Marrick Homes LLC v. Rutkowski

Berger, J. This case is before us on appeal from a jury verdict of the Circuit Court for Calvert County in a personal injury action brought by Adam Rutkowski and Sara Mastropole, appellees, husband and wife. Adam Rutkowski was injured on November 11, 2012, when a safety guardrail in his home failed, causing him to fall twelve to thirteen feet to the concrete below. The appellees filed suit against Marrick Properties, Inc. (“Mar-rick”), the builder and general contractor that constructed their home, as well as against Creative Trim, Inc. (“Creative Trim”), the subcontractor that was responsible for the construction and installation of the failed safety guardrail. The appellees also brought suit against the individual owners of Creative Trim and the previous owners of the home.

All parties other than Marrick were dismissed prior to trial. The jury returned a verdict for the appellees, and Marrick appealed. On appeal, Marrick presents four issues for our review, which we have consolidated as three issues and rephrased 1 as follows: ⁶⁹⁵ 1. Whether, under Maryland law, a general contractor/builder bears a nondelegable duty to comply with the relevant provisions of the building code. 2.

Whether sufficient evidence supports the jury’s finding that Marrick was negligent in the construction and/or the supervision of the construction of the safety guardrail. 3. Whether, as a matter of law, Rutkowksi assumed the risk and/or was contributorily negligent by leaning on the safety guardrail. For the foregoing reasons, we shall affirm the judgment of the Circuit Court for Calvert County. FACTS AND PROCEEDINGS In 2005, Marrick completed construction of a home in Dunkirk, Maryland.

Marrick served as the general contractor/builder for the home originally owned by Mark and Sandra Smith. Marrick entered into a contract with Creative Trim to perform certain trim work on the home, including the construction and installation of guardrails. The home was constructed with a sliding glass door in the kitchen to allow access to a potential future deck. Although the kitchen was located on the first story of the home, the sliding door opening was approximately twelve to thirteen feet above the ground due to the slope of the lot.

The home did not have a deck at the time it was constructed, so a safety guardrail was installed on the exterior of the house outside of the sliding glass door. Creative Trim was a subcontractor that built and installed guardrails on Marrick properties, and Marrick identified Creative Trim as the subcontractor that constructed the railing at the appel-lees’ home. After the house was completed, the Smith family ⁶⁹⁶ moved into the home in 2005 and lived in it for approximately seven years. In 2012, the appellees purchased the home from the Smiths and moved into the home with their one-year-old son.

Thereafter, approximately two months later, on November 11, 2012, Rutkowski opened the sliding glass door in order to shake out a kitchen mat. He extended his arms over the guardrail while holding the mat and his body pushed against the guardrail. The guardrail gave way, causing Rutkowski to fall onto the concrete patio below. Rutkowski suffered multiple broken bones and a traumatic brain injury as a result of the fall.

The appellees filed a complaint in the Circuit Court for Calvert County against Marrick, Creative Trim, Richard and Donna Haupt (the owners of Creative Trim), and Mark and Sandra Smith. The appellees alleged, inter alia, negligence, negligent supervision, and loss of consortium against Marrick. Marrick raised the affirmative defenses of contributory negligence and assumption of risk. Prior to trial, all parties other than Marrick were dismissed. 2 The case was tried before a jury over a period of five days in February 2016.

The parties presented evidence relating to, inter alia, the role of Marrick and Creative Trim in the design and construction of the safety guardrail, the standard of care required for general contractors, the way in which the safety guardrail was constructed, the requirements for construction of the guardrail pursuant to the Calvert County building code, the cause of the failure of the safety guardrail, and the extent of Rutkowski’s injuries. The appellees presented evidence that the safety guardrail was affixed to the home with non-structural finishing nails, rendering it incapable of withstanding the 200 pounds of lateral force required by the relevant building ⁶⁹⁷ code. The finishing nails were concealed by the use of wood trim. At the close of the plaintiffs case, the circuit court denied Marrick’s motion for judgment as to the claims alleging negligence, negligent supervision, and loss of consortium.

The circuit court further denied Marrick’s motion for judgment as to its defenses of contributory negligence and assumption of risk. Marrick renewed its motion for judgment at the close of all evidence, and the court again denied the motion. The jury returned a verdict in favor of the appellees and against Marrick, awarding $1,306,700.00 in damages. Marrick filed a motion for judgment notwithstanding the verdict, for new trial, and remittitur.

The circuit court denied Marrick’s motion except that the court applied the statutory cap on noneconomic damages to the jury’s verdict. The damage award was further amended on May 20, 2016 due to a clerical error, resulting in a final judgment of $976,700.00. Marrick noted a timely appeal. Additional facts shall be discussed as necessitated by our discussion of the issues on appeal.

STANDARD OF REVIEW We review a circuit court’s order granting a motion for judgment notwithstanding the verdict applying a de novo standard of review. Lowery v. Smithsburg Emergency Med. Serv., 173 Md.App. 662, 682-83 , 920 A.2d 546 (2007). We have explained: Whether the trial court applied the correct standard of proof in adjudging its grant of appellees’ motion for judgment is a question of law that we review de novo.

Coleman v. Anne Arundel County Police Dept., 369 Md. 108, 121 , 797 A.2d 770 (2002). “We review the grant of a motion for judgment under the same standard as we review grants of motions for judgment notwithstanding the verdict.” Tate v. Bd. of Educ. of Prince George’s County, 155 Md.App. 536, 544 , 843 A.2d 890 (2004) (citing Johnson & Higgins of Pa., Inc. v. Hale Shipping Corp., 121 Md.App. 426, 450 , 710 A.2d 318 (1998)). The Court assumes the truth of all credible ⁶⁹⁸ evidence on the issue and any inferences therefrom in the light most favorable to appellants, the nonmoving parties. Id. (citation omitted). “Consequently, if there is any evidence, no matter how slight, that is legally sufficient to generate a jury question, the case must be submitted to the jury for its consideration.” Id. at 545 , 843 A.2d 890 (citing Washington Metro.

Area Transit Auth. v. Reading, 109 Md.App. 89, 99 , 674 A.2d 44 (1996)). Lowery, supra, 173 Md.App. at 682-83 , 920 A.2d 546 . I. In a negligence action, a plaintiff bears the burden of proving: “1) that the defendant was under a duty to protect the plaintiff from injury, 2) that the defendant breached that duty, 3) that the plaintiff suffered actual injury or loss, and 4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” Rowhouses, Inc. v. Smith, 446 Md. 611, 631 , 133 A.3d 1054 (2016). Marrick’s first allegation of error is based upon the first element of the appellees’ negligence claim.

Specifically, Marrick contends that it owed no duty to the appellees to ensure the proper construction of the safety guardrail because the responsibility for the construction of the guardrail had been delegated to Creative Trim. The appellees respond that the duty to comply with the building code was nondelegable by Marrick. Maryland follows the general rule that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his employees. Rowley v. Mayor & City Council of Baltimore, 305 Md. 456, 461 , 505 A.2d 494 (1986) (citing Restatement (Second) of Torts § 409 (1965)).

The Court of Appeals has explained, however, that the general rule of non-liability for an employer of an independent contractor “is riddled with a number of common-law exceptions that have practically subsumed the rule.” Id. See also Gardenvillage Realty Corp. v. Russo, 34 Md.App. 25, 36 , 366 A.2d 101 (1976) (explaining that “the established rule has appended to it some twenty exceptions as set out in the Restatement (Second) of Torts §§ 410- ⁶⁹⁹ 429”). The exceptions to the general rule fall into three broad categories: (1) negligence of the employer in selecting, instructing, or supervising the contractor; (2) nondelegable duties of the employer, arising out of some relation toward the public or the particular plaintiff; and (3) work which is specially, peculiarly, or inherently dangerous. Rowley, supra, 305 Md. at 462 , 505 A.2d 494 .

The extent to which general contractors and owners are liable for the negligence of subcontractors due to a violation of the building code has been addressed in a series of cases over the past several decades. In Gardenvillage, supra, a tenant and her mother, an invitee, were injured when a concrete slab that formed the base of a porch gave way and the porch collapsed at their residence. 34 Md.App. 25 , 366 A.2d 101 . The collapse occurred six years after the slab had been constructed. Id. at 28 , 366 A.2d 101 .

The tenant and invitee sued the owner, the general contractor, 3 and the subcontractor responsible for the construction of the slab. Id. at 26 , 366 A.2d 101 . The evidence demonstrated that the concrete slab had been built in a manner that violated the relevant building code and that the collapse of the porch was a direct result of the defective slab. Id. at 35 , 366 A.2d 101 .

We considered “whether social policy and fairness will allow an imposition of liability on the [owner and general contractor/permit holder] where their negligence was passive when opposed to the negligence of the subcontractor.” Id. We noted that “[i]f the statute imposes a strict liability on the owner and permit holder, then there is no distinction between active and passive negligence” and “liability attaches if the violation of the [building c]ode was the cause of the injury.” Id. We held, based upon the Restatement (Second) of Torts, § 424, that “the Building Code places a nondelegable, affirmative duty on the owner-permit holder at the time of construction, to insure compliance with the Code.” Id. at 39, 366 A.2d 101 . 4 ⁷⁰⁰ The holding of Gardenvillage was reaffirmed by the Court of Appeals in Council of Co-Owners Atlantis Condo., Inc. v. Whiting-Turner Contracting Co., 308 Md. 18 , 517 A.2d 336 (1986). In Whiting-Turner, the owners of 198 separate condominium units in a 21-story building brought an action against the general contractor/builder, developer/owner, and architects for negligent design, construction, and inspection of the building’s utility shafts.

Id. at 22 , 517 A.2d 336 . The owners contended that the utility shafts and related electrical work were not installed properly and constituted a fire hazard. Id. Neither the architect defendants nor the general contractor/builder defendants argued that their duties were delegated to independent subcontractors. 5 The Court of Appeals corn- ⁷⁰¹ mented on this issue as it pertained to the developer/owner, who had asserted that the duty to abide by the code had been delegated to an independent contractor.

The Court held that the duty of the developer/owner to abide by the building code was nondelegable. Id. at 40, 517 A.2d 336 . The Court explained: The third potential source of a tort duty with respect to the dangerous condition of the building lies in the status of the developer as the creator of the building project. The developer is, in a sense, the builder of the project, even though he may delegate to others the physical acts of construction.

Given the current trend of expanding the exceptions to the rule of nonliability of one who has employed an independent contractor, and given the policy considerations favoring the imposition of at least initial liability upon the person who sits at the top of the pyramid of those who create the improvement, a strong argument may be advanced in favor of the recognition of a nondelega-ble duty on the part of the developer with respect to unreasonably dangerous conditions created as a result of the development. We express no opinion on that issue because the pleadings suggest a narrower ground upon which a nondelegable duty of the developer may be found—the requirement of a statute or ordinance. Recognition of the nondelegable nature of a duty imposed by certain types of statutes is discussed at 5 F. Harper, F. James and 0. Gray, The Law of Torts, supra, § 26.11 at 83-84: There are ... situations wherein the law views a person’s duty as so important and so peremptory that it will be treated as nondelegable.

Defendants who are under such a duty “ ... cannot, by employing a contractor, get rid of their own duty to other people, whatever that duty may ⁷⁰² be.” Duties imposed by statute are often found to be of this kind ... [Statutory duties that have been held nondelegable include ... various building code provisions .... (Footnotes omitted.) The principle is recognized in § 424 of the Restatement (Second) of Torts: One who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions. In Gardenvillage Realty v. Russo, 34 Md.App. 25 , 366 A.2d 101 (1976), the Court of Special Appeals applied the principle to affirm a judgment entered in favor of tenants and their invitee against the developer-owner (and against the general contractor) for injuries resulting from the collapse of a defective concrete porch slab. The slab had been constructed and installed by a subcontractor, and the defect resulted from the improper placement of reinforcing bars within the slab, so that the defect defied detection.

The Court of Special Appeals held that the Baltimore City Building Code imposed a duty on the owner of the premises at the time the structure was built to erect it in accordance with the Code, and that the duty could not be delegated by employing independent contractors to accomplish the work. We agree that where, as alleged here, there is a violation of a provision of a building code that was intended as a safety measure, and where that violation has produced death or personal injury, the duty imposed by the Code is nondelegable. Whiting-Turner, supra, 308 Md. at 39-40 , 517 A.2d 336 . Marrick urges us to conclude that a duty imposed by a building code is only nondelegable by the owner or developer, not by a general contractor.

In our view, this is an unreasonably narrow reading of Gardenvillage, Whiting-Turner, and the Restatement. To be sure, as the general contractor, Mar- ⁷⁰³ rick was required to comply with the building code, and it is unassailable that the code provisions alleged to have been violated in this case were intended as safety measures. Pursuant to § 424 of the Restatement (Second) of Torts, “[o]ne who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.” In this case, Marrick, the general contractor responsible for the construction of the appellees’ home, bore the statutory duty to provide specified safeguards or precautions. Marrick, therefore, is subject to liability to the appellees for harm caused by the failure of its employee Creative Trim to provide such safeguards.

Marrick points to a passage from Whiting-Turner in which the Court commented that “[a]s the owner and occupier of land, a developer owes a nondelegable duty to those who may come upon the land, and the nature and extent of that duty is fixed by that status of the person claiming it.” Id. at 37 , 517 A.2d 336 . First, we emphasize that this passage is dicta. Second, we observe that this passage was offered in the context of the Court’s discussion of various potential alternative theories of liability and was discussed before the Court adopted the reasoning of § 424 of the Restatement. Accordingly, we reject Marrick’s narrow reading of Whiting-Turner as imposing a nondelegable duty imposed by a building code only on an owner of the property.

Furthermore, as in Whiting-Turner , we need not address whether liability may be assigned to a general contractor for unreasonably dangerous conditions caused by a subcontractor absent a statutory violation. In this case, the general rule of nonliability does not control because the requirement of a statute or ordinance exception applies. We observe, however, as in Whiting-Turner , that policy considerations “favor[ ] the imposition of at least initial liability upon the person who sits at the top of the pyramid of those who create the improvement.” Id. at 39 , 517 A.2d 336 . Policy considerations, there ⁷⁰⁴ fore, support a finding of potential liability on the general contractor.

Nevertheless, we need not rely on policy considerations because of the express exception outlined in the Restatement applies to the facts of this case. Accordingly, we hereby adopt § 424 of the Restatement, apply the § 424 exception to general contractors, and hold that Marrick, as general contractor, can be held liable for harm caused by its employee subcontractor when evidence was presented to demonstrate that the subcontractor violated the building code and the provisions of the building code alleged to have been violated were intended as safety measures. We further reject Marrick’s assertion that our opinion in Brady v. Ralph M. Parsons Co., 82 Md.App. 519 , 572 A.2d 1115 (1990), aff'd, 327 Md. 275 , 609 A.2d 297 (1992), requires us to rule in Marrick’s favor and hold that the § 424 exception and nondelegable duty theory applies only to an action against an owner. In our view, Brady is distinguishable from the present case.

In Brady , an employee died as result of a construction accident after required safety measures were not followed at a building site. The decedent had been employed by a subcontractor that had been hired by the general contractor. The general contractor was hired by the owner. The owner had also hired a separate company, the Ralph Parsons Co. (“Parsons”), to provide inspection and safety services for the project.

Id. at 521 , 572 A.2d 1115 . The decedent’s survivors and personal representative asserted that because Parsons had assumed responsibility for implementing required safety measures pursuant to its contract with the owner, Parsons was liable for the decedent’s death. Parsons raised the affirmative defenses of contributory negligence and assumption of risk, and the jury found that the decedent was contributorily negligent and assumed the risk, barring recovery. Id. at 523-24 , 572 A.2d 1115 .

On appeal, the decedent’s survivor and personal representative argued that (1) Parsons’ duty to assure compliance with the safety regulations was nondelegable, and (2) the defenses of assumption of risk and contributory negligence cannot bar a plaintiffs recovery when the defendant had breached a non- ⁷⁰⁵ delegable duty. Id. at 524 , 572 A.2d 1115 . We expressly held that the source of Parsons’ duty was not statutorily imposed, but undertaken “pursuant to its contract with” the owner. Id. at 534 , 572 A.2d 1115 .

We emphasized that Parsons had “assumed a duty to exercise reasonable care in performing [its contractual] obligation.” Id. We further held that “Parsons’ negligence resulted from its failure to exercise due care in its duty to the decedent to monitor safety” and “[s]ince contributory negligence and assumption of risk are normally complete bars to an action for negligence and since we are cited to no Maryland authority to the contrary,” the defenses of contributory negligence and assumption of risk were available to Parsons and were properly submitted to the jury. Id. at 534-35 , 572 A.2d 1115 . We explained why the facts of Gardenvillage differed from the facts presented in Brady , observing that “[i]n Gardenvil-lage a statutory nondelegable duty was imposed on the owner for the benefit and protection of innocent members of the public.” Id. at 536 , 572 A.2d 1115 .

We commented that, “[b]y contrast, Parsons was not the owner of the project, nor was the decedent an innocent member of the public.” Id. According to Marrick, this language in Brady limits the holding of Gardenvillage as imposing a nondelegable duty only on an owner, rather than, as in this case, on a general contractor. 6 We make two observations about our analysis on this issue in Brady . First, we emphasize that the facts of Brady and the source of the duty in Brady are factually dissimilar to the facts of the instant case. In this case—as in Gardenvillage— the source of Marrick’s duty stemmed from the building code, and not, as in Brady , from a contractual relationship.

Second, as discussed supra, we understand the analysis set forth in Gardenvillage to be applicable to a broader range of situations including the circumstances presented in this case. In our view, the reasoning set forth in § 424 of the Restatement is ⁷⁰⁶ equally applicable to assign liability to a general contractor for injury caused by a subcontractor’s violation of safety measures found in the building code. 7 We next turn our attention to Marrick’s assertion that any duty was extinguished as a matter of law by the passage of approximately seven years between the construction of the home and the accident that resulted in Rutkowski’s injury. Marrick argues that the appellees had owned the home for over seventy days prior to the incident. In Marrick’s view, this constituted ample time for the appellees to inspect the property and discover any defects.

Marrick asserts that it would be unreasonable to hold that a builder has a continuing duty to every possible owner of a home, in perpetuity. We reject Marrick’s contention that its duty was extinguished as a matter of law due to the passage of time. First, ⁷⁰⁷ Marrick misstates the law by suggesting that assigning liability in this case would be akin to holding that a builder has a continuing duty in perpetuity. Under Maryland law, a ten-year statute of repose applies to claims against contractors for defective and unsafe improvements to real property.

Md. Code (2006, 2013 Repl. Vol.), § 5—108(b) of the Courts and Judicial Proceedings Article (“Except as provided by this section, a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use.”). To the extent that a factual question existed relating to whether the appellees should have discovered the defect earlier and taken appropriate steps to avoid injury, Marrick was permitted to argue that issue to the jury in the context of its defenses of contributory negligence and assumption of risk. The passage of time may indeed make a claim against a contractor less likely to succeed, but it does not preclude such a claim as a matter of law. 8 II.

Having established that Marrick bore a duty to the appellees, we next consider whether sufficient evidence supports the breach and causation elements of the negligence claim. 9 “In a civil case, the evidence is legally sufficient to support a finding in support of the prevailing party if, on the ⁷⁰⁸ facts adduced at trial viewed most favorably to that party, any reasonable fact finder could find the existence of the elements of the cause of action by a preponderance of the evidence.” Univ. of Maryland Med. Sys. Corp. v. Gholston, 203 Md.App. 321, 329 , 37 A.3d 1074 (2012). We have explained: In a jury trial, the quantum of legally sufficient evidence needed to create a jury question is slight.

If there is legally sufficient evidence to support a finding in favor of the party bearing the burden of proof, it would be error on the part of the trial judge to grant a motion for judgment in favor of the opposing party and withhold the case from the jury for decision. Id. (internal citation omitted). Marrick asserts that no facts addressed at trial support a finding of negligent supervision.

Marrick further asserts there was insufficient evidence of proximate cause due to the lapse in time between construction and the accident. As we shall explain, the record reflects that there was evidence presented at trial to support the jury’s verdict. A. Breach of the Duty of Care The verdict sheet listed the following four questions with respect to Marrick’s claim of negligence, 10 all of which the jury answered affirmatively: 1. A. Do you find more likely than not that the construction of the railing violated the building code? 1.

B. Do you find more likely than not that the violation of the building code was a proximate cause of Adam Rutkow-ski’s injuries? 2. A. Do you find more likely than not that Marrick Properties was negligent in the construction and/or supervision of the construction of the railing? ⁷⁰⁹ 2. B. Do you find more likely than not that Marrick Properties’ negligence was a proximate cause of Adam Rutkowski’s injuries? The jury was not asked to identify whether it found Marrick negligent based upon a negligent supervision theory or upon a general