SMALKIN, District Judge.
This diversity case is before the Court on the motion of General Electric Company ("General Electric") for summary judgment. The nature of the action is a claim for personal injuries sustained by one Michael D. Wells ("Wells"), an employee of a company named Montel Metals, Inc. ("Montel"), which is in the business of dismantling disused industrial plants. In 1990, General Electric, which had previously utilized Montel's dismantling services, contracted with Montel to perform the dismantling and salvage work at Building 1 of a disused General Electric appliance factory in Columbia, Maryland. (Pls.' Mem. in Opp'n at 3).
On March 15, 1992, Mr. Wells was injured by a severe electrical shock which he received while dismantling electric equipment in Building 1's paint room. Wells was badly burned while working to remove
Defendant General Electric has moved for summary judgment on a number of grounds, including the contributory negligence of Mr. Wells. If there is evidence of General Electric's negligence, the Court is of the opinion that there is a genuine issue of material fact as to whether the defense of contributory negligence would be available, so that summary judgment could not appropriately be granted on that defense. Fed.R.Civ.P. 56(c).
On the primary question, though, of General Electric's negligence, the Court must determine whether General Electric breached any duty that it owed to Wells. The heart of this summary judgment motion is General Electric's contention that it is not liable to plaintiffs for Wells' injury. In their complaint, plaintiffs assert that General Electric was negligent in failing to turn off the electricity in the paint room and to provide for auxiliary lighting sources; in failing completely to remove hazardous dust from the salvaged areas; and in falsely informing Montel employees, and/or plaintiff Wells that the breaker box in question had been deactivated, as well as "other negligence." (Wells Compl. ¶ 6).
In their opposition to defendant's present motion, plaintiffs argue that General Electric owed a duty to Montel employees if it retained either (a) the ability to control or had (b) actual physical control over the place and manner of Montel's employees performance. Plaintiffs additionally argue that if General Electric assumed a duty to disconnect the panel boxes it was bound to fulfill that duty. Plaintiffs contend that this duty "emanates" from Maryland precedent. (Pls.' Mem. in Opp'n at 24.). Finally, plaintiffs allege that, if General Electric had actual control over Montel's project, it owed a "non-delegable" duty to Montel employees to insure that the Building 1 premises were safe. (Id. at 24).
I. Standard for Summary Judgment Motions
A grant of summary judgment is appropriate when there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed. R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Miller v. Leathers, 913 F.2d 1085 (4th Cir.1990) (en banc), cert. denied, ___ U.S. ___, 111 S.Ct. 1018, 112 L.Ed.2d 1100 (1991). When examining a motion for summary judgment, the facts and all reasonable inferences must be viewed in the light most favorable to the nonmovant. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986).
This Court is of the opinion that there is no genuine dispute of material fact on the issue of General Electric's duty to Wells. Celotex, 477 U.S. at 317, 106 S.Ct. at 2549. Because neither party, however, has adequately described the framework for determining whether or not General Electric owed a duty of care to Montel employees during the salvage operations at Building 1, the Court will analyze each of the plaintiffs' claims under the appropriate rubric.
II. Liability of an Employer of an Independent Contractor under Maryland Law
It is axiomatic that there is no liability in negligence absent the breach of a duty. See In re Sabin Oral Polio Vaccine Prods. Liability Litigation, 774 F.Supp. 952, 954 (D.Md.1991). "The nature and extent of a tort duty recognized by law depends in part on the status of the party upon whom it is sought to be imposed and upon his relationship to the party claiming
A. Vicarious Liability of General Electric
The majority of jurisdictions, including Maryland, have held that, as a general rule, an employer's vicarious liability does not extend to employees of independent contractors, such as plaintiff Wells. Rowley v. City of Baltimore, 305 Md. 456, 467-71, 505 A.2d 494 (1986) and cases cited therein. Underlying this rule is the rationale that employers, such as General Electric, have no control over the actions of their independent contractors. See Rowley v. City of Baltimore, 60 Md.App. 680, 686, 484 A.2d 306, 309 (1984), aff'd, 305 Md. 456, 505 A.2d 494 (Md.1986). See generally Restatement (Second) of Torts § 409 (1965) (the employer of an independent contractor is not liable for physical harm caused to another by the negligence of the contractor or his employees).
The public policy basis for this general rule is the fact that state Worker's Compensation benefits generally cover a plaintiff/worker's injuries, and the injured employee of an independent contractor should not be put in a better position than had that plaintiff been an employee of the employer himself. Brady v. Ralph M. Parsons Co., 327 Md. 275, 282-83, 609 A.2d 297, 300-01 (1992). Thus, were the plaintiffs here asserting any theory of vicarious liability against General Electric for Montel's negligence, Maryland law would not afford them a remedy.
B. Liability Based upon General Electric's Own Negligence
Plaintiffs' complaint, however, clearly avers liability predicated upon General Electric's own negligence, and here the analysis is somewhat more complex. Both the caselaw and commentators recognize a number of common law exceptions to the general rule of non-liability for employers of independent contractors, which can be categorized into three broad areas:
Rowley, 305 Md. at 462, 505 A.2d at 497. The most common of these exceptions are found in §§ 410-429 of the Restatement (Second) of Torts. Most important to the present case are Restatement §§ 410-415, which address exceptions to the rule of non-liability in cases where an injured plaintiff claims actual fault on the part of the independent contractor's employer, here General Electric.
1. Restatement Section 414
Section 414 of the Restatement (Second) of Torts provides:
The comments to § 414 indicate that this section is to apply "where there is retention of control over the operative detail of the work." Brady, 327 Md. at 283, 609 A.2d at 301. Specifically, § 414 comment c sets forth the limitations to application of the section:
To meet their burden under § 414's retention of control doctrine, the plaintiffs must show that General Electric "had the right to control the details of [Montel's] movements during [Montel's] performance of the business agreed upon." Parker, 76 Md.App. at 601, 547 A.2d at 1085, quoting Cutlip v. Lucky Stores, Inc., 22 Md.App. 673, 325 A.2d 432 (1974). Further, the retention of control must "exist in respect to the very thing from which the injury arose." Id., quoting Gallagher's Estate v. Battle, 209 Md. 592, 122 A.2d 93, cert. denied 352 U.S. 894, 77 S.Ct. 133, 1 L.Ed.2d 87 (1956).
Plaintiffs claim that it was General Electric's duty to control the electricity within the building and to inform Montel in which areas of Building 1 it could safely work. (Pls.' Mem. in Opp'n at 8.) Because General Electric retained specific rights of supervision such that Montel was not able to exercise control over the method and operative detail of its work, plaintiffs argue, General Electric owed Mr. Wells a duty of care under § 414 and its breach of that duty caused Wells' injury. This Court finds that there is no genuine dispute regarding the amount of control General Electric retained over Montel's electrical salvaging sufficient to make it liable to plaintiff Wells under § 414.
Montel was hired by General Electric to disassemble and salvage materials within Building 1 and to ready the factory for its new owner, the Rouse Corporation ("Rouse"). (Twigg Dep. at 108.)
From the onset of the project, General Electric provided personnel with electrical expertise to assist Montel and Roy Bentley, Montel's on-site foreman, in disconnecting electricity necessary to complete its salvaging job. (See Myers Dep. — Cr. at 29, 32, Dr. at 61-62.) The record supplies at least some evidence that, for the first two months of the Building 1 project, General Electric disconnected "everything," "anytime [Montel] needed something to be turned off." (Myers Dep. — Cr. at 28.) The situation at Building 1 was fluid, however. In an attempt to address electrical issues arising during the dismantling process, Montel hired a former General Electric electrician, John Freeberger, to provide electrical support for Montel and to help coordinate the rest of the salvaging job. (Freeberger Dep. at 14.)
By way of example in support of their argument that General Electric retained control over electricity, plaintiffs contend that Freeberger's main job was to double-check the electrical status of a particular area, "not necessarily to make the initial connections/disconnections." (Pls.' Mem. in Opp'n at 28.) Plaintiffs attempt so to shift all of the responsibility and control for electrical connection/disconnection to General Electric is clever, but unavailing. Until Mr. Freeberger began work (and even after his departure), Montel did not possess the necessary electrical expertise to address adequately all of its potential electrical concerns. Montel did rely, to some degree, upon General Electric electricians in the completion of its project. Evidence in the record clearly indicates that, upon request, General Electric would help Montel by "double and triple-checking that the electric was turned off properly." (Myers Dep. — Dr. at 76.) The provision of such assistance, however, is manifestly different from General Electric's retention of control over the electricity within the areas in which Montel employees were working, and control is the deciding criterion.
Plaintiffs additionally contend that General Electric alone had the necessary keys to access the electrical vaults from which the power to specific electrical boxes could be disconnected and reactivated. (Pls.' Mem. in Opp'n at 7.) However, Mr. Bentley's statements indicate merely that he thought that General Electric had the only keys. (See Bentley Dep. at 138.) This statement, which is not competent in any event, see Fed.R.Evid. 602, is flatly contradicted by the testimony of Mr. Twigg, who indicates that Montel had copies of all the keys for the building. (Twigg Dep. at 101.)
Plaintiffs further argue that Montel understood its electrical responsibilities to be no more "than asking General Electric for assistance when needed." (Pls.' Mem. in Opp'n at 8.) It is true that, as the project continued, Montel relied upon General Electric electricians for assistance in determining what to do before salvaging electrical conduit, etc. (See Freeberger Dep. at 29); See also Myers Dep. — Cr. at 10 ("[Myers] understanding [was] that G.E. would make sure that all the substations were — that stuff was — the breakers were disconnected. ... And they would assist us in disconnecting the other stuff, assist us in finding out what other areas had to be disconnected and assist us in disconnecting the other parts of the building.") Yet plaintiffs' argument misstates Montel's ultimate responsibility for the project.
The key to analysis of plaintiffs' § 414 claim is that General Electric assisted Montel. It is true that Ray Dudek (subsequently replaced by Bill Green, who himself was succeeded by Dave Bass) and John Freeberger (both as a General Electric and as a Montel employee) provided primary electrical assistance to Montel's salvaging project. (See Bentley Dep. at 137, 140; September 26, 1990 Safety Meeting Minutes.) It is also true that after Freeberger left Montel's employ, he was not replaced.
Neither did General Electric retain control with respect to the "very thing from which the injury arose." Id. The fact that General Electric determined if a particular portion of Building 1 was ready to be gutted or that it checked whether the electricity was turned off in a particular area before Montel employees would begin working does not mean that Montel was not "entirely free to do its work its own way." Montel's project was to salvage Building 1. As to the operative detail of how and by whom this salvaging was to be accomplished, Montel and its employees had sole control. Despite plaintiffs' arguments, the record does not show a genuine dispute as to this material fact.
General Electric, therefore, cannot be said to owe a § 414 duty to plaintiff Wells. Without the existence of a duty, there can be no negligence by General Electric predicated upon § 414. Instead, this Court finds that any control and/or right of supervision retained by General Electric during the Building 1 project is general in nature and of a kind "usually reserved to employers." Restatement (Second) of Torts § 414 cmt. c (1965).
As an alternative ground for its holding, this Court questions whether, even if General Electric retained sufficient control over Montel's actions to bring § 414 into operation, employees such as Mr. Wells fall within the class of persons under Maryland law to whom a § 414 duty would run. As the Maryland Court of Appeals noted in dicta:
Brady, 327 Md. at 282-83, 609 A.2d at 300-01; See generally supra note 5.
From the tenor of Brady's dicta, it is the conclusion of this Court that, even were General Electric's retention of control over the dismantling of electrical wiring in Building 1 sufficient to invoke a duty on its part to use reasonable care, as per § 414, the Maryland courts would find that employees of an independent contractor are not within the class of persons to whom the duty in this section might run. Wilson v. Ford Motor Co., 656 F.2d 960 (4th Cir. 1981). See also Parker, 76 Md.App. at 602, 547 A.2d at 1085 ("No matter how appellant phrases it, what he is unsuccessfully attempting is an end run on the Worker's Compensation Law.")
2. Assumed Duty Exception — Contract or Conduct
In the alternative, plaintiffs contend that General Electric specifically assumed a duty to disconnect the electricity to panel boxes within Building 1, and, once assumed, it was bound to fulfill that duty. Plaintiffs' argument is based upon the "assumed duty exception," which provides that "where a duty of due care has been assumed by contract or conduct, a worker not in privity is protected." Brady v. Ralph M. Parsons Co., 82 Md.App. 519, 528, 572 A.2d 1115, 1120 (1990), aff'd, 327 Md. 275, 609 A.2d 297 (1992).
It appears, therefore, that plaintiffs' "assumed duty exception" argument is founded upon General Electric's conduct. Plaintiffs contend that General Electric employees informed Mr. Wells and his co-workers that the breaker boxes in Building 1's paint room (in which he was working when injured) were "dead" when, in fact, they were not. (Pls.' Mem. in Opp'n at 14-15.) The deposition assertion by plaintiff that someone who, he believes, was a General Electric employee told him that the only hot wire in the room was the buss running into the ceiling for the lights is insufficient to generate a triable issue. (M. Wells Dep. at 59-61, 212.) To be sufficient for such purposes under Fed.R.Civ.P. 56(e) and Celotex, 477 U.S. at 317, 106 S.Ct. at 2549, the evidence must be such as would be admissible at trial. Wilson v. Clancy, 747 F.Supp. 1154, 1157-59 (D.Md.1990), aff'd, 940 F.2d 654 (4th Cir.1991) (Table). In this case, the plaintiff's vagueness as to the identity and the position of the person who made the statement in question would preclude it coming in as an admission against General Electric under Fed.R.Evid. 801(d)(2). Further, even accepting the plaintiff's statement as true, he himself concedes that the alleged General Electric employee made no affirmative comments about or reference to the breaker boxes upon which Wells was working. (M. Wells Dep. at 107-08; 227-28.)
Additionally, Terry Dunn's testimony recounts that plaintiff Wells had a conversation
In contrast to these statements, the testimony of the above individuals clearly identifies Montel employees Roy Bentley and Larry Myers as having told their workers that the breaker box was dead. (See P. Wells Dep. at 29, 52; M. Wells Dep. at 212.) Thus, even viewing the cumulative effect of these three statements and the inferences therefrom in the light most favorable to the plaintiffs, Anderson, 477 U.S. at 255, 106 S.Ct. at 2514, the testimony does not generate a genuine issue of material fact as to General Electric's conduct with regard to an assumed duty to disconnect the electricity in the breaker boxes in question.
Finally, notes of the May 15, 1991, "MOSH" conference are not, in this Court's opinion, admissible as substantive evidence of what General Electric management and its electrician(s) allegedly told Montel. This evidence was disavowed by both Terry Smith and Roy Bentley, on deposition, robbing it of the trustworthiness requisite as a predicate for admission under Fed.R.Evid. 803(8) and (24). (See Smith Dep. — Dir. at 24; Bentley Dep. — Cr. at 159-161.) See also Ramrattan v. Burger King Corp., 656 F.Supp. 522, 530 (D.Md.1987). Plaintiffs have failed to show that there exists a genuine triable issue regarding any duty allegedly assumed by General Electric's conduct with respect to plaintiff Wells; thus, the assumed duty exception cannot be a basis for General Electric's liability to plaintiffs.
3. Non-delegable Duty to Provide a Safe Workplace
Finally, the plaintiffs contend that General Electric failed to maintain a safe workplace at Building 1, in breach of its duty. Citing this Court to Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43 (1944), plaintiffs argue that General Electric had a non-delegable duty
Affirming a directed verdict for the defendant, the Le Vonas court observed:
Unlike the above analysis regarding Restatement § 414 and the "assumed duty" exception, General Electric was indeed subject to a limited duty to insure a safe workplace for Montel's employees. That duty, however, "... is relative and conditional, and what would be a full discharge of the duty under one set of circumstances may not be under another." Bauman v. Woodfield, 244 Md. at 217, 223 A.2d at 369. As a consequence, the extent of General Electric's duty, if any, is not to be seen simply as that of the ordinary owner of premises, but must be viewed in the context of the obviously hazardous process of salvaging and dismantling an industrial plant.
The record before this Court presents no disputed issue of material fact as to General Electric's fulfillment of its narrow duty to provide a safe workplace for Montel employees. General Electric's duty was to notify Montel employees of any latent or concealed dangers present in Building 1, provided it was aware, or in the exercise of ordinary care should have been aware, of the hazard. Rowley, 305 Md. at 465, 505 A.2d at 498. This Court is of the opinion that the danger of electrical injury to Montel employees while they were salvaging electrical conduit was neither latent nor concealed; therefore, it owed Montel employees no duty of notification.
Further, under Le Vonas, any claim of liability for Wells' injuries predicated upon the "safe workplace" doctrine requires (1) General Electric's control over the premises and (2) the presence of an "abnormally dangerous condition." 184 Md. at 20, 40 A.2d at 45. Plaintiffs contend that General Electric had "substantial physical control of the work area and actual responsibility for the hazardous condition" under which plaintiff Wells worked. (Pls.' Mem. in Opp'n at 24). See Rowley, 305 Md. at 475, 505 A.2d at 503-04. The predicate control necessary to find General Electric liable under this theory is analogous to that required under § 414. See discussion supra at 1206. Here, however, the plaintiffs assert that defendants had actual physical control over the work area, not just the right to control. Because this Court found no genuine issue of material fact as to General Electric's retention of the right to control under § 414, it follows logically that the record does not support the more demanding standard for proving General Electric's actual physical control over the premises necessary for basing liability here.
Finally, in Cutlip v. Lucky Stores, Inc., 22 Md.App. at 683, 325 A.2d at 438, the Maryland Court of Special Appeals cautioned against finding the very conditions of a contracting job itself "abnormally dangerous:"
Obviously, the presence of live electrical current flowing through the breaker box which Wells dismantled was not the sort of latent and preexisting danger to which the Le Vonas court was referring. The very essence of Montel's contract was to strip out the electrical conduit and bussing within Building 1; thus, the condition of plaintiff
In summary, the Court, having considered all the facts and circumstances of the relationship between Montel and General Electric at the Building 1 site and the nature of the work being performed, is of the opinion that General Electric had no duty through its retention of control, by express or implied contract, by voluntary assumption, or otherwise to assure the safety of Montel personnel salvaging electrical fixtures. To the extent that General Electric, as owner of the premises, did owe a duty to Montel employees, it fully discharged that duty. General Electric is, therefore, entitled to summary judgment
ORDER AND JUDGMENT
For reasons stated in the foregoing Memorandum Opinion of even date entered herein, IT IS, by the Court, this 4th day of December, 1992, ORDERED and ADJUDGED:
1. That defendant General Electric Company's Motion for Summary Judgment BE, and it hereby IS, GRANTED;
2. That judgment BE, and it hereby IS, entered in favor of General Electric and against the plaintiffs, with costs; and
3. That the Clerk of Court mail copies of the foregoing Memorandum Opinion and of this Order and Judgment to counsel for the parties.
Additionally, at least one circuit court has held that §§ 411, 413, and 416 are inapplicable to negligence actions asserted by an independent contractor's employee against the owner/employer, because these sections impose liability only with respect to third parties. See Hess v. Upper Mississippi Towing Corp., 559 F.2d 1030, 1033 (5th Cir.1977), cert. denied, 435 U.S. 924, 98 S.Ct. 1489, 55 L.Ed.2d 518 (1978).