Maryland Court of Appeals Reaffirms the Need for More than Mere General Control to Subject a Principal to Liability for the Tortious Conduct of an Independent Contractor

On December 21, 2021, the Court of Appeals of Maryland issued its opinion affirming the intermediate appellate court’s decision reversing the trial court’s refusal to grant the motion for judgment brought by Giant of Maryland, LLC (“Giant”) at the conclusion of trial. The Court of Appeals held that the trial court should have granted Giant’s motion for judgment given there was insufficient evidence to submit the case to the jury on Plaintiff’s claim for vicarious liability and that Giant was entitled to judgment as a matter of law.

The case arose out of an accident that occurred on December 4, 2014, when Plaintiff Webb was in a Giant store. At that time, Ms. Webb came into contact with a non-motorized pallet jack operated by a PepsiCo employee. The PepsiCo employee was delivering product and used the Giant-owned pallet jack to transport pallets of Pepsi products through the store in order to re-stock Giant’s shelves. Ms. Webb claimed the pallet struck her in the back, causing her to fall to the floor and sustain injuries. Ms. Webb sued Giant claiming it was vicariously liable for the PepsiCo employee’s actions. She claimed that Giant controlled many aspects of the PepsiCo employee’s actions, including the use of a Giant-owned pallet jack. At trial, the PepsiCo employee testified that no one from Giant told him how to stock the Pepsi products, that the pallet jack he used was owned by Giant and that he had permission to use the jack. Furthermore, when arriving at the store, he was required to check in with a Giant employee. A Giant representative confirmed that employees of vendors were permitted to use the non-motorized pallet jack while in the store. He further testified that employees of vendors are not instructed on “where to move and how to move throughout the store,” but they are expected to move about in a safe manner. Giant retained the right to remove a vendor from the store if the employee is not “doing something properly.”

At the conclusion of Plaintiff’s case-in-chief at trial, Giant moved for judgment. The trial court denied the motion and found that there was sufficient evidence to show that Giant had the necessary control over the PepsiCo employee’s actions while he was in the store. The Court of Special Appeals of Maryland (the intermediate appellate court) reversed the trial court and held that the motion for judgment should have been granted. Ms. Webb filed a writ of certiorari to the Court of Appeals, which agreed to review the decision.

In rendering its decision, the Court of Appeals first noted the general rule for vicarious liability for actions of an independent contractor, stating that “Generally, an employer of an independent contractor is not liable for the negligence of the contractor or his employees.” Appiah v. Hall, 416 Md. 533, 558 (2010).” The court pointed to exceptions to the rule as contained in Restatement (Second) of Torts § 409, comment b. The relevant exception claimed by Ms. Webb was when “an employer has retained control of the details of the work.” (Citing, Appiah, 417 Md. At 563). The court noted that the retention of control is “an absolute prerequisite to an employer’s liability for harm caused by the work of an independent contractor.” Id. The court indicated further that “general control” is not enough to establish liability. According to the court:

“To fall under the § 414 exception, ‘“[i]t is not enough that [an employer] has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations.”’ Id. at 563-64 (quoting Restatement (Second) of Torts § 414 cmt. c). There must instead be “such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way….“ We have characterized these principles as requiring plaintiffs to demonstrate that the employer not only has retained control over the operative detail and methods of the work but also that this control extends to the very thing from which the injury arose.”

(Citations omitted). Webb, opinion released 12/21/2021 at page 13.

After evaluating the facts before the court, the court held that Giant had only general control over the PepsiCo employee and, therefore, could not be held vicariously liable. The court concluded:

We hold that the evidence was insufficient to submit Petitioner’s negligence claim to the jury. The evidence, even when viewed in a light most favorable to Petitioner, did not permit an inference that Giant retained sufficient control over Winzer’s work. At best, the evidence established that Giant had only a general right to order the work stopped, to inspect its progress, to make suggestions or recommendations, and to prescribe alterations and deviations. As the Court of Special Appeals noted, such rights “are general rights that a possessor of the premises on which the work is being done would ordinarily retain for itself” and “do not indicate sufficient control over the ‘methods’ and ‘operative detail’ of [] Winzer’s work to extend liability on Giant for his actions.” Webb, 249 Md. App. at 566. Moreover, none of the general rights noted by Petitioner, aside from Giant’s prohibition on the use of powered pallet jacks by non-Giant certified persons, extended to the “very thing from which the injury arose,” i.e., Winzer’s use of Giant’s non-motorized pallet jack to stock the store’s shelves. Rather, those rights exhibit only a general control over Winzer’s work, which is insufficient to establish liability. See Appiah, 416 Md. at 563-64. 

The court went on to say that the control exercised must be the employer’s control “over the operative detail and methods of the work” and must extend “to the very thing from which the injury arose.” Id. at 564 (citation, quotations and emphasis omitted).” The court found that Ms. Webb’s evidence did not meet this standard and, thus, did not create an issue of fact to be decided by the jury. As such the court agreed with the intermediate appellate court in reversing the trial court’s decision.

The opinion reaffirms the general rule that one who employs an independent contractor cannot be held liable for torts committed by the independent contractor. While there have been decisions which “are so numerous, and they have so far eroded the ‘general rule’” (Webb, at page 13), the current decision confirms that more than just general control is needed to establish potential liability for the employer. This decision is important to consider whenever independent contractors or subcontractors are utilized as it stands for the proposition that an employer who hires an independent contractor and reasonably relies on the independent contractor or subcontractor without retaining control, is not liable for a negligent act of the contractor. Companies facing these kinds of legal challenges should contact MacDonald Law Group, LLC, to protect their rights and interests.