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A Semmes Win: The Court of Appeals of Maryland Holds Doctrine of Respondeat Superior Inapplicable Where Employee Negligently Commuted Home from Work

Michael S. Barclay, et ux. v. Lena Briscoe, et al., Lena Briscoe, Personal Representative of the Estate of Christopher Eugene Richardson v. Ports America Baltimore, Inc.
Court of Appeals of Maryland, No. 41 (Md. Jun. 27, 2012)
by Jhanelle Graham, Summer Associate
Semmes, Bowen & Semmes (www.semmes.com)

In Barclay, the Court of Appeals of Maryland held that there was no duty on behalf of an employer to a third party, injured by a commuting employee, based solely on the fact that the employee’s fatigue was a foreseeable consequence of the employment. In affirming the decisions of the trial court and the Court of Special Appeals, Judge Greene opined that the doctrine of respondeat superior was inapplicable where the employee, Christopher Richardson, was not acting within the scope of his employment while commuting home from work.

On January 17, 2006, Richardson was traveling home from work in his personal vehicle after completing a twenty-two hour shift as a longshoreman at Dundalk Marine Terminal in the Port of Baltimore. Richardson was employed by Ports America Baltimore Inc. (“Ports”) to operate machinery in order to load and unload vessels that entered the Port of Baltimore. When one of the vessels notified Ports that it would be late in arriving to Baltimore, Ports agreed to have longshoremen working around the clock in an effort to put the ship back on schedule for its next destination. In order to assign longshore work, Ports would issue a “work order” to the Steamship Trade Association (“the STA”) directing it to dispatch longshoremen who were members of the International Longshoremen’s Association (“the ILA”) and who possessed particular skills that would be required on the specific job. Under the collective bargaining agreement in place at the time of the collision, a longshoreman could accept or decline a shift, and those who accepted could stay on for as many consecutive shifts as desired. Richardson accepted a shift from 8:00 a.m. on January 16, 2006 until 6:00 a.m. on January 17, 2006.

At approximately 7:28 a.m. on January 17, 2006, Richardson fell asleep at the wheel and crossed the center dividing line, causing a head-on collision with Sergeant Michael Barclay of the Anne Arundel County Police Department, who was traveling to work. Richardson died in the collision and Sergeant Barclay suffered catastrophic injuries. The Barclays filed a Complaint in the Circuit Court for Carroll County on January 24, 2008, naming as Defendants Lena Briscoe, Personal Representative of the Estate of Christopher E. Richardson, Ports, the STA, and the ILA. The Complaint alleged that Defendants Ports, the STA, and the ILA were vicariously liable for Richardson’s negligence under the doctrine of respondeat superior, and that they also “breached their duty to the general public not to allow and/or encourage their employees to work in excess of a reasonable number of hours beyond the normal human tolerance,” knowing that the employees commuted to and from work in their personal vehicles.

On April 9, 2008, Briscoe filed Cross-Claims against the same Defendants for indemnification. Ports and the STA moved for summary judgment on Barclay’s direct claims and Briscoe’s Cross-Claims. On November 10, 2009, the circuit court granted the Motion for Summary Judgment and ruled that Ports could not be held vicariously liable for Richardson’s acts under the applicable case law. The Barclays appealed to the Court of Special Appeals, which affirmed the trial court’s grant of summary judgment. The Court of Appeals of Maryland granted a Writ of Certiorari to address two main issues: (1) whether an employer may be vicariously liable, under the “special circumstances” exception to the coming and going rule, for injuries suffered by a third party when a commuting employee falls asleep at the wheel; and (2) whether employers owe a duty to the motoring public to ensure that an employee does not drive home sleep-deprived due to an extended work schedule. The Court of Appeals answered both questions in the negative.

The Court cited two (2) Maryland cases that addressed the precise issue of respondeat superior in the context of an employee’s use of his or her personal automobile during a commute. In Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 506 A.3d 224 (1986), the Court of Appeals announced that “the general rule is that absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.” Id. at 226. There, the Court held that because “[t]here was no consent, express or implied, by [the employer] to the use of [the employee’s] automobile as the means of transportation to the training facility,” a travel allowance was not a “special circumstance” sufficient to establish the employer’s consent to the use of the automobile and thereby invoke the doctrine of respondeat superior. Id. at 227. Similarly, in Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995), the Court upheld summary judgment for the employer where a third party was injured by the alleged negligence of an employee commuting to work. In that case, like Dhanraj, the Court pointed out that “[d]riving to and from work is generally not considered to be within the scope of a servant’s employment because getting to work is the employee’s own responsibility and ordinarily does not involve advancing the employer’s interests.” Oaks, 339 Md. at 32, 660 A.2d at 427.

Accordingly, the Court stated that even if Ports forced Richardson to work for an unreasonable amount of time, this would be insufficient, as a matter of law, to create respondeat superior liability when Richardson’s travel home from work was not in any way attending to his employer’s business. Because the “right to control” concept is key to a respondeat superior analysis in the motor vehicle context, the Court determined that Ports merely established the shift work schedule for unloading vessels but did nothing to affirmatively control whether Richardson drove home in a fatigued state. Therefore, the Court of Appeals declined to hold Ports liable for Richardson’s negligence in commuting home from work, beyond the scope of his employment.