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Maryland Court of Special Appeals Adopts § 424 of the Restatement (Second) of Torts and Holds that General Contractor Can Be Liable for Harm Caused by its Employee Subcontractor when the Subcontractor Causes Personal Injury by Violating Building Code Safety Measures

Marrick Homes LLC, et al. v. Adam Rutkowski, et al.
No. 655 (Court of Special Appeals of Maryland)

by Colleen K. O’Brien, Associate & Paige A. Neville, Law Clerk
Wilson Elser LLP (www.wilsonelser.com)

Available at: http://www.mdcourts.gov/opinions/cosa/2017/0655s16.pdf

Plaintiff Adam Rutkowski was injured when a safety guardrail in his home failed, causing him to fall at least twelve feet to the concrete below. As a result of the fall, he claimed that he suffered multiple broken bones and a traumatic brain injury. Rutkowski filed a complaint in the Circuit Court for Calvert County against Marrick Properties, Inc. (“Marrick”), the builder and general contractor that constructed the home; Creative Trim, Inc. (“Creative Trim”), the subcontractor responsible for construction and instillation of the guardrail; and the previous owners of the home. Plaintiff’s Complaint, which was joined by his wife, alleged inter alia, negligence, negligent supervision, and loss of consortium. All parties other than Marrick were dismissed prior to trial.

At trial, the parties presented evidence relating to, inter alia, the roles of Marrick and Creative Trim in the design and construction of the safety guardrail, the standard of care required for general contractors, the way in which the safety guardrail was constructed, the requirements for construction of the guardrail pursuant to the Calvert County building code, the cause of the failure of the guardrail, and the extent of Rutkowski’s injuries. Plaintiffs presented evidence that the safety guardrail was affixed to the home with non-structural finishing nails, rendering it incapable of withstanding 200 pound of lateral force required by the building code. At the close of Plaintiffs’ case, the trial court denied Marrick’s motion for judgment on Plaintiffs’ negligence, negligent supervision, and loss of consortium claims, and denied its motion for judgment on its defenses of contributory negligence and assumption of the risk. At the close of all evidence, Marrick renewed its motion for judgment which was denied by the court. The jury returned a verdict for the Plaintiffs for $1,306,700 in damages. Marrick filed a motion for judgment notwithstanding the verdict, for a new trial, and remittitur which was denied by the court except that the court reduced the verdict in accordance with the statutory cap on noneconomic damages which resulted in a final judgment of $976,700.00. Marrick appealed to the Court of Special Appeals, which affirmed the Circuit Court’s ruling.

Marrick contended that it owed no duty to the Plaintiffs to ensure the proper construction of the safety guardrail because the responsibility for the construction and installation of the guardrail was delegated to the subcontractor, Creative Trim. The Plaintiffs responded that the duty to comply with the building code was nondelegable by Marrick. The Court of Special Appeals referenced Maryland’s general rule regarding employers of independent contractors. Under this rule, independent contractors are not liable for physical harm caused to another by an act or omission of the contractor or his employees. Rowley v. Mayor & City Council of Baltimore, 305 Md. 456, 461 (1986) (citing Restatement (Second) of Torts § 409 (1965)). The court has recognized this general rule has a number of general exceptions including: (1) negligence of the employer in selecting, instructing, or supervising the contractor; (2) nondelegable duties of the employer, arising out of some relation toward the public or the particular plaintiff; and (3) work which is specially peculiarly, or inherently dangerous. Rowley,supra, 305 Md. at 462. To the Court, Marrick, the general contractor responsible for the construction of the Plaintiffs’ home, bore the nondelegable statutory duty to provide specified safeguards or precautions, and was therefore subject to liability to the Plaintiffs for harm allegedly caused by the failure of its employee Creative Trim to provide such safeguards. Pursuant to § 424 of the Restatement (Second) of Torts, “[o]ne who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.” The Court adopted § 424 of the Restatement, applied the § 424 exception to general contractors, and held that Marrick, as general contractor, could be held liable for harm caused by its employee subcontractor when evidence was presented to demonstrate that the subcontractor violated the building code and the provisions of the building code alleged to have been violated were intended as safety measures.

The Court also addressed Marrick’s claim that any duty was extinguished as a matter of law by the passage of seven years between the construction of the home and the accident that resulted. To the Court of Special Appeals, the passage of time may make a claim against a contract less likely to succeed, but it does not preclude it as a matter of law absent the application of a statute of repose.

The Court considered the second allegation of error regarding whether sufficient evidence supported the breach and causation elements of the negligence claim. Marrick asserted that no facts addressed at trial supported a finding of negligent supervision and further asserted there was insufficient evidence of proximate cause due to the lapse in time between the construction and the accident. The court held that sufficient evidence existed to support the jury’s negligence determination. Plaintiffs’ expert testified on the standard of care for a builder/general contractor and explained that Marrick had failed to properly check its contractor’s work.

The Court also addressed Marrick’s argument regarding lack of evidence for proximate cause by referencing the testimony of Plaintiffs’ construction expert. The Court held that there was sufficient evidence for the jury to conclude that the negligent construction of the guardrail was the cause of the guardrail’s failure and the Plaintiff’s injury. Expert testimony discussed the use of finishing nails rather than screws to affix the guardrail to the building as the reason for the failure of the guardrail. Plaintiffs’ engineering expert also testified that the safety guardrail would not have been able to withstand 200 pounds of force, required by the building code, on the day it was built.

The court disagreed with Marrick’s third allegation of error. Marrick argued that it was entitled to judgment as a matter of law because Rutkowski assumed the risk and/or was contributorily negligent when he leaned his body against the safety guardrail without first examining it. The court held that in this case, the affirmative defenses of contributory negligence and assumption of risk were properly submitted to the jury. Further, Marrick had presented no evidence to show that Rutkowski had any reason to believe that the guardrail, which looked sturdy, was likely to fail when Rutkowski leaned on it. For the assumption of risk doctrine to bar recovery, a plaintiff must voluntarily expose him or herself to a known danger, not a foreseeable consequence of an unknown danger.

For those reasons, the Court of Special Appeals affirmed the judgment of the Circuit Court.

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