Lane v. Bethlehem Steel Corp.

ALPERT, Judge, Specially Assigned. In this case, we are called upon to decide whether an employer/premises owner can discharge his duty to warn an independent contractor’s employee of a latent danger by warning the independent contractor or his supervisory personnel. ²⁷¹ Mr. Carroll Lane (“Lane”), an employee of BMI, Inc., an independent contractor, suffered work-related injuries while working for BMI, Inc. (“BMI”), which had been contracted to maintain the coke ovens at Bethlehem Steel Corporation’s Sparrows Point Steel Plant. The unfortunate industrial accident and the events that transpired thereafter gave rise to a lawsuit filed by Lane, the injured worker, against Bethlehem Steel Corporation (“Bethlehem”). The resulting jury trial, presided over by the Honorable Lawrence R. Daniels, Circuit Court for Baltimore County, closed with the jury returning verdicts in Bethlehem’s favor.

In this appeal, Lane presents three questions. I. Did the trial court err in instructing that if the jury found that [Lane] was injured solely as a result of his employer’s failure to supervise [ ] properly, they must find [Bethlehem] not negligent?

II

Was there legally sufficient evidence to support the trial court’s instruction that the jury must find [Bethlehem] not negligent if it found that [Lane] was injured due to a dangerous condition about which he knew o[r] should have known?

III

Did the evidence compel the conclusion that [Bethlehem] was negligent as a matter of law? Our discussion as to the first issue answers the second issue in the affirmative; Lane was charged with the knowledge of his employer, BMI, the independent contractor. As to the third issue, certainly reasonable minds could differ as to whether BMI was warned of the potential dangers; if it was warned, then, based upon the law as explicated under the first issue, Bethlehem was not negligent. A counterweight, 1 weighing approximately 120 pounds, used to shut a damper in an industrial oven standpipe, 2 broke off ²⁷² and struck Lane after he pulled on a damper handle.

Bethlehem had hired BMI to maintain the coke ovens; BMI, in turn, had hired Lane, sometime in May of 1989, to work on the ovens. Mr. Joseph Samuel Barker, Lane’s Job Steward, who saw the counterweight fall, explained to the jury what happened. I checked the equipment out, walked around the other side, looked out on to the battery top for my hand signals. The counterweight was falling.

It had not hit the ground yet. I saw the counterweight hit the ground; and at that same time, Carroll was going down to the ground, on his way down. He pulled himself back up. He was just like, you know, pulled himself back up.

Then he went to go down again, pulled himself back up a third time not pulling himself up, but got his balance back and stood back up rather; and by this time, I was running out to him because I thought he was hit with the counterweight. Lane, Barker testified, did not know what had happened. Barker picked up the counterweight arm, which was “rusted all the way through.” The part remaining in the standpipe, which Barker stored in his locker until he was laid off, 3 was partially rusted through. According to Barker, in 1989, operating the standpipe mechanism was easy.

Regarding safety routines, Barker stated that Bethlehem’s manager asked members of Barker’s crew if BMI’s supervisors had discussed banging counterweights. Q And the Beth—the Bethlehem manager person whoever it was, you don’t know his name? A Yes, sir. Q Asked your members of the crew if your boss had ever explained to you that you shouldn’t bang those things, is that what he asked you? ²⁷³ A Not in those words.

He asked us if we had ever been told that this could happen, that this is something to watch out for? Told him no. Q Didn’t he also ask you if your boss or your supervis[or] hadn’t instructed you not to bang these counterweights? A Ask me that again.

Q Didn’t tne Bethlehem supervisor whoever it was also ask[ ] you if your boss hadn’t told you not to bang the counterweights? A I can’t remember if he asked me that or not, but our boss never told us not to bang them. Lane testified that his duties included unclogging and patching stand pipes and carrying hoses and heavy equipment. Barker and Tom Leadbitter taught Lane how to operate the standpipe mechanisms.

A Yeah. Joe [Barker] really showed me the right way to do it, but I learned from Tom the first time, you know, Tom showed me how to basically do it just to get by. Q Was it Joe who told you to bang those? A No. I just picked that up from watching people do it.

Barker stated that the damper had to make a tight seal, otherwise, gases and flames could shoot into the section under repair and could possibly injure anyone working in that area. A Okay. Right here’s where the top of the ovens would be. These ovens are about 200 degrees.

There’s a lot of gases right in here. He’s supposed to flow up and flow down through here, get caught in this here. When you close this damper down like where it’s flat in here which is to seal off the gases from coming out when the ovens dampered out, pull air through here across the top of the battery up through the other stand pipe 4 down there at the main away from where people work. ²⁷⁴ Q People work here? A Yeah, being pulled away from outside.

If you just pull it down, that flap will do this but carbon builds up like. Q When you say do this, what do you mean? A Turn and close when you pull the damper flap, he turns and closes. When you turn, it will turn this counterweight, keep it in that position but will be little gaps where the carbon’s not smooth, kind of like when the oven gets dirty bumps and stuff all over the place.

Gas seeps around and hot [ ]air. It’s ignited. People work up here, and people have to be up here working. If that fire comes up, it would be 20-foot flames.

In interrogatories, read into evidence, Bethlehem admitted that it “generally maintained” the coke battery at issue. MR. CASKEY: Number 13, identify any person, firm or corporation which had any responsibility or duty for the maintenance of the A-battery at the time and place of the occurrence including in your answer the nature and scope of such responsibility. Excuse me.

Answer, this Defendant [Bethlehem] generally maintained the A-battery at the time of the occurrence. Plaintiffs employer [BMI] was engaged to do many [sic] maintenance and repairs to the battery. Plaintiffs employer was engaged and responsible to gunite the stand pipe where the accident occurred. Bethlehem Steel as owner of the battery generally maintained it subject to some of the work being contracted out as in this case.

Mr. Kerry Gordon, who was, according to Bethlehem’s counsel, Bethlehem’s assistant superintendent of the coke ovens and its corporate designee, discussed warnings given to BMI’s supervisors. In a deposition, introduced at trial, Gordon discussed the warnings. ²⁷⁵ Q Do you know whether any warnings were provided to BMI employees, including Carroll Lane, that the counterweight might fall? A I’m unaware of anything specifically that Carroll Lane may have been told. I am aware that BMI was notified that excessive physical force in trying to operate the damper arm was not to be performed.

Q And why was that warning given? A Because it was possible to activate the manual levers I described to you on Photograph 2, could cause the counterweight arm to rotate on the shaft. Q And what would happen in that event? A That would render the damper useless.

Q Okay. When you say the arm would rotate, that doesn’t anticipate the arm would break off and fall, does it? A It was a condition that was adverse to the operation of the oven, so we did not condone excessive force being applied on that mechanism. Q But because that oven could, at least for a period of time, be rendered useless, not because you specifically—and by you Bethlehem Steel—foresaw that that kind of pressure would result in the damper arm falling—or the damper counterweight falling and injuring an employee?

That wasn’t the warning, was it? A I believe that in addition to the rendering of the oven useless, that the possibility of the counterweight coming off or the counterweight arm coming off, they were instructed not to do that. Q What is the basis for that belief? Did you ever instruct anybody of the danger of counterweights falling?

A I did have discussions with BMI supervision as to all the dangers on the larry car level. Q Did you specifically include falling counterweights? A Yes. Q And when was that discussion?

A I couldn’t tell you. ²⁷⁶ Q Do you know whether that was prior to Carroll Lane’s injury? A It was prior to BMI working on the larry car level. Q Does that mean it was prior to October 19, 1989? A Yes.

Gordon also stated that Bethlehem had on its staff a “gas tender” who would inspect the ovens. During his inspection, the gas tender would operate the various mechanisms associated with an oven, among them the dampers. According to Gordon, the dampers would not form a tight seal if they had been damaged due to superheating or if they had been subjected to extremely violent manual opening and closing. Although he admitted that Bethlehem had done nothing to prevent corrosion, he stated that the A-battery ovens, in operation since 1982, had not shown any signs of deterioration.

Any rust noticed on the oven parts was surface rust, and scraping it off would not be prudent because that would leave bare metal, said Gordon. The gas tender would report to Bethlehem any damper that failed to shut properly. After the October 19 incident, Bethlehem, according to Gordon, fabricated and installed a new counterweight arm in the stand pipe where Lane had been injured. Gordon pointed out that anything in the coke oven was Bethlehem’s property.

The cast of characters before us include an employer/premises owner (Bethlehem), an independent contractor (BMI), and an employee (Lane). In order for us to resolve Lane’s claim, we must determine what duty, if any, Bethlehem owed to him. The Court of Appeals and this Court have, on previous occasions, enunciated the standards of care owed to an independent contractor and to the independent contractor’s employee by an employer/premises owner, and to the employee by the independent contractor. In Le Vonas v. ACME Paper Board Co., 184 Md. 16 , 40 A.2d 43 (1944), employees of independent contractors sued the employer/premises owner, Acme Paper Board Company (“Acme”), for injuries caused by an electrical shock.

Id. at 19 , 40 A.2d 43 . The employees argued that Acme “was negligent because it did not warn ²⁷⁷ them the wires were dangerous.” Id. Judge Delaplaine explained: If the owner employs an independent contractor to do certain work, he owes to employees of the contractor the same duty he would owe to employees of his own to furnish them a safe place to work. When the risk to which an employee is exposed arises from causes which are concealed, the employer is bound to notify him of them, provided that he himself knows them, or by the exercise of ordinary care ought to have known of them.

But while the owner must exercise reasonable care to have his own plant safe for employees of his contractor, he does not stand in the shoes of the contractor, for manifestly, if he is concerned only in the general results of the work and has no control of the details and manner in which the work is to be accomplished, he should not be liable for injuries caused to employees of the contractor during the progress of the work. On the contrary, if the injury is such as might have been anticipated as a probable consequence of the work, and the employer took no precaution to prevent it, he can be held liable for negligence. In other words, liability for injuries to a servant of 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. Id. at 20 , 40 A.2d 43 .

Our Court, in an opinion written by Judge Lowe, understood that 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. ²⁷⁸ Cutlip v. Lucky Stores, Inc., 22 Md.App. 673, 683 , 325 A.2d 432 (1974). Furthermore, Judge Lowe interpreted the owner’s control, as described in Le Vonas , as being founded upon his “superior vantage point to gain knowledge of [the] latent peril____” Id. The Court of Appeals, in Rowley v. City of Baltimore, 305 Md. 456 , 505 A.2d 494 (1986), citing to Bauman v. Woodfield, 244 Md. 207 , 223 A.2d 364 (1966), Le Vonas , and Cutlip further qualified the notice requirement.

Judge McAuliffe concluded that “[a]n employee of an independent contractor injured on the employer’s premises by reason of a latent defect (known to the employer but not to the contractor or his employee) which existed when the work began has recourse against the employer.” Rowley, 305 Md. at 475 , 505 A.2d 494 . The facts of the case sub judice present to us a variation not touched upon by Le Vonas : Will notice to supervisory personnel of an independent contractor by the employer/premises owner discharge the employer’s/premises owner’s duty to warn the independent contractor’s employee of a latent danger? The highest courts of nine jurisdictions, along with two intermediate appellate courts and the United States Fourth Circuit Court of Appeals, have tackled this issue and have answered the question affirmatively. One high court and one intermediate appellate court have ruled the opposite way.

We shall consider the respective positions. The Supreme Court of New Hampshire and a California District Court of Appeal (an intermediate appellate court) have held that the employer/premises owner cannot delegate his duty to warn an independent contractor’s employee of a hidden danger. In Stevens v. United Gas & Elec. Co., 73 N.H. 159 , 60 A. 848 (1905), the injured employee, Maurice J. Stevens, received an electric shock and was injured as he carried out duties assigned by his employer, Frost, an independent contractor, for United Gas and Electric Company (“UGE”), employer/premises owner.

The Court grounded UGE’s duty in its invitation to Stevens. ²⁷⁹ The alleged negligence of the defendant consisted in maintaining or sending or having upon the [electrical] wires not properly insulated at the time of the accident a current of electricity sufficient in intensity to cause serious physical injury to one merely touching them or standing in close proximity to them. The result to be apprehended from such a state of facts was known to the defendant’s agents, and to some extent to the plaintiff. The defendant was therefore chargeable with knowledge that a man at work on the staging, who should for any reason touch the uncovered wires, would receive severe and perhaps fatal injuries from the transmission of the electric current through his body. From this knowledge of