum 28 (Jan. 1966); Goodin, Architects and Malpractice, 34 Ins. Counsel J. 290 (1967); and Gilian, Liability of Architects and Engineers, 35 Tenn. L. Rev. 9 (1967). ⁵⁹ Although there is no clear majority view, it would appear that the weight of authority is on the side of nonliability. a. Cases imposing liability Cases where liability was imposed fall into one of two categories: (1) cases where there were contractual provisions by the terms of which an architect or engineer might be said to be liable, or (2) in the words of the court in Reber v. Chandler High School District # 202, 13 Ariz.

App. 133 , 474 P. 2d 852, 854-55 (1970), referring to Miller v. DeWitt, 37 Ill. 2d 273 , 226 N.E.2d 630 (1967), and other named cases “from other jurisdictions relied upon by plaintiffs” in the litigation before the Arizona court, cases where the courts “have disregarded fundamental contractual principles in attempting to parlay general inspection or supervision clauses which give the owner or architect a right to stop observed unsafe construction processes into a duty which is neither consistent with generally accepted usage nor contemplated by the contract or the parties.” (Emphasis in original.) The leading case for imposing liability on a supervising architect is Miller v. DeWitt, supra. The court there “agree[d] with the architects that they had no duty to specify the method the contractor would use in shoring, but... believe[d] that under the terms of [the] contracts [between the architect and the owner, and between the owner and the general contractor] the architects had the right to insist upon a safe and adequate use of that method.” A strong dissent was filed in Miller in which another justice joined. They pointed out that the majority conceded that architects had no duty to specify the method used to accomplish the finished building but expressed a belief “that the architects ‘had the right’ to insist upon a safe and adequate use of that method.” The dissent said that “to parlay that ‘right’ into a duty is neither consistent with generally accepted usage nor contemplated by the contract.” In the later case of McGovern v. Standish, 65 Ill. 2d 54, 68 , 357 N.E.2d 1134 (1976), that court said it “d[id] not read Miller as holding that the right to stop the work, without more, is conclusive in resolving the question of whether a person has charge of the work within the ⁶⁰ meaning of the [Illinois Structural Work] Act.” It referred to the architect’s contractual “right to supervise the work” but said, citing Miller , that this “merely creates a duty to see that the building when constructed meets the plans and specifications contracted for.” It concluded: “Were the defendant to be held in charge of the work on these facts, he would in essence be subjected to liability as a result of his status as a supervising architect alone. In our view, the imposition of such an onerous burden is neither in keeping with, nor required by, the salutary purpose underlying the Act.” Id. at 70, 357 N.E.2d at 1142 .

In Associated Engineers, Inc. v. Job, 370 F. 2d 633 (8th Cir. 1966), Judge Blackmun said for the court that the contract between the engineer and the owner required the engineer, among other things, “to see that construction was ‘expeditious and economical,’ ” and “it was to supervise the ‘manner’ in which materials were incorporated.” Moreover, the contract between the owner and the general contractor required the general contractor “to ... tak[e] ... ‘all reasonable’ safety precautions” and “to [refrain] from causing employees to work on energized lines or on poles carrying such lines,” specifying that the engineer “was authorized to suspend the work in whole or in part in the event [the contractor] failed to comply with any provisions of the contract and to require the contractor to ‘correct’ violations of the section prescribing reasonable safety precautions.” At page 645 the court further said that it was “not, as [the engineer] suggested] converting every supervising engineer into a safety engineer as a matter of law,” but that it was “simply construing a contract.” Other cases factually analogous to the question of liability of an architect or engineer, or cases placing liability on an architect or engineer include: Summers v. Crown Construction Company, 453 F. 2d 998 (4th Cir. 1972) (General contractor held liable to employee.); Erhart v. Hummonds, 232 Ark. 133 , 334 S.W.2d 869 (1960) (Where the contractor was required to erect such protection as might be required ⁶¹ or directed by the architect, and the architect was authorized to stop the work, the court held it was a jury question as to whether the architect was negligent in failing to stop construction because of poor shoring.); Geer v. Bennett, 237 So. 2d 311 (Fla. App. 1970); Swarthout v. Beard, 33 Mich. App. 395 , 190 N.W.2d 373 (1971), rev’d on other grounds, 388 Mich. 637 , 202 N.W.2d 300 (1972) (An architect was held liable for death resulting from a cave-in where he admitted that one of the provisions of the construction contract was that an excavation was to be maintained in a safe condition and that he had the right to stop the job if he deemed it necessary to enforce safety requirements.); Simon v. Omaha P. P. Dist., 189 Neb. 183 , 202 N.W.2d 157 (1972) (Supervising engineers held liable where the contract between the engineer and the owner required the engineer to do the “necessary checking ... to protect the [owner’s] interest in safety ....”); Amant v. Pacific Power & Light Co., 10 Wash. App. 785 , 520 P. 2d 181 (1974), aff’d, 84 Wash. 2d 872 , 529 P. 2d 829 (1975) (Construction contract provided that the methods and equipment used in fulfilling the contract were to have the approval of the engineer.

Therefore, trial court erred in entering summary judgment in favor of an engineer.); and Loyland v. Stone & Webster Eng’r, 9 Wash. App. 682 , 514 P. 2d 184 (1973) (Engineer held liable where a concrete form broke and the construction contract provided, “The type, ... quality and strength of all materials of which the forms are made shall be subject to the approval of the Engineers.”). b. Cases denying liability Probably the leading case holding an engineer not liable is that of Day v. National U.S. Radiator Corporation, 241 La. 288 , 128 So. 2d 660 (1961), where an employee of a subcontractor installing a hot water system was fatally injured as a result of a boiler explosion. His widow obtained a judgment against the architects.

The Louisiana Supreme Court reversed. The architects, under their contract with the owner, were to provide, among other things, “supervision of the work” as indicated by a schedule set forth in the contract. This included “adequate supervision of the execution of the ⁶² work to reasonably insure strict conformity with the working drawings, specifications, and other contract documents.” The supervision was to include “frequent visits to the work site ____” The architects employed engineers upon whom they relied relative to the mechanical and electrical work. The court said a plain provision of the specifications was “that the hot water heater or boiler should be equipped with a thermostat and with a temperature and pressure relief valve.” The subcontractor installed the boiler without such a valve.

He placed the thermostat and valve on a hot water storage tank. When the subcontractor caused the boiler to be lighted for preliminary testing, an explosion ensued, resulting in the death of the employee. The subcontractor had not informed either the architects or the engineers that the system was ready for inspection. In determining “that under the contract . . . the architects were [not] charged with the duty or obligation to inspect the methods employed by the contractor or the subcontractor in