Barclay v. Briscoe

• Decision Date: 27 June 2012
• Docket Number: Sept. Term, 2011.,No. 41,41
• Citation: 427 Md. 270,47 A.3d 560
• Parties: 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: Maryland Court of Appeals

427 Md. 270

47 A.3d 560

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.

No. 41, Sept. Term, 2011.

Court of Appeals of Maryland.

June 27, 2012.

Henry L. Belsky (Victor D. Sobotka of Schlachman, Belsky & Weiner, P.A., Baltimore, MD; Gregory E. Hammond, Allstate Insurance Company, Baltimore, MD), on brief, for Petitioners/Cross–Respondents.

JoAnne Zawitoski (Alexander M. Giles and Teresa Kelly of Semmes, Bowen & Semmes, Baltimore, MD), on brief, for Respondents/Cross–Petitioners.

Deborah J. La Fetra, Adam R. Pomeroy, Theodore Hadzi–Antich, Pacific Legal Foundation, Sacramento, CA, for Amicus Curiae brief of Pacific Legal Foundation in Support of Appellee/Cross–Petitioner.

Argued before BELL, C.J., HARRELL, BATTAGLIA, GREENE, ADKINS, BARBERA and McDONALD, JJ.

GREENE, J.

A motorist was seriously injured when another car, operated by Christopher Richardson, crossed the center line, causing a head-on collision. The facts presented in the pleadings indicated that Richardson, a longshoreman, fell asleep at the wheel while traveling home after working a twenty-two hour shift at his job site located at the Port of Baltimore. The injured motorist, Sergeant Michael Barclay, and his wife, Robin Barclay, (collectively, “Petitioners” or “the Barclays”) filed a complaint in the Circuit Court for Carroll County against several parties, including Richardson's employer, Ports America Baltimore, Inc. (“Ports” ¹ or “Respondent”). The complaint alleged that Ports was liable for Sgt. Barclay's injuries under two theories, respondeat superior, and primary negligence in failing to protect the general motoring public from an employee driving home following an unreasonably long shift. Ports filed a motion for summary judgment asserting that neither theory was grounds for relief under the facts presented. First, Ports argued that respondeat superior was inapplicable because Richardson was not acting within the scope of his employment while commuting home from work. Second, Ports contended that it could not be held primarily liable for the injuries because it owed no duty to the public to ensure that an employee was fit to drive his personal vehicle home. The trial court agreed with Ports and granted the motion. The Court of Special Appeals affirmed. We agree with the judgments entered in both courts and affirm the judgment of the Court of Special Appeals.

FACTS AND PROCEDURAL HISTORY

On January 17, 2006, Christopher Richardson was traveling home from work in his personal vehicle, westbound on New Windsor Road in Carroll County, after completing a twenty-two hour shift as a longshoreman at Dundalk Marine Terminal located in the Port of Baltimore. At approximately 7:28 a.m., Richardson fell asleep at the wheel and crossed the center dividing line, causing a head-on collision with Sgt. Michael Barclay of the Anne Arundel County Police Department, who was traveling eastbound on his way to work. Richardson died in the collision and Sgt. Barclay suffered catastrophic injuries.

Richardson was a longshoreman, employed by Ports to operate machinery in order to load and unload vessels that entered the Port of Baltimore. On January 13, 2006, the captain of one such vessel, the “Saudi Tabuk,” notified Ports that it would be late arriving to Baltimore. In an effort to put the ship back on schedule for its next destination, Ports agreed to have longshoremen working around the clock. 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 possessed particular skills that would be required on the specific job. The STA would then offer the shifts to the longshoremen, according to their union seniority. Under the collective bargaining agreement (“CBA”) in place at the time of the collision, a longshoreman could accept or declinea shift, and those who accepted could stay on for as many consecutive shifts² as desired, in order to maximize earnings, or alternatively, “check up,” i.e., leave work and go home, at which point the ILA would send the next most senior qualified longshoreman to finish the shift. Although a previous CBA had included a sixteen-hour limit on the workday, the provision had been removed under the agreement in effect at the time of the collision. Ports maintained that the limitation was removed at the insistence of the ILA, because it interfered with the assertion of the longshoremen's seniority rights. Richardson was initially offered a shift beginning on January 15, 2006, which he declined, and instead accepted an offer to work starting at 8 a.m. on Martin Luther King Day,³ January 16, 2006. He stayed on the job until he finally “checked-up,” at 6:00 a.m. on January 17th and began the commute that culminated in the tragic incident.

The Barclays filed a complaint in the Circuit Court for Carroll County on January 24, 2008. The complaint named 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 ⁴ 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. Following a hearing, the Circuit Court for Carroll County granted the motion on November 10, 2009. The court ruled first that Ports⁵ could not be held vicariously liable for Richardson's acts under the applicable case law. The Circuit Court judge stated:

[I]t is only when the employee is using his vehicle while carrying out the duties of his employment at the time of the accident that liability may be imposed on an employer.

As P&O Ports correctly argues, Plaintiffs have not presented any evidence to demonstrate that P&O Ports expressly or impliedly consented to Mr. Richardson using his vehicle, let alone for a business purpose, at the time of the accident. Furthermore, the facts admissible as evidence do not indicate that Mr. Richardson's car was of such vital importance to P&O Ports' business that employer control over the vehicle could be inferred.

(Internal citation omitted.) The Circuit Court judge also rejected Petitioners' contention further discussed infra, that the “special mission” exception, developed within workers' compensation law, could be applied in the respondeat superior context.

Lastly, the court rejected Barclay's argument that Ports was primarily, as opposed to vicariously, liable for allowing its employees to work an unreasonable amount of hours and then endanger the public by driving their personal vehicles home. The Court noted that, under Maryland law, Ports had no duty to protect third parties from fatigued employees acting outside the scope of employment in the absence of a “special relationship.” The Circuit Court judge explained:

The only special relationship in which an employer could be liable for harm caused to third parties by his employee acting outside the scope of employment is provided in Section 317 of the Restatement (Second) of Torts. Section 317 explains that an employer may have a duty to protect third parties if an employee committed a tortious act on the employer's property or by using the employer's chattel. Furthermore, the employer must know or have reason to know that he has control over the employee and understands the necessity of exercising control. None of these requirements are met in this case, in that the automobile accident occurred on a public road while Mr. Richardson was driving his own vehicle. Plaintiffs have not introduced any facts to show that P&O Ports had the authority to control Mr. Richardson's driving to and from work. This Court does not find that a special relationship existed which would create a duty by P&O Ports to protect a third party.

Following this disposition, and pursuant to the Barclays' motion, the Circuit Court judge stayed proceedings between the Barclays and Briscoe, Personal Representative of the Estate of Christopher Richardson, and entered final judgments⁶ in favor of the STA and Ports. The Barclays then noted a timely appeal.⁷ The Court of Special Appeals affirmed the trial court's grant of summary judgment. Barclay v. Ports Am. Baltimore, Inc., 198 Md.App. 569, 18 A.3d 932 (2011). We granted Petitioners' request for a writ of certiorari, and now address the following questions, restated and re-ordered for brevity and clarity:

1) Did the Circuit Court err in granting the motion for summary judgment when disputes of material fact existed?

2) Can an employer be vicariously liable, under the “special circumstances” exception to the coming and going rule, for injuries suffered by a third party when an employee falls asleep at the wheel while driving home from an unreasonably long shift?

3) Do employers owe a duty to the motoring public to ensure that an employee not drive home when an extended work schedule caused sleep deprivation, increasing the likelihood that the employee could fall asleep at the wheel and cause injury to a third party?

Respondent also filed a cross-petition for certiorari, which asked two questions.

The first asked, in essence, whether the Court of Special Appeals erred by suggesting, in dicta, that an employer may be liable for injuries caused by a fatigued employee during the commute home where the employer scheduled the employee to work...