Barclay v. Ports Am. Baltimore Inc.

• Decision Date: 29 April 2011
• Docket Number: 2009.,No. 2501,Sept. Term,2501
• Citation: 198 Md.App. 569,18 A.3d 932
• Parties: Michael S. BARCLAY, et al.v.PORTS AMERICA BALTIMORE, INC.
• Court: Court of Special Appeals of Maryland

198 Md.App. 569

18 A.3d 932

Michael S. BARCLAY, et al.

v.PORTS AMERICA BALTIMORE, INC.

No. 2501

Sept. Term

2009.

Court of Special Appeals of Maryland.

April 29, 2011.

Henry L. Belsky & Victor D. Sobtka (Lindsay C. Cooper, Schlachman, Belsky, & Weiner PA, on the brief) Baltimore, MD, for appellant.JoAnne Zawitoski (Alexander M. Giles, Teresa M. Kelly, Semmes, Bowen, Semmes, on the brief) Baltimore, MD, for Ports America Baltimore, Inc.Gregory E. Hammond, Baltimore, MD, for Lena Briscoe, Personal Representative of the Estate of Christopher Eugene Richardson.Panel: MEREDITH, MATRICCIANI, RONALD B. RUBIN (Specially Assigned), JJ.MATRICCIANI, J.

On January 24, 2008, Michael S. Barclay, individually and jointly with his wife Robin Barclay, filed a complaint in the Circuit Court for Carroll County. The complaint named as defendants Lena Briscoe, personal representative of the estate of Christopher E. Richardson, Ports America Baltimore, Inc. (“Ports”),¹ the Steamship Trade Association of Baltimore, Inc. (the “STA”), and the International Longshoremen's Association and the Local No. 333 International Longshoremen's Association (collectively, the “ILA”).

On April 9, 2008, Briscoe filed cross-claims against Ports, the STA, and the ILA.

On August 1, 2008, Barclay voluntarily dismissed the ILA as a defendant on his direct claims.

On January 30, 2009, STA moved for summary judgment as to Barclay's direct claims and Briscoe's cross-claims, and on February 2, 2009, Ports moved for the same relief.

The court granted both the STA's and Ports' motions on November 10, 2009. The court then stayed proceedings between Barclay and Briscoe and entered final judgments in favor of the STA and Ports on December 22, 2009, which appellants timely appealed. On May 28 and June 7, 2010, appellants voluntarily dismissed their respective appeals of the judgments in favor of STA, leaving Ports as the sole appellee.

Questions Presented

Appellants present three questions for our consideration, which we have consolidated and edited for clarity:

I. Did the trial court err when it granted summary judgment in favor of Ports?

For the reasons set forth below, we answer no and affirm the judgment of the Circuit Court for Carroll County.

Background

Factual History

Christopher Richardson was a stevedore, who worked loading and unloading ships arriving in Baltimore. Ports manages and operates marine cargo facilities in Baltimore.

On January 13, 2006, the captain of the ship “Saudi Tabuk” notified Ports that it was delayed and would arrive later than scheduled, during the night. Ports determined what labor it required to unload the Tabuk, and Ports' labor coordinator issued a “work order” to the STA to dispatch longshoremen.

The STA used a computer program to assign longshoremen according to seniority, based upon information provided by the ILA. Richardson was initially offered a shift beginning on January 15, 2006, which he declined, and instead he accepted an offer to start at 8 a.m. on the Martin Luther King, Jr. holiday, January 16, 2006.

Richardson's terms of employment were governed by a collective bargaining agreement (“CBA”) between the ILA and maritime employers, including Ports. A basic agreement was made at the national level, and regional groups worked with employers to supplement the national agreement with local agreements.

Under the relevant CBA, a longshoreman who accepted an offer to work could stay on for as many consecutive shifts as he desired, or he could “check up” and go home, at which point the ILA would send the next most senior qualified longshoreman to take over his work. Shift lengths varied according to the time of day they would begin, and the CBA provided for a one-hour meal break every six hours. According to the CBA, no employees could demand to work through a meal hour.

The CBA had previously imposed a limit of sixteen hours on the working day, but neither the national nor local version of the CBA in place at the time of these facts included any limit on the working day. Representatives of Ports maintained that this change occurred at the insistence of the ILA, whose members did not want their workday to be limited because it would interfere with seniority rights. Ports' representatives further maintained that for the same reason, Ports could not interfere with the individual's right to work as few or as many consecutive shifts as he or she desired. Ports' representatives also testified that workers regularly “check up” and go home during or at the end of a shift before exhausting all the work they could perform under an offer from the STA.

One of Richardson's fellow longshoreman, Rikar McKenzie testified that, contrary to Ports' position, laborers were pressured to work long shifts. He testified that he was “always” asked to work more than sixteen hours, and that he would face action or poor evaluations if he should “check up” when no replacement longshoreman was available to take over for him.²

Under the CBA, hourly wages did not necessarily increase with the duration of a worker's time on the job. Overtime pay would go into effect at 5 p.m. on workdays, but shifts starting as late as 3 p.m. would be entitled to overtime beginning at 5 p.m.³ Additionally, any workers on the midnight shift who worked past 7 a.m. received extra pay, and all workers received overtime pay for work in excess of forty hours in a given week.

Workers could receive a bonus for “exceptional work,” which was awarded at the discretion of their supervisor. Ports maintained that this was not tied to shift duration. The only record evidence of these bonuses is one payroll form dated January 16, 2006, the date of Richardson's last shift. It indicates that out of thirty-one longshoremen on duty that day, twelve received bonuses, and that each of those twelve worked at least seventeen hours. However, eight longshoremen worked at least fourteen hours and did not receive bonuses. Richardson was one of eight workers whose shift lasted at least twenty hours; out of those eight, five received bonuses while three did not.

Richardson had reported to work at 8 a.m. on the morning of January 15, 2006. He remained on the job for twenty-two hours, eventually “checking up” at 6 a.m., the following day, January 16, 2006.⁴

At some point, Richardson began his journey home to Carroll county, approximately forty-five miles from where he worked. At approximately 7:30 a.m., Richardson's vehicle crossed the center line of New Windsor Road and collided, head-on, with a vehicle driven by Anne Arundel County Police Sergeant Michael Barclay. Dr. Alan Schwartz, an expert in sleep medicine, opined via affidavit “that Mr. Richardson fell asleep due to fatigue caused by his work as a maritime laborer[.]” ⁵

Sergeant Barclay suffered grievous injuries that required over $1.5 million in medical expenses to treat, and his injuries left him unable to work as a police officer. Richardson did not survive the accident.

Procedural History

Barclay filed a complaint in the Circuit Court for Carroll County on January 24, 2008, naming as defendants Briscoe, as Richardson's personal representative, the ILA, the STA, and Ports. Barclay's complaint alleged that Richardson was negligent in operating his motor vehicle, thereby causing Barclay's injury and damage, as well as loss of consortium as set forth in a separate count. Barclay's complaint further alleged that Ports, the STA, and the ILA “were negligent in that their agent, servant and/or employee, Christopher Eugene Richardson, was operating his vehicle in a careless, reckless negligent manner[.]”

Barclay further alleged that Ports, the STA, and the ILA “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.” The complaint averred that the three institutional defendants “engaged in a habitual and customary practice of allowing, requiring and/or encouraging their employees to work in excess of a reasonable number of hours for a mature adult human being.” Specifically, Barclay alleged that those defendants “were negligent in that they permitted and encouraged the Defendant, [Richardson], Deceased, to work twenty-two hours beginning sometime on January 15, 2006,” ⁶ and that those defendants “knew or should have known that [Richardson], Deceased would have operated his vehicle when leaving the workplace.”

Briscoe filed cross-claims against Ports, the STA, and the ILA, claiming that Barclay's injuries and damages were solely caused by their “negligence and want of care.”

Barclay voluntarily dismissed the ILA as a defendant on August 1, 2008. ⁷

On February 2, 2009, Ports filed a motion for summary judgment on Barclay's direct claims and Briscoe's cross-claims. Ports argued that it was not vicariously liable because Richardson was driving his personal vehicle outside the scope of his employment. Ports further argued that it did not owe the direct duty to the general public alleged in Barclay's complaint.

After a hearing on the matter, the court granted the motion on November 10, 2009. The court explained its ruling in a memorandum opinion determining that Ports is not vicariously liable according to the “going and coming” rule of respondeat superior. The court further ruled that because actors in Maryland have “no duty to protect another unless a special relationship ... exists,” Ports owed no duty to Barclay as alleged in his complaint.

The court stayed proceedings between Barclay and Briscoe and, pursuant to Maryland Rule 2–602, entered final judgments against them and in favor of Ports on December 22, 2009; ⁸ appellants then filed timely notices of appeal.

Discussion

Standard of Review

Summary judgment is proper where the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law. Md. Rule...