Vito v. Sargis & Jones, Ltd.

• Decision Date: 01 September 1995
• Docket Number: No. 596,596
• Citation: 108 Md.App. 408,672 A.2d 129
• Parties: Mary Alice VITO v. SARGIS & JONES, LTD. et al. ,
• Court: Court of Special Appeals of Maryland

Page 408

108 Md.App. 408

672 A.2d 129

Mary Alice VITO v. SARGIS & JONES, LTD. et al.

No. 596, Sept. Term, 1995.

Court of Special Appeals of Maryland.

Feb. 29, 1996.

Monroe Jon Mizel, Kingsington, for appellant.

Thomas Patrick Ryan (McCarthy, Wilson & Ethridge, on the brief), Rockville, for appellee, Sargis & Jones.

Denise A. Greig (Semmes, Bowen & Semmes, on the brief), Baltimore, for appellee, Cogan Kibler, Inc.

Argued before HOLLANDER and SALMON, JJ., and PAUL E. ALPERT, Judge (Retired), Specially Assigned.

SALMON, Judge.

In this appeal we are called upon to analyze the doctrine of res ipsa loquitur. Three questions are presented:

1. Did plaintiff/appellant [Mary Vito] waive reliance on the doctrine of res ipsa loquitur by attempting to establish specific acts of negligence on the part of defendants Cogan Kibler, Inc. and Sargis & Jones Ltd.? 2. Did the trial court err in granting Cogan Kibler, Inc.'s motion for judgment?

3. Did the trial court err in granting the motion for judgment of Sargis & Jones, Ltd.?

FACTS ¹

Sargis & Jones, Inc. (Sargis & Jones) is a general contractor. It was hired to renovate certain bathrooms and storage spaces at the USA Today building ("the Building") located in Silver Spring, Maryland. Michael Clough, project manager, and Ramone Estevan, project superintendent, were both employed by Sargis & Jones to supervise the renovation of the Building. Sargis & Jones subcontracted out all of the work to be done. Its function was to schedule and coordinate the work of the subcontractors. Numerous subcontractors were hired for the project. Sargis & Jones hired Cogan Kibler, Inc. (Cogan Kibler), a painting subcontractor, to paint portions of the Building. John Dray, an experienced painter, was an employee of Cogan Kibler.

Renovation work commenced on the Building sometime in April 1990. Sargis & Jones's project supervisor, Michael Clough, scheduled Cogan Kibler to paint the Building's interior walls on May 11, 1990. Mr. Dray was told by his supervisor, Dave Cogan, to go to the Building and apply Duron stain killer paint primer (hereafter "paint primer") to one of the walls. Mr. Dray arrived at the Building sometime before noon. He poured the paint primer into a tray and, using a roller, began to apply it to a wall. Mr. Dray, the only employee of Cogan Kibler at the Building on May 11, 1990, painted for 20 to 30 minutes.

The area where Mr. Dray was painting was partially separated by a heavy, translucent plastic barrier from the area where USA Today employees worked. A large gap existed however, in the barrier. The record does not reveal exactly how big the gap was or whether any doors or windows were open in the project area or elsewhere in the building. Moreover, the record does not show whether Mr. Dray painted near any air conditioning or ventilation ducts, nor was it shown whether employees of other subcontractors were present when Mr. Dray applied the paint primer.

On the morning of May 11, Mary Vito (an asthmatic) was working in a large, open room adjacent to the project area where Mr. Dray was painting. This open room contained approximately seventy work stations, one of which was Ms. Vito's. During most of the morning of May 11, she uneventfully sat at her work station and performed her duties as a USA Today customer service representative.

Sometime before noon on May 11, while Ms. Vito still sat at her work station, she detected an unusual odor, which she did not otherwise describe. Simultaneously, she felt a burning sensation in her throat, and she then "passed out." About the same time, co-employees of Ms. Vito also complained "that their eyes were burning[,] ... their throats were hurting and they weren't feeling well." Because of these problems, a supervisor instructed USA Today employees to evacuate the building. Ms. Vito and approximately six other employees were then transported by ambulance to Holy Cross Hospital. The other employees were treated and released shortly after arrival, but Ms. Vito remained in the hospital for several hours.

About the same time as the room adjacent to the project area was being evacuated, Ramone Estevan, the Sargis & Jones on-site project superintendent, instructed Mr. Dray to stop painting because "somebody had complained about the smell." Mr. Dray immediately stopped his work and, about fifty minutes later, left the Building.

Ms. Vito called two medical doctors as witnesses. Their testimony, if believed by the jury, established that Ms. Vito suffered permanent lung damage as a result of inhaling the fumes from the paint primer on May 11, 1990. ²

Ms. Vito introduced into evidence a label from a can of the paint primer. The can was similar to the one used by Mr. Dray. The warning label on the can read:

To avoid breathing vapors or spray mist, open windows and doors or use other means to ensure fresh air entry during application and drying. If you experience eye watering, headaches or dizziness, increase fresh air or wear respiratory protection ... or leave the area. Close container after each use. Avoid contact with skin.

FIRST AID: If swallowed, do not induce vomiting. Call physician immediately.

Use With Adequate Ventilation.

NOTICE: Reports have associated repeated and prolonged occupational over-exposure to solvents with permanent brain and nervous system damage. Intentional misuse by deliberately concentrating and inhaling the contents may be harmful or fatal.

(Emphasis in original.)

Counsel for Ms. Vito read to the jury excerpts from a deposition of Mr. Clough, Sargis & Jones's project manager. He was questioned about what safety procedures were utilized when potentially toxic (poisonous) substances were in use. Mr. Clough asserted that he was unaware of anybody who might be sensitive to any product used at any project where Sargis & Jones was the general contractor. He acknowledged, however, that Sargis & Jones did not require its employees to investigate whether any potentially sensitive person would be present in the vicinity of potentially injurious substances. More specifically, Mr. Clough admitted that none of Sargis & Jones's employees determined, on the day in question or at any other time, whether anyone who worked at USA might be harmed by the application of paint or paint primer. He admitted that Sargis & Jones's personnel occasionally informed building users in the area about the type of work being done--for example, he acknowledged that if he knew that a pregnant woman was on the premises, and if he thought that a product that was being used might be injurious to her, he, or another employee, would warn her.

At the close of Ms. Vito's case, her counsel admitted that she had not produced direct evidence of negligence on the part of either defendant. Ms. Vito's counsel contended, however, based on the theory of res ipsa loquitur, that the issue of negligence should be submitted to the jury. Sargis & Jones and Cogan Kibler made motions for judgment in their favor on the ground that Ms. Vito's evidence was insufficient to take the case to the jury on the theory of res ipsa loquitur because she had failed to prove that either defendant had exclusive control of the instrumentality that caused plaintiff harm. Counsel for Sargis & Jones also contended that Ms. Vito had waived her right to rely on the res ipsa loquitur doctrine because she had attempted to prove direct negligence. The trial court took the motions under advisement and instructed defense counsel to proceed.

The defense called two witnesses, but before either defendant had concluded their case, the trial judge ruled on defendants' motions for judgment. The court opined that Ms. Vito had not waived her right to rely on res ipsa loquitur by going "too far in [her] proof of the explanation of the cause of the injury." Moreover, the court accepted as true Ms. Vito's proof that she was injured by the fumes from the paint primer. The trial judge ruled, however, that Ms. Vito had failed to establish exclusive control over the condition or instrumentality that caused the harm. After defendants' motions for judgment were granted, this timely appeal followed.

Additional facts will be presented to answer the questions presented.

STANDARD OF REVIEW

When reviewing the grant of a motion for judgment, we examine the evidence and all inferences reasonably deducible therefrom in the light most favorable to the non-moving party. Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 327-28, 389 A.2d 887 (1978); Campbell v. Montgomery County Bd. of Educ., 73 Md.App. 54, 63, 66, 533 A.2d 9 (1987). Ordinarily, we will not affirm a judgment for a reason not relied upon by the trial court. Warner v. German, 100 Md.App. 512, 517, 642 A.2d 239 (1994) (quoting Cheney v. Bell Nat. Life Ins. Co., 315 Md. 761, 764, 556 A.2d 1135 (1989)). See also Geisz v. Greater Baltimore Medical Center, 313 Md. 301, 314, n. 5, 545 A.2d 658 (1988).

The trial court, when ruling on a motion for judgment, should make the initial determination of whether the inference of negligence is permissible, i.e., more probable than not. If the court decides that this inference is permissible, it should then submit the issue to the jury to determine finally whether the inference is more probable than not. Short v. Wells, 249 Md. 491, 495-96, 240 A.2d 224 (1968). If, as here, the lower court decides that the inference is impermissible, an appellate court will review the court's decision and decide whether it was legally correct.

Res Ipsa Loquitur

In a negligence action, plaintiff, of course, has the burden of proving defendant's negligence. Harris v. Otis Elevator Co., 92 Md.App. 49, 51, 606 A.2d 305 (1992). The burden of proof requires plaintiff to produce evidence that will permit the trier of fact to conclude that it is "more likely than not" that defendant's negligence caused plaintiff's injuries. C. & P. Tel. Co. v. Hicks, 25 Md.App. 503, 526, 337 A.2d 744, cert. denied, 275...