On August 15, 2022, the Court of Appeals of Maryland issued a decision in the matter of Andrea J. Hancock, et al. v. Mayor & City Council of Baltimore, et al., clarifying the duty of care and potential liability among parties commonly involved in multiple-contractor construction projects associated with injuries sustained therefrom.
The circumstances of this case involve the tragic death of 20-year-old Kyle Hancock, a laborer employed by R.F. Warder, Inc. (“Warder”). Warder was hired by the City of Baltimore to perform excavation work. A second company, Sutton Building Solutions, LLC, (“SBS”) was brought on the job as a subcontractor under Warder to assist in excavation. Once a large hole was created by an excavator, a Warder employee decided the crew would need to enter the hole to dig manually. Mr. Hancock entered, and sole member and employee of SBS, Mr. Sutton, was directed to assist. Mr. Sutton stated out loud that it was not safe but proceeded to enter and dig in an area different than Mr. Hancock. As the laborers cleared dirt, the vertical wall in front of Mr. Hancock gave way and he was unable to escape before he perished.
Premised upon theories of negligence, the Hancock family filed suit against Baltimore City, SBS, and Mr. Sutton. All Defendants moved to dismiss the complaint and their motions were granted based upon legal determinations thereafter affirmed by the Court of Special Appeals and the Court of Appeals on writ of certiorari. The City of Baltimore was dismissed as the duty of one who hires an independent contractor to exercise due care in hiring them does not extend to employees of that independent contractor. As to Mr. Sutton and SBS (collectively, “Sutton”), the courts found the duty of a contractor/subcontractor to exercise due care for the protection and safety of the employees of another contractor/subcontractor is only owed with respect to conditions that the contractor/subcontractor creates or exercises control over.
The Court of Appeals specifically analyzed the scope of any existing tort duty and whether a duty exists at all.
The Restatement (Second) of Torts § 411 (1965), prescribes that an employer may be liable to “third persons” for injuries caused by an independent contractor hired by that employer (tort of negligent hiring or retention). The Court of Appeals joined the majority of states that considered the issue of who falls within the class of “third persons” and held that such class does not extend to a contractor’s employees who are engaged in the work for which the contractor is retained. Informed by the Restatement and case law on negligent hiring, the intended scope of § 411 did not include employees of a contractor, but rather those passersby who would reasonably be expected to come into contact with the contractor or employee in their line of work only as a result of the employer’s hiring or retention. Unlike those individuals, a contractor’s employees have coverage under worker’s compensation laws. In this case, the City of Baltimore was found not responsible, by their hiring of Warder, for exposing Mr. Hancock to the work of Warder. The Court concluded the City owed no duty to Mr. Hancock.
As to the dismissal of claims against Sutton, the Court discussed the existing case law pertaining to any duty owed by a contractor/subcontractor to fellow contractors on a multiple-employer construction site. The Hancock family argued the applicable standard for when a duty is owed is knowledge of a dangerous condition. Reconciling prior cases, the Court clarified that the duty is owed if the contractor created or controlled the dangerous condition. Then, if such duty is owed, the duty is “similar to, and no greater than, that owned by an employer to an employee or the owner of real property to an invitee on the premises” and includes the duty to warn employees of an unreasonable risk known or which could have been discovered. Applying the holding, Sutton had no control or ownership over the hazard that resulted in Mr. Hancock’s death and therefore Sutton owed no duty in tort. The Court’s recent holding provides guidance to parties involved in a construction project where an injury occurs. Companies facing these questions should contact MacDonald Law Group, LLC, for its ability to protect the rights and interests of general contractors, subcontractors, developers, designers, inspectors, and others involved in construc