Crews v. Hollenbach, 1129

• Court: Court of Special Appeals of Maryland
• Citation: 126 Md. App. 609,730 A.2d 742
• Docket Number: No. 1129,1129
• Parties: Lee James CREWS v. John HOLLENBACH, Sr., et al.
• Decision Date: 02 June 1999

730 A.2d 742

126 Md. App. 609

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

No. 1129, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 2, 1999.

Erik D. Frye, Greenbelt, for appellant.

Robert L. Ferguson, Jr., and Ann D. Ware (Ferguson, Schetelich & Heffernan, P.A., on the brief, for appellee, Excalibur Cable), Baltimore (Peter J. McNamara and McNamara & Fizer, on the brief, for appellees, Hollenbach and Honcho & Sons), Baltimore (Thomas J. Davis and Thomas J. Davis & Associates, on the brief, for appellees, Maryland Cable, et al), Rockville (Norton C. Joerg and McBreen, McBreen & Kopko, on the brief, for appellee, Byers Engineering), Upper Marlboro, for appellees.

Argued before DAVIS, HOLLANDER and THIEME, JJ.

HOLLANDER, Judge.

This appeal arises from a gas explosion in Bowie, Maryland on March 23, 1996, which severely injured Lee James Crews, appellant, an employee of Washington Gas Company.¹ As a result of the occurrence, appellant filed a twenty-count complaint on August 1, 1997, in the Circuit Court for Prince George's County, against various defendants, who are appellees here.² They are: John Hollenbach, Sr.; Honcho & Sons, Inc. ("Honcho"); Excalibur Cable Communications, Inc. ("Excalibur"); Maryland Cable Partners L.P. ("Maryland Cable"); and Byers Engineering Company ("Byers").³

After a motions hearing, the court determined that appellees were entitled to summary judgment, based on the doctrine of primary assumption of risk. From that ruling, appellant timely noted his appeal. Crews has posed one question for our consideration, which we have rephrased slightly:

Did appellant assume the risk of a gas explosion based on his occupation?

For the reasons that follow, we conclude that appellant is barred from recovery under the doctrine of primary assumption of risk, because his injury was a foreseeable risk of his occupation. Therefore, we shall affirm the trial court's order granting appellees' motions for summary judgment.

Factual Summary

Maryland Cable retained Excalibur to install cable lines in Bowie, Maryland. Excalibur, in turn, hired Honcho to perform the necessary excavation. Hollenbach was an employee of Honcho. Prior to the excavation, Byers was retained to locate and mark the buried utility lines in the area where the digging was scheduled to occur. See Md.Code (1991 Repl.Vol.), Art. 78, § 28A.⁴ While Hollenbach was using machinery to dig a hole in the vicinity of 11405 Trillum Lane in Bowie, he struck a natural gas line owned by Washington Gas. Apparently, neither the police nor the fire department was promptly notified about what had happened. Eventually, the fire department was notified of the situation by someone a mile and a half away, who smelled gas. More than two hours after the natural gas line was struck, Washington Gas was also notified of the leak. The incident caused the release of a large volume of natural gas that permeated the ground and necessitated the evacuation of the surrounding neighborhood.

Upon notification of the occurrence, Washington Gas dispatched a crew to the site to dissipate a volatile gas leak. Appellant, a veteran gas man with over twenty years of service, was the foreman of the crew in charge of repairing the leak. Unfortunately, while appellant and his crew were attempting to repair the leak, an explosion occurred, severely injuring appellant.

In his complaint, Crews alleged, inter alia, that Hollenbach negligently "shot" a hole through a natural gas line (Count I); Honcho is responsible for the negligent actions of Hollenbach, its employee (Count III); Excalibur negligently hired, selected, and supervised Honcho (Counts V, VI, and VII); Excalibur had the non-delegable duty to lay cable lines in the vicinity of utility lines (Count VIII); Hollenbach, Honcho, Excalibur, and Maryland Cable are strictly liable for injuries caused by the abnormally dangerous activity of digging around public utilities (Counts X and XVI); Maryland Cable is responsible for the negligent actions of its employee-agent, Honcho (Count XI); Maryland Cable negligently selected and supervised Honcho (Counts XII and XIII); Maryland Cable had the non-delegable duty to lay cable lines in the vicinity of utility lines (Count XIV); Byers failed to use due care in marking the utility lines in the vicinity where the digging occurred (Count XVII); and the combined negligence of Hollenbach, Honcho, Excalibur, Maryland Cable, and Byers led to appellant's injuries (Count XIX). Additionally, Byers filed cross-claims against Hollenbach, Honcho, Excalibur, and Maryland Cable; Hollenbach and Honcho filed cross-claims against Byers; and Excalibur filed a cross-claim against Byers. We turn to explore in more detail the events that culminated in appellant's suit.

On November 3, 1997, Excalibur filed a motion to dismiss the complaint, alleging that appellant's claims were barred by the doctrine of primary assumption of risk. Maryland Cable moved for summary judgment on December 19, 1997, adopting Excalibur's legal argument. The court denied Excalibur's motion to dismiss on December 17, 1997, although the order was not docketed until February 6, 1998.

Thereafter, on April 21, 1998, appellant was deposed. He acknowledged that there was a pronounced smell of gas in the area when he arrived at the scene. The following colloquy between Maryland Cable's counsel and appellant is pertinent:

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 the area that you were working?

A: Yes, yes.

Q: Is there a point that you recognize that 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.

* * *

And we understand that.

Q: So when you smelled that heavy smell of gas that day on this 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.

Q: Okay. And you knew that there was that two-inch plastic pipe that had the static electricity problem, correct?

A: That's correct.

Q: And that static electricity problem you knew could cause sparks, correct?

A: No.

Q: No?

A: The only time electric—it cause [sic] sparks when you deal with the pipe itself.

As I stated before, that's why we have to use what they call a spray on the pipe before you put a squeeze on it, because when you squeeze the pipe off, that's when—almost gets shut off, that's when the electronic takes over.

Q: How about if you get into close proximity of the pipe or touch the pipe with the metal bucket of the backhoe?

A: No, it would not.

Q: Are you sure?

A: Well, I never knew it could set off like that.

Q: All right.

A: I'm not saying that it won't, but I never knew it to do that before. But, anything can set it off, gravels [sic] or rocks that hit together, hitting metal. That could set it off.

Q: For instance, the metal bucket of your backhoe stringing 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 [sic], regardless. You know what I mean? It have to be repaired. [sic]

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

Q: So 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?

* * *

A: To the circumstance, 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. You know what I mean?

* * *

Q: All right. But once something like that had 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?

* * *

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

(Emphasis added).

On April 23, 1998, Excalibur filed a "Supplemental Motion to Dismiss or in the Alternative, Motion for Summary Judgment." Attached to its motion was a partial transcript of appellant's deposition, which it contended demonstrated that Crews "accepted the risk of fire and explosion as part of his job." A motions hearing was held on April 24, 1998.⁵ At the hearing, appellant's counsel suggested that the case concerned the issue of primary assumption of risk, in relation to "whether the policemen and firefighter's rule applies to this case." Crews's attorney explained:

[T]here's two types of assumption of the risk.

There's assumption of the risk in the policemen and firemen's rule, which says... if I can paraphrase it, that any time a police officer or a firefighter enters on to a premises, that police officer or firefighter can't sue the landlord for—any negligent acts that they've done or anybody associated with the premises, for any negligent act that they've done, even though he injures himself in the course of his duties. Because, as a matter of public policy, we will not allow him to sue.... [H]e's not an invitee. He's not a ... licensee....

So there's this ... broad general rule upon which they are relying ... by analogy, what [appellees are arguing] is that, since a gas man has to go out and fix gas leaks that he is covered by that very broad ... rule which, it's our position, only applies to policemen and

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