Maryland’s Supreme Court will consider whether the family of a 20-year-old man who was buried alive while working at a Baltimore excavation site can pursue their lawsuit against the city for alleged negligence in the hiring a contractor who failed to protect his worker from collapsing.
The Court of Appeal agreed to hear the family’s appeal against lower court rulings that the common law duty to protect Kyle Hancock from the unsupported excavation wall belonged to his employer and not to the city that hired the contractor.
Hancock, who worked as a laborer for RF Warder Inc., died June 6, 2018, after being buried in debris when the wall collapsed.
The family’s lawsuit, filed in Baltimore City Circuit Court in February 2020, alleged that the city negligently hired RF Warder, a mechanical subcontracting company, despite knowing the company was lacking. sufficient experience.
The Intermediate Court of Special Appeals upheld the trial judge’s dismissal of the lawsuit last year, citing common law.
In their application for High Court review, the family’s lawyers wrote that the lower courts read the common law too narrowly.
The city’s “duty to exercise due diligence when hiring an independent contractor extends to the independent contractor’s employees,” wrote attorneys for Silverman Thompson Slutkin & White, LLC in Baltimore.
The three lawyers urged the High Court to adopt the standard of the influential, albeit non-binding, legal treatise Restatement (Second) of Torts, which in section 411 states that “an employer is liable for physical harm caused to third parties by its breach. exercise due diligence to employ a competent and prudent contractor…to perform work which will involve a risk of physical injury unless done with skill and care.
The three lawyers are Todd W. Hesel, Andrew G. Slutkin and Ethan S. Nochumowitz.
Baltimore unsuccessfully pressed the high court not to hear the family’s appeal.
The out-of-town attorney expressed sympathy for the family but said that — until the Maryland legislature decides otherwise — the law is clear that an employee of a contractor has no claim against the contractor’s employer.
“Now, with only an unusually tragic set of facts and justifiable frustration with a statutory (workers’ compensation) scheme that prevents recovery against the sole liable party, the claimants ask this court to overturn much of the established law. of tort liability for litigation that should be argued in the General Assembly,” wrote attorneys Craig D. Roswell and Bryant S. Green of Niles, Barton & Wilmer LLP in Baltimore. “Therefore, further examination n ‘being neither necessary nor in the public interest, certiorari (examination) should be refused.”
The Court of Appeal is due to hear the family’s appeal in May. The High Court is expected to deliver its decision by August 31 in the case of Andrea Jo Hancock et al. v. Baltimore Mayor and City Council et al., No. 57, Term September 2021.
The Special Court of Appeals, in its unreported decision, said Baltimore would have had a legal duty to a nonemployee — such as an injured bystander — if the actions of a negligently hired contractor caused that injury.
The law regarding negligent hiring of contractors is designed to “protect innocent members of the public,” not the contractors’ employees, Judge Steven B. Gould wrote for the appeals court.
Hancock, unlike a passerby, was “no stranger to the underlying relationship” between the city and the contractor he worked for, Gould added as he acknowledged the young man’s “untimely and heartbreaking death”.
RF Warder was not a defendant in the lawsuit because workers’ compensation provides the exclusive remedy for an employee injured or killed on the job, the Court of Special Appeals said in its 3-0 ruling. But Hancock’s family members – including his mother and sister – received no workers’ compensation as they suffered no economic loss due to his death, as they were not at his charge, according to the family attorney.
Baltimore had hired RF Warder to repair and maintain plumbing and heating systems, according to the family’s complaint. RF Warder outsourced some of his work to a minority contractor, Keith Sutton and his Sutton Building Solutions LLC, as required by his contract with the city.
RF Warder was called about a clogged pipe at the Clifton Park swimming pool on May 29, 2018, and workers determined that a pipe had collapsed and a 15-foot-deep excavation would be required to clear it. achieve, according to the complaint. Excavation began on June 4, and workers including Hancock entered the hole the next day with hand shovels once it had reached a depth of about 15 feet.
Sutton arrived at the site, looked around “and said out loud, but to no one in particular, that it wasn’t safe,” according to the complaint.
Sutton later saw the wall near Hancock begin to give way and yelled at him to run, but Hancock “was completely buried under tons of dirt and debris from the collapse,” the complaint states. Sutton called 911 and workers jumped into the excavation site to dig, but were later ordered off the site by emergency personnel, who deemed it unsafe.
Hancock’s body was discovered around 1:30 a.m. on June 6, according to the complaint, which said his cause of death was asphyxiation.
Maryland Occupational Safety and Health investigated the incident and issued multiple citations resulting in financial penalties against RF Warder for violating Maryland Occupational Safety and Health law. An administrative judge later upheld the majority of those citations and $245,500 in penalties.
According to the lawsuit, the RF Warder employees in charge of the site lacked the knowledge required to conduct such an excavation and “were completely unaware of the various requirements of the standard of care, laws, regulations and standards of the industry that apply to safe excavation”. at depths of five feet or more. The city knew the company lacked the required experience, and a city employee had previously seen a lack of cave-in protection at one of the company’s sites, according to the complaint.
Baltimore City Circuit Judge Kendra Y. Ausby dismissed the family’s negligent hiring claim against the city, as well as the claim that Sutton failed in his duty to warn Hancock of the greater danger. early. Ausby said Sutton had no obligation because he neither created the unsafe condition nor controlled the job site.
The Special Court of Appeal upheld both dismissals.
Gould, who now sits on the Court of Appeals, was joined in the opinion by Justices Dan Friedman and Robert A. Zarnoch, a retired lawyer serving by trust.
In granting the family’s request for review, the Court of Appeal said it would also consider their request to reinstate Sutton’s breach of duty claim.