Washington Suburban Sanitary Commission v. Grady Development Corp.

Menchine, J., delivered the opinion of the Court. A jury in the Circuit Court for Prince George’s County awarded Robert K. Boyer and Sandra L. Boyer (Boyers) damages in the sum of Fifteen Thousand Dollars against Grady Development Corporation (Grady) and Washington Suburban Sanitary Commission (WSSC). The action, grounded upon the alleged negligence 1 of both Grady and WSSC, had been submitted to the jury as to Grady after reservation of decision upon motion for directed verdict. Maryland Rule 552 c.

The issue as to the negligence vel non of Grady came to hearing after verdict pursuant to the self-executing provisions of Maryland Rule 563 a.2. The trial court granted judgment N.O.V. as to Grady; extended judgment in favor of the Boyers against WSSC; and entered judgment in favor of Grady against WSSC in the latter’s cross-claim. The Boyers and WSSC entered appeals to this Court. The following quotation from the brief of WSSC shows the subsequent events in the trial court that have narrowed the issues requiring our consideration: “WSSC thereafter paid the entire judgment and obtained satisfaction from the Boyers who then dismissed their cross-appeal.

At the same time, ³⁰⁵ WSSC dismissed its appeal from the judgment in favor of the Boyers. “The matter before the Court is on the propriety of the judgments entered in favor of Grady by directed verdict on the original claims (Judgment N.O.V.) and judgment by the Court on the Cross-Claim.” Otherwise stated, liability of WSSC to the Boyers is not disputed, this appeal involving only determination of whether the evidence was legally sufficient to show (a) that Grady was jointly liable with WSSC (as the jury found) or (b) whether the evidence required indemnification of WSSC by Grady under the cross-claim. Conceded Facts In September 1974, the Boyers moved into a new dwelling purchased from Grady, its builder, on Branchview Drive in a development known as “Tor-Bryan Estates” in the Oxon Hill area of Prince George’s County. On December 1, 1974, a day of very heavy rainfall, the Boyers at 8 p.m. returned to their home from a day spent with relatives. Mr. Boyer vividly described what confronted him: “And as we entered the house — my wife, as I recall, entered ahead of me —- and as I entered the threshold of the door coming in from our garage I thought I heard a strong gushing sound.

And I said to my wife, ‘What is the smell?’ And by that time she had reached the stairway. And she screamed out, you know, ‘Bob, the basement.’ And I rushed to the head of the stairwell, and I saw down, ebbing up against the bottom step this dark, muddy, smelly water.... It apparently knocked off the tank on top of the toilet. I tried to, you know, pull the toilet lid down, and it kept knocking it back up in my face. ...

I don’t know ³⁰⁶ how long it had been going on when we got there, but it had already inundated one, two, three rooms at that end of the house, and was going down towards the main hall, in through the main hall into the recreation room, into the laundry room area, but it did continue for about three hours.” Damage to the dwelling and its contents was extensive. At about midnight on the day of the incident, employees of WSSC undertook an investigation of the reason for the sewer back-up. After opening a manhole “at the bottom of the hill” and observing that “it was running,” investigators “went back up here closer to the home and found this one backed-up.” An investigator said: “The thing was all the rain water had got in up here, these manholes, because they wasn’t sealed on right. You could stand and watch the water run into it.

And when a manhole is full of water and just filling like this, and your manhole down here, downstream, is running just as hard as it could run with a flow of water, you know there had to be some kind of obstruction in here to hold this water up within this manhole with the surcharge. So, we took our wooden rods, three and a half feet long, and a cutter, and went down here where we could get in the manhole, and I put a man in there to push rods upstream to try to relieve whatever this blockage was in this line. And all we found was just the bottom of the pipe was just full of gravel, like two or three inches of gravel. And they pushed just as far as they could push the rod.

That is a pretty long stream for a man to push by hand. Q How many rods did you get in there and push? A Forty-nine. Q Forty-nine rods?

A Yes, sir. ³⁰⁷ Q At three and a half feet per rod? A Right.” The sanitary sewer line serving the Boyer dwelling was eight inches in diameter but the investigator noted two or three inches of gravel within it, acting “like a creekbed,” and “restricting it.” The investigator added that “the line was put in like to carry the sewage away from these homes, this development, and that eight inches was supposed to be sufficient enough to carry that; but once you get the rain water in there it wasn’t designed for that, to carry all that water. .. . there is only one way for the water to go, to try to relieve the weight of the water from this manhole surcharging, is to run up this sewer system and go back into this house, and if they have got any kind of outlet in their basement it is going to come up out of there.” The sewer system had been installed by contractors engaged by WSSC for that purpose, beneath the platted lines of streets already dedicated to public use by the developer as public streets. That work was done, of course, before the streets were graded and paved so that the contractors were working in open ground. During installation manhole structures designed to provide access to the sewer system were left in such manner that they projected above the proposed but unimproved roadbed to a height of eight to ten inches or more.

These were constructed of brick, mortar and concrete with metal rings and tops. After the sewer line was installed, WSSC inspected the same and released the ground to the developer for installation of other utilities such as storm drains, curbs and gutters; and the grading and paving of street beds. The sanitary sewer system was designed to be sealed to prevent the admission of surface water. Yet, water in great volume and carrying debris had entered the system through breaks in manhole installations along its course.

It is uncontradicted that numerous manhole structures had been damaged by extraneous forces. The nature of and the responsibility for such extraneous forces are disputed. ³⁰⁸ The Factual Dispute We reiterate that in the posture in which this case reaches this Court, the liability of WSSC to the Boyers was established below and is not an issue here. The disputed issues concern WSSC and Grady, inter sese. WSSC contends that agents, servants and employees of Grady damaged the manhole structures while negligently using heavy equipment in the grading or paving of streets.

Grady offers a dual answer to the WSSC contention, namely: (a) that although there is a possibility that the use of heavy equipment may have caused the damage, the evidence does not rise above guess or conjecture, and (b) that in any case the grading and paving of streets was done by independent contractors for whose negligence Grady would not be accountable. Grading and/or Paving As Causative Grady urges that the record demonstrates that other wholly distinct and unrelated causative factors were equally likely to have produced the harm complained of. Grady cites operators of automobiles, trucks, installers of public utilities and “many, many, independent contractors and personnel” entering the project daily. Defective installation of the sewer system or its improper maintenance is suggested also as equally likely to have been the cause of the harm.

We reject this contention of Grady-. We acknowledge that the record indicates that there is a possibility that damage to the manhole structures may have been produced by factors other than the careless use of street grading or paving equipment. We are persuaded, however, from our examination of the record as a whole, that the issue of causation was a matter for the jury within the rule discussed in Otis Elevator Co. v. LePore, 229 Md. 52 , 181 A. 2d 659 (1962), wherein the Court of Appeals after pointing out that “Reasonable probability is the usual quantum of proof required to establish causation,” (pp. 57-58 [662]) ³⁰⁹ adopted the following language from Prosser, Torts (2nd ed.), § 44: “ ‘Plaintiff is not, however, required to ... negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not. The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise.

Proof of what we call the relation of cause and effect, that of necessary antecedent and inevitable consequence, can be nothing more than “the projection of our habit of expecting certain consequents to follow certain antecedents merely because we had observed these sequences on previous occasions”. If as a matter of ordinary experience a particular act or omission might be expected, under the circumstances, to produce a particular result, and that result in fact has followed, the conclusion may be permissible that the causal relation exists. “ ‘Circumstantial evidence or common knowledge may provide a basis from which the causal sequence may be inferred [from the existence of a condition which] “greatly multiplies the chances of accident, and is of a character naturally leading to its occurrence” ... 1 When a child is drowned in a swimming pool, no one can say with certainty that a life guard would have saved him; but the experience of the community permits the conclusion that the absence of the guard played a significant part in the drowning. Such questions are peculiarly for the jury; and whether proper construction of a building would have withstood an earthquake, or ³¹⁰ whether reasonable police precautions would have prevented a boy from shooting the plaintiff in the eye with an airgun, are questions on which a court can seldom rule as a matter of law.’ ” 229 Md. at 58-59 , 181 A. 2d at 662 . See also: Peterson v. Underwood, 258 Md. 9, 17 , 264 A. 2d 851, 855 (1970); Unsat.

C. & J. Fund Bd. v. Bowles, 25 Md. App. 558 , 561 et seq., 334 A. 2d 532 , 535 et seq. (1975). We think that the nature and extent of the damage to the manhole structures, coupled with the circumstance that numerous such structures sustained damage, reasonably would permit a jury to conclude that it is more probable than not that negligent use of grading or paving equipment was the causative agency for the harm to the Boyers. A jury question was presented upon the issue of causation.

Grady Responsibility The initial question whether Grady is responsible under the doctrine of respondeat superior is easily answered in the negative. We shall say no more than that the uncontradicted evidence establishes that all grading and paving of streets was done by independent contractors, wholly without retention by Grady of any control upon their performance. In Hoerr v. Hanline, 219 Md. 413, 420-21 , 149 A. 2d 378, 381 (1959 ), it was said: “All of the authorities agree that the rule of respondeat superior, which requires one person to answer for the acts of another, arises from the relation of principal and subordinate. It only applies when the relation of master and servant, employer and employee or principal and agent is shown to exist between the wrongdoer and the person sought to be charged for the result of the wrong.

It does not apply when the wrongdoer is an independent contractor, even though there be an agreement or ‘arrangement’ between him and the4' person who is claimed to be responsible for the wrong.” ³¹¹ Determination of that initial question is not, however, dispositive of the question of Grady’s responsibility. This is so because there are exceptions to the application of the rule of employer non-liability for the negligence of independent contractors. The Court of Appeals put it this way in Samson Construction Co. v. Brusowankin, 218 Md. 458, 464 , 147 A. 2d 430, 434 (1958): “The cases make it plain that the mere employment of an independent contractor will not always relieve the principal from liability for damage done by the contractor.” Indeed, the rule of non-liability has been declared to have such myriad exceptions that its continued viability as a general principle of law has become suspect. Prosser, Law of Torts, Ch. 12, § 71, at 468 (4th Ed., HB, 1971i puts it thus: “. . . the prediction has been made that ultimately the ‘general rule’ will be that the employer is liable for the negligence of an independent contractor, and that he will be excused only in a limited group of cases where he is not in a position to select a responsible contractor, or the risk of any harm to others from the enterprise is obviously slight.

The English courts have taken steps in this direction, until the position of the ordinary independent contractor in England approaches that of a servant. The American courts, have not gone so far, and have continued to repeat the ‘general rule’ of non-liability with exceptions, whose very number is sufficient to cast doubt upon the validity of the rule.” WSSC contends that even if the grading and paving of streets was accomplished through independent contractors, liability still would attach to Grady for the negligent performance of such work for any of the following reasons: 1. Grady’s obligation was non-delegable. 2. The work was inherently dangerous. ³¹² 3.

The injury was caused by the thing contracted to be done, not by collateral negligence. The contentions above are interrelated and will be considered together. The interrelationship of the several WSSC contentions and the continuing erosion of the general rule of employer non-liability for the negligence of independent contractors is thoughtfully posited in Prosser, Law of Torts, Ch. 12, § 71 (4th Ed., HB, 1971), Imputed Negligence; Independent Contractors: “Non-delegable Duty A different approach, adopted in several of the exceptions to the general rule of non-liability, has been to hold that the employer’s enterprise, and his relation to the plaintiff, are such as to impose upon him a duty which cannot be delegated to the contractor. It has been mentioned earlier that there are numerous situations in which it may be negligence to rely upon another person, and the defendant is not relieved of the obligation of taking reasonable precautions himself.

But the cases of ‘non-delegable duty’ go further, and hold the employer liable for the negligence of the contractor, although he has himself done everything that could reasonably be required of him. They are thus cases of vicarious liability. It is difficult to suggest any criterion by which the non-delegable character of such duties may be determined, other than the conclusion of the courts that the responsibility is so important to the community that the employer should not be permitted to transfer it to another. So far as they may be willing to broaden the category in the future, the law may approach an ultimate rule that any duty which can be found to rest upon the employer himself cannot be delegated to an independent contractor.” at pages 470-72. ³¹³ “ ‘Inherently Dangerous’Activities The leading English case of Bower v. Peate, in which the foundation of the plaintiffs building was undermined by an excavation, adopted still another approach, saying that the employer would be liable for the negligence of the contractor if, in the course of the work, injurious consequences might be expected to result ‘unless means are taken to prevent them.’ This gave rise to an exceptional category of work likely to be peculiarly dangerous ‘unless special precautions are taken.' American courts on the whole