Rowley v. Mayor of Baltimore

McAULIFFE, Judge. The interesting question raised by this appeal is whether one who engages an independent contractor may be liable to an employee of that contractor for injuries causally related to a defective condition of the premises resulting from the negligent failure of the contractor to accomplish the repairs he was directed and empowered to make by the terms of the contract. We hold that under the facts in this case there is no liability. The principals in this unfortunate occurrence are: the Mayor and City Council of Baltimore (the “City”), who owned the Baltimore Convention Center; Facility Manage ⁴⁶⁰ ment Inc. of Maryland (FMI), who contracted with the City to assume management and operation of the Convention Center; 1 and Catherine Rowley (Rowley), who was employed by FMI as a security guard at the Convention Center.

Rowley was beaten, raped, and robbed by an unknown assailant at 2:20 a.m. on August 22, 1980, while working at the Convention Center. The evidence permitted a finding that her assailant gained entrance to the building through a defective perimeter door located near the security office. This door was one of four comprising an employee and delivery entrance, and was defective by reason of an inoperable locking device. 2 This defect had existed for eleven months, and had been reported to FMI on a number of occasions during that time by Rowley and others. Under the terms of its agreement with the City, FMI had the obligation of performing all routine maintenance and repairs at the Convention Center, and it is clear this included the obligation to procure the repair of the locking mechanism of this door. 3 Additionally, FMI assumed “full respon ⁴⁶¹ sibility for management and direction” of the Convention Center, including the responsibility for rental of temporary and permanent space, booking of events, advertising and marketing, supervision of food and beverage sales and catering, security, management of events, and related matters.

The City retained policy oversight, including the power to disapprove bookings of attractions and conventions it considered inappropriate. Rowley brought an action in negligence against the City in the Circuit Court for Baltimore County, alleging that as owner of the Convention Center the City had a duty “to provide a safe and secure place for the general public and people working in the Convention Center,” and that notwithstanding its knowledge that the building was neither safe nor secure the City failed to take remedial action. Trial by jury was terminated when Judge J. William Hinkel directed the entry of a verdict in favor of the City at the conclusion of the plaintiffs evidence. That judgment was affirmed by the Court of Special Appeals, Rowley v. City of Baltimore, 60 Md.App. 680 , 484 A.2d 306 (1984), and we granted certiorari.

Rowley concedes that the City’s legal relationship with FMI was that of employer and independent contractor, and that liability cannot be imposed on the City under the doctrine of respondeat superior. She contends, however, that because of its contractual relation with FMI, the City owed to her certain non-delegable duties that were breached. The general rule is that the employer of an independent contractor is not liable for the negligence of the contractor or his employees. 4 Restatement (Second) of Torts § 409 (1965). ⁴⁶² Various reasons have been advanced for it, but the one most commonly accepted is that, since the employer has no right of control over the manner in which the work is to be done, it is to be regarded as the contractor’s own enterprise, and he, rather than the employer, is the proper party to be charged with the responsibility for preventing the risk, and administering and distributing it. Prosser and Keeton on The Law of Torts § 71 at 509 (W. Keeton 5th ed. 1984) (footnotes omitted).

The general rule is riddled with a number of common-law exceptions that have practically subsumed the rule.* * 5 As noted in comment b to § 409 of the Restatement, these exceptions 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. The generally recognized exceptions to the rule of non-liability are collected at §§ 410-429 of the Restatement. Sections 410-415 deal with liability imposed by reason of actual fault on the part of an employer of an independent contractor. Appellant does not suggest the City is liable upon any such theory.

Rather, she relies upon a theory of vicarious liability pursuant to one or more of the principles collected in §§ 416-429. The introductory note to that portion of the Restatement is instructive: The rules stated in ... §§ 416-429, unlike those stated in ... §§ 410-415, do not rest upon any personal negli ⁴⁶³ gence of the employer. They are rules of vicarious liability, making the employer liable for the negligence of the independent contractor, irrespective of whether the employer has himself been at fault. They arise in situations in which, for reasons of policy, the employer is not permitted to shift the responsibility for the proper conduct of the work to the contractor.

The liability imposed is closely analogous to that of a master for the negligence of his servant. The statement commonly made in such cases is that the employer is under a duty which he is not free to delegate to the contractor. Such a “non-delegable duty” requires the person upon whom it is imposed to answer for it that care is exercised by anyone, even though he be an independent contractor, to whom the performance of the duty is entrusted. Such duties have been recognized in a series of exceptions to the “general rule” of non-liability stated in § 409, which are stated in [§§ 416-429].

Appellant’s claim is that the City owed to her a non-delegable duty to maintain the premises of the Convention Center in reasonably safe condition for her use. This duty arose, she suggests, from the status of the City as: 1) owner and occupier of the premises (Restatement § 343), 2) a municipal government maintaining a building for the use of the public (§ 418), and 3) employer of an independent contractor, Bauman v. Woodfield, 244 Md. 207, 217 , 223 A.2d 364 (1966). We agree that the City had a non-delegable duty to maintain the premises in a reasonably safe condition, and that the existence of that duty may be traced to several separate sources. We conclude, however, that under the circumstances of this case the duty did not extend to the independent contractor and its employees with respect to defects arising from the failure of the contractor to accomplish the very repairs it had undertaken to perform.

We shall discuss in greater detail the applicable principles of law and the reasons underlying this conclusion. ⁴⁶⁴ In determining whether the City as owner of the Convention Center owed a duty to invitees, we must consider the threshold question of whether the City was in possession and control of the building. The liability of a landowner for injuries received on the land is dependent upon whether the device which caused the injury is in his possession and control. Section 328 of the Restatement defines an owner and occupier of land in terms of a possessor of land: (a) a person who is in occupation of the land with intent to control it or (b) a person who has been in occupation of land with intent to control it, if no other person has subsequently occupied it with intent to control it, or . (c) a person who is entitled to immediate occupation of the land, if no other person is in possession under Clauses (a) and (b).

Here, there was no evidence that the City relinquished its possession to FMI or to any other entity. 6 There was no provision in the management agreement for FMI to lease the Center, nor did the agreement provide that FMI should have sole and exclusive control and possession of the Center. 7 Compare Henley v. Prince George’s County, 305 Md. 320, 337-338 , 503 A.2d 1333 (1986). The standard of care owed by a possessor of land depends upon the status of the person on the land; i.e. whether he is an invitee, licensee, or trespasser. Sherman ⁴⁶⁵ v. Suburban Trust Co., 282 Md. 238, 242 , 384 A.2d 76 (1978); Macke Laundry Serv. Co. v. Weber, 267 Md. 426 , 298 A.2d 27 (1972).

An invitee is a person invited or permitted to enter or remain on another’s property for purposes connected with or related to the owner’s business; the owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect him from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety will not discover. 8 Sherman v. Suburban Trust Co., supra; Gray v. Sentinel Auto Parks Co., 265 Md. 61 , 288 A.2d 121 (1972); Lloyd v. Bowles, 260 Md. 568 , 273 A.2d 193 (1971); Gast, Inc. v. Kitchner, 247 Md. 677 , 234 A.2d 127 (1967). Restatement § 343. As applied to contractor’s employees, § 343 is often referred to as the “safe workplace” doctrine under which one who employs an independent contractor has a duty to provide a safe workplace for the employees of the contractor. Donovan v. General Motors, 762 F.2d 701, 704 (8th Cir.1985) (applying Missouri law); W. Prosser, The Law of Torts § 67, at 374-75 (2d ed. 1955).

See also Baltimore Gas & Electric v. Thompson, 57 Md.App. 642, 652 , 471 A.2d 768 (1984). Under this doctrine, an employer has a duty to notify an employee of any latent or concealed dangers, provided he knows of the condition or with the exercise of ordinary care should have known of it. Leonard v. Sav-A-Stop Services, 289 Md. 204, 218 , 424 A.2d 336 (1981); ⁴⁶⁶ Bauman v. Woodfield, supra; Bohlen v. Glenn L. Martin Co., 193 Md. 454, 460-61 , 67 A.2d 251 (1949); Le Vonas v. Acme Paper Board Co., 184 Md. 16, 19-20 , 40 A.2d 43 (1944). See also Cutlip v. Lucky Stores, 22 Md.App. 673, 682-84 , 325 A.2d 432 (1974).

It is generally held that employees of an independent contractor are invitees on the property of the landowner. Prosser and Keeton on The Law of Torts § 61, at 419 (W. Keeton 5th ed. 1984); F. Harper and F. James, The Law of Torts § 27.12, at 1481 (1956); J. Dooley, Modern Tort Law § 19.06, at 444-48 (1982, 1985 Cum.Supp.). The duty of a landowner to an invitee is often referred to as “non-delegable.” That is something of a misnomer, as the owner 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. [W]here one invites another to come onto premises ostensibly maintained by him, his duty to the invitee cannot be circumscribed by the employment of an independent contractor. J. Dooley, Modern Tort Law § 17.05, at 422-23 (1982, 1985 Cum.Supp.).

This principle may be found in the Restatement at § 425: One who employs an independent contractor to maintain in safe condition land which he holds open to the entry of the public as his place of business ... is subject to the same liability for physical harm caused by the contractor’s negligent failure to maintain the land ... in reasonably safe condition, as though he had retained its maintenance in his own hands. Closely analogous is § 422, which provides: A possessor of land who entrusts to an independent contractor construction, repair, or other work on the land, or on a building or other structure upon it, is subject to the same liability as though he had retained the work in his own hands to others on or outside of the land for ⁴⁶⁷ physical harm caused to them by the unsafe condition of the structure (a) while the possessor has retained possession of the land during the progress of the work, or (b) after he has resumed possession of the land upon its completion. Similarly, § 418 provides that a government under a duty to maintain any place in a reasonably safe condition for the use of the public cannot avoid liability to the public by entrusting the maintenance or repair responsibilities to an independent contractor. The imposition of vicarious liability by the creation of these exceptions to the general rule of non-liability of the employer of an independent contractor is a matter of policy, designed to protect innocent members of the public.

Whether the protection of these exceptions should be extended to subcontractors and their employees has been the subject of considerable comment in the courts and among the drafters of the Restatement. Some jurisdictions hold that the contractor’s employees are within the protected class to whom the employer owes a non-delegable duty. Lindler v. District of Columbia, 502 F.2d 495, 498-99 (D.C.Cir.1974); United States v. DeCamp, 478 F.2d 1188 (9th Cir.), cert. denied, 414 U.S. 924 , 94 S.Ct. 232 , 38 L.Ed.2d 158 (1973) (applying California law); Van Arsdale v. Hollinger, 68 Cal.2d 245 , 66 Cal.Rptr. 20, 25, 26 , 437 P.2d 508, 513-14 (1968); Giarratano v. Weitz Company, 259 Iowa 1292 , 147 N.W.2d 824, 834 (1967); Vannoy v. City of Warren, 15 Mich.App. 158 , 166 N.W.2d 486, 489 (1968); International Harvester Co. v. Sartain, 32 Tenn.App. 425 , 222 S.W.2d 854, 868 (1948). But the majority of jurisdictions hold that an employer’s vicarious liability does not extend to employees of independent contractors.

Vagle v. Pickands Mather & Co., 611 F.2d 1212, 1217-19 (8th Cir. 1979) (applying Minnesota law), cert. denied, 444 U.S. 1033 , 100 S.Ct. 704 , 62 L.Ed.2d 669 (1980); Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030, 1033-35 (5th Cir.1977), cert. denied, 435 U.S. 924 , 98 S.Ct. 1489 , 55 L.Ed.2d 518 ⁴⁶⁸ (1978); Craig v. Olin Mathieson Chemical Corp., 427 F.2d 962 (7th Cir.), cert. denied, 400 U.S. 964 , 91 S.Ct. 365 , 27 L.Ed.2d 383 (1970); Parsons v. Amerado Hess Corporation, 422 F.2d 610, 614 (10th Cir.1970) (applying New Mexico law); Lipka v. United States, 369 F.2d 288, 292-93 (2d Cir. 1966) (applying New York law), cert. denied, 387 U.S. 935 , 87 S.Ct. 2061 , 18 L.Ed.2d 997 (1967); Corban v. Skelly Oil Company, 256 F.2d 775, 779-80 (5th Cir.1958) (applying Arkansas law); Morris v. City of Soldotna, 553 P.2d 474, 480-82 (Alaska 1976); Sloan v. Atlantic Richfield Company, 552 P.2d 157, 160 (Alaska 1976); Welker v. Kennecott Copper Co., 1 Ariz.App. 395 , 403 P.2d 330, 339 (1965); Florida Power and Light Co. v. Price, 170 So.2d 293, 298 (Fla.1964); King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659, 662 (Ky.1973), cert. denied, 417 U.S. 932 , 94 S.Ct. 2644 , 41 L.Ed.2d 235 (1974); Hader v. Coplay Cement Mfg. Co., 410 Pa. 139 , 189 A.2d 271, 277 (1963); Humphreys v. Texas Power & Light Company, 427 S.W.2d 324, 330-31 (Tex.Civ.App.1968); Tauscher v. Puget Sound Power & Light Co., 96 Wash.2d. 274, 635 P.2d 426, 429-31 (1981); Epperly v. City of Seattle, 65 Wash.2d 777 , 399 P.2d 591, 597 (1965); Potter v. City of Kenosha, 268 Wis. 361 , 68 N.W.2d 4 (1955). In King v. Shelby Rural Electric Cooperative Corp., supra, the Court of Appeals of Kentucky concisely stated the policy reasons why an employers’ non-delegable duty should not extend to an employee of contractors hired to do the dangerous work which resulted in the harm: Although there are strong social reasons why the employer of an independent contractor should be responsible to third parties negligently injured in the performance of work of an inherently dangerous nature, the reasons to extend this protection to the employees of an independent contractor are not so compelling. Industrial workers are usually protected by Workmen’s Compensation laws under which they may recover of their employer for injuries arising out of their work.

This recovery may be had although the injury was ⁴⁶⁹ brought about by the employee’s carelessness and absent any negligence on the part of the employer. The price of this social legislation is that when the employee accepts the benefits he releases the employer from tort liability for negligence. In the case at bar the appellant was protected by and collected Workmen’s Compensation from his employer, Electricom. The premiums for the Workmen’s Compensation insurance carried by Electricom were undoubtedly a factor in the determination of the contract price between Electricom and Shelby, so that ultimately Shelby paid the premiums.

We can see no reason why appellant, simply because he was an employee of an independent contractor, should be placed in a better position than if he had been an employee of Shelby, in which case his recovery would be limited without question to the benefits provided by the Workmen’s Compensation Act. Conversely, we see no valid reason why Shelby should be subjected to more liability simply because it engaged the services of a qualified independent contractor. Employers frequently farm out work which requires some special skill to an independent contractor skilled in that particular work. The imposition of additional tort liability upon the employer because of the selection of an independent contractor would have a tendency to discourage the practice of selecting skilled independent contractors and cause employers to do the work with their own, sometimes less skilled, work force. 502 S.W.2d at 663 .

More recently, in Tauscher v. Puget Sound, supra, 635 P.2d at 428 , the defendant claimed the employer of an independent contractor owed the contractor’s employees a non-delegable duty of care based on the presence of an inherently dangerous activity. The Supreme Court of Washington, after reviewing the case law of various states, announced its rationale for limiting the employer’s liability to third persons other than contractor’s employees: ⁴⁷⁰ There are strong policy considerations behind limiting an owner’s liability to those third parties other than employees of independent contractors. First, the rationale underlying the exception to the rule for nonliability, which is that we did not want an owner shifting his or her liability by hiring an independent contractor to perform a task, is not relevant in the case of an employee of an independent contractor. An owner who employs an independent contractor is already liable to all third persons, including employees of the independent contractor, for his or her own negligence in the hiring of the independent contractor and for injuries resulting from any latent defects on the land.

See Welker v. Kennecott Copper Co., 1 Ariz.App. 395 , 403 P.2d