Graeff, Berger, Salmon, James P. (Senior Judge, Specially
case is before us on appeal from a jury verdict of the
Circuit Court for Calvert County in a personal injury action
brought by Adam Rutkowski and Sara Mastropole, appellees,
husband and wife. Adam Rutkowski was injured on November 11,
2012, when a safety guardrail in his home failed, causing him
to fall twelve to thirteen feet to the concrete below. The
appellees filed suit against Marrick Properties, Inc.
("Marrick"), the builder and general contractor
that constructed their home, as well as against Creative
Trim, Inc. ("Creative Trim"), the subcontractor
that was responsible for the construction and installation of
the failed safety guardrail. The appellees also brought suit
against the individual owners of Creative Trim and the
previous owners of the home. All parties other than Marrick
were dismissed prior to trial. The jury returned a verdict
for the appellees, and Marrick appealed.
appeal, Marrick presents four issues for our review, which we
have consolidated as three issues and rephrased as follows:
1. Whether, under Maryland law, a general contractor/builder
bears a nondelegable duty to comply with the relevant
provisions of the building code.
2. Whether sufficient evidence supports the jury's
finding that Marrick was negligent in the construction and/or
the supervision of the construction of the safety guardrail.
3. Whether, as a matter of law, Rutkowksi assumed the risk
and/or was contributorily negligent by leaning on the safety
foregoing reasons, we shall affirm the judgment of the
Circuit Court for Calvert County.
2005, Marrick completed construction of a home in Dunkirk,
Maryland. Marrick served as the general contractor/builder
for the home originally owned by Mark and Sandra Smith.
Marrick entered into a contract with Creative Trim to perform
certain trim work on the home, including the construction and
installation of guardrails. The home was constructed with a
sliding glass door in the kitchen to allow access to a
potential future deck. Although the kitchen was located on
the first story of the home, the sliding door opening was
approximately twelve to thirteen feet above the ground due to
the slope of the lot. The home did not have a deck at the
time it was constructed, so a safety guardrail was installed
on the exterior of the house outside of the sliding glass
door. Creative Trim was a subcontractor that built and
installed guardrails on Marrick properties, and Marrick
identified Creative Trim as the subcontractor that
constructed the railing at the appellees' home. After the
house was completed, the Smith family moved into the home in
2005 and lived in it for approximately seven years.
2012, the appellees purchased the home from the Smiths and
moved into the home with their one-year-old son. Thereafter,
approximately two months later, on November 11, 2012,
Rutkowski opened the sliding glass door in order to shake out
a kitchen mat. He extended his arms over the guardrail while
holding the mat and his body pushed against the guardrail.
The guardrail gave way, causing Rutkowski to fall onto the
concrete patio below. Rutkowski suffered multiple broken
bones and a traumatic brain injury as a result of the fall.
appellees filed a complaint in the Circuit Court for Calvert
County against Marrick, Creative Trim, Richard and Donna
Haupt (the owners of Creative Trim), and Mark and Sandra
Smith. The appellees alleged, inter alia,
negligence, negligent supervision, and loss of consortium
against Marrick. Marrick raised the affirmative defenses of
contributory negligence and assumption of risk. Prior to
trial, all parties other than Marrick were
case was tried before a jury over a period of five days in
February 2016. The parties presented evidence relating to,
inter alia, the role of Marrick and Creative Trim in
the design and construction of the safety guardrail, the
standard of care required for general contractors, the way in
which the safety guardrail was constructed, the requirements
for construction of the guardrail pursuant to the Calvert
County building code, the cause of the failure of the safety
guardrail, and the extent of Rutkowski's injuries. The
appellees presented evidence that the safety guardrail was
affixed to the home with non-structural finishing nails,
rendering it incapable of withstanding the 200 pounds of
lateral force required by the relevant building code. The
finishing nails were concealed by the use of wood trim.
close of the plaintiff's case, the circuit court denied
Marrick's motion for judgment as to the claims alleging
negligence, negligent supervision, and loss of consortium.
The circuit court further denied Marrick's motion for
judgment as to its defenses of contributory negligence and
assumption of risk. Marrick renewed its motion for judgment
at the close of all evidence, and the court again denied the
jury returned a verdict in favor of the appellees and against
Marrick, awarding $1, 306, 700.00 in damages. Marrick filed a
motion for judgment notwithstanding the verdict, for new
trial, and remittitur. The circuit court denied Marrick's
motion except that the court applied the statutory cap on
noneconomic damages to the jury's verdict. The damage
award was further amended on May 20, 2016 due to a clerical
error, resulting in a final judgment of $976, 700.00. Marrick
noted a timely appeal. Additional facts shall be discussed as
necessitated by our discussion of the issues on appeal.
review a circuit court's order granting a motion for
judgment notwithstanding the verdict applying a de
novo standard of review. Lowery v. Smithsburg
Emergency Med. Serv., 173 Md.App. 662, 682-83
(2007). We have explained:
Whether the trial court applied the correct standard of proof
in adjudging its grant of appellees' motion for judgment
is a question of law that we review de novo.
Coleman v. Anne Arundel County Police Dept., 369 Md.
108, 121, 797 A.2d 770 (2002). "We review the grant of a
motion for judgment under the same standard as we review
grants of motions for judgment notwithstanding the
verdict." Tate v. Bd. of Educ. of Prince
George's County, 155 Md.App. 536, 544, 843 A.2d 890
(2004) (citing Johnson & Higgins of Pa., Inc. v. Hale
Shipping Corp., 121 Md.App. 426, 450, 710 A.2d 318
(1998)). The Court assumes the truth of all credible evidence
on the issue and any inferences therefrom in the light most
favorable to appellants, the nonmoving parties. Id.
(citation omitted). "Consequently, if there is any
evidence, no matter how slight, that is legally sufficient to
generate a jury question, the case must be submitted to the
jury for its consideration." Id. at 545, 843
A.2d 890 (citing Washington Metro. Area Transit Auth. v.
Reading, 109 Md.App. 89, 99, 674 A.2d 44 (1996)).
Lowery, supra, 173 Md.App. at 682-83.
negligence action, a plaintiff bears the burden of proving:
"1) that the defendant was under a duty to protect the
plaintiff from injury, 2) that the defendant breached that
duty, 3) that the plaintiff suffered actual injury or loss,
and 4) that the loss or injury proximately resulted from the
defendant's breach of the duty." Rowhouses, Inc.
v. Smith, 446 Md. 611, 631 (2016). Marrick's first
allegation of error is based upon the first element of the
appellees' negligence claim. Specifically, Marrick
contends that it owed no duty to the appellees to ensure the
proper construction of the safety guardrail because the
responsibility for the construction of the guardrail had been
delegated to Creative Trim. The appellees respond that the
duty to comply with the building code was nondelegable by
follows the general rule that the employer of an independent
contractor is not liable for physical harm caused to another
by an act or omission of the contractor or his employees.
Rowley v. Mayor & City Council of Baltimore, 305
Md. 456, 461 (1986) (citing Restatement (Second) of
Torts § 409 (1965)). The Court of Appeals has
explained, however, that the general rule of non-liability
for an employer of an independent contractor "is riddled
with a number of common-law exceptions that have practically
subsumed the rule." Id. See also Gardenvillage
Realty Corp. v. Russo, 34 Md.App. 25, 36 (1976)
(explaining that "the established rule has appended to
it some twenty exceptions as set out in the Restatement
(Second) of Torts §§ 410-429"). The
exceptions to the general rule fall into three broad
categories: (1) negligence of the employer in selecting,
instructing, or supervising the contractor; (2) nondelegable
duties of the employer, arising out of some relation toward
the public or the particular plaintiff; and (3) work which is
specially, peculiarly, or inherently dangerous.
Rowley, supra, 305 Md. at 462.
extent to which general contractors and owners are liable for
the negligence of subcontractors due to a violation of the
building code has been addressed in a series of cases over
the past several decades. In Gardenvillage,
supra, a tenant and her mother, an invitee, were
injured when a concrete slab that formed the base of a porch
gave way and the porch collapsed at their residence. 34
Md.App. 25. The collapse occurred six years after the slab
had been constructed. Id. at 28. The tenant and
invitee sued the owner, the general contractor,  and the subcontractor responsible for the
construction of the slab. Id. at 26. The evidence
demonstrated that the concrete slab had been built in a
manner that violated the relevant building code and that the
collapse of the porch was a direct result of the defective
slab. Id. at 35.
considered "whether social policy and fairness will
allow an imposition of liability on the [owner and general
contractor/permit holder] where their negligence was passive
when opposed to the negligence of the subcontractor."
Id. We noted that "[i]f the statute imposes a
strict liability on the owner and permit holder, then there
is no distinction between active and passive negligence"
and "liability attaches if the violation of the
[building c]ode was the cause of the injury."
Id. We held, based upon the Restatement (Second)
of Torts, § 424, that "the Building Code
places a nondelegable, affirmative duty on the owner-permit
holder at the time of construction, to insure compliance with
the Code." Id. at 39.
holding of Gardenvillage was reaffirmed by the Court
of Appeals in Council of Co-Owners Atlantis Condo., Inc.
v. Whiting-Turning Contracting Co., 308 Md. 18 (1986).
In Whiting-Turner, the owners of 198 separate
condominium units in a 21-story building brought an action
against the general contractor/builder, developer/owner, and
architects for negligent design, construction, and inspection
of the building's utility shafts. Id. at 22.
owners contended that the utility shafts and related
electrical work were not installed properly and constituted a
fire hazard. Id. Neither the architect defendants
nor the general contractor/builder defendants argued that
their duties were delegated to independent
subcontractors. The Court of
Appeals commented on this issue as it pertained to the
developer/owner, who had asserted that the duty to abide by
the code had been delegated to an independent contractor. The
Court held that the duty of the developer/owner to abide by
the building code was nondelegable. Id. at 40. The
The third potential source of a tort duty with respect to the
dangerous condition of the building lies in the status of the
developer as the creator of the building project. The
developer is, in a sense, the builder of the project, even
though he may delegate to others the physical acts of
construction. Given the current trend of expanding the
exceptions to the rule of nonliability of one who has
employed an independent contractor, and given the policy
considerations favoring the imposition of at least initial
liability upon the person who sits at the top of the pyramid
of those who create the improvement, a strong argument may be
advanced in favor of the recognition of a nondelegable duty
on the part of the developer with respect to unreasonably
dangerous conditions created as a result of the development.
We express no opinion on that issue because the pleadings
suggest a narrower ground upon which a nondelegable duty of
the developer may be found - the requirement of a statute or
of the nondelegable nature of a duty imposed by certain types
of statutes is discussed at 5 F. Harper, F. James and O.
Gray, The Law of Torts, supra, § 26.11 at
There are . . . situations wherein the law views a
person's duty as so important and so peremptory that it
will be treated as nondelegable. Defendants who are under
such a duty " . . . cannot, by employing a contractor,
get rid of their own duty to other people, whatever that duty
may be." Duties imposed by statute are often found to be
of this kind . . . [S]tatutory duties that have been held
nondelegable include . . . various building code provisions .
. . . (Footnotes omitted.)
principle is recognized in § 424 of the Restatement
(Second) of Torts:
One who by statute or by administrative regulation is under a
duty to provide specified safeguards or precautions for the
safety of others is subject to liability to the others for
whose protection the duty is imposed for harm caused by the
failure of a contractor employed by him to provide such
safeguards or precautions.
Gardenvillage Realty v. Russo, 34 Md.App. 25, 366
A.2d 101 (1976), the Court of Special Appeals applied the
principle to affirm a judgment entered in favor of tenants
and their invitee against the developer-owner (and against
the general contractor) for injuries resulting from the
collapse of a defective concrete porch slab. The slab had
been constructed and installed by a subcontractor, and the
defect resulted from the improper placement of reinforcing
bars within the slab, so that the defect defied detection.
The Court of Special Appeals held that the Baltimore City
Building Code imposed a duty on the owner of the premises at