Heinrich v. Goodyear Tire and Rubber Co., Civ. A. No. M-80-1956.

Citation532 F. Supp. 1348
Decision Date25 February 1982
Docket NumberCiv. A. No. M-80-1956.
PartiesPaul P. HEINRICH and Eva Rae Heinrich, his wife v. The GOODYEAR TIRE AND RUBBER COMPANY, an Ohio Corporation.
CourtUnited States District Courts. 4th Circuit. United States District Court (Maryland)


Martin H. Freeman and Bulman, Dunie, Freeman, Burke & Feld, Bethesda, Md., and Sylvan H. Sack, Baltimore, Md., for plaintiffs.

Benjamin R. Civiletti and James K. Archibald and Venable, Baetjer & Howard, Baltimore, Md., for defendant.


JAMES R. MILLER, Jr., District Judge.

The defendant, the Goodyear Tire and Rubber Company (Goodyear), has moved to dismiss certain aspects of the plaintiffs' amended complaint pursuant to Rule 12(b)(6) & (7), Fed.R.Civ.P.1 The plaintiffs have filed a memorandum opposing Goodyear's motion,2 and the court heard argument from counsel on February 5, 1982. For the reasons set out below, Goodyear's motion to dismiss will be denied.

The plaintiffs in this diversity case are an employee, and his spouse, of the Kelly-Springfield Tire Company (Kelly). Kelly is a wholly-owned subsidiary of Goodyear and, among other things, operates a tire manufacturing plant in Cumberland, Maryland. Plaintiff Paul P. Heinrich was first employed at Kelly's Cumberland plant in August of 1958.

The plaintiffs have sued only Goodyear in this court for damages in connection with the "occupational disease" contracted by plaintiff Paul P. Heinrich while working at Kelly's Cumberland plant. No effort has been made to join Kelly as a party defendant.3 The plaintiffs contend that they are not seeking to pierce Kelly's corporate veil, or otherwise hold Goodyear liable for Kelly's acts or omissions. In other words, all of the plaintiffs' legal theories are, as they must be, premised upon duties allegedly owed to the plaintiffs by Goodyear.


Count I of the amended complaint4 sounds in negligence and is based on two separate theories of negligence liability. One theory, as set out in paragraphs 13 and 15 through 19 of Count I of the amended complaint, alleges a failure by Goodyear to warn the plaintiffs of the dangers associated with the chemicals and other products Goodyear supplied to Kelly for use at the Cumberland plant. Goodyear acknowledges that these paragraphs of the amended complaint state at least a "duty to warn" claim under Maryland law. Moran v. Faberge, 273 Md. 538, 543-53, 332 A.2d 11 (1975). See Fischbach & Moore International Corp. v. Crane Barge R-14, 632 F.2d 1123, 1127 (4th Cir. 1980); Werner v. Upjohn Co., Inc., 628 F.2d 848, 858 (4th Cir. 1980).


Goodyear contends, however, that the plaintiffs' second negligence-based theory — Goodyear's alleged undertaking to provide Kelly with health and safety information regarding all chemicals used at the Cumberland plant — does not state a cognizable claim under Maryland law. The second theory is asserted in paragraphs 13 and 14 and in 17 through 19 of the amended complaint. In support of this assertion of denial of liability, Goodyear advances two general arguments, the second of which has several subparts.

Goodyear's first argument is that the plaintiffs are attempting to hold Goodyear liable in tort for Kelly's breach of its own duty to provide a safe workplace. See Bauman v. Woodfield, 244 Md. 207, 216, 223 A.2d 364 (1966). In other words, Goodyear asserts that it has no duty, as Kelly's corporate parent, either to perform Kelly's safe workplace duties or to see that Kelly performs such duties.

Goodyear's second argument challenges the "undertaking" theory advanced by the plaintiffs. Goodyear contends that when a parent corporation provides a subsidiary corporation with health and safety information, no duty of care arises therefrom as between the parent and the subsidiary's employees unless: (1) the parent assumes completely a duty owed by the subsidiary to the employees; or (2) the parent provides the health and safety information directly to the subsidiary's employees. As to this latter point, Goodyear maintains that no duty can arise when the subsidiary is the actual recipient of the information, and the parent has no right to control the subsidiary's use of the information. As a third aspect of its second main contention, Goodyear asserts that the allegations in the amended complaint do not allege an undertaking by Goodyear sufficient to create any duty of care as between itself and Kelly's employees.

In opposing Goodyear's motion, the plaintiffs contend that the allegations in Count I of the amended complaint state a claim for relief under the Restatement (Second) of Torts § 324A (1965), which provides:

"One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform5 his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking."

Goodyear does not contend that it is a statutory employer entitled to tort immunity under the Maryland Workmen's Compensation Act, Md.Code Ann. art. 101, §§ 1 to 102 (1979 & 1981 Cum.Supp.). To the contrary, Goodyear has maintained throughout this litigation that Kelly is a separate and distinct legal entity.6

In support of its first argument for dismissal, Goodyear relies on Love v. Flour Mills of America, 647 F.2d 1058 (10th Cir. 1981). In that case, employees injured in a grain elevator explosion sued the employer, the employer's parent corporation, and the employer's insurance carrier for negligently maintaining the grain elevator in an unsafe condition. The case was dismissed as to the employer and the insurance carrier on the ground that both were immune from negligence suits under Oklahoma's workmen's compensation law.7 In affirming the District Court's dismissal order as to the parent corporation also, the Tenth Circuit panel stated:

"It is clear from the briefs and record that Chickasha's alleged negligent maintenance of the elevator is founded upon the fact that Chickasha owns other grain elevators or companies operating similar mills. Based on this experience, plaintiffs argue, Chickasha should have recognized the hazardous conditions at the Durant facility and should have caused Flour Mills to operate the facility in a safer manner."
* * * * * *
"Since the only tort alleged against Chickasha is that it failed to perform the employer's duty or to require the employer to perform its duty, the trial court properly dismissed the action."

647 F.2d at 1063.

This court has no quarrel with the result reached in the Love case. As will be seen below, however, the reasoning of Love is inapplicable to this case. The plaintiffs herein do not contend that Goodyear has an independent legal duty either to perform Kelly's employer duties or to see that such duties are performed by Kelly. Further, the plaintiffs have disclaimed any intention of attempting to impose tort liability on Goodyear for acts or omissions that are attributable solely to Kelly. Were it otherwise, the court might agree with Goodyear that under the reasoning of Love v. Flour Mills of America, 647 F.2d at 1063, the disputed aspect of Count I should be dismissed. As indicated above, however, the gist of the plaintiffs' second negligence theory is the application of the "Good Samaritan" rule set out in the Restatement (Second) of Torts § 324A (1965). Consequently, it must be determined: (1) whether section 324A would be accepted by the Court of Appeals of Maryland; and (2) if so, whether the allegations in the amended complaint state a claim for relief under section 324A.

Unlike other state appellate courts,8 the Court of Appeals of Maryland has not specifically endorsed section 324A of the Restatement (Second) of Torts.9 Two factors suggest strongly, however, that the Court of Appeals either has impliedly adopted the principles outlined in section 324A or would do so expressly given the appropriate case.

The first factor is that the liability principles outlined in section 324A are an application of Justice Cardozo's classic statement that "it is ancient learning that one who assumes to act, even though gratuitously, may thereby become subject to the duty of acting carefully, if he acts at all." Glanzer v. Shepard, 233 N.Y. 236, 135 N.E. 275, 276 (1922). That Maryland has long recognized this settled common law rule, now set out in Restatement (Second) of Torts § 323 (1965), is not open to serious debate.10 See, e.g., Krieger v. J. E. Greiner Co., 282 Md. 50, 72-73, 382 A.2d 1069 (1978) (Levine, J., concurring); Hoover v. Williamson, 236 Md. 250, 253-54, 203 A.2d 861 (1964); Pennsylvania R.R. Co. v. Yingling, 148 Md. 169, 176-77, 129 A. 36 (1925). Accord, Fischbach & Moore International Corp. v. Crane Barge R-14, 476 F.Supp. 282, 289-90 (D.Md.1979), aff'd, 632 F.2d 1123 (4th Cir. 1980). See also Arnold's Hofbrau, Inc. v. George Hyman Construction Co., Inc., 480 F.2d 1145, 1148 (D.C.Cir.1973) (Winter, J.).

The second factor is that the principles outlined in section 324A, as well as those in section 323, have been applied in several Maryland cases, although the ultimate issue of liability turned on facts particular to the case. See, e.g., Otis Elevator Co. v. Embert, 198 Md. 585, 599-602, 84 A.2d 876 (1951); Cutlip v. Lucky Stores, Inc., 22 Md. App. 673, 692-95, 325 A.2d 432 (1974).

The most instructive of these cases is Krieger v. J. E. Greiner Co., 282 Md. 50, 282 A.2d 1069 (1978). In that case, an employee of a subcontractor on a state construction project was injured when struck by a falling steel bar. The bar, held in place by a guy wire rather than a weld, was to be used for reinforcing a concrete column. The...

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