Parker v. Neighborhood Theatres, Inc.

JAMES S. GETTY, Judge, (retired) Specially Assigned. This case involves a claim for personal injuries sustained by an employee of a general contractor on June 19, 1985. The two defendants are the property owner and a subcontractor. On November 16, 1987, the case was heard by a jury in the Circuit Court for Prince George’s County and, at the conclusion of the employee’s case, the trial judge granted motions for judgment for both defendants.

This appeal followed. The appellant herein, David A. Parker, is employed as a laborer by Keller Brothers, Inc., a general contractor engaged by one of the appellees, Neighborhood Theatres, Inc. (hereinafter NTI), to construct two wings to NTI’s theatre complex. The remaining appellee is A. Myron Cowell, Inc. (hereinafter Cowell), who was employed by NTI as a subcontractor to perform the brick and masonry work on the project. Although the evidence is conflicting as to the exact date when a 4’ x 4' hole was cut in the third floor roof to allow ⁵⁹³ the installation of a smoke hatch, it is undisputed that a Keller Brothers employee cut the hole several days or a week before June 19th, the day of the accident.

The hole was covered by two unsecured 4' x 8' sheets of plywood, but no guardrails, toe boards, or warning signs were erected. Cowell was completing masonry work on a higher portion of the theatres and it had placed twenty sheets of plywood on the roof to use as a base for scaffolding in order not to damage the roof. The plywood belonged to Keller. When Cowell completed the masonry work, one of its employees stacked the plywood into three piles, and appellant and another laborer employed by Keller were directed by their foreman to clean up the roof and remove the plywood.

After the Cowell employee left the roof, appellant and his co-worker carried the plywood sheets to the edge of the roof where they were lowered to the ground by a crane. When appellant picked up the last sheet from one of the piles he walked forward one step and fell thirty feet to the concrete floor below. Appellant was at the rear of the sheet, and his co-worker, with his back to the plywood, was at the front end. As both men started out facing the same direction, appellant fell through the hole in the roof which he could not see below the plywood.

He denied any prior knowledge of the existence of the 4' x 4' hole. Appellant received Worker’s Compensation benefits and then filed this third party action against NTI and Cowell. We shall discuss other facts as they pertain to the various allegations of error raised by the appellant. I Appellant’s first allegation of error arises from the refusal by the trial judge (McKee, J.) to admit into evidence the Prince George’s County Code which, appellant claims, imposes upon a property owner a non-delegable duty of maintaining the premises in a reasonably safe condition during construction.

The Code, considered in combination ⁵⁹⁴ with Restatement (Second) of Torts, section 424, appellant suggests, subjects NTI to a non-delegable duty to ensure compliance with the Code which cannot be avoided by employing an independent contractor to perform the work. In support of his argument, appellant cites Council of Co-Owners v. Whiting-Turner, 308 Md. 18 , 517 A.2d 336 (1986), and Gardenvillage Realty Corporation v. Russo, 34 Md.App. 25 , 366 A.2d 101 (1966). The latter, he claims, is indistinguishable from the present case. The Prince George’s County Code provisions sought to be applied herein include Subtitle 4101, section 104.2, 1983 Edition, requiring the owner to keep the premises in a safe and reasonable condition during construction and to provide all safeguards imposed by the Prince George’s County Building Code.

Subtitle 4101, section 1313.4 imposes the responsibility upon the owner of protecting floor openings by installing guardrails and toe boards. Section 424 of the Restatement (Second) of Torts states: 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 s-afeguards or precautions. If the duty imposed is an absolute one, the employer (owner) is subject to liability for the failure of the contractor to provide the required safeguard or precaution, even though the contractor has exercised all reasonable care in his effort to do so. Section 424 Comment B. In Whiting-Turner, supra, the Council of Unit Owners and three individual unit owners of a condominium in Ocean City sued the general contractor, developer, and architects involved in the construction of the building for alleged negligent construction resulting in economic loss to the various plaintiffs.

The Court of Appeals expressed no opinion on the liability of the creator of the project based ⁵⁹⁵ upon a non-delegable duty with respect to unreasonably dangerous conditions caused by the construction. The Court, however, recognized that liability of an owner may arise from a non-delegable duty imposed by statute, including those contained in building codes intended as safety measures. In Gardenvillage, supra, this Court applied the non-delegable duty principle to affirm a judgment entered in favor of tenants and their invitees against the developer/owner and the general contractor for injuries resulting from the collapse of a defective concrete porch slab. The Baltimore City Building Code, we held, imposed upon the owner a non-delegable duty to build the structure in accordance with the Code.

The owner, however, retains a right of action against the contractor for indemnification where the owner is not guilty of any independent negligence, but is responsible in damages solely by reason of the vicarious liability arising from the statutory duty that he cannot delegate to anyone. The statutes and cases cited by appellant are correct statements of Maryland law. The problem is that the law appellant cites has no application to the case before us. The nature and extent of a tort duty recognized by law depends in part on the status of the party upon whom it is sought to be imposed and upon his relationship to the party claiming the benefit of it.

See, Rowley v. City of Baltimore, 305 Md. 456 , 505 A.2d 494 (1986). We point out that in the cases cited by appellant the parties seeking damages from the owner on the theory of vicarious liability have no contractual relationship with the owner. In one case they are private property owners seeking economic damages; in the other they are tenants and their invitees who were injured in the collapse of a concrete porch. Additionally, Whiting-Turner involved economic loss by purchasers of the units due to a latent defect resulting from improper installation of utility shafts and wiring; Gardenvillage included a construction defect that resulted in personal injury to persons in the public sector.

In both cases the ⁵⁹⁶ owner was in full possession of the property. By contrast, the claimant herein is an employee of the contractor who created the dangerous condition that resulted in the injury. The owner, moreover, had closed the complex during construction. The general rule is that the employer of an independent contractor is not liable for the negligence of the contractor or his employees.

Restatement (Second) of Torts, section 409 (1965). Exceptions to the rule, as noted in Comment b of Section 409, fall into three broad categories: 1. Negligence of the employer in selecting, instructing or supervising the contractor. 2. Non-delegable duties of the employer arising out of some relation toward the public or the particular plaintiff. 3.

Work which is specially, peculiarly, or inherently dangerous. For the purposes of this discussion, appellant is relying on the second category of exceptions to the general rule and alleges vicarious liability from a duty that is not delegable. The imposition of vicarious liability by the creation of the exceptions to the general rule is primarily a policy decision, the purpose being the protection of the public generally. While some jurisdictions hold that the contractor’s employees are within the class to whom the owner owes a duty, the majority of jurisdictions hold that an owner’s vicarious liability does not extend to employees of independent contractors. 1 In Rowley, supra, a security guard employed by an independent contractor sued the Mayor and City Council of Baltimore for injuries she received while working at the city convention center.

Specifically, her injuries resulted from an assault by an unknown assailant who gained entrance through a door with a faulty locking mechanism. The ⁵⁹⁷ contractor’s duties included all routine maintenance and repairs at the convention center. The plaintiff’s suit against the City claimed that she was owed by the City a non-delegable duty to maintain the premises in a reasonably safe condition for her use. The Court (McAuliffe, J.) said: We hold where, as here, the independent contractor has assumed responsibility for maintenance and repairs, and the harm has occurred to the contractor or his employee as a result of a defect arising from the failure of the contractor to make those repairs, nothing in sec. 416-429 (exceptions to the rule of non liability) operates to impose liability upon the person who hired the contractor.

Although Rowley is not a construction case, we think the same reasoning should be applied to the present case. Appellant was injured solely by reason of the negligence of his employer and co-workers who cut the hole in the roof and failed to secure a cover for the opening by a rail, toe boards, or any warning sign. The appellant was protected by Worker’s Compensation through his employer, Keller Brothers. The premiums paid for the accidental injury coverage were a consideration in the contract price between Keller Brothers and NTI.

Paraphrasing what the Court said in Rowley , we see no valid reason why the appellant herein should be placed in a better position than if he were employed by NTI, in which case he would be limited to compensation benefits only. Conversely, NTI should not be subjected to greater liability because it engaged a qualified independent contractor to build the additions to its theatres. We hold, therefore, that vicarious liability of the owner may not be predicated upon a statutory non-delegable duty where the injuries to an employee of a