Wajer v. Baltimore Gas & Electric Co.

DAVIS, Judge. On July 25, 2001, appellants 1 Anthony A. Wajer and Frances Wajer filed a complaint in the Circuit Court for Baltimore City against appellee Baltimore Gas and Electric Company (BGE) and twenty-nine other defendants, seeking damages for loss of consortium and injuries associated with appellant’s alleged contraction of mesothelioma, a form of cancer linked to asbestos exposure. Appellants brought their action under the theories of negligence, strict liability, and premises liability— with BGE identified as the property owner where appellant allegedly sustained his injuries. On April 7, 2003, appellee filed a motion for summary judgment, arguing that it was a premises owner and that it did not owe a duty to appellant because he was the employee of an independent contractor when the alleged injuries occurred.

Appellee’s motion for summary judgment was granted on May 16, 2003. Appellants filed their timely notice of appeal on May 29, 2003, presenting six questions for our review, which we reorder and rephrase as follows: I. Did the trial court err by granting summary judgment with regard to appellants’ claim under § 414 of the Restatement (Second) of Torts?

II

Did the trial court err by granting summary judgment regarding appellants’ claim under § 343? ²³² III. Did the trial court err by granting summary judgment concerning appellants’ claim under § 410?

IV

Did the trial court err by granting summary judgment regarding appellants’ claim under § 413? V. Did the trial court err by granting summary judgment in regard to appellants’ claims under §§ 416-429? VT. Did the trial court err by granting summary judgment on the basis that appellant was not within the class of persons protected by Chapter 15 of the Restatement (Second) of Torts?

We answer questions I and II in the negative and do not reach questions III, IV, V, and VI because they are not preserved for our review. 2 Therefore, we affirm the judgment of the circuit court. FACTUAL BACKGROUND Appellant is a seventy-nine-year-old retired general electrician whose career lasted for approximately forty-five years. In the course of his profession, he worked for an assortment of employers and performed electrical services at an extensive list of job sites. Although appellant was never directly employed by appellee, he did work as an electrician for various independent contractors during construction projects at three of appellee’s power plants: the Westport Power Plant (West-port), the Crane/Carroll Island Power Plant (Crane), and the Calvert Cliffs Nuclear Power Plant (Calvert Cliffs).

Appellant alleges that, while he was working on appellee’s property, he was exposed to asbestos inhalation and subsequently developed non-malignant pleural changes, asbestosis, and mesothelioma. He does not assert that he directly handled asbestos products, but, instead, contends that his exposure occurred ²³³ while working in proximity to other contractors who were installing asbestos insulation or products. From approximately 1947 to 1951, appellant was employed as an electrician by H.P. Foley Company (Foley). In 1948, appellee contracted with the Arundel Corporation (Arundel) to construct an additional generator at the Westport power plant.

Arundel, acting as the general contractor, subcontracted with Foley to perform electrical work for the new generator construction. As a result, appellant was assigned by Foley to work at Westport for three or four months sometime in or about 1948. During that time, appellant claims he was exposed to insulation products containing asbestos, which were being installed by piping tradesmen working in the same vicinity at the Westport plant. The piping tradesmen were employed by W.K. Mitchell & Company, Inc. (Mitchell), which was the subcontractor employed to install a piping system for the generator.

Appellant’s work at Westport was supervised, in part, by a BGE employee referred to as Mr. Sweeney. According to appellants, Sweeney was the electrical superintendent and he would instruct the general foreman on what electrical work to perform. The general foreman instructed appellant’s foreman, who then instructed appellant on what should be done. Appellant also described Sweeney as the “[sjafety man” and stated that Sweeney “had the authority to stop anybody who was doing the job unsafe.” Sweeney’s authority, however, did not permit him directly to inform appellant that he was improperly performing his job.

Instead, Sweeney would report any safety concerns to the general foreman and, as noted above, the instructions would be passed down to appellant’s foreman and then to appellant. In February 1959, appellee contracted with Arundel to construct two generator units at the Crane plant. At the time, appellant was employed as an electrician by RiggsDistler, an Arundel subcontractor and, from April 1960 until June or July 1961, he worked on the construction project at the Crane site. Appellant received his work instructions from ²³⁴ foremen employed by Riggs-Distler and he was not supervised or otherwise instructed by any employee of appellee concerning the performance of his job.

Riggs-Distler also provided appellant with the tools and supplies necessary to complete his assigned work and it issued all of his paychecks. In addition to the contract with Arundel, appellee also contracted with the Babcock & Wilcox Company (Babcock) to install a boiler and to supply all necessary labor and manage all insulation work related to the boiler. Appellant maintains that he was exposed to asbestos at the Crane site while working in close proximity to the subcontractors who were hired by Babcock to install and insulate the boiler at the plant. In July 1967, appellee entered into a contract with the Bechtel Corporation (Bechtel) to perform the engineering and construction work for the new Calvert Cliffs power plant.

From 1972 until 1974, appellant was employed as an electrician by Bechtel to work at the Calvert Cliffs plant, where he worked in the plant’s turbine and reactor buildings. Appellant did not have contact with any of appellee’s employees. His daily work instructions were provided by a Bechtel foreman and appellant either used his own tools and supplies or those furnished by Bechtel. According to appellant, he was exposed to asbestos because other subcontractors, working under a contract with Bechtel, used asbestos products at the plant, creating a dust in the air.

As noted, supra, appellants filed a complaint on July 25, 2001, naming appellee a defendant under the theory of landowner liability. Appellee filed a motion for summary judgment, which the court granted on May 16, 2003. In granting the motion, the trial court issued a brief letter opinion stating that it had addressed very similar facts in a memorandum opinion in Mackenzie, et al. v. AcandS, Inc., et al. (Wilson) 3 ²³⁵ and that it was attaching Wilson because the issues therein are applicable to the case sub judiee. The court opined: I do not see any significant difference between the legal issues involved in [Wilson ] and the instant case.

I am attaching a copy of [Wilson ] and to the extent it is not inconsistent with the facts in this case, the law discussed therein is applicable to this case. In this case, as in [Wilson], the landowner hired an independent contractor to build a power plant. In both cases the independent contractor was [Bechtel], an international firm which carries out contracts worldwide. That company was at least as knowledgeable of the dangers of asbestos as was [appellee]. [Appellant] was an employee of the independent contractor or of companies hired by the independent contractor.

In view of the strong public policy, which is expressed in the various cases in [Wilson ], this court again “holds that a landowner owes no duty to an employee of an independent contractor ... [t]o find otherwise would effectively constitute an ‘end run’ around the worker’s compensation law and undermine its care policy.” (Citation omitted.) LEGAL ANALYSIS Preliminarily, we will address appellee’s contention that appellants have failed to preserve for appeal all the arguments raised in their brief. Appellants’ brief focuses largely on the exceptions to the general rule contained in Chapter 15 of the Restatement (Second) of Torts, which states that the employer of an independent contractor is not liable for the negligence of the contractor or his or her employees. Restatement (Second) of Torts § 409 (1965); Rowley v. City of Baltimore, 305 Md. 456, 461 , 505 A.2d 494 (1986). Exceptions to the general rule are set forth in §§ 410-429 of the Restatement.

Sections 410-415 address exceptions in which the injured plaintiff claims actual fault on the part of an employer of an independent contractor, while §§ 416-429 deal with claims premised on the ²³⁶ vicarious liability of an employer of an independent contractor. Rowley, 305 Md. at 462-63 , 505 A.2d 494 . Although the duties provided in §§ 410-429 clearly run to general members of the public under the proper circumstances, it has not been fully determined in Maryland whether the employees of an independent contractor working on the landowner’s property are within the class of persons protected under §§ 410-429. Brady v. Ralph M. Parsons Co., 327 Md. 275, 282-283 , 609 A.2d 297 (1992) (discussing Rowley, 305 Md. at 466-75 , 505 A.2d 494 ).

Appellants assert that the exceptions contained in Chapter 15 of the Restatement create a landowner duty that runs to the employees of independent contractors and that under §§ 410, 413, 414, and 416-429 appellee owed a duty to appellant. Consequently, appellants maintain that the trial court erred by granting appellee’s motion for summary judgment on the grounds that a duty did not exist. In response, appellee submits that appellants failed to raise the issue of whether the exceptions collected in Chapter 15 of the Restatement are generally applicable to employees of independent contractors. Additionally, appellee avers that appellants specifically stated in the court that they were not raising arguments under §§ 410, 413, and 416-429.

According to appellee, appellants limited their opposition to the motion for summary judgment to arguments under § 414 and the “safe workplace” doctrine, which is explained in § 343 of the Restatement (Second) of Torts. “Ordinarily, the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court----” Md. Rule 8-131(a). “The ‘primary purpose of Rule 8-131(a) is to ensure fairness for all parties in a case ...,’ which is accomplished by ‘requiring) counsel to bring the position of their client to the attention of the lower court’ ” so that the trial court has an opportunity to rule upon the issues presented. Romano & Mitchell v. LaPointe, 146 Md.App. 440, 456 , 807 A.2d 139 ²³⁷ (2002) (quoting Davis v. DiPino, 337 Md. 642, 647-48 , 655 A.2d 401 (1995)). In their opposition to appellee’s motion for summary judgment, appellants argued: [The instant case] is not a vicarious liability case and [appellee’s] own conduct is at issue as opposed to conduct of other contractors or subcontractors working along with [appellant] at [appellee’s] power stations. [Appellants] here do not claim any of the vicarious liability exceptions to premises owner non-liability enunciated in Restatement (Second) of Torts, §§ 4,16-4,29. [Appellants] do not claim inherent danger, ultra hazardous activity or peculiar risk and do not claim that [appellee] must stand in the shoes of any other contractor or subcontractor. It is for the trier of fact to determine whether [appellee] is responsible for its unsafe work places and whether it is liable to [appellants] under Maryland law.

(Emphasis added.) Section 410 of the Restatement provides that “[t]he employer of an independent contractor is subject to the same liability for physical harm caused by any act or omission committed by the contractor pursuant to orders or directions negligently given by the employer, as though the act or omission were that of the employer himself.” Also, § 413 states that “[o]ne who employs an independent contractor to do work which the employer should recognize as likely to create, during its progress, a peculiar unreasonable risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the absence of such precautions if....” In our opinion, § 410 represents a situation where the employer/premise owner would be required to stand in the shoes of the independent contractor and § 413 deals with liability arising from employment involving a peculiar risk. Pursuant to their opposition to the motion for summary judgment, appellants expressly indicated that they were not claiming “peculiar risk” or “that [appellee] must stand in the shoes of any other contractor or ²³⁸ subcontractor.” Although not identified by section number, appellants clearly intended not to raise arguments under §§ 410 and 413. Further, in relation to §§ 416-429, appellants specifically designated those sections, asserting they were not raising claims thereunder. In addition to their expressed intentions to forgo argumentation under §§ 410, 413 and 416-429, the general tenor of appellants’ opposition to appellee’s motion for summary judgment and their oral presentation at the summary judgment hearing suggest that their primary argument was focused on the applicability of § 343 and § 414 of the Restatement.

Appellants concentrated on the latent danger element of § 343 and on the amount of control appellee exerted over the three work sites in question, which is indicative of § 414. 4 When appellants’ overall arguments are viewed in conjunction with their expressed intentions, it is apparent that they were not raising the exceptions provided by §§ 410 and 413 and, therefore, they did not present those issues to the circuit court for consideration. Appellants also suggest that the issues were properly raised in the circuit court proceedings by appellee. According to appellants, §§ 410, 413, and 416-429 were raised in appellee’s motion for summary judgment, in which it discussed whether the exceptions in §§ 410-429 were applicable to the instant case. In other words, appellants claim that appellee, by addressing all the exceptions in its motion for summary judgment, placed §§ 410, 413, and 416—429 before the court.

Appellants, however, fail to consider that their opposition to appellee’s motion for summary judgment had the effect of narrowing the issues. Appellee’s motion for summary judgment discussed all the exceptions because it could not fully anticipate from the complaint which exceptions appellants would invoke. After appellants filed their opposition to summary judgment, the issues were narrowed to the exceptions set forth in §§ 343 and 414, as was evidenced by the parties’ ²³⁹ oral argument at the subsequent hearing regarding the motion for summary judgment. Finally, appellants assert that the trial court’s attachment of Wilson to the order granting summary judgment indicates that it considered and ruled upon all the exceptions.

They note that Wilson specifically addressed §§ 410, 413, 414, and 416-429 and aver that the court attached the opinion as a response to their arguments under those sections. The trial court had no other reason to attach Wilson, maintain appellants, and therefore §§ 410, 413, and 416-429 were decided by the court and are now before this Court. As explained, supra, the court drafted a brief letter opinion indicating that it did not “see any significant difference between the legal issues involved in [Wilson ] and the instant case.” The trial court then stated that it was attaching Wilson “to the extent it is not inconsistent with the facts in this case, the law discussed therein is applicable to this case.” It is our opinion that the court attached Wilson, 1) because there were factual similarities between it and the case sub judice, 2)