Krieger v. J. E. Greiner Co., Inc., 48

• Court: Court of Appeals of Maryland
• Citation: 282 Md. 50,382 A.2d 1069
• Docket Number: No. 48,48
• Parties: Leroy E. KRIEGER et ux. v. J. E. GREINER COMPANY, INC., et al. ,
• Decision Date: 01 September 1977

Page 50

282 Md. 50

382 A.2d 1069

Leroy E. KRIEGER et ux. v. J. E. GREINER COMPANY, INC., et al.

No. 48, Sept. Term, 1977.

Court of Appeals of Maryland.

Feb. 9, 1978.

Bertram M. Goldstein, Baltimore (Jacob & Goldstein, Baltimore, on brief), for appellants.

Howard G. Goldberg, Baltimore (Wm. B. Somerville and Smith, Somerville & Case, Baltimore, on brief), for J. E. Greiner Company, Inc. et al.

Francis J. Ford, Rockville (Ford & O'Neill, Rockville, on brief), for Zollman & Associates, Inc. et al.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ELDRIDGE and ORTH, JJ.

SMITH, Judge.

We shall here hold that the contracts of the supervising engineers in this controversy have not made them responsible for construction methods and hence for safety precautions in the building of a bridge, although we shall further hold that in the light of the allegations of the declaration, an opportunity should be afforded the plaintiffs to attempt to draw a declaration which will withstand demurrer.

In Cutlip v. Lucky Stores, 22 Md.App. 673, 325 A.2d 432 (1974), about which we shall have more to say later, Judge Lowe, after philosophizing for that court on the fact that "(t)he gambling instinct endemic to our former frontier society has been replaced by a quest for security with which our contemporary society is identified," referred to the fact that "injured litigants . . . seek deeper pockets from which to make themselves whole." One may suspect that this litigation was produced by a desire for "deeper pockets" to supply compensation for the injuries sustained.

Leroy E. Krieger (Krieger), one of the appellants, was injured in an accident in the construction of the bridge across the Baltimore outer harbor, now known as the Francis Scott Key Bridge (the bridge). J. E. Greiner Company, Inc. (Greiner), one of the appellees, was the engineer responsible for the design of the bridge and overall supervision of its construction. (Its corporate name has been changed but that is unimportant to this litigation.) Zollman Associates, Inc., et al. (collectively referred to as Zollman), the other appellees, were consulting engineers relative to construction of the bridge. Krieger was injured on the job on May 4, 1973. He sued Greiner and Zollman to his own use and to the use of Aetna Casualty and Surety Company (apparently the workmen's compensation insurer). In a second count Krieger and his wife (the Kriegers) sued for injury to their marital relationship.

The Kriegers appeal from the judgment for costs entered against them when a trial judge sustained a demurrer to the declaration. Because of the public importance of the issue here presented and the lack of Maryland cases on the subject, we granted certiorari prior to consideration of the appeal by the Court of Special Appeals.

For the purpose of determining whether a trial judge has erred in sustaining a demurrer without leave to amend we are required to assume the truth of all material facts which are well pleaded as well as all inferences which can reasonably be drawn from those well pleaded facts. Zion Evang. Luth. Ch. v. St. Hwy. Adm., 276 Md. 630, 632, 350 A.2d 125 (1976); Schwartz v. Merchants Mort. Co., 272 Md. 305, 307-08, 322 A.2d 544 (1974). The facts alleged in the declaration relevant to our decision here are: The State Roads Commission (the Commission) entered into a contract with Greiner in which Greiner agreed to perform certain engineering work in connection with the construction of the bridge. The Commission also entered into a contract with Zollman concerning detailed field inspection of workmanship and materials for conformance with the plans and specifications. Under Maryland Rule 326 Greiner and Zollman each demanded production of their contracts with the Commission, copies of which were duly filed. Thus, the contracts are to "be treated as if incorporated in the pleading."

The declaration alleged that Greiner covenanted in its contract to " '(p)lan, direct and coordinate construction layout surveys, detailed field inspection of workmanship and materials for conformance with the plans and specifications' "; to " '(f)urnish such periodic and special reports as shall be deemed advisable as may be required by the Commission' "; and to " '(p)erform the services stipulated to be performed by the Consultant during the construction phase of the project,' " including " '(p)reparation of progress reports and statements (, a)pproval of all construction plans and specifications (, and c) ertification of the final completion of the project.' " It referred specifically to Greiner's obligation to " '(o)bserve and comply with all Federal, State, and local laws or ordinances that affect those employed or engaged by him on the project . . . or the conduct of the work . . . .' " We shall have more to say later about this "obligation." The declaration said that under the contract Greiner was to "be responsible for all damage to life and property due to its activities or those of its agents or employees in connection with the services required under the contract."

The declaration said as to Zollman that under its agreement to provide " '(a) ll detailed construction, engineering and inspection of workmanship and materials for the entire bridge project, including the approach, girder spans and the three span through truss unit,' " it was to supply " '(r)esident inspection of workmanship and materials incorporated in the construction of the entire bridge project, including the furnishing of a staff of engineers and inspectors capable of performing all normal on-site inspection of materials furnished and workmanship by the construction contractors to insure compliance with the requirements of the plans and specifications.' " The Kriegers pointed to an agreement similar to that of Greiner relative to observance and compliance with laws and ordinances and responsibility for damage to life and property.

Several corporations combined as the general contractor. Under their agreement with the Commission they were to construct the bridge under the day to day supervision and inspection of Greiner. ¹ The general contractor in turn entered into a subcontract with Bildot Steel Corp. (Bildot) relative to the erection of the steel reinforcing in the concrete piers and columns at one end of the bridge. Bildot was engaged in the placement of iron reinforcement bars at the time of Krieger's injury. The Kriegers alleged that Bildot "performed its work under the continuous and uninterrupted supervision and inspection of . . . Greiner . . . and (Zollman), and numerous of their agents, servants and employees," who "either saw or had reason to have seen that . . . Bildot . . . was performing its work in a defective and ultra-dangerous manner, in that (it) erected, in a vertical position, upon each of several bases or footers of columns, forty reinforcing bars, which were approximately fifty feet long and weighed approximately 780 pounds apiece, without properly securing said steel so that it would not topple over, either by welding the reinforcing bars into place or properly stabilizing the erection with guy cables." It was said that this was a "defective and ultra-dangerous condition" which directly resulted in the injuries to Krieger. The Kriegers claimed that the "injuries and damages . . . were caused solely by the negligence and want of care of the Defendants, . . . Greiner . . . and (Zollman), and their agents, servants, and employees . . . ." Reasons assigned are: that Greiner and Zollman "were under a duty to exercise such reasonable care, technical skill, and ability and diligence, as is ordinarily required of engineers in the course of their plans, inspections, and supervision during the construction, for the protection of any person who foreseeably and with reasonable certainty might be injured by their failure to exercise such care." It was alleged that Greiner and Zollman "assumed said duty of care by their contract with the . . . Commission, wherein they duly covenanted not only to see that the bridge conformed to contract specifications, but they also agreed to control the day to day methods and procedures utilized by the contractors in doing the work," specifying that each of them "expressly agreed to see that the method of the construction work conformed to all Federal, State, and local laws and ordinances"; agreed "to maintain a staff of engineers and inspectors continuously on the job at all times"; that they "did, in fact, maintain such a corps of engineers and inspectors on the job at all times and said persons maintained a constant vigil over the progress and course of the work"; that these "inspectors and engineers had exercised their right to stop the work on numerous other occasions when said work either did not conform to the plans and specifications or was being performed in a negligent and dangerous manner which was unsafe for the workmen employed on the project"; that the contract between the Commission and the general contractor, "which was duly approved for execution by . . . Greiner . . . reserved the right of the Defendant engineers to reject any work and order the work to be performed anew in the event it was not performed to the satisfaction of the engineers"; that Greiner and Zollman "expressly agreed, by their respective contracts to be responsible for all damage to life and property due to their activities or those of their agents or employees"; and that the Commission, "acting on behalf of the State of Maryland, required the Defendants to supervise the work as aforesaid in order to insure the safety of the public in general and the workmen on the job." It was further alleged that Greiner and Zollman "knew or had reason to know" as early as the day prior to the accident in question that Bildot was erecting the iron reinforcing bars in question "in a dangerous and unsafe manner," claiming that an inspector "actually saw that said reinforcing...