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Ports America defeats motorist’s claim

An employer is not liable for an employee’s conduct while traveling to and from work, even if that employee may have been encouraged to work to the point of exhaustion, Maryland’s highest court held Wednesday.

The Court of Appeals affirmed the dismissal of Michael S. Barclay’s lawsuit against Ports America Baltimore Inc. Barclay was seriously injured in a head-on collision that proved fatal for Christopher E. Richardson, a Ports America stevedore at the Dundalk Marine Terminal. Barclay claimed Ports America was liable because Richardson was heading home after working a 22-hour shift.

Richardson’s car hit Barclay’s head-on, injuring Barclay so severely that he had to end his career as an Anne Arundel County police officer. He also incurred more than $1.5 million in medical expenses and other costs, according to Wednesday’s opinion.

In the unanimous opinion, Judge Clayton Greene Jr. said on-the-job fatigue was not a special circumstance that would override the rule that an employer is not liable for an employee’s behavior while traveling to and from work.

The court also declined to use the case as a way to set a judicial standard on the length of the work day.

“Insofar as petitioners are maintaining that we should abandon long-standing principles, and use this case to fashion some type of judicially-imposed maximum working hours standard across all industries, we unequivocally decline to do so,” Greene wrote for the unanimous court.

Barclay’s attorney, Henry L. Belsky of Schlachman, Belsky & Weiner P.A. in Baltimore, said his client was disappointed with the decision. He said they still felt that the company was culpable for encouraging an employee to work for almost a full day straight and then letting him drive home.

“I think it’s terrible, and what Ports America did, in my opinion, is trade safety for dollars,” Belsky said.

“You can’t work someone for 22 hours and then say ‘it’s not our responsibility’ — that is an abrogation of what’s decent and [it’s] what’s wrong with corporate America,” he added.

Ports America’s attorney, JoAnne Zawitoski of Semmes, Bowen & Semmes in Baltimore, said that if the court had decided to issue a standard for working hours it would have had a wide-ranging impact on a number of employers.

“It’s a difficult legal question but I think the Court of Appeals got it right,” said Zawitoski. “Maryland law is pretty clear that employers aren’t responsible for the off-work activities of their employees. Otherwise, anyone who works long hours could make their employers liable if something happened.”

Belsky said the court’s ruling left legislation as the only option left to explore.

“The Court of Appeals has refused to expand the law in Maryland to protect its citizens,” Belsky said. “Because they didn’t do that, the legislature should pass a law that limits the number of hours longshoremen should work so we don’t have more accidents like these.”

Extended hours

According to court records, Richardson started his shift at the Dundalk Marine Terminal at 8 a.m. on Jan. 16, 2006. A “work order” had been issued by the Steamship Trade Association for around-the-clock longshore work.

Under the longshore union’s collective bargaining agreement, senior union members could work as many hours as they wanted before “checking up” and having the next, most-senior union member brought in to work. That was a change from an earlier collective bargaining agreement, which had limited the maximum number of hours to 16.

Richardson opted to work for 22 hours before he “checked up” at 6 a.m. on Jan. 17, 2006, and headed home.

At 7:30 a.m., during his 44-mile commute to Carroll County, Richardson fell asleep behind the wheel, crossed the center line and hit Barclay head-on.

Richardson died of injuries sustained in the accident. Barclay, who was on his way to work, suffered internal bleeding and multiple fractures, which resulted in more than 30 surgeries.

Barclay’s lawsuit against Ports America was dismissed by the Carroll County Circuit Court, and the Court of Special Appeals upheld that dismissal. Barclay sought review by the Court of Appeals, which heard argument on Feb. 2 before affirming the dismissal on Wednesday.



Michael S. Barclay, et ux. v. Lena Briscoe, et al., Lena Briscoe, Personal Representative of the Estate of Christopher Eugene Richardson v. Ports America Baltimore, Inc., CA No. 41, Sept. Term 2011. Argued Feb. 2, 2012. Decided: June 27, 2012. Opinion by Greene, J. Reported.


Do employers have a duty to the public when the employee’s extended work schedule caused sleep deprivation, resulting in the employee falling asleep at the wheel of his/her vehicle during his/her commute home, & causing a foreseeable injury to members of the general public?


No; affirmed. The court ruled on-the-job fatigue is not a “special circumstance” sufficient to prevent applying the general rule that employers are not responsible for employees’ behavior traveling to and from work.


Henry L. Belsky, for petitioner. JoAnne Zawitoski for respondent.

RecordFax #12-0627-20 (39 pages)