Athas v. Hill

Decision Date01 September 1983
Docket NumberNo. 68,68
Citation476 A.2d 710,300 Md. 133
PartiesNicholas ATHAS v. Robert Lee HILL et al. ,
CourtMaryland Court of Appeals

Larry J. Ritchie, Washington, D.C. (Peter G. Angelos, Baltimore, on the brief), for appellant.

Austin W. Brizendine, Jr., Towson (Moore, Carney, Ryan & Brizendine, Towson, on the brief), for appellees.


SMITH, Judge.

In this case, we are faced with the question of whether Maryland Code (1957, 1979 Repl.Vol., 1983 Cum.Supp.) Article 101, § 58 authorizes an employee to sue a supervisory coemployee for negligently discharging the employer's duty to provide a safe place to work. We conclude that supervisory coemployees may be subject to liability only for negligently breaching a duty of care which they personally owe to the employee. Therefore, we shall affirm the judgment of the Court of Special Appeals in Athas v. Hill, 54 Md.App. 293, 458 A.2d 859 (1983).

Robert Lee Hill was employed as a chef at the Summit Country Club in Baltimore County. Appellant, Nicholas Athas, was employed as a bus boy. On October 13, 1974, Hill attacked Athas with a butcher knife. As a result, Athas suffered permanent disability and facial disfigurement. Athas filed for and was awarded compensation from Summit under the Workmen's Compensation Act. He also proceeded against Hill in the Circuit Court for Baltimore County for assault. Athas obtained a judgment against Hill in the amount of $73,000 for compensatory damages and $5,000 for punitive damages.

In the same action at law, Athas alleged that Jack Pollack, 1 Summit's president and managing agent; Jerome Hurwitz, Summit's vice president; and Mitchell Rosenfeld, Summit's house chairman, were negligent in that each failed to exercise due care in providing Athas with a safe place to work. Athas claimed in his declaration that Summit had delegated to Pollack, as president and managing agent, the supervisory and immediate duties of personnel management and direction. Pollack was responsible for hiring, discharging, and disciplining employees. Further, Athas alleged that Pollack performed the following duties which Summit owed its employees: providing employees with a reasonably safe place to work; warning and instructing employees concerning the dangers of the work place about which Summit knew or should have known and which the employees could not reasonably have discovered; and exercising reasonable care and caution in the selection and employment of competent, nonviolent employees. Both Hurwitz and Rosenfeld either shared or, alternatively, possessed the same duties and knowledge as Pollack.

Athas alleged that Pollack, Hurwitz, and Rosenfeld (the officers or supervisory coemployees) had notice of Hill's violent disposition by virtue of both his record prior to employment with Summit and his involvement in various altercations on the club's premises since employment. Athas claimed that he could not have known or had reason to know of Hill's character; that Summit's officers failed to warn Athas of Hill's character; and that the officers failed to insure Athas' safety by continuing to employ Hill. For purposes of the appeal, the officers have conceded that an employer owes a duty to his employees to exercise reasonable care in hiring and retaining competent, nonviolent employees. Further, they concede that Summit delegated the duty to them and that they affirmatively, albeit negligently, undertook to discharge this duty. However, they allege that they are not subject to personal liability for this breach of the employer's duty.

On May 20, 1982, the Circuit Court for Baltimore County sustained the demurrer of Pollack, Hurwitz, and Rosenfeld without leave to amend. 2 Athas appealed the decision to the Court of Special Appeals, which affirmed the judgment of the circuit court and held that Athas could not maintain a cause of action against the officers of the club. We granted a writ of certiorari in order that we might address the important public issue here presented.

In attempting to impose liability on Summit's officers for their breach of the duty to provide a safe place to work, Athas relies on Art. 101, § 58. It states in pertinent part:

"Where injury or death for which compensation is payable under this article was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof, the employee ... may proceed either by law against that other person to recover damages or against the employer for compensation under this article, or in case of joint tortfeasors against both...."

This Court has determined that § 58 authorizes an employee to bring a cause of action for damages against a coemployee whose negligence caused plaintiff's injury. In Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969), the Court stated that the Maryland workmen's compensation law "excludes an action in tort by an employee against his employer, but does not exclude tort actions between co-employees." 252 Md. at 232, 249 A.2d at 452. Judge Finan reasoned for the Court: "Although there are no decisions in this Court involving a tort action by an employee against a co-employee, we note the fact that for over 50 years the Workmen's Compensation Law of this State has contained no express prohibition against such a suit." 252 Md. at 233, 249 A.2d at 452. The Court held that because the principle of lex loci delicti applied, the plaintiff, an employee of a Virginia corporation and resident of Maryland who was injured in an accident arising out of the negligence of a coemployee in Maryland, could maintain a cause of action against that coemployee. 252 Md. at 233, 249 A.2d at 452-53.

Since the decision in Hutzell, this Court has recognized in two cases that negligent coemployees are subject to actions at law for damages. In Leonard v. Sav-A-Stop Services, 289 Md. 204, 424 A.2d 336 (1981), we stated, "The Maryland Workmen's Compensation Act does not give immunity to a worker against claims for damages based on injury or death tortiously caused to a co-worker in the course of their employment." 289 Md. at 206, 424 A.2d at 337. Similarly, in Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983), we noted that the rationale for precluding tort suits between employers and employees was not applicable to suits between coemployees. 295 Md. at 128, 453 A.2d at 1211-12. In Hauch we held that Maryland residents, who were injured in an automobile accident in Delaware while furthering the employer's business (Maryland was the regular place of employment), could maintain a cause of action in Maryland against the negligent coemployee even though they had previously received benefits under the Maryland workmen's compensation law. 295 Md. at 133-34, 453 A.2d at 1214.

This Court's construction of § 58 in connection with the facts of this case must be viewed in light of both the common law and the Maryland workmen's compensation law. Prior to the enactment of workmen's compensation legislation, the liability of an employer for injuries sustained by an employee in the course of his employment was limited. The limitations on the employer's liability stemmed primarily from what Dean Prosser called the "unholy trinity" of common law defenses: contributory negligence, assumption of risk, and the fellow servant rule. See W. Prosser, Law of Torts § 80, at 526-27 (4th ed. 1971). Courts in Maryland recognized these defenses. See, e.g., Norfolk & West. R.R. v. Hoover, 79 Md. 253, 261-62, 29 A. 994, 995 (1894) (for employee to succeed in bringing cause of action alleging negligence of fellow servant, he must establish not only causation between fellow servant's negligence and his injuries but also master's negligence in the selection of the fellow servant in the first instance); State ex rel. Hamelin v. Malster, 57 Md. 287, 306 (1881) (when employee accepted employment, it was presumed he understood the risks and perils incumbent in a particular job; one such risk was the negligence of his fellow servants).

To hold the fellow servant liable for negligence at common law, the injured employee was required to establish that the fellow servant occupied the role of a vice principal. Generally, an employer was held liable for the negligence of an employee only if the employee exercised responsibility, control, direction, and authority with respect to the work place. In other words, the employer was liable if the discharge of the employer's nondelegable duty was entrusted to the judgment and discretion of the negligent employee. See, e.g., Chesapeake Stevedoring Co. v. Hufnagel, 120 Md. 53, 61-62, 87 A. 4, 7 (1913); Frizzell v. Sullivan 117 Md. 388, 390-91, 83 A. 651, 652-53 (1912); Hoover, 79 Md. at 266-67, 29 A. at 997; Malster, 57 Md. at 307-08. Among the nondelegable duties which the employer owed his employees was the duty to provide a safe place to work, see Sullivan, 117 Md. at 390, 83 A. at 652; Pennsylvania Steel Co. v. Nace, 113 Md. 460, 483, 77 A. 1121, 1131-32 (1910); and the duty to select and retain competent employees, see Hufnagel, 120 Md. at 60, 87 A. at 6; Hoover, 79 Md. at 262, 29 A. at 995; Malster, 57 Md. at 306.

The Maryland workmen's compensation statute was enacted in 1914. This Court has held consistently that the Act provides the employee or his dependents with an exclusive right for recovery as against the employer. See, e.g., Hauch, 295 Md. at 127, 453 A.2d at 1211; Wood v. Aetna Cas. & Sur. Co., 260 Md. 651, 660-61, 273 A.2d 125, 131 (1971); American Rad. Corp. v. Mark Co., 230 Md. 584, 590, 187 A.2d 864, 867 (1963); Barrett v. Indemnity Ins. Co., 152 Md. 253, 259, 136 A. 542, 544 (1927); Hagerstown v. Schreiner, 135 Md. 650, 653, 109 A. 464, 465 (1920). "There is no doubt that the Workmen's Compensation Act substituted for the common law liability of an employer for negligence, subject to the corresponding...

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