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Baltimore not liable for cave-in death, Md. high court says

Chief Judge Matthew Fader wrote the opinion for the unanimous Court of Appeals. (Submitted Photo)

The family of a 20-year-old man who was buried alive while working at a Baltimore excavation site cannot pursue its lawsuit against the city for its alleged negligence in hiring a contractor who failed to protect its worker against the cave-in, Maryland’s top court unanimously ruled Monday.

The Court of Appeals said the common law duty to protect Kyle Hancock from the unsupported excavation wall belonged to his employer, 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 critical question in this case is not whether Baltimore City owed anyone a duty to exercise reasonable care in hiring Warder, as all parties recognize that it did,” Chief Judge Matthew J. Fader wrote for the Court of Appeals. “The critical question here is to whom Baltimore City owed that duty, and specifically, whether Mr. Hancock fell within the class of ‘third persons’ to whom the duty was owed.”

The answer is that “the duty of one who hires an independent contractor to exercise due care in doing so does not extend to the contractor’s employees who are engaged in the work for which the contractor is retained,” Fader added. “Here … Mr. Hancock came into contact with Warder through their employment relationship, not because of any act or omission of Baltimore City.”

In its 7-0 decision, the court also said Warder’s subcontractor Keith Sutton could not be sued for having allegedly failed to warn Hancock of the danger because Sutton neither created the dangerous condition nor had control over it.

“In the absence of any involvement in creating a hazardous condition or any control over the site where the condition exists or the personnel who are responsible for it, there is no more basis for imposing a tort duty on a contractor or subcontractor who happens to also be working at the site than on any other employee or individual present,” Fader wrote.

“Ultimately, we are unwilling to place on contractors who have not accepted any contractual or supervisory responsibility for the safety of work performed by others at a jobsite – based merely on their status as contractors – a duty enforceable in tort to protect others from potential hazards that the contractors neither created nor exercised control over,” Fader added.

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, said their attorney, Andrew G. Slutkin.

Now, with the court’s decision, “there is no remedy, and we think that’s patently unfair,” said Slutkin, of Silverman, Thompson, Slutkin & White LLC in Baltimore. “There should be a remedy for a situation like this.”

The court’s ruling “makes workplaces more dangerous” as it relieves people not in control of the worksite of any common law duty to warn, which contradicts public service announcements, Slutkin added.

“If you see something, you have to say something,” Slutkin said. “We all know that.”

Baltimore Solicitor James L. “Jim” Shea, the city’s chief attorney, stated via email that, “while the facts of this case are undeniably tragic, the city concurs with the Court of Appeals’ unanimous opinion that one who hires an independent contractor is not liable to the contractor’s employee for injuries caused by the contractor’s negligence.”

Sutton’s attorney, Charles B. Peoples, did not immediately respond to a message Tuesday seeking comment on the decision. Peoples is with Thomas, Thomas & Hafer LLP in Washington.

The family’s lawsuit, filed in Baltimore City Circuit Court in 2020, alleged the city negligently hired Warder, a mechanical contracting firm, despite knowing it lacked sufficient experience. The family also sued Sutton for his alleged failure to warn.

Baltimore hired Warder to repair and maintain plumbing and heating systems. Warder allocated some of its work to a minority contractor, Sutton and his Sutton Building Solutions LLC, as required under its city contract.

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.

Sutton arrived, looked around “and said out loud, but to no one in particular, that this was not safe,” the complaint stated.

Sutton later saw the wall near Hancock start to give way and yelled for him to run, but Hancock was completely buried by then, the complaint stated. Sutton called 911 and workers jumped in to dig but were ordered away by emergency personnel who deemed it unsafe.

Hancock’s body was recovered around 1:30 a.m. June 6, according to the complaint, which said he died of asphyxiation.

Maryland Occupational Safety and Health investigated and cited Warder for violations of the Maryland Occupational Safety and Health Act. An administrative judge affirmed most of the citations and $245,500 in penalties.

According to the lawsuit, Warder managers lacked the knowledge to conduct the dig and were “completely oblivious” to the standard of care, laws, regulations and industry standards that apply to safe excavation at depths of at least five feet. Baltimore knew Warder lacked the experience and a city employee had seen a lack of cave-in protection at another company site, 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.

The intermediate Court of Special Appeals affirmed the dismissal, as did the high court.

The Court of Appeals rendered its decision in Andrea Jo Hancock et al. v. Mayor and City Council of Baltimore et al., No. 57, September Term 2021.