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Maryland high court will hear appeal against Baltimore for excavation-site death

Maryland’s top court will consider whether the family of a 20-year-old man who was buried alive while working at a Baltimore excavation site can pursue their lawsuit against the city for its alleged negligence in hiring a contractor who failed to protect its worker against the cave-in.

The Court of Appeals has agreed to hear the family’s appeal of lower court decisions that 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.

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 family’s 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.

The intermediate Court of Special Appeals upheld the trial judge’s dismissal of the lawsuit last year, citing the common law.

In their successful request for high court review, the family’s attorneys wrote that the lower courts read the common law too narrowly.

The city’s “duty to exercise reasonable care in hiring an independent contractor extends to employees of the independent contractor,” wrote the attorneys with Silverman Thompson Slutkin & White, LLC in Baltimore.

The three lawyers urged the high court to adopt the standard from the influential, though nonbinding, legal treatise Restatement (Second) of Torts, which at Section 411 states that “an employer is subject to liability for physical harm to third persons caused by his failure to exercise reasonable care to employ a competent and careful contractor…to do work which will involve a risk of physical harm unless it is skillfully and carefully done.”

The three attorneys are Todd W. Hesel, Andrew G. Slutkin and Ethan S. Nochumowitz.

Baltimore unsuccessfully pressed the high court not to hear the family’s appeal.

The city’s outside counsel expressed sympathy for the family but said that – until the Maryland legislature says differently – the law is clear that an employee of a contractor has no claim against the contractor’s employer.

“Now, with only an unusually tragic set of facts and a justified frustration with a statutory (worker’s compensation) scheme that precludes recovery against the only liable party, petitioners ask this court to upend a large portion of established tort law for a dispute that should be litigated in the General Assembly,” wrote attorneys Craig D. Roswell and Bryant S. Green of Niles, Barton & Wilmer LLP in Baltimore. “Therefore, further review being neither necessary nor in the public interest, certiorari (review) should be denied.”

The Court of Appeals is scheduled to hear the family’s appeal in May. The high court is expected to render its decision by Aug. 31 in the case, Andrea Jo Hancock et al. v. Mayor and City Council of Baltimore et al., No. 57, September Term 2021.

The Court of Special Appeals, in its unreported decision, 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 appellate court.

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 — received no workers’ compensation because they sustained no economic loss due to his death, as they were not his dependents, according to the family’s counsel.

Baltimore had hired R.F Warder to repair and maintain plumbing and heating systems, the family’s complaint stated. 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.

In granting the family’s review request, the Court of Appeals said it will also consider their bid to have the breach of duty claim reinstated against Sutton.