A motorist was seriously injured when another car, operated by Christopher Richardson, crossed the center line, causing a head-on collision. The facts presented in the pleadings indicated that Richardson, a longshoreman, fell asleep at the wheel while traveling home after working a twenty-two hour shift at his job site located at the Port of Baltimore. The injured motorist, Sergeant Michael Barclay, and his wife, Robin Barclay, (collectively, "Petitioners" or "the Barclays") filed a complaint in the Circuit Court for Carroll County against several parties, including Richardson's employer, Ports America Baltimore, Inc. ("Ports"
FACTS AND PROCEDURAL HISTORY
On January 17, 2006, Christopher Richardson was traveling home from work in his personal vehicle, westbound on New Windsor Road in Carroll County, after completing a twenty-two hour shift as a longshoreman at Dundalk Marine Terminal located in the Port of Baltimore. At approximately 7:28 a.m., Richardson fell asleep at the wheel and crossed the center dividing line, causing a head-on collision with Sgt. Michael Barclay of the Anne Arundel County Police Department, who was traveling eastbound on his way to work. Richardson died in the collision and Sgt. Barclay suffered catastrophic injuries.
Richardson was a longshoreman, employed by Ports to operate machinery in order to load and unload vessels that entered the Port of Baltimore. On January 13, 2006, the captain of one such vessel, the "Saudi Tabuk," notified Ports that it would be late arriving to Baltimore. In an effort to put the ship back on schedule for its next destination, Ports agreed to have longshoremen working around the clock. In order to assign longshore work, Ports would issue a "work order" to the Steamship Trade Association ("the STA") directing it to dispatch longshoremen who were members of the International Longshoremen's Association ("the ILA") and possessed particular skills that would be required on the specific job. The STA would then offer the shifts to the longshoremen, according to their union seniority. Under the collective bargaining agreement ("CBA") in place at the time of the collision, a longshoreman could accept or decline
The Barclays filed a complaint in the Circuit Court for Carroll County on January 24, 2008. The complaint named as defendants Lena Briscoe, Personal Representative of the Estate of Christopher E. Richardson, Ports, the STA, and the ILA. The complaint alleged that defendants Ports, the STA, and the ILA
(Internal citation omitted.) The Circuit Court judge also rejected Petitioners' contention further discussed infra, that the "special mission" exception, developed within workers' compensation law, could
Lastly, the court rejected Barclay's argument that Ports was primarily, as opposed to vicariously, liable for allowing its employees to work an unreasonable amount of hours and then endanger the public by driving their personal vehicles home. The Court noted that, under Maryland law, Ports had no duty to protect third parties from fatigued employees acting outside the scope of employment in the absence of a "special relationship." The Circuit Court judge explained:
Following this disposition, and pursuant to the Barclays' motion, the Circuit Court judge stayed proceedings between the Barclays and Briscoe, Personal Representative of the Estate of Christopher Richardson, and entered final judgments
Respondent also filed a cross-petition for certiorari, which asked two questions.
STANDARD OF REVIEW
Under Maryland Rule 2-501, the grant of a motion for summary judgment is appropriate only "if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law." Rule 2-501(f). As we recently stated in Muskin v. State Dep't of Assessments & Taxation, 422 Md. 544, 30 A.3d 962 (2011), "[w]hether a circuit court's grant of summary judgment is proper in a particular case is a question of law, subject to a non-deferential review on appeal." Muskin, 422 Md. at 554, 30 A.3d at 967 (citing Conaway v. Deane, 401 Md. 219, 243, 932 A.2d 571, 584 (2007); Charles Cnty. Comm'rs v. Johnson, 393 Md. 248, 263, 900 A.2d 753, 762 (2006)). Thus, "[t]he standard of review of a trial court's grant of a motion for summary judgment on the law is ... whether the trial court's legal conclusions were legally correct." Messing v. Bank of Am., N.A., 373 Md. 672, 684, 821 A.2d 22, 28 (2003) (citations omitted). "In reviewing a grant of summary judgment, we independently review the record to determine whether the parties generated a dispute of material fact and, if not, whether the moving party was entitled to a judgment as a matter of law." Charles Cnty. Comm'rs, 393 Md. at 263, 900 A.2d
We review the record in the light most favorable to the non-moving party and construe any reasonable inferences that may be drawn from the well-pled facts against the moving party. D'Aoust v. Diamond, 424 Md. 549, 574, 36 A.3d 941, 955 (2012) (citations omitted). Further, an appellate court ordinarily should limit its review of a grant of a motion for summary judgment to "only the grounds upon which the trial court relied in granting summary judgment." MRA Prop. Mgmt. v. Armstrong, 426 Md. 83 n. 17, 43 A.3d 397 (2012) (citing River Walk Apartments, LLC v. Twigg, 396 Md. 527, 542, 914 A.2d 770, 779 (2007)); accord Messing, 373 Md. at 684, 821 A.2d at 28 ("[W]e review the trial court's ruling on the law, considering the same material from the record and deciding the same legal issues as the circuit court." (citation omitted)).
Petitioners contend that there were material issues of fact that precluded the grant of summary judgment in this case. Specifically, they note disputes surrounding the extent of Ports' ability to control the work schedule of its employees and whether Ports had knowledge of both Richardson's fatigue and the fact that he was planning on driving home. Although we agree that these are factual disagreements, none of them rise to the level of materiality under our case law as the resolution of those facts would not affect the outcome of this case. See D'Aoust, 424 Md. at 575, 36 A.3d at 956; O'Connor, 382 Md. at 111, 854 A.2d at 1196; Matthews, 359 Md. at 161, 753 A.2d at 73; Lynx, 273 Md. at 8, 327 A.2d at 509. This is evident upon the consideration of the applicable precedent, to which we now turn.
This Court has recognized consistently the doctrine of respondeat superior, as "it is hornbook law that an employer is ordinarily responsible for the tortious conduct of his employee committed while the servant was acting within the scope of the employment relationship." Embrey v. Holly, 293 Md. 128, 134, 442 A.2d 966, 969 (1982); accord S. Mgmt. Corp. v. Taha, 378 Md. 461, 480-81, 836 A.2d 627, 638 (2003); Oaks v. Connors, 339 Md. 24, 30, 660 A.2d 423, 426 (1995); Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 627, 506 A.2d 224, 226 (1986); Restatement (Second) of Agency § 219 (1958). The doctrine is based on the principle that "[b]ecause `the master holds out his servant as competent and fit to be trusted, ... he in effect warrants his servant's fidelity and good conduct in all matters within the scope of his employment.'" Oaks, 339 Md. at 30, 660 A.2d at 426 (quoting Globe Indem. Co. v. Victill Corp., 208 Md. 573, 580, 119 A.2d 423, 427 (1956)). We have stated that, "[f]or an employee's tortious acts to be considered within the scope of employment, the acts must have been in furtherance
We have twice considered, in depth, how the rule functions with respect to an employee's use of his or her personal automobile during a commute. In Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 506 A.2d 224 (1986), we said:
Dhanraj, 305 Md. at 627-28, 506 A.2d at 226 (quoting Henkelmann v. Insurance Co., 180 Md. 591, 599, 26 A.2d 418, 422-23 (1942)). In Dhanraj, the plaintiff attempted to hold an employer liable for injuries an employee caused while operating his personal vehicle during a commute from his home to an employer-operated training facility. We upheld summary judgment in favor of the employer because the doctrine of respondeat superior could only "be properly invoked if the master has, expressly or impliedly, authorized the [servant] to use his [or her] personal vehicle in the execution of his [or her] duties, and the employee [wa]s in fact engaged in such endeavors at the time of the accident." Dhanraj, 305 Md. at 628, 506 A.2d at 226 (internal quotation and citations omitted). Under the facts presented, it was clear that
Dhanraj, 305 Md. at 625, 506 A.2d at 225.
Indeed, we emphasized that "[i]t is essentially the employee's own responsibility to get to or from work." Dhanraj, 305 Md. at 628, 506 A.2d at 226 (citing Restatement (Second) of Agency § 229 cmt. d (1958)). Therefore, we announced that "the general rule is that absent special circumstances, an employer will not be
Dhanraj, 305 Md. at 630, 506 A.2d at 227.
We reviewed and reaffirmed the same principles in Oaks v. Connors, 339 Md. 24, 660 A.2d 423 (1995), where we again upheld a summary disposition in favor of the employer after a third party was injured by the alleged negligence of an employee commuting to work. In that case, the employer, Giant Food, Inc., required the employee to have a personal vehicle available for use in his duties as an ATM Sergeant, and would reimburse him for travel between his "home store" and the stores he visited. At the time of the collision, however, the employee was commuting from his residence to his "home store" and therefore had not yet begun his workday. We again pointed out that "[d]riving to and from work is generally not considered to be within the scope of a servant's employment because getting to work is the employee's own responsibility and ordinarily does not involve advancing the employer's interests." Oaks, 339 Md. at 32, 660 A.2d at 427 (citing Dhanraj, 305 Md. at 628, 506 A.2d at 226, and Restatement (Second) of Agency § 229 cmt. d (1958)). We applied the rule enunciated in Dhanraj that, "absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work." Oaks, 339 Md. at 32, 660 A.2d at 427 (quoting Dhanraj, 305 Md. at 628, 506 A.2d at 226).
The plaintiffs in Oaks argued that the employee was executing his duties for Giant at the time of the collision because he was transporting his vehicle to the job site, which Giant required him to have for use in the course of the workday. Oaks, 339 Md. at 32-33, 660 A.2d at 427. We found this argument unavailing, focusing instead on the fact that the employee in driving to work "was not actually performing any of his designated job responsibilities at the time of the accident," and therefore, "was not furthering any business purpose" of
Oaks, 339 Md. at 32-33, 660 A.2d at 427.
Petitioners draw a distinction between the instant case and Dhanraj and Oaks, namely that "the precipitating cause of the accident, fatigue, manifested while Richardson was on the job and was directly related to the number of hours he worked" whereas "the employees in both Oaks and Dhanraj were in the automobile accidents prior to their shifts and the precipitating cause of the accidents did not manifest on the job." While Petitioners identify correctly this factual distinction, the timing of the collision is immaterial under the explicit language of those cases. See Oaks, 339 Md. at 32, 660 A.2d at 427 ("Driving to and from work is generally not considered to be within the scope of a servant's employment...." (emphasis added)); Dhanraj, 305 Md. at 628, 506 A.2d at 226 ("[A]bsent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work." (emphasis added)). Further, on-the-job fatigue is not a "special circumstance" sufficient to prevent application of the general rule that "an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work."
Further, we note that the facts as to scope of employment in the instant case are even less persuasive than those presented in Dhanraj and Oaks. Unlike the employer in Dhanraj, Ports neither provided any type of travel allowance
Petitioners next argue that Respondent is primarily, as opposed to vicariously, liable for Sgt. Barclay's injuries due to Respondent's own negligence in failing to prevent the risk that a fatigued employee posed to the general motoring public.
Pace, 425 Md. at 155-56, 38 A.3d at 424.
In the instant case, Petitioners assert that Ports had "a duty because the risk a fatigued employee poses to the motoring public is foreseeable and the fatigue arose within the scope of [Ports'] employment relationship with Richardson." As we made clear in Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986), however, "`foreseeability' must not be confused with `duty.' The fact that a result may be foreseeable does not itself impose a duty in negligence terms." Ashburn, 306 Md. at 628, 510 A.2d at 1083; accord Pendleton, 398 Md. at 462, 921 A.2d at 205 ("While foreseeability is often considered among the most important of [the] factors, its existence alone does not suffice to establish a duty under Maryland law." (quotation omitted)); Valentine v. On Target, Inc., 353 Md. 544, 551, 727 A.2d 947, 950 (1999) ("Notwithstanding the fact that foreseeability is a critical element in ascertaining whether or not a duty exists, not all foreseeable harm gives rise to a duty...."). For this reason, the general rule followed in most jurisdictions, including Maryland, is that "there is no duty to
We have adopted § 315, as reflective of our common law, and as a special application of the general principle found in Restatement (Second) of Torts § 314 that "[t]he fact that the actor realizes or should realize that action on his part is necessary for another's aid or protection does not of itself impose upon him a duty to take such action." Lamb, 303 Md. at 242, 492 A.2d at 1300; Restatement (Second) of Torts § 315 cmt. a ("The rule stated in this Section is a special application of the general rule stated in § 314."). As we emphasized in Valentine, 353 Md. 544, 727 A.2d 947, "[o]ne cannot be expected to owe a duty to the world at large to protect it against the actions of third parties, which is why the common law distinguishes different types of relationships when determining if a duty exists." Valentine, 353 Md. at 553, 727 A.2d at 951. Therefore,
Lamb, 303 Md. at 242 n. 4, 492 A.2d at 1300 n. 4 (quoting Restatement (Second) of Torts § 315 cmt. b (1965)).
It is evident in the instant case that Ports had no special relationship with Sgt. Barclay, as it had no familiarity with or knowledge of him prior to learning of the collision. Further, Ports had no special relationship with its employee, Mr. Richardson, that would allow it to be responsible for his motor vehicle tort under the applicable facts. The Restatement (Second) of Torts § 317 explains the circumstances sufficient to establish a "special relationship" between an employer and an employee when the employee is acting outside the scope of his or her employment. See Lamb, 303 Md. at 243, 492 A.2d at 1301 (noting that "§ 317 establishes a master's duty to control the conduct of his servant...."). It states:
Restatement (Second) of Torts § 317. It is not, nor can it be, asserted in the instant case that Richardson was on Ports' property or that he was using its chattel at the time of the collision. Rather, the collision happened on a public road, while Mr. Richardson was driving his own vehicle. Further, as the trial court aptly noted, "[Petitioners] have not introduced any facts to show that P&O Ports had the authority to control Mr. Richardson's driving to and from work."
Kuykendall, 70 Md.App. at 249, 520 A.2d at 1117.
Petitioners marginalize the applicability of Kuykendall, and attempt to bolster their argument by citing to two out-of-state cases in which the courts determined that employers owed a duty to third parties injured by fatigued employees commuting home from work. In Robertson v. LeMaster, 171 W.Va. 607, 301 S.E.2d 563 (1983) the Supreme Court of Appeals of West Virginia reversed a trial court's determination that an employer owed no duty to the general public when its employee caused a traffic accident while commuting home after working for 27 hours. The case, however, is factually distinguishable from the instant case. In Robertson, the employer had knowledge of the employee's fatigue because the employee notified the employer several times that he (the employee) was tired and wanted permission to go home. Further, the employer provided transportation for the employee to his vehicle following his shift, and while en route, "the obviously exhausted [employee] fell asleep with a [lit] cigarette in his hand in the presence of ... [co-]employees." Robertson, 301 S.E.2d at 568; see Berga v. Archway Kitchen & Bath, Inc., 926 S.W.2d 476, 482 (Mo.Ct.App.1996) ("In finding a duty, the [Robertson] court focused on the affirmative acts of requiring the worker to continue, despite the workers' verbal indications of his [fatigue], and driving the employee to his vehicle, despite obvious indications of his [fatigue]....").
The case is also legally distinct because the West Virginia Court identified the issue as being whether "[the employer's] conduct in requiring its employee to work
Petitioners next cite to Faverty v. McDonald's Restaurants of Oregon, Inc., 133 Or.App. 514, 892 P.2d 703 (1995). In that case, Oregon's intermediate appellate court affirmed the trial court's determination that an employer could be liable when its teenaged employee injured a third party while commuting home after working three-shifts within a 24-hour period. The employer asserted that, pursuant to Restatement (Second) of Torts § 315, it had no duty to control the acts of its employee in the absence of a special relationship. There was no special relationship under § 317, the employer argued, because the accident did not occur on the employer's property, nor did it involve the employer's chattel. Faverty, 892 P.2d at 707-08. The Court rejected this argument, noting that even assuming, arguendo, that there was no special relationship under § 317, the employer would not be able to invoke the general rule under § 315. Instead, according to Oregon case law, including its recognition of dram shop liability, the employer would still be "subject to the general duty to avoid conduct that unreasonably creates foreseeable risk of harm" to a third party. See Faverty, 892 P.2d at 708, 710. As explained, supra, this is not the law in Maryland.
As Respondent points out, the Faverty case has been widely criticized and labeled by at least one court as a decision which "stands alone as an aberration in negligence law."
Faverty, 892 P.2d at 715 (Edmonds, J., dissenting).
Several other cases have shared the Faverty dissent's view that an employee's on-the-job fatigue does not change the fact that "there is no traditional concept of negligence liability which imposes the responsibility on an employer to prevent an employee from operating his own car once the employee's work shift is completed." Faverty, 892 P.2d at 715-16 (Edmonds, J., dissenting); see e.g., Pilgrim v. Fortune Drilling Co., Inc., 653 F.2d 982, 985-86 (5th Cir.1981) (holding that, under Texas law, an employer had no duty to prevent employees from driving home "when they are so exhausted from working that their driving would create an unreasonable risk of harm to others," because the employer did not, and could not control the employee "once he had finished his day's work"); Behrens v. Harrah's Ill. Corp., 366 Ill.App.3d 1154, 304 Ill.Dec. 303, 852 N.E.2d 553, 556 (2006) ("An employer should be able to presume that the person in the best position to avoid driving while excessively fatigued, the employee, will either ask for a ride from someone or pull off the roadway and rest if necessary."); Brewster v. Rush-Presbyterian-St. Luke's Medical Ctr., 361 Ill.App.3d 32, 296 Ill.Dec. 884, 836 N.E.2d 635 (2005) (holding that a hospital owed no duty to a plaintiff injured in a car collision by an off-duty resident doctor, exhausted after her 36-hour shift at the hospital, in the absence of a special relationship); Baggett v. Brurnfield, 758 So.2d 332, 338 (La.Ct.App.2000) ("[The employer] did not require that [the employee] work for such an extended period of time, and it had no control over his acts once he exited the plant. To find [the employer] liable ... would result in diluting the principle of individual responsibility to which we adhere in this court and in our state."); Black v. William Insulation Co., 141 P.3d 123 (Wyo.2006) (holding that employer had no duty to a third party killed by an exhausted employee who fell asleep at the wheel).
Thus, from the cases that have considered factual scenarios similar to that presented in the instant case, the clear weight of authority has rejected employer liability for third party injuries caused by an exhausted employee commuting home. We find Nabors Drilling, U.S.A. Inc. v. Escoto, 288 S.W.3d 401 (Tex.2009), to be particularly persuasive. In that case, the Supreme Court of Texas held that an employer was not liable for a third party's injury when a fatigued employee caused an accident during the commute home from work. The court explained, and we agree,
Nabors, 288 S.W.3d at 411-12 (some internal citations omitted); see also Behrens, 304 Ill.Dec. 303, 852 N.E.2d at 556-57 ("[I]ndividual employees are in the best position to determine whether they are sufficiently rested to drive home safely ... [P]lacing this burden on employers would be poor social policy that is likely to have an onerous impact, not only on employers, but also on the workforce."). The court indicated that even if the employer had the requisite knowledge of the employee's impairment, this alone would not be dispositive. Rather, the court said that, "simply knowing that an employee is intoxicated or incapacitated is not enough for a duty to arise. Rather, the employer must affirmatively exercise control over the incapacitated employee." Nabors, 288 S.W.3d at 407 (quotation omitted). Under the facts,
Nabors, 288 S.W.3d at 407 (citations omitted). We consider this logic to be a reasonable application, in the instant case, of
It is clear, in the instant case, that Ports did no more than merely establish the shift work schedule for the unloading of the Saudi Tabuk, and did nothing to affirmatively control whether Richardson drove home in a fatigued state. We adhere to the principles inherent in common-law negligence actions, and decline to find a duty on behalf of an employer to a third party, injured by a commuting employee, based solely on the fact that an employee's fatigue was a foreseeable consequence of the employment. Insofar as Petitioners are maintaining that we should abandon long-standing principles, and use this case to fashion some type of judicially-imposed maximum working hours standard across all industries, we unequivocally decline to do so. Felder, 292 Md. at 183, 438 A.2d at 499 ("[T]he Court has always recognized that declaration of public policy is normally the function of the legislative branch of government." (citation omitted)); Grady v. Unsatisfied Claim & Judgment Fund Bd., 259 Md. 501, 505, 270 A.2d 482, 484 (1970) ("The question of [creating] social policy... is peculiarly appropriate for legislative, not judicial, determination." (quotation omitted)).
In Miller Metal, we held that, appellate deference to a certification is nullified where the trial court fails to articulate the reasoning behind its finding that there is "no just reason for delay" under Md. Rule 2-602(b). Miller Metal, 415 Md. at 227-28, 999 A.2d at 1017. In that situation, the "order only will be a valid exercise of the trial court's discretion if the record clearly demonstrates the existence of any hardship or unfairness sufficient to justify discretionary departure from the usual rule establishing the time for appeal." Miller Metal, 415 Md. at 228, 999 A.2d at 1017 (internal quotations and citations omitted). This appellate determination aims to balance the equitable considerations with the judicial administrative interests implicated by the record. See Miller Metal, 415 Md. at 229-230, 999 A.2d at 1017-18; Ebrahimi v. City of Huntsville Bd. of Educ., 114 F.3d 162, 165-66 (11th Cir.1997). Courts will often find "no just reason for delay" when delaying an appeal will have a significant adverse economic impact on the party seeking certification. Miller Metal, 415 Md. at 229, 999 A.2d at 1017. The factors most apparent in our case law, however, are those judicial administrative considerations weighing against certification. Thus, certification is not proper when "[t]he appellate court may be faced with having the same issues presented to it multiple times ... and partial rulings by the appellate court may do more to confuse than clarify the unresolved issues." Miller Metal, 415 Md. at 229, 999 A.2d at 1017-18 (quoting Smith v. Lead Indus. Ass'n, 386 Md. 12, 25-26, 871 A.2d 545, 553 (2005)).
In the instant case, although the trial judge did not explain the reasoning undergirding his certification, we are satisfied that the record supports the conclusion. The certification properly balanced the equitable considerations with the judicial administrative interests implicated by the record. Specifically, Sgt. Barclay suffered significant personal injury in the collision and incurred substantial medical bills. Considering the limited recovery likely from the Richardson estate, the trial judge may have recognized the financial hardship involved in Petitioners litigating against Richardson prior to an appeal, when meaningful recovery was primarily reliant on the liability of Ports and the STA. Most significantly, however, the risk was low in the instant case that an appellate court would be presented with the same issues in multiple appeals. Cf. Miller, 415 Md. at 230, 999 A.2d at 1018 (noting that, under the circumstances, "the risk [was] great that separate appeals presenting the same issues would arise and therefore certification would be an inefficient use of judicial resources."); see Lead, 386 Md. at 25, 871 A.2d at 553 ("The purpose of Rule 2-602(a) is to prevent piecemeal appeals, which, beyond being inefficient and costly, can create significant delays, hardship, and procedural problems."); Mortimer, 310 Md. at 645-46, 530 A.2d at 1240-41 ("In the context of multiple-claim or multiple-party litigation, or both, the purpose of the rules is to avoid the costs, delays, frustrations, and unnecessary demands on judicial resources occasioned by piecemeal appeals." (citations omitted)). First, it is clear that Richardson's negligence is not genuinely disputed; indeed, both Petitioners in their motion for authorization to file an appeal, and Respondents in their response, averred to the trial court that if summary judgment for the STA and Ports were upheld, Sgt. Barclay and his wife would likely settle with Richardson's estate. Secondly, even if a settlement were not reached, it cannot be said that the pending claim and the appeal "arise from a nexus of fact and law so intertwined that if we decide the one now, we may nonetheless face many of the same questions in determining the other later." See Miller, 415 Md. at 229, 999 A.2d at 1018 (quotation and citation omitted). Despite the fact that the allegations against Richardson and Ports arise from the same incident, an appeal regarding Ports' alleged vicarious and primary liability would not involve the same legal questions presented in an appeal regarding Richardson's negligence, thus a partial ruling on appeal would not confuse the unresolved issues. See Miller, 415 Md. at 229-30, 999 A.2d at 1018.
As to the second question raised in its cross-petition, Respondent concedes that "[t]he Court below properly refrained from interpreting the CBA in reaching its decision on the merits," but nevertheless, asserts that, to the extent Petitioners raise the CBA before this Court, any interpretation of the agreement is preempted by federal law. It is clear to us, however, that Petitioners refer this Court to the maximum-hour provision contained in a previous CBA, not for an interpretation of the terms of the agreement, but rather, in order to demonstrate Ports' prior recognition of fatigue as a safety issue, and its corresponding duty to the public to prevent the foreseeable harm. As the trial and intermediate appellate courts' opinions demonstrate, summary disposition of the negligence claim in this case did not depend on an interpretation of the CBA. Indeed, "as long as the state-law claim can be resolved without interpreting the agreement itself, the claim is `independent' of the agreement." Batson v. Shiflett, 325 Md. 684, 720, 602 A.2d 1191, 1209 (1992) (quoting Lingle v. Norge Division of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 1883, 100 L.Ed.2d 410, 421 (1988)).
Van Devander, 405 F.2d at 1110. Petitioners, in quoting this language from Van Devander, ask us to allow the concept of "extraordinary demand" to "direct the interpretation of the definition of special circumstances in this circumstance of vicarious liability." We decline to do so as the subject of workers' compensation is not before us.
Although the general rule in both workers' compensation and respondeat superior jurisprudence is that an employee is not "on the job" while commuting to or from work, we decline, as we did in Dhanraj, to allow the special mission exception to inform our holding as to the doctrine of respondeat superior under the facts of this case. Dhanraj, 305 Md. at 630-31, 506 A.2d at 227-28. We note the different policy reasons underlying the Workers' Compensation Act and the doctrine of respondeat superior. See Alitalia Linee Aeree Italiane v. Tornillo, 329 Md. 40, 44, 49, 617 A.2d 572, 574, 576 (1993) (noting "special mission" as one of several exceptions engrafted onto the "going and coming rule" of workers' compensation law in order to construe the statute "as liberally in favor of injured employees as its provisions will permit in order to effectuate its benevolent purposes as remedial social legislation." (citations omitted)); Reisinger, 165 Md. at 199, 167 A. at 54 ("There is a tendency of the courts ... to give to such Compensation Acts an interpretation as broad and liberal in favor of the employee as their provisions will permit, in furtherance of the humane purpose which prompted their enactment." (quotation omitted)); Henderson v. AT & T Info. Sys., Inc., 78 Md.App. 126, 139, 552 A.2d 935, 941 (1989) ("To obtain compensation benefits all that an employee need do is establish that his injury was caused by an activity related to his job.... However, respondeat superior mandates that the employee be either under the control of the employer at the time of the injury or that he could have been. Whereas qualifying for workers' compensation benefits requires only that the injury [arise] out of and in the course of employment, recovery under the doctrine of respondeat superior necessitates that the employee be acting in the scope of his employment, a much narrower test." (quotation omitted)); Luth v. Rogers & Babler Constr. Co., 507 P.2d 761, 764 (Alaska 1973) (refusing to apply a workers' compensation exception to the "going and coming rule" in a respondeat superior context, noting that workers' compensation focuses on "relatedness" to one's job, whereas, "[by] contrast, respondeat superior subjects employers to liability for injuries suffered by an indefinite number of third persons. To limit this burden of liability, the narrower concept, "scope of employment," has long been tied to the employer's right to control the employee's activity at the time of his tortious conduct."); Jones v. Blair, 387 N.W.2d 349, 355 (Iowa 1986) (noting that, due to a difference in scope, "[t]he rules adopted for workers' compensation cases should not be automatically and mechanistically applied in negligence cases involving the doctrine of respondeat superior."); Beard v. Brown, 616 P.2d 726, 736 (Wyo.1980) ("To be injured within the course or scope of one's employment in the context of the workers' compensation system is not the same thing as to be in the course or scope of one's employment and cause injury to a third person who is foreign to the employee and the employee relationship....").
Petitioners argue, citing Bussard, that "Richardson's falling asleep and losing control of his vehicle was the natural and foreseeable consequence of the fatigue which manifested while on the job and awake for an extended number of hours." Petitioners' reliance on this case, however, is misplaced. Maryland law does not define "scope of employment" so expansively. See Dhanraj, 305 Md. at 627-28, 506 A.2d at 226; Oaks, 339 Md. at 30-32, 660 A.2d at 426; Henkelmann, 180 Md. at 599, 26 A.2d at 422-23. Further, our intermediate appellate court in Kuykendall v. Top Notch Laminates, Inc., 70 Md.App. 244, 520 A.2d 1115 (1987), specifically rejected a principal rationale undergirding Bussard by holding that an employer could not be held vicariously liable for the off-duty motor tort of an employee who became intoxicated at a work function. Kuykendall, 70 Md.App. at 250, 520 A.2d at 1117 (analyzing the facts in light of Dhanraj and concluding that, "there is nothing in the complaint to indicate that [the employee] while driving home was furthering any business purpose of his employer."). As explained infra, we adopt the reasoning of that case regarding the primary negligence of an employer, however, it is an equally sound application of Maryland's respondeat superior doctrine.
Restatement (Third) of Torts: Liability for Physical Harm § 41(b)(3) (Proposed Final Draft No. 1, 2005). Relying on this section, Petitioners contend that a special relationship existed between Ports and Richardson because "the unreasonably long schedule endured by Richardson at the directive of P&O [Ports] caused Richardson's extreme fatigue, [and] his fatigue not only facilitated the harm to Petitioner — it was the immediate cause of the accident."
We agree with Respondent, that, even if we were to entertain adopting the language of the yet unpublished Restatement (Third), it would not change the conclusion in this case, because the section merely reiterates the requirements of the Restatement (Second) in a more succinct form. This is evidenced by proposed comment e, which states:
Id. at § 41 cmt. e.
As this comment demonstrates, Restatement (Third) merely rephrases the same limitations explained in Restatement (Second), by stating that "employment facilitates harm" to third parties where an employee has access to the property or instrumentalities of the employer. Thus, regardless of the Restatement relied upon, it is clear that for an employer to have a special relationship with an employee and thereby a duty to protect third parties for acts outside the scope of employment, there must be "a real means of control over the employee which, if exercised, would meaningfully reduce the risk of harm." Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840, 852 (Ky.2005) (citation omitted). Neither the Restatement (Second) nor the Restatement (Third) support the theory that on-the-job fatigue is a hazard facilitated by the employment sufficient to create a special relationship.
Barclay, 198 Md.App. at 588, 18 A.3d at 943.
By contrast, the intermediate appellate court noted that, due to his frequent long shifts, Mr. Richardson was charged "with the knowledge that his employment posed a risk to third parties, and the law required him to mitigate that harm, lest he be liable for breaching his duty of general care." Barclay, 198 Md.App. at 588, 18 A.3d at 943. We fail to understand how a person's level of fatigue after work is any more or less perceptible according to the amount of prior notice he or she receives as to shift length. Similarly, we fail to see the connection between this section of the intermediate appellate court's opinion and the presence or absence of a duty on behalf of the employer to the injured third party. Therefore, we disavow this analysis and apply our explanation of the applicable law, supra.
Gene P. Bowen, Note, Wherein Lies the Duty? Determining Employer Liability for the Actions of Fatigued Employees Commuting From Work, 42 Wayne L.Rev. 2091, 2102-03 (1996) (footnotes omitted).