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Family of man killed at excavation site loses appeal against Baltimore

The family of a 20-year-old man who was buried alive while working at a Baltimore excavation site has no claim against the city for its alleged negligence in hiring a contractor who failed to protect its worker against the cave-in, Maryland’s second-highest court ruled last week.

The common law duty to protect Kyle Hancock from the unsupported excavation wall belonged to his employer and not the city that hired the contractor, the Court of Special Appeals stated in upholding the dismissal of his family’s negligent hiring claim against Baltimore.

Hancock, who worked as a laborer for R.F. Warder Inc., died June 6, 2018, after being buried in debris when the wall collapsed.

The lawsuit filed in Baltimore City Circuit Court in February 2020 alleged the city negligently hired R.F. Warder, a mechanical contracting company, despite knowing the company lacked sufficient experience.

In its unreported decision, the Court of Special Appeals said Baltimore would have owed a legal duty to a non-employee – such as an injured passerby — if a negligently hired contractor’s actions caused that injury.

The law regarding negligent hiring of contractors is designed to “protect innocent members of the public,” not employees of contractors, Judge Steven B. Gould wrote for the Court of Special Appeals.

Hancock, unlike a passerby, was “not a stranger to the underlying relationship” between the city and the contractor for whom he worked, Gould added in acknowledging the young man’s “untimely and heartbreaking death.”

R.F. Warder was not a defendant in the lawsuit because workers’ compensation provides the exclusive remedy for an employee injured or killed on the job, the Court of Special Appeals stated in its 3-0 decision.

But Hancock’s family members – including his mother and sister — had received no workers’ compensation because they sustained no economic loss due to his death, as they were not his dependents, their attorney, Andrew G. Slutkin said Wednesday.

Slutkin said the family will seek review by the Court of Appeals, saying Baltimore knew R.F. Warder was ill-suited for the contract but hired the company anyway.

“This is a tragic case,” said Slutkin, of Silverman Thompson Slutkin White LLC in Baltimore.

“A family’s life has been destroyed,” he added. “There should be a legal remedy here. We plan to ask the Court (of Appeals) for exactly that.”

Craig D. Roswell, Baltimore’s outside counsel in the case, did not immediately return a message seeking comment Wednesday. Roswell is with Niles, Barton & Wilmer LLP in Baltimore.

According to the family’s complaint, Baltimore had hired R.F Warder to repair and maintain plumbing and heating systems. R.F. Warder allocated some of its work to a minority contractor, Keith Sutton and his Sutton Building Solutions LLC, as required under its contract with the city.

R.F. Warder was called about a clogged pipe at the Clifton Park pool on May 29, 2018, and workers determined a pipe had collapsed and a 15-foot-deep excavation would be required to reach it, the complaint stated. Excavation began June 4, and workers, including Hancock, entered the hole the next day with hand shovels once it had reached a depth of about 15 feet deep.

Sutton arrived on the site, looked around “and said out loud, but to no one in particular, that this was not safe,” according to the complaint. Sutton later saw the wall near Hancock start to give way and yelled for him to run, but Hancock “was completely buried in tons of dirt and debris from the collapse,” the complaint stated. Sutton called 911 and workers jumped into the excavation site to dig but were later ordered away from the site by emergency personnel, who deemed it unsafe.

Hancock’s body was uncovered around 1:30 a.m. on June 6, according to the complaint, which said his cause of death was asphyxiation.

Maryland Occupational Safety and Health investigated the incident and issued multiple citations carrying financial penalties against R.F. Warder for violations of the Maryland Occupational Safety and Health Act. An administrative judge later affirmed the majority of those citations and $245,500 in penalties.

According to the lawsuit, R.F. Warder employees in charge of the site did not have the required knowledge to conduct such an excavation and “were completely oblivious to the various requirements of the standard of care, laws, regulations and industry standards that apply to safe excavation at depths of five feet or greater.” The city knew the company lacked the requisite experience and a city employee had previously seen a lack of cave-in protection at one of the company’s sites, the complaint alleged.

Baltimore City Circuit Judge Kendra Y. Ausby dismissed the family’s negligent hiring claim against the city, as well as the claim that Sutton breached a duty to warn Hancock of the danger earlier. Ausby said Sutton owed no duty because he neither created the hazardous condition nor controlled the job site.

The Court of Special Appeals upheld both dismissals.

Gould, who now sits on the Court of Appeals, was joined in the opinion by Judges Dan Friedman and Robert A. Zarnoch, a retired jurist sitting by special assignment.

Slutkin said the petition for Court of Appeals review will also seek to reinstate the family’s breach of duty claim against Sutton.

The Court of Special Appeals rendered its decision in Andrea Jo Hancock et al. v. Mayor and City Council of Baltimore et al., No. 440, September Term 2020.