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Md. high court hears appeal against Baltimore for excavation site death

“Let’s assume that there was nothing to indicate that the independent contractor wasn’t going to perform the work in accordance with specifications,” said Judge Brynja M. Booth. “Is the city then required to go out and monitor the job site to make sure that they don’t deviate from those specifications at any period during the work?” (The Daily Record/File Photo)

The family of a 20-year-old man who was buried alive while working at a Baltimore excavation site has a cause of action against the city for its alleged negligence in hiring a contractor who failed to protect its worker against the cave-in, the family’s attorney told Maryland’s top court Monday.

But a lawyer for Baltimore countered that the city bears no more responsibility for the death of a contractor’s employee than a homeowner does for the death of a plumber’s assistant killed through no fault of the house. Liability for a worker’s death rests with the contractor, not with the entity that hired the contractor, attorney Brett A. Buckwalter told the Court of Appeals.

Baltimore’s argument has prevailed so far as the intermediate Court of Special Appeals held that the common law duty to protect Kyle Hancock from the unsupported excavation wall belonged to his employer, R.F. Warder Inc., and not the city that hired the contractor.

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

Pressing the family’s case, attorney Todd W. Hesel told the high court that cities have a duty to ensure the contractors they hire have the competence, skill and experience to do the assigned job and that duty of care extends to the contractors’ employees. Baltimore breached that extended duty when it hired R.F. Warder despite allegedly having actual knowledge that the company was not up to the task, Hesel said.

“The duty … has to do with … what steps the (city) takes to assess the independent contractor’s ability to do the work safely and appropriately in the first place,” added Hesel, of Silverman Thompson Slutkin & White LLC in Baltimore.

But Judge Brynja M. Booth appeared unconvinced.

She voiced concern that extending the duty of care to Baltimore would discourage cities from hiring independent contractors either because of higher monitoring costs or the risk of liability.

“Let’s assume that there was nothing to indicate that the independent contractor wasn’t going to perform the work in accordance with specifications,” Booth said. “Is the city then required to go out and monitor the job site to make sure that they don’t deviate from those specifications at any period during the work?”

Booth also noted that city employees are covered by workers’ compensation if they are injured on the job.

“Why would an employer (city) ever hire an independent contractor if we extend this duty where, if this scenario happened to their own employee, it would be covered by worker’s compensation?” she said. “Wouldn’t their incentive be to hire super-skilled employees and never deal with independent contractors because of this liability?”

Hesel responded that Baltimore and other cities would not only still hire independent contractors to perform the jobs municipalities cannot but  municipalities would have the added incentive to ensure the contractors are competent, skilled and experienced.

But Buckwalter, Baltimore’s attorney, said cities and homeowners hire contractors with the presumption that they are responsible for their own employees and will comply with all safety laws and regulations. Cities and homeowners, like customers or clients, are not expected to know or be responsible for how the business treats its employees, he added.

“You hire an independent contractor to perform work that you don’t do and you don’t know how to do,” said Buckwalter, of Niles, Barton & Wilmer LLP in Baltimore. “If we work at a law firm or law office of any sort, if there is a bunch of bad lawyering in that office and we all do a bad job, I bet you the people who work there know that more than the person who comes in the door to hire us.”

The Court of Appeals 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.

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. 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 was called about a clogged pipe at the Clifton Park pool on May 29, 2018. 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.

The wall near Hancock gave way and he “was completely buried in tons of dirt and debris from the collapse,” the complaint stated. 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 he died from 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.

The Court of Special Appeals upheld the dismissal.