A natural gas leak led to an explosion in Bowie, Maryland on 23 March 1996. As a result of the explosion, Lee James Crews, the foreman of a gas line repair team sent to the scene of the gas leak by his employer, Washington Gas Light Company (Washington Gas), was injured seriously. Mr. Crews and his wife, Theresa, (Petitioners) filed a complaint, sounding in negligence and strict liability, in the Circuit Court for Prince George's County seeking damages against numerous parties, Respondents here,
4) Does the Petitioner benefit from the "rescue doctrine"?
On 23 March 1996, John Hollenbach, Sr. (Hollenbach), an employee of Honcho & Sons, Inc. (Honcho), was excavating land located near 11405 Trillium Lane, Bowie, Maryland. Honcho was a sub-contractor of Excalibur Cable Communications (Excalibur). Excalibur was engaged by Maryland Cable Partners, L.P. (Maryland Cable) to carry out a cable installation project. The area that Hollenbach excavated was marked previously by Byers Engineering Company (Byers), pursuant to the "Miss Utility" statute, to facilitate the excavating contractor's avoidance of known buried utility lines.
On 1 August 1997, Petitioners filed a twenty-count complaint in the Circuit Court for Prince George's County against Respondents. The causes of action asserted by Mr. Crews ranged from various themes of negligence, including negligent hiring and negligent supervision, to strict liability for the abnormally dangerous activity of Respondents "shooting a hole in the vicinity of utility lines." Mrs. Crews joined her husband in a loss of consortium claim.
Excalibur filed a motion to dismiss on 3 November 1997. In the motion and accompanying memorandum, Excalibur argued that the doctrine of so-called "primary" assumption of the risk barred Petitioners' suit because Mr. Crews's injuries resulted from a risk that was inherent in his employment. Excalibur asserted that Mr. Crews necessarily appreciated the dangerous nature of his occupation and knew, upon arrival at the scene of the gas leak, that he was to confront a hazardous situation. Excalibur reasoned that Mr. Crews "cannot recover for an alleged negligent act for which he was specifically employed to correct." On 19 December 1997, Maryland Cable filed a motion for summary judgment incorporating the legal arguments of Excalibur's motion to dismiss. By order docketed 6 February 1998, the Circuit Court denied Excalibur's motion to dismiss. On 3 March 1998, the Clerk of the Court sent to the parties written notice that a hearing on Maryland Cable's motion for summary judgment would be held on 24 April 1998.
Mr. Crews was deposed by Respondents on 21 April 1998.
A. At that particular area.
Q. Well, you mean in the area that you were working?
A. Yes, yes.
Q. All right.
A. And we always try to work it in a safe manner.
Q. Okay. So—
A. And we understood that.
A. We were aware that fire will start behind natural gas.
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A. That's correct.
Q. —you knew that that could create a spark?
A. We knew that.
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Q. You know that there is this risk of fire, correct?
A. That's correct.
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Q. What do you mean by that?
Q. They wouldn't need you, would they?
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On 23 April 1998, Excalibur filed a supplemental memorandum in support of a renewed motion to dismiss or alternatively, a motion for summary judgment. In addition to reasserting that Petitioners' claims were barred by "primary" assumption of the risk, Excalibur stated that "[i]t is also
After hearing arguments on 24 April 1998 from the parties regarding the applicability of any theory of assumption of the risk, the trial court granted Excalibur's and Maryland Cable's motions for summary judgment, as well as oral motions for summary judgment submitted by Byers, Honcho, and Hollenbach at the hearing. The judge explained:
Invited by Petitioners' counsel to clarify whether he was applying the fireman's rule to this case, the trial judge declined, stating that he thought his oral ruling spoke for itself.
The Court of Special Appeals affirmed the Circuit Court's judgment. After reviewing the policy basis underlying so-called "primary" assumption of the risk (as recognized by jurisdictions other than Maryland), the fireman's rule, and so-called "secondary" assumption of the risk, the intermediate appellate court concluded that the risk of an explosion was within the scope of dangers that Mr. Crews assumed when he accepted employment as a gas leak repairman. Specifically, the court held that:
Crews, 126 Md.App. at 638, 730 A.2d at 758-59. As the Court of Special Appeals explained its ruling that Petitioners' suit was barred by the doctrine of "primary" assumption of the risk, it did not reach the question of whether application of "secondary" assumption of risk would have justified the grant of summary judgment.
Petitioners urge us to reverse because, in their view, the Circuit Court applied "primary" assumption of the risk, a sub-species of the generic doctrine of assumption of the risk not recognized by this Court. Petitioners assert that "Maryland has never applied the doctrine of primary assumption of risk to [bar suit by] a private citizen" and "the Fireman's Rule cases are the only cases in Maryland where the doctrine of primary assumption of the risk has been applied [as a bar]." Petitioners reason that because Mr. Crews was not a fireman, police officer, or any of the other types of similar professional rescuers compensated by government, the Circuit Court's application of the fireman's rule and/or the doctrine of primary assumption of the risk was improper.
Assumption of the risk serves as a complete bar to a plaintiff's recovery. See ADM Partnership v. Martin, 348 Md. 84, 91, 702 A.2d 730, 734 (1997); Saponari v. CSX Transp. Inc., 126 Md.App. 25, 31, 727 A.2d 396, 399 (1999) cert. denied Saponari v. CSX Transp. Inc., 353 Md. 473, 727 A.2d 382 (1999). The defense is grounded on the theory that a plaintiff who voluntarily consents, either expressly or impliedly, to exposure to a known risk cannot later sue for damages incurred from exposure to that risk. See Imbraguglio v. Great Atlantic & Pacific Tea Co., 358 Md. 194, 212-13, 747 A.2d 662, 672 (2000); Schroyer v. McNeal, 323 Md. 275, 282, 592 A.2d 1119, 1122 (1991); Rogers v. Frush, 257 Md. 233, 243, 262 A.2d 549, 554 (1970); Boddie v. Scott, 124 Md.App. 375, 380, 722 A.2d 407, 409 (1999). In defining the defense of assumption of the risk, we have stated that:
Rogers, 257 Md. at 243, 262 A.2d at 554.
This Court has not parsed the doctrine of assumption of the risk into primary and secondary categories. Treatise writers and a few other state supreme courts, however, have addressed such a distinction. The perceived doctrinal differences between the two defenses were discussed in Harper, James and Gray, The Law of Torts § 21 at 187-89 (1986) as follows:
Id. (footnotes omitted). As Harper, James, and Gray see it, the legal application of the two defenses is quite different. In applying "secondary" assumption of the risk, a court inquires as to whether a plaintiff assumed a particular risk based on a case-by-case or risk-by-risk analysis. See Flowers v. Sting Sec., Inc., 62 Md.App. 116, 135, 488 A.2d 523, 533 (1985), aff'd. by Flowers v. Rock Creek Terrace Ltd., 308 Md. 432, 520 A.2d 361 (1987). The court must determine whether a particular plaintiff intentionally and voluntarily exposed himself or herself to a known risk of danger. See Baltimore Gas and Elec. Co. v. Flippo, 348 Md. 680, 705, 705 A.2d 1144, 1158 (1998); ADM Partnership v. Martin, 348 Md. 84, 91, 702 A.2d 730, 734 (1997);
Assumption of the risk in its "primary" sense, on the other hand, is a judicially-crafted policy decision, recognized in some states,
Petitioners suggest that this Court has applied a semblance of the doctrine of "primary" assumption of the risk in our fireman's rule cases. Under our common law, the fireman's rule bars firefighters (and police officers) from recovering tort based damages inflicted by a negligently created risk that required their presence on the scene in their professional capacity. See Tucker v. Shoemake, 354 Md. 413, 731 A.2d 884 (1999).
The instant case shall not serve as a vehicle for this Court to recognize in Maryland a category of the doctrine of assumption of the risk to be known as primary assumption of the risk. This is so because this matter may be decided based on existing Maryland jurisprudence that makes no such distinction.
Flowers v. Rock Creek Terrace Ltd., 308 Md. 432, 520 A.2d 361 (1987) is our seminal case applying the fireman's rule iteration of assumption of the risk. In Flowers, a firefighter plunged twelve floors down an elevator shaft while fighting a fire in an apartment building. The firefighter sued ten different defendants to recover damages for his injuries. We held that the fireman's rule barred the plaintiff from recovery because he was injured by an accident "within the range of anticipated risks of firefighting." Flowers, 308 Md. at 451, 520 A.2d at 370.
Flowers was based, in part, on certain public policy considerations that are not present in this case. In particular, we explained in Flowers that the unique relationship between firefighters and the public serves as a basis of the fireman's rule. Flowers, 308 Md. at 446, 520 A.2d at 368. The relationship is premised on the fact that firefighters (or police officers) are trained to confront hazardous situations everyday in order to fulfill their societal and legal duty of protecting the public.
We further noted in Flowers that firefighters are entitled to enhanced compensation and benefits in the form of special disability pay, workers' compensation, and retirement benefits and that this special compensation is charged to the taxpayers. See id. at 447, 520 A.2d at 368. We reasoned that taxpayers should not be subjected to a double charge for mistakenly causing a fire; one charge in the form of state tax and the second in paying damages in civil suit. See id.
Because Mr. Crews was a privately-compensated gas line repairman at the time he suffered his injuries, it is evident the foregoing public policy considerations do not apply to the present case and, hence, the fireman's rule is inapplicable as such. We are not inclined to fashion a private employee variation, a private fireman's rule, as it were, for the present case. This does not mean, however, that we shall not find instructive in the present case other aspects of our fireman's rule jurisprudence in our assumption of the risk analysis that follows.
Our task in a conventional assumption of the risk analysis is to determine whether the plaintiff 1) had knowledge of the risk of danger; 2) appreciated the risk; and 3) voluntarily exposed himself
As to the element of voluntariness, we seek to ascertain whether the plaintiff freely exposed herself or himself to a known danger. ADM Partnership, 348 Md. at 92-93, 702 A.2d at 735. The simple fact that a plaintiff proceeds to confront a danger after he or she has paused to consider the extent of the risks involved does not establish conclusively that the plaintiff acted voluntarily. To satisfy the element of voluntariness, a defendant must show that:
Id. (quoting Prosser and Keeton on Torts § 68 at 490-91 (5
A. KNOWLEDGE OF THE RISK
Mr. Crews plainly knew of the risks inherent in working on the gas leak on 23 March 1996. At his 21 April 1998 deposition, Mr. Crews admitted that he was aware of the heavy smell of gas near the gas leak. In response to a question asking whether there was a point when he recognized the smell of gas to be so heavy that he knew it was dangerous, Mr. Crews responded, "Well, we always are taught that any type of gas leak or odor is always dangerous." Later Mr. Crews conceded again that "we knew that [ ] the area we were working in could be dangerous." The forgoing acknowledgments establish that Mr. Crews possessed the requisite knowledge that risks were present while he worked at the scene of the gas leak.
B. APPRECIATION OF THE RISK
Petitioners argue that although Mr. Crews may have been aware of the dangers involved in working with gas leaks generally, his deposition statements show that he did not appreciate the specific risks involved in addressing the gas leak that ultimately contributed to his injuries. Petitioners highlight the following excerpt to support their position:
A. No, it would not.
Q. Are you sure?
A. Well, I never knew it could set off like that.
Petitioners suggest that these statements demonstrate that he did not have "the appreciation of danger that is contemplated by Maryland law." We disagree.
As we stated above, "[i]n determining whether a plaintiff had ... appreciation of the risk, [the] plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him." ADM Partnership, 348 Md. at 91, 702 A.2d at 734 (quoting Gibson v. Beaver, 245 Md. at 421, 226 A.2d at 275). Mr. Crews's subjective denials of understanding the dangers inherent in working on the gas leak are unavailing when the undisputed facts of this case disclose that the risk of an explosion was plainly evident to him. See Gibson, 245 Md. at 421, 226 A.2d at 275.
The record here shows that Mr. Crews, a gas line repairman with over twenty-years experience, was dispatched along with his repair crew, to the scene of the gas leak. Although the record does not disclose how far Mr. Crews traveled to reach the scene of the leak, we know that he was not present when the underground gas line was struck. Therefore, he had to travel some distance to reach the scene. For whatever period he was in transit, natural gas escaped freely into the air. The surrounding neighborhood was evacuated by the fire department. Upon arrival at the scene, Mr. Crews noticed a heavy smell of gas in the area that he was working and he knew that "any type of gas ... odor is always dangerous."
We have approved the observation that "there are certain risks which anyone of adult age must be taken to appreciate: the danger of slipping on ice, of falling through unguarded openings, of lifting heavy objects ... of inflammable liquids... and doubtless many others." Prosser and Keeton on Torts § 68 at 490-91 (5
Mr. Crews's deposition statements support our conclusion that he appreciated the specific risks involved in using a backhoe to excavate near the gas leak, a possible ignition source. At his deposition, Mr. Crews acknowledged his understanding that the gas leak could lead to an explosion. Immediately following the excerpt quoted above, which Petitioner offered to show that Mr. Crews "had no idea that being in close proximity to a leaking gas pipe with a backhoe could cause an explosion" the following exchange occurred in the deposition:
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A. That's correct.
A. We knew that.
Q. So you know that there is this risk of fire, correct?
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A. That's correct.
Mr. Crews statements show that he knew that there was a risk of fire when he confronted the gas leak and it is axiomatic that the dangers associated with fire are understood by an adult of average intelligence. Therefore, it is clear to us that Mr. Crews appreciated the risk of confronting the gas leak. See Schroyer, 323 Md. at 283-84, 592 A.2d at 1123. Based on the undisputed facts of this case, including Mr. Crews's admissions, we hold that he appreciated the steps he took when he confronted the gas leak. The remaining question is whether he took those steps voluntarily.
C. VOLUNTARY EXPOSURE TO THE RISK
The record in this case shows that Mr. Crews responded to the scene and began to confront the gas leak, but this alone is not enough to conclude that he acted voluntarily. Our cases illustrate that if a person was compelled to act and had no freedom of choice regarding whether to act, we will not say, as a matter of law, that he or she acted voluntarily. See ADM Partnership, 348 Md. at 92, 702 A.2d at 734 (quoting Prosser and Keeton on Torts § 68 at 490-91 (5
In ADM Partnership, the plaintiff, a delivery driver, sued the owners of a building for injuries she sustained by falling on ice while attempting to deliver copies of blueprints in the defendants' building. The Circuit Court, at trial, granted the defendants' motion for judgment at the end of the plaintiff's case based on its finding that the plaintiff voluntarily assumed the risk by choosing to walk across an icy parking lot. The Court of Special Appeals reversed, holding that the question of whether the plaintiff acted voluntarily should have been submitted to the jury because the plaintiff testified that she feared her employer would fire her if she failed to make the delivery. We granted the defendants' petition for writ of certiorari to resolve the issue of whether the plaintiff's assumption of the risk was voluntarily when her actions were motivated by the responsibilities of her employment.
At the outset of our analysis, we explained that "an employee's act becomes voluntary when the employee is given a clear and reasonable choice either to act or not to act, and then chooses willingly to act." ADM Partnership, 348 Md. at 93, 702 A.2d at 735. (citations omitted). The plaintiff argued that she did not act voluntarily because her only options were to attempt delivery or return in failure to her employer. She testified at trial that she believed if she did not make the delivery her employer would lose the delivery contract and her employment would be terminated. After examination of the record, we rejected the plaintiff's argument.
The only evidence in the record that supported the plaintiff's argument was her own testimony regarding her belief that
Id. at 100-01, 702 A.2d at 739. (citations omitted). Because there was no evidence in the record to support her belief that her employment was in jeopardy by a compulsion to make the delivery, or any evidence from which such an inference could be drawn, we reversed the judgment of the Court of Special Appeals and affirmed the Circuit Court's grant of judgment to the defendants. See id. at 104, 702 A.2d at 740.
In our analysis of ADM Partnership, we relied upon Burke v. Williams, 244 Md. 154, 223 A.2d 187 (1966). Burke, similar to ADM Partnership, involved a delivery person's suit against a property owner for injuries sustained from a slip and fall accident. The plaintiff in Burke delivered sinks to a house under construction in Prince George's County. When the plaintiff arrived at the house, the property owner directed him to bring the sinks through the house into the kitchen. Because the house was under construction, the plaintiff had to carry the sinks through the house over a walkway made of wooden planks. After two successful trips, the plaintiff slipped on a damp plank and fell into a ditch on his third journey. He sued the homeowner in a negligence action. The homeowner defended by asserting, among other things, that the plaintiff assumed the risk by undertaking to deliver the sinks into the house.
At the close of the plaintiff's case, the trial court granted the defendant's motion for judgment based, in part, on its finding of the plaintiff's voluntary assumption of a known risk. On appeal, the plaintiff asserted that once he arrived at the delivery site his actions were involuntary because the defendant provided him with only one means of ingress and egress to the house via the wooden plank path and, if he did not complete the delivery, he would have been discharged from his job. His argument, in essence, was that he was constrained by the economic necessity of keeping his job. We affirmed the trial court's judgment because the plaintiff offered no evidence that the defendant or his employer ever demanded that he make the delivery across the pathway into the house and, on the record of the case, the defendant was free to leave the sinks at the entrance of the house. See id. at 158, 223 A.2d at 189. In reaching our conclusion, we explained that:
Id. 244 Md. at 157-58, 223 A.2d at 189.
To similar effect, in Brady v. Parsons, 327 Md. 275, 609 A.2d 297 (1992), we affirmed a jury verdict against a deceased construction worker's estate based, in part,
On appeal, the estate asserted that the deceased's assumption of the risk was not voluntary because he was faced with a choice between encountering the risk of using the incomplete scaffolding or losing his job. We held that the evidence was sufficient to support the jury verdict because there was evidence from which the jury could have concluded that the deceased opted for a faster, yet more dangerous, method of completing his task. Thus, the jury verdict on the assumption of the risk ground was proper because the estate provided no evidence that the deceased could not have insisted on the use of a safe platform to use while attaching the aluminum sheet. See id. at 327 Md. at 289, 609 A.2d at 304. See also Imbraguglio v. Great Atlantic & Pacific Tea Co., 358 Md. 194, 211-13, 747 A.2d 662, 672-73 (2000)(an employee's decision to use an elevated platform without guardrails as a means of repositioning stacked cartons was a voluntary act for assumption of the risk purposes). Bull S.S. Line v. Fisher, 196 Md. 519, 77 A.2d 142 (1950), involved a ship's carpenter's suit against a shipping line company. Fisher, the plaintiff, was injured when he was struck by a load of lumber as he was assisting the defendant ship owner's employees in hoisting lumber onto the defendant's ship. At the time of the incident, Fisher's employer had a contract with the ship owner to supply waterfront workers, including carpenters. Fisher, after assisting in loading the lumber on a dolly, strapping it down and attaching a boom hook at the end of a cable leading to a winch hoist operated by the defendant's employees, stepped back "four or five steps, or feet" from the load so that it could be hoisted in the air and moved to the ship. Bull S.S. Line, 196 Md. at 522, 77 A.2d at 145. "Fisher said he figured the load would swing some [as it was hoisted], but not exactly the way it did." Id. at 522-23, 77 A.2d at 145. He brought suit to recover damages for his injuries and prevailed at trial. One issue advanced by the defense on appeal was "whether the evidence showed that the [plaintiff] had voluntarily assumed the risk which caused his injuries, as a matter of law." Bull S.S. Line, 196 Md. at 521, 77 A.2d at 144.
The defendant contended that, due to the plaintiff's vast experience as a ship's carpenter, he "took the chance of risks incident" to his employment, thereby relieving the shipping company of the duty to protect him. See Bull S.S. Line, 196 Md. at 526, 77 A.2d at 146. We determined that resolution of the company's argument was dependent on what risks the plaintiff assumed in his capacity as a ship's carpenter. We then offered a test to resolve the question, stating "that every risk is not necessarily assumed by one who works in a dangerous place or at a dangerous occupation. He assumes only those risks which might reasonably be expected to exist, and, if by some action of the defendant, an unusual danger arises, that is not so assumed." Id. We ultimately concluded that we could not say, as a matter of law, that plaintiff's injuries resulted from a risk reasonably expected to exist in his employment. Based on the record in Bull S.S. Line, we resolved that the question of whether plaintiff's injuries were caused by a risk inherent in the work of a ship's carpenter was properly left to
In our more contemporary fireman's rule cases, a secondary rationale for existence of the rule is found which is particularly relevant to this case. It focuses not on the public policy considerations of a firefighter as a public servant, but on firefighting as an inherently dangerous occupation. The fireman's rule is based in part on the notion that when an occupation exists wholly or partially for the purpose of confronting dangers posed to the public, it is inappropriate to allow the worker to recover for injures resulting from the very purpose for which he or she is employed. See Flowers, 308 Md. at 447-48, 520 A.2d at 368. Stated differently, a firefighter who is injured by a risk inherent in the task of firefighting may be barred from asserting claims for those injuries because it is the firefighter's duty to deal with fires and he or she cannot recover damages caused by the reason that made his or her employment necessary. The assumption of the risk analysis intrinsic in the fireman's rule cases focuses on the reasonably identifiable and inherent risks assumed by firefighters when they accept employment in an ostensibly dangerous occupation. See Flowers, 308 Md. at 445, 520 A.2d at 367.
Based on the above cases, the record before us here, and Petitioner's argument notwithstanding, we conclude that Mr. Crews voluntarily assumed the risk in the present case. Petitioners contend that Mr. Crews was compelled by the exigency of the facts in this case to repair the leak to prevent serious harm to the people and property of the surrounding neighborhood. They argue that Mr. Crews was "faced with the choice of either abandoning the leak and staying in safety, or approaching the pipe and going into danger." Petitioners reason that opting not to act was not a reasonable alternative under the circumstances, therefore he was compelled to address the gas leak.
To be sure, there are ordinarily greater private and public imperatives in repairing a serious gas leak than in the delivery of blueprints (ADM Partnership) or sinks (Burke ), the installation of a roof on a rail line stop (Brady ), repositioning mis-aligned stacked cartons (Imbraguglio ), or loading a ship (Bull S.S. Line ). Although commending Mr. Crews's apparent initiative here, we cannot find in this record any evidence that he was forced to make those efforts or what the larger implications may have been had he not acted.
In reviewing the Circuit Court's grant of summary judgment we shall draw any reasonable inferences from the facts in Petitioners' favor. See Liscombe, 303 Md. at 621-22, 495 A.2d at 839. The record, however, is devoid of any facts that Mr. Crews was compelled to choose the course of conduct that he selected. The available facts before the trial judge at the summary judgment hearing came from the partial transcript of Mr. Crews's deposition. The only reference in the transcript that remotely suggests any compulsion on Mr. Crews to confront the gas leak, or risk his job, is his response to a question from Maryland Cable's counsel, wherein Mr. Crews stated:
This enigmatic statement, standing alone as it does, fails to explain adequately what actual factors may have forced Mr. Crews to take action. Without greater elaboration, we cannot conclude that his actions were involuntary for purposes of our assumption of the risk analysis. See ADM Partnership, 384 Md. at 100-01, 702 A.2d at 739; Brady, 327 Md. at 289, 609 A.2d at 304. The unsupported argument in Petitioners' brief that Mr. Crews acted to save the people and the property of the surrounding neighborhood is insufficient to demonstrate there is a genuine dispute as to a material fact. See Lowman v. Consolidated Rail Corp., 68 Md.App. 64, 70, 509 A.2d 1239, cert. denied, 307 Md. 406, 514 A.2d 24 (1986).
Of greater influence on our conclusion, however, is the undisputed evidence that the danger Mr. Crews encountered on Trillium Lane in Bowie on 23 April 1996 is the very danger that he accepted the risk of confronting when he became an employee of Washington Gas some twenty years earlier. In his own words, he accepted that responsibility when he was hired. Thus, the aspect of his job duties that involved fixing gas leaks, a clearly dangerous endeavor, and which he continued to confront for more than twenty years, constitutes a voluntary assumption of "those risks which might reasonably be expected to exist" on 23 April 1996 in Bowie. It seems to us, on this record, that the risk that led to Mr. Crews's injuries was reasonably identifiable and inherent in his job both when he was first hired and on 23 April 1996. Accordingly, we find no error of law in the Circuit Court's grant of summary judgment, on this record, in favor of Respondents.