Crews v. Hollenbach

• Decision Date: 11 May 2000
• Docket Number: No. 76,76
• Citation: 358 Md. 627,751 A.2d 481
• Parties: Lee James CREWS v. John HOLLENBACH, Sr., et al.
• Court: Maryland Court of Appeals

751 A.2d 481

358 Md. 627

Lee James CREWS v. John HOLLENBACH, Sr., et al.

No. 76, Sept. Term, 1999.

Court of Appeals of Maryland.

May 11, 2000.

Erik D. Frye, Greenbelt, for Petitioner.

Robert L. Ferguson, Jr. (Ann D. Ware of Ferguson, Schetelich & Heffernan, P.A., Baltimore; Peter J. McNamara of McNamara & Fizer, Baltimore; Thomas J. Davis of Thomas J. Davis & Associates, Rockville; and Norton C. Joerg of McBreen & Kopko, Upper Marlboro, all on brief), for Respondents.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, RAKER, WILNER, CATHELL and HARRELL, JJ. HARRELL, Judge.

A natural gas leak led to an explosion in Bowie, Maryland on 23 March 1996. As a result of the explosion, Lee James Crews, the foreman of a gas line repair team sent to the scene of the gas leak by his employer, Washington Gas Light Company (Washington Gas), was injured seriously. Mr. Crews and his wife, Theresa, (Petitioners) filed a complaint, sounding in negligence and strict liability, in the Circuit Court for Prince George's County seeking damages against numerous parties, Respondents here,¹ claimed to have played roles in causing the gas leak. After ruling that Petitioners were barred from recovery by the principles of the doctrine of assumption of the risk, the Circuit Court granted summary judgment in favor of Respondents. The Court of Special Appeals affirmed.² We granted Petitioners' request for a writ of certiorari³ to consider the following questions posed by Petitioners:

1) Did Petitioner, Lee James Crews, assume the risk of a gas explosion merely by virtue of his occupation?

2) Does Maryland apply the doctrine of primary assumption of the risk to employees of the gas company?

3) Does the doctrine of assumption of the risk apply to this matter?

4) Does the Petitioner benefit from the "rescue doctrine"?

FACTS

On 23 March 1996, John Hollenbach, Sr. (Hollenbach), an employee of Honcho & Sons, Inc. (Honcho), was excavating land located near 11405 Trillium Lane, Bowie, Maryland. Honcho was a sub-contractor of Excalibur Cable Communications (Excalibur). Excalibur was engaged by Maryland Cable Partners, L.P. (Maryland Cable) to carry out a cable installation project. The area that Hollenbach excavated was marked previously by Byers Engineering Company (Byers), pursuant to the "Miss Utility" statute, to facilitate the excavating contractor's avoidance of known buried utility lines.⁴ Despite Byers' markers, Hollenbach struck a buried natural gas line owned by Washington Gas. The strike created a leak in the line. Neither Hollenbach nor anyone at the scene immediately contacted anyone regarding the leak, and natural gas released freely into the air and ground for a period of time. Two hours later, a resident, located approximately one mile from the leak, recognized the smell of gas in the air and notified the fire department. The governmental authorities evacuated the surrounding neighborhood. Washington Gas was contacted and dispatched a repair crew to the scene of the leak. Mr. Crews, a Washington Gas employee for over twenty years, was the foreman in charge of the crew. Upon arrival at the scene, Mr. Crews and his co-employees commenced the process of dissipating the gas that had permeated the ground. While he and his crew were engaged in closing off the leak, the gas ignited and an explosion occurred. Mr. Crews was injured severely. The cause of the spark that ignited the gas was unknown, but no allegation was made that Respondents were the cause of the ignition source.

PROCEDURAL BACKGROUND

On 1 August 1997, Petitioners filed a twenty-count complaint in the Circuit Court for Prince George's County against Respondents. The causes of action asserted by Mr. Crews ranged from various themes of negligence, including negligent hiring and negligent supervision, to strict liability for the abnormally dangerous activity of Respondents "shooting a hole in the vicinity of utility lines." Mrs. Crews joined her husband in a loss of consortium claim.

Excalibur filed a motion to dismiss on 3 November 1997. In the motion and accompanying memorandum, Excalibur argued that the doctrine of so-called "primary" assumption of the risk barred Petitioners' suit because Mr. Crews's injuries resulted from a risk that was inherent in his employment. Excalibur asserted that Mr. Crews necessarily appreciated the dangerous nature of his occupation and knew, upon arrival at the scene of the gas leak, that he was to confront a hazardous situation. Excalibur reasoned that Mr. Crews "cannot recover for an alleged negligent act for which he was specifically employed to correct." On 19 December 1997, Maryland Cable filed a motion for summary judgment incorporating the legal arguments of Excalibur's motion to dismiss. By order docketed 6 February 1998, the Circuit Court denied Excalibur's motion to dismiss. On 3 March 1998, the Clerk of the Court sent to the parties written notice that a hearing on Maryland Cable's motion for summary judgment would be held on 24 April 1998.

Mr. Crews was deposed by Respondents on 21 April 1998.⁵ In the course of the deposition, Respondents initially established that Mr. Crews was not down in the hole repairing the gas leak on 23 March 1996, but rather was standing apparently on the edge of the excavation supervising the members of his crew who were in the hole attempting to repair the leak. Accordingly, Mr. Crews was not wearing a fire retardant hood at the time as he had been trained this was necessary only when one was "in the hole working with the gas." The following exchanges then occurred between Mr. Crews and counsel for Maryland Cable:

Q. Okay. Now, you told us earlier that there was a heavy smell of gas in the area?

A. At that particular area.

Q. Well, you mean in the area that you were working?

A. Yes, yes.

Q. Is there a point that you recognize the gas smell to be so heavy that you know that it's dangerous?

A. Well, we always are taught that any type of gas leak or odor is always dangerous.

Q. All right.

A. And we always try to work it in a safe manner.

Q. Okay. So—

A. And we understood that.

Q. So when you smelled that heavy smell of gas that day on the job, you know that—you knew that the atmosphere was dangerous?

A. Well, yeah. We knew that that area that we was working in could be dangerous.

Q. Okay. And you knew that that danger included the danger that a fire would start, correct?

A. We were aware that fire will start behind natural gas.

* * * * *

A. ... But anything can set [the gas] off, [sparks] from gravels or rocks that hit together, hitting metal. That could set it off.

Q. For instance, the metal bucket of your backhoe striking a rock as you were digging—

A. That's correct.

Q. —you knew that that could create a spark?

A. We knew that.

Q. And you knew that if the spark occurs, you could have a fire and an explosion, correct?

A. That's correct, but as I said before, that it have to be worked, regardless. You know what I mean? It have to be repaired.

It's a chance you have to—that we go through. Then again, there's the other exception to the rule, too.

* * * * *

Q. You know that there is this risk of fire, correct?

A. That's correct.

Q. But you also know that part of your job is accepting that risk, correct?

* * * * *

THE WITNESS: To the circumstances, yes. But on this occasion that it happened, it didn't have to be this way.

Q. What do you mean by that?

A. Because if the person, I'll say, that dug—that did that had moved in the proper procedure their way, I wouldn't have had to have been there to get into this thing.⁶ You know what I mean?

Q. Sure. I mean, if nobody ever hit a pipe that then required repair, you might not even have to work for Washington Gas, isn't that true?

A. No.

Q. They wouldn't need you, would they?

A. Well, I don't—I'll say, well, true— yes and no. You know what I mean?

Q. All right. But once something like that has happened, regardless of the reason, once damage has occurred to a gas pipe and you're called out there to make the repair as part of your job, you know that there is a risk of fire and you know that it's part of your job to accept that risk, correct?

* * * * *

THE WITNESS: Yes. I accept that responsibility when we first got hired, but there is a control of gas that we usually deal with.

On 23 April 1998, Excalibur filed a supplemental memorandum in support of a renewed motion to dismiss or alternatively, a motion for summary judgment. In addition to reasserting that Petitioners' claims were barred by "primary" assumption of the risk, Excalibur stated that "[i]t is also undisputed that [Mr. Crews] knew of the risk of fire and explosion on the day that he was working to repair the gas leak, yet he voluntarily encountered the risk. His claim is barred by assumption of risk." From this, it may be inferred that Excalibur also was contending that Petitioners' claims were barred by the conventional doctrine of assumption of the risk as recognized previously in Maryland common law. Excalibur attached to its motion the partial transcript of Mr. Crews's deposition, which included the above quoted exchanges, in support of its motion.

After hearing arguments on 24 April 1998 from the parties regarding the applicability of any theory of assumption of the risk, the trial court granted Excalibur's and Maryland Cable's motions for summary judgment, as well as oral motions for summary judgment submitted by Byers, Honcho, and Hollenbach at the hearing. The judge explained:

[Mr. Crews] was an expert gas repair technician, and he was sent to the property where the gas leak had occurred for the specific purpose of inspecting and addressing the problem. That was his job. That he knew what he was doing and appreciated the risks associated with doing his job is clear in this case. And that he specifically assumed the risk of his job is also clear ... Accordingly, I see no issue with respect to Mr. Crews going to this jury ...

Invited by Petitioners' counsel to...