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Marrick Homes LLC v. Rutkowski

Court of Special Appeals of Maryland

May 31, 2017


          Graeff, Berger, Salmon, James P. (Senior Judge, Specially Assigned), JJ.


          Berger, J.

         This 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.

         On appeal, Marrick presents four issues for our review, which we have consolidated as three issues and rephrased[1] 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 guardrail.

         For the foregoing reasons, we shall affirm the judgment of the Circuit Court for Calvert County.


         In 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.

         In 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.

         The 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 dismissed.[2]

         The 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.

         At the 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 motion.

         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.


         We 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.


         In a 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 Marrick.

         Maryland 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.

         The 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, [3] 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.

         We 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.[4]

         The 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.

         The 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.[5] 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 Court explained:

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 ordinance.

         Recognition 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 83-84:

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.)

         The 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.

         In 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 ...

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