The interesting question raised by this appeal is whether one who engages an independent contractor may be liable to an employee of that contractor for injuries causally related to a defective condition of the premises resulting from the negligent failure of the contractor to accomplish the repairs he was directed and empowered to make by the terms of the contract. We hold that under the facts in this case there is no liability.
The principals in this unfortunate occurrence are: the Mayor and City Council of Baltimore (the "City"), who owned the Baltimore Convention Center; Facility Management Inc. of Maryland (FMI), who contracted with the City to assume management and operation of the Convention Center;
Rowley was beaten, raped, and robbed by an unknown assailant at 2:20 a.m. on August 22, 1980, while working at the Convention Center. The evidence permitted a finding that her assailant gained entrance to the building through a defective perimeter door located near the security office. This door was one of four comprising an employee and delivery entrance, and was defective by reason of an inoperable locking device.
Under the terms of its agreement with the City, FMI had the obligation of performing all routine maintenance and repairs at the Convention Center, and it is clear this included the obligation to procure the repair of the locking mechanism of this door.
Rowley brought an action in negligence against the City in the Circuit Court for Baltimore County, alleging that as owner of the Convention Center the City had a duty "to provide a safe and secure place for the general public and people working in the Convention Center," and that notwithstanding its knowledge that the building was neither safe nor secure the City failed to take remedial action. Trial by jury was terminated when Judge J. William Hinkel directed the entry of a verdict in favor of the City at the conclusion of the plaintiff's evidence. That judgment was affirmed by the Court of Special Appeals, Rowley v. City of Baltimore, 60 Md.App. 680, 484 A.2d 306 (1984), and we granted certiorari.
Rowley concedes that the City's legal relationship with FMI was that of employer and independent contractor, and that liability cannot be imposed on the City under the doctrine of respondeat superior. She contends, however, that because of its contractual relation with FMI, the City owed to her certain non-delegable duties that were breached.
The general rule is that the employer of an independent contractor is not liable for the negligence of the contractor or his employees.
The general rule is riddled with a number of common-law exceptions that have practically subsumed the rule.
The generally recognized exceptions to the rule of non-liability are collected at §§ 410-429 of the Restatement. Sections 410-415 deal with liability imposed by reason of actual fault on the part of an employer of an independent contractor. Appellant does not suggest the City is liable upon any such theory. Rather, she relies upon a theory of vicarious liability pursuant to one or more of the principles collected in §§ 416-429. The introductory note to that portion of the Restatement is instructive:
Appellant's claim is that the City owed to her a non-delegable duty to maintain the premises of the Convention Center in reasonably safe condition for her use. This duty arose, she suggests, from the status of the City as: 1) owner and occupier of the premises (Restatement § 343), 2) a municipal government maintaining a building for the use of the public (§ 418), and 3) employer of an independent contractor, Bauman v. Woodfield, 244 Md. 207, 217, 223 A.2d 364 (1966).
We agree that the City had a non-delegable duty to maintain the premises in a reasonably safe condition, and that the existence of that duty may be traced to several separate sources. We conclude, however, that under the circumstances of this case the duty did not extend to the independent contractor and its employees with respect to defects arising from the failure of the contractor to accomplish the very repairs it had undertaken to perform. We shall discuss in greater detail the applicable principles of law and the reasons underlying this conclusion.
In determining whether the City as owner of the Convention Center owed a duty to invitees, we must consider the threshold question of whether the City was in possession and control of the building. The liability of a landowner for injuries received on the land is dependent upon whether the device which caused the injury is in his possession and control. Section 328 of the Restatement defines an owner and occupier of land in terms of a possessor of land:
Here, there was no evidence that the City relinquished its possession to FMI or to any other entity.
The standard of care owed by a possessor of land depends upon the status of the person on the land; i.e. whether he is an invitee, licensee, or trespasser. Sherman v. Suburban Trust Co., 282 Md. 238, 242, 384 A.2d 76 (1978); Macke Laundry Serv. Co. v. Weber, 267 Md. 426, 298 A.2d 27 (1972). An invitee is a person invited or permitted to enter or remain on another's property for purposes connected with or related to the owner's business; the owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect him from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety will not discover.
As applied to contractor's employees, § 343 is often referred to as the "safe workplace" doctrine under which one who employs an independent contractor has a duty to provide a safe workplace for the employees of the contractor. Donovan v. General Motors, 762 F.2d 701, 704 (8th Cir.1985) (applying Missouri law); W. Prosser, The Law of Torts § 67, at 374-75 (2d ed. 1955). See also Baltimore Gas & Electric v. Thompson, 57 Md.App. 642, 652, 471 A.2d 768 (1984). Under this doctrine, an employer has a duty to notify an employee of any latent or concealed dangers, provided he knows of the condition or with the exercise of ordinary care should have known of it. Leonard v. Sav-A-Stop Services, 289 Md. 204, 218, 424 A.2d 336 (1981); Bauman v. Woodfield, supra; Bohlen v. Glenn L. Martin Co., 193 Md. 454, 460-61, 67 A.2d 251 (1949); Le Vonas v. Acme Paper Board Co., 184 Md. 16, 19-20, 40 A.2d 43 (1944). See also Cutlip v. Lucky Stores, 22 Md.App. 673, 682-84, 325 A.2d 432 (1974).
It is generally held that employees of an independent contractor are invitees on the property of the landowner. Prosser and Keeton on The Law of Torts § 61, at 419 (W. Keeton 5th ed. 1984); F. Harper and F. James, The Law of Torts § 27.12, at 1481 (1956); J. Dooley, Modern Tort Law § 19.06, at 444-48 (1982, 1985 Cum.Supp.). The duty of a landowner to an invitee is often referred to as "non-delegable." That is something of a misnomer, as the owner is free to delegate the duty of performance to another, but he cannot thereby avoid or delegate the risk of non-performance of the duty.
This principle may be found in the Restatement at § 425:
Closely analogous is § 422, which provides:
Similarly, § 418 provides that a government under a duty to maintain any place in a reasonably safe condition for the use of the public cannot avoid liability to the public by entrusting the maintenance or repair responsibilities to an independent contractor.
The imposition of vicarious liability by the creation of these exceptions to the general rule of non-liability of the employer of an independent contractor is a matter of policy, designed to protect innocent members of the public. Whether the protection of these exceptions should be extended to subcontractors and their employees has been the subject of considerable comment in the courts and among the drafters of the Restatement. Some jurisdictions hold that the contractor's employees are within the protected class to whom the employer owes a non-delegable duty. Lindler v. District of Columbia, 502 F.2d 495, 498-99 (D.C. Cir.1974); United States v. DeCamp, 478 F.2d 1188 (9th Cir.), cert. denied, 414 U.S. 924, 94 S.Ct. 232, 38 L.Ed.2d 158 (1973) (applying California law); Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 25, 26, 437 P.2d 508, 513-14 (1968); Giarratano v. Weitz Company, 259 Iowa 1292, 147 N.W.2d 824, 834 (1967); Vannoy v. City of Warren, 15 Mich.App. 158, 166 N.W.2d 486, 489 (1968); International Harvester Co. v. Sartain, 32 Tenn. App. 425, 222 S.W.2d 854, 868 (1948). But the majority of jurisdictions hold that an employer's vicarious liability does not extend to employees of independent contractors. Vagle v. Pickands Mather & Co., 611 F.2d 1212, 1217-19 (8th Cir.1979) (applying Minnesota law), cert. denied, 444 U.S. 1033, 100 S.Ct. 704, 62 L.Ed.2d 669 (1980); Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030, 1033-35 (5th Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 (1978); Craig v. Olin Mathieson Chemical Corp., 427 F.2d 962 (7th Cir.), cert. denied, 400 U.S. 964, 91 S.Ct. 365, 27 L.Ed.2d 383 (1970); Parsons v. Amerado Hess Corporation, 422 F.2d 610, 614 (10th Cir.1970) (applying New Mexico law); Lipka v. United States, 369 F.2d 288, 292-93 (2d Cir.1966) (applying New York law), cert. denied, 387 U.S. 935, 87 S.Ct. 2061, 18 L.Ed.2d 997 (1967); Corban v. Skelly Oil Company, 256 F.2d 775, 779-80 (5th Cir.1958) (applying Arkansas law); Morris v. City of Soldotna, 553 P.2d 474, 480-82 (Alaska 1976); Sloan v. Atlantic Richfield Company, 552 P.2d 157, 160 (Alaska 1976); Welker v. Kennecott Copper Co., 1 Ariz.App. 395, 403 P.2d 330, 339 (1965); Florida Power and Light Co. v. Price, 170 So.2d 293, 298 (Fla. 1964); King v. Shelby Rural Electric Cooperative Corp., 502 S.W.2d 659, 662 (Ky. 1973), cert. denied, 417 U.S. 932, 94 S.Ct. 2644, 41 L.Ed.2d 235 (1974); Hader v. Coplay Cement Mfg. Co., 410 Pa. 139, 189 A.2d 271, 277 (1963); Humphreys v. Texas Power & Light Company, 427 S.W.2d 324, 330-31 (Tex.Civ.App. 1968); Tauscher v. Puget Sound Power & Light Co., 96 Wn.2d 274, 635 P.2d 426, 429-31 (1981); Epperly v. City of Seattle, 65 Wn.2d 777, 399 P.2d 591, 597 (1965); Potter v. City of Kenosha, 268 Wis. 361, 68 N.W.2d 4 (1955).
In King v. Shelby Rural Electric Cooperative Corp., supra, the Court of Appeals of Kentucky concisely stated the policy reasons why an employers' non-delegable duty should not extend to an employee of contractors hired to do the dangerous work which resulted in the harm:
More recently, in Tauscher v. Puget Sound, supra, 635 P.2d at 428, the defendant claimed the employer of an independent contractor owed the contractor's employees a non-delegable duty of care based on the presence of an inherently dangerous activity. The Supreme Court of Washington, after reviewing the case law of various states, announced its rationale for limiting the employer's liability to third persons other than contractor's employees:
Furthermore, some courts cite to a Special Note in the Tentative Draft # 7 of the Restatement (Second) of Torts (1962) to support the exclusion of contractor's employees from protection under all the exceptions. See King v. Shelby Rural Electric Cooperative Corp., supra, 502 S.W.2d at 662; Tauscher v. Puget Sound Power & Light Co., supra, 635 P.2d at 430 n. 7. The tentative draft contained similar language to the adopted version of the Restatement, and used words such as "others," "third persons" and "the public" to describe those persons to whom the employer owed a duty. The "Introductory Note" to the chapter of the draft containing the exceptions stated:
The Special Note was never adopted by the American Law Institute and is therefore not authoritative. It is evidence, however, of the intent of the Restatement to limit an employer's liability under the exceptions.
We are not required to here determine whether the principles of §§ 416-429 should be interpreted so as to exclude, in every instance, the existence of a duty for the benefit of independent contractors and their employees. We hold that where, as here, the independent contractor has assumed responsibility for maintenance and repairs, and the harm has occurred to the contractor or his employee as a result of a defect arising from the failure of the contractor to make those repairs, nothing in §§ 416-429 operates to impose liability upon the person who hired the contractor. Moreover, comparing the duties contemplated by §§ 416-429 with those of a landowner (§ 343) or the closely related duty of an employer to furnish a safe workplace, we find no policy or other distinction that would justify a different result where the latter duties are involved. Thus, whether the duty to maintain premises in a reasonably safe condition arises form the status of landowner, or employer, or from the performance of a proprietary function by a governmental entity, the result is the same.
Our holding does not affect the existing law as it relates to a duty owed to others. Thus, as to members of the general public and adjacent landowners the duty remains non-delegable. Furthermore, the usual concepts of duty owed by a landowner-employer to an independent contractor and his employees to maintain in a reasonably safe condition the land upon which they work, or over which they may be invited to travel to reach their work, remains intact. An employee of an independent contractor injured on the employer's premises by reason of a latent defect (known to the employer but not to the contractor or his employee) which existed when the work began has recourse against the employer. Bauman v. Woodfield, supra, 244 Md. at 216-17, 223 A.2d 364; Le Vonas v. Acme Paper Board Co., supra, 184 Md. at 20, 40 A.2d 43; Cutlip v. Lucky Stores, supra, 22 Md. App. at 682-83, 325 A.2d 432. Similarly, the employee of an independent contractor invited to cross land of the employer to reach a workplace thereon may recover from the employer for injuries resulting from a defective condition of the premises within the employer's control, and not within the duties of the contractor to repair. Nor does our decision today affect the possible liability of an employer who by his agreement with the contractor retains significant control over, and responsibility for, the safety of the workplace.
We turn to appellant's argument that the City is liable for the failure of the contractor "to perform the thing contracted to be done," i.e. maintenance and repair of the Convention Center. To support her contention, appellant cites Deford v. State, Use of Keyser, 30 Md. 179 (1869), P., B. & W.R. Co. v. Mitchell, 107 Md. 600, 69 A. 422 (1908), and Weilbacher v. Putts Co., 123 Md. 249, 91 A. 343 (1914), for the proposition that the employer is liable if the injury is caused by the work contracted to be done. We find no merit in this argument.
Initially we note that Deford, P., B. & W.R. Co. v. Mitchell, and Weilbacher all deal with the duty of a landowner to third persons other than employees of independent contractors, and the doctrine of those cases is not affected by the narrow holding of this case. Secondly, we observe that the concept of "the work contracted to be done" is a part of a rule of limitation of liability, and does not operate to create liability where none would otherwise exist. This conclusion is supported by the following portions of comments to §§ 422 and 426 of the Restatement:
The negligence of FMI was clearly not "casual" or collateral to the contemplated risk. The legal effect of this conclusion is that the City would be liable for damages caused by the breach of a duty resulting from that negligence. It does not, however, mean that the City will be liable where it has breached no duty owed by it to appellant.
JUDGMENT AFFIRMED; APPELLANT TO PAY THE COSTS.