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A general contractor for home construction hired a subcontractor to perform trim work on a house, including installation of a guardrail in front of a sliding glass door that would have access to a potential future deck. The subcontractor used finish nails to attach the guardrail. When a subsequent homeowner leaned against the rail, the finish nails pulled out of the trim wood it was nailed into, and the homeowner took a bad fall and suffered serious injury.   In response to the homeowner’s lawsuit, the general contractor argued that it owed no duty to the homeowner because it had delegated the guardrail construction to its subcontractor who was solely responsible.

Although Maryland follows the general rule that the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of that contractor, there are exceptions to that general rule, including (1) negligence in selecting, instructing or supervising the contractor and (2) non-delegable duties of the employer.   The court held found the duty imposed by the building code was binding on the prime contractor and couldn’t be delegated down to the subcontractor. The jury found the contractor liable for negligent supervision and the court rejected the contractor’s argument that it must have actually controlled the subcontractor’s work in order to be held liable for negligent supervision. The “right to control” the subcontractor was sufficient to find liability. Marrick Homes LLC v. Rutkowski, 232 Md.App. 689 (2017).

The courts reasoning was as follows:

“[General contractor] urges us to conclude that a duty imposed by a building code is only nondelegable by the owner or developer, not by a general contractor. In our view, this is an unreasonably narrow reading of Gardenvillage, Whiting-Turner, and the Restatement. To be sure, as the general contractor, Marrick was required to comply with the building code, and it is unassailable that the code provisions alleged to have been violated in this case were intended as safety measures. Pursuant to § 424 of the Restatement (Second) of Torts, “[o]ne who by statute or by administrative regulation is under a duty to provide specified safeguards or precautions for the safety of others is subject to liability to the others for whose protection the duty is imposed for harm caused by the failure of a contractor employed by him to provide such safeguards or precautions.”

In this case, Marrick, the general contractor responsible for the construction of the appellees’ home, bore the statutory duty to provide specified safeguards or precautions. Marrick, therefore, is subject to liability to the appellees for harm caused by the failure of its employee Creative Trim to provide such safeguards.

We observe … considerations “favor[ ] the imposition of at least initial liability upon the person who sits at the top of the pyramid of those who create the improvement.” [citation omitted].considerations, therefore, support a finding of potential liability on the general contractor. Nevertheless, we need not rely on policy considerations because of the express exception outlined in the Restatement applies to the facts of this case.

Accordingly, we hereby adopt § 424 of the Restatement, apply the § 424 exception to general contractors, and hold that Marrick, as general contractor, can be held liable for harm caused by its employee subcontractor when evidence was presented to demonstrate that the subcontractor violated the building code and the provisions of the building code alleged to have been violated were intended as safety measures.”

Lawsuit was not Time Barred – It was Filed within the Statute of Repose Period

The contractor asked the court to dismiss the case because the plaintiff who had purchased the home in question from the original owner waited over 70 days after purchase to make the claim, and brought the suit almost seven years after construction was completed. In rejecting this argument, the court relied upon the ten (10) year statute of repose in Maryland and held that the suit was brought within the period permitted by statute.

Md. Code (2006, 2013 Repl. Vol.), § 5–108(b) of the Courts and Judicial Proceedings Article provides:

“Except as provided by this section, a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use.”

Because the suit was brought within the time permitted by the statute of repose the court found the case was timely.

 

About the author: Article written by J. Kent Holland, Jr., a construction lawyer located in Tysons Corner, Virginia, with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners. He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects. He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932. This article is published in ConstructionRisk.com Report, Vol. 20, No. 1 (Jan 2018). Copyright 2018, ConstructionRisk, LLC