Wells v. General Elec. Co.

• Decision Date: 04 December 1992
• Docket Number: Civ. A. No. S-91-3389.
• Citation: 807 F. Supp. 1202
• Parties: Michael D. WELLS and Paula Wells, Plaintiffs, v. GENERAL ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. MONTEL METALS, INC., Third-Party Defendant.
• Court: U.S. District Court — District of Maryland

807 F. Supp. 1202

Michael D. WELLS and Paula Wells, Plaintiffs, v. GENERAL ELECTRIC COMPANY, Defendant and Third-Party Plaintiff, v. MONTEL METALS, INC., Third-Party Defendant.

Civ. A. No. S-91-3389.

United States District Court, D. Maryland.

December 4, 1992.

William C. Moyer, Lorch & Naville, New Albany, IN, and John J. Pyne, Pyne & Derry, P.C., Chevy Chase, MD, for plaintiffs.

Andrew H. Marks, Patrick W. Lee, Kent W. Gardiner, and R. Colin Keel, Crowell & Moring, Washington, DC, for defendant and third-party plaintiff.

Douglas B. Schoettinger and Earl W. MacFarlane, Smith, Somerville & Case, Baltimore, MD, for third-party defendant.

MEMORANDUM OPINION

SMALKIN, District Judge.

This diversity case is before the Court on the motion of General Electric Company ("General Electric") for summary judgment. The nature of the action is a claim for personal injuries sustained by one Michael D. Wells ("Wells"), an employee of a company named Montel Metals, Inc. ("Montel"), which is in the business of dismantling disused industrial plants. In 1990, General Electric, which had previously utilized Montel's dismantling services, contracted with Montel to perform the dismantling and salvage work at Building 1 of a disused General Electric appliance factory in Columbia, Maryland. (Pls.' Mem. in Opp'n at 3).¹

On March 15, 1992, Mr. Wells was injured by a severe electrical shock which he received while dismantling electric equipment in Building 1's paint room. Wells was badly burned while working to remove severed conduit from a breaker box. (Pls.' Mem. in Opp'n at 13-14). The plaintiffs state that "prior to the crew beginning work on the boxes, the boxes were inspected in an effort to determine whether they were live." (Pls.' Mem. in Opp'n at 14). Apparently, although the breaker box in question appeared to be deactivated, power was coming into it from another room, through a hole in the wall or door. (Lamm Dep. at 16-20).

Defendant General Electric has moved for summary judgment on a number of grounds, including the contributory negligence of Mr. Wells. If there is evidence of General Electric's negligence, the Court is of the opinion that there is a genuine issue of material fact as to whether the defense of contributory negligence would be available, so that summary judgment could not appropriately be granted on that defense. Fed.R.Civ.P. 56(c).

On the primary question, though, of General Electric's negligence, the Court must determine whether General Electric breached any duty that it owed to Wells. The heart of this summary judgment motion is General Electric's contention that it is not liable to plaintiffs for Wells' injury. In their complaint, plaintiffs assert that General Electric was negligent in failing to turn off the electricity in the paint room and to provide for auxiliary lighting sources; in failing completely to remove hazardous dust from the salvaged areas; and in falsely informing Montel employees, and/or plaintiff Wells that the breaker box in question had been deactivated, as well as "other negligence." (Wells Compl. ¶ 6).²

In their opposition to defendant's present motion, plaintiffs argue that General Electric owed a duty to Montel employees if it retained either (a) the ability to control or had (b) actual physical control over the place and manner of Montel's employees performance. Plaintiffs additionally argue that if General Electric assumed a duty to disconnect the panel boxes it was bound to fulfill that duty. Plaintiffs contend that this duty "emanates" from Maryland precedent. (Pls.' Mem. in Opp'n at 24.). Finally, plaintiffs allege that, if General Electric had actual control over Montel's project, it owed a "non-delegable" duty to Montel employees to insure that the Building 1 premises were safe. (Id. at 24).

I. Standard for Summary Judgment Motions

A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Miller v. Leathers, 913 F.2d 1085 (4th Cir.1990) (en banc), cert. denied, ___ U.S. ___, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). When examining a motion for summary judgment, the facts and all reasonable inferences must be viewed in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).

This Court is of the opinion that there is no genuine dispute of material fact on the issue of General Electric's duty to Wells. Celotex, 477 U.S. at 317, 106 S.Ct. at 2549. Because neither party, however, has adequately described the framework for determining whether or not General Electric owed a duty of care to Montel employees during the salvage operations at Building 1, the Court will analyze each of the plaintiffs' claims under the appropriate rubric.

II. Liability of an Employer of an Independent Contractor under Maryland Law

It is axiomatic that there is no liability in negligence absent the breach of a duty. See In re Sabin Oral Polio Vaccine Prods. Liability Litigation, 774 F.Supp. 952, 954 (D.Md.1991). "The nature and extent of a tort duty recognized by law depends in part on the status of the party upon whom it is sought to be imposed and upon his relationship to the party claiming the benefit of it." Parker v. Neighborhood Theatres, 76 Md.App. 590, 595, 547 A.2d 1080, 1082, cert. denied 314 Md. 193, 550 A.2d 381 (1988). It is also axiomatic that the duty depends not only upon the status of the parties, but also upon the facts and circumstances of the particular case, i.e. that the actor has a duty to use reasonable care under all the circumstances. If no duty is owed another, then no action can be sustained even though injury has occurred. Bauman v. Woodfield, 244 Md. 207, 216, 223 A.2d 364, 368 (1966).

A. Vicarious Liability of General Electric

The majority of jurisdictions, including Maryland, have held that, as a general rule, an employer's vicarious liability does not extend to employees of independent contractors, such as plaintiff Wells. Rowley v. City of Baltimore, 305 Md. 456, 467-71, 505 A.2d 494 (1986) and cases cited therein. Underlying this rule is the rationale that employers, such as General Electric, have no control over the actions of their independent contractors. See Rowley v. City of Baltimore, 60 Md.App. 680, 686, 484 A.2d 306, 309 (1984), aff'd, 305 Md. 456, 505 A.2d 494 (Md.1986). See generally Restatement (Second) of Torts § 409 (1965) (the employer of an independent contractor is not liable for physical harm caused to another by the negligence of the contractor or his employees).

The public policy basis for this general rule is the fact that state Worker's Compensation benefits generally cover a plaintiff/worker's injuries, and the injured employee of an independent contractor should not be put in a better position than had that plaintiff been an employee of the employer himself. Brady v. Ralph M. Parsons Co., 327 Md. 275, 282-83, 609 A.2d 297, 300-01 (1992). Thus, were the plaintiffs here asserting any theory of vicarious liability against General Electric for Montel's negligence, Maryland law would not afford them a remedy.

B. Liability Based upon General Electric's Own Negligence

Plaintiffs' complaint, however, clearly avers liability predicated upon General Electric's own negligence, and here the analysis is somewhat more complex. Both the caselaw and commentators recognize a number of common law exceptions to the general rule of non-liability for employers of independent contractors, which can be categorized into three broad areas:

(1) Negligence of the employer in selecting, instructing, or supervising the contractor.

(2) Non-delegable duties of the employer, arising out of some relation toward the public or the particular plaintiff.

(3) Work which is specially, peculiarly, or "inherently" dangerous.

Rowley, 305 Md. at 462, 505 A.2d at 497. The most common of these exceptions are found in §§ 410-429 of the Restatement (Second) of Torts. Most important to the present case are Restatement §§ 410-415, which address exceptions to the rule of non-liability in cases where an injured plaintiff claims actual fault on the part of the independent contractor's employer, here General Electric.³See Rowley, 305 Md. at 462, 505 A.2d at 497. Of these six sections, each of which provides an alternative foundation for an employer's liability to others through its own negligence, the plaintiffs' theory of liability, Maryland case law, and the facts of this case all point to predicating liability on § 414. Therefore, this Court must initially determine if General Electric owed a duty to plaintiff Wells through the operation of § 414.⁴

1. Restatement Section 414

Section 414 of the Restatement (Second) of Torts provides:

One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care.

The comments to § 414 indicate that this section is to apply "where there is retention of control over the operative detail of the work." Brady, 327 Md. at 283, 609 A.2d at 301. Specifically, § 414 comment c sets forth the limitations to application of the section:

In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There

...