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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND KENNETH E. CRAWFORD, et al., : Plaintiff v. FIRSTLINE SAFETY MANAGEMENT, INC., Defendant

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CIVIL NO. AMD 99-2290

MEMORANDUM Plaintiff, Kenneth E. Crawford, filed this personal injurynegligence action against defendant Firstline Safety Management, Inc., in the Circuit Court for Baltimore City, Maryland, and it was timely removed on the basis of diversity of citizenship. Pending before me is Firstline's motion for summary judgment as to the remaining count of the complaint. (Plaintiffs voluntarily dismiss the loss of consortium count). No hearing is needed. The motion shall be granted. Crawford's claim arises out of an on-the-job accident. He was operating a loader (a "bobcat") on the sixthfloor of a building in Baltimore that was being renovated by his employer, Stop Corporation, under a contract with the owner. His job was to collect accumulated debris into the front scoop of the bobcat, approach an opening in the wall of the building where once there had been a window, and dump the debris to the ground by tilting the scoop. Crawford contends that in the course of his work on June 24, 1996, he approached the opening in the wall after collecting a load of debris and brought the bobcat to a halt. As he raised the scoop in preparation to dump the debris, the rear wheels of the bobcat came up off the floor and the bobcat tipped forward and fell out of the wall opening, crashing to the ground six floors below. Crawford suffered injuries,

but he was able to resume employment after a period of recuperation. (Defendants have amassed substantial direct and circumstantialevidence that Crawford was contributorily negligent, e.g., that he drove the bobcat at a speed greater than reasonable and thereby caused it to propel out the wall opening, however, the record does not support a resolution of the issue of contributory negligence as a matter of law). The parties dispute whether there was in place in the days leading up to and, specifically, even several hours before, the accident, a "stop log." A stop log is a form of barrier which, when it is in place and operating properly, prevents a vehicle such as the bobcat from proceeding so close to an opening as to create a risk that it will go through the opening. In any event, if the stop log was in place several hours before the accident as defendants' witnesses attest, it had been removed by some unknown person at the time of the accident. Of course, under Maryland's workers' compensation scheme, Crawford has no common law cause of action against his employer, Stop Corporation. Defendant Firstline is in the business of providing safety consulting services to demolition and construction enterprises such as Stop. On June 18, 1996, six days before the accident, Firstline employees had conducted an inspection of Crawford's jobsite on behalf of Stop, apparently pursuant to a proposal for a contract to provide safety consulting services (which contract, in fact, is memorialized in a writing effective as of August 1, 1996). A five page report of the inspection, which included photographs, was prepared and delivered to Stop. The report is silent as to any item regarding the opening through which Crawford and the bobcat fell. Firstline infers from the absence of any entry that there was nothing to comment upon and that all safety concerns surrounding the opening were satisfactorily addressed. Crawford disagrees. In any event, -2-

Crawford contends that Firstline assumed a duty to him (and, presumably, anyone coming onto the jobsite) to conduct an adequate inspection on June 18, 1996, when it undertook the inspection that day in anticipation of entering into the formalcontract withStop Corporation, and that, according to facts assumed by Crawford's expert to be true, it breached that duty. Resolutionof the motionfor summaryjudgment turns, in part, on the issue of whether Firstline owed a duty to plaintiff, which is purely a question of law. Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947, 949 (1999)("Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; b u t , t h e existence of a legal duty is a question of law to be decided by the court .")(emphasis added); Rosenblatt v. Exxon , 335 Md. 58, 76, 642 A.2d 180, 189 (1994)(same). I am persuaded that no such duty was owed. Even assuming that Firstline breached some agreement with Stop in negligently failing to identify a potential hazard in connection with the manner in which the construction debris was being removed from the sixth floor of the building comprising the jobsite, as a matter of law, Firstline breached no tort duty it owed to Crawford. The Maryland Court of Appeals has recently reaffirmed the longstanding Maryland rule that a mere breach of contract does not give rise to an independent duty in tort: . . . As we reiterated earlier this year, . . . "[a] contractual obligation, by itself, does not create a tort duty. Instead, the duty giving rise to a tort action must have some independent basis." See, e.g., Erie Ins. Co. v. Chops, supra , 322 Md. at 84, 585 A.2d at 234 ("a `tort duty' does not necessarily coexist . . . with a duty imposed by contract, or even with a duty imposed by statute"); Jacques v. First Nat'l Bank, supra , 307 Md. at 534, 515 A.2d at 759 ("Nor does a duty assumed or implied in contract by that fact alone become a tort duty"); Wilmington Trust Co. v. Clark , 289 Md. 313, 328-329, 424 A.2d 744, 754 (1981) ("the duty giving rise to the tort cause of action must be independent of the contractual obligation. * * * Mere failure to perform a contractual duty, without more, is not an actionable tort"). -3-

This principle is applicable even when the failure to perform the contract results from the defendant's negligence . . . . Heckrotte v. Riddle , 224 Md. 591, 595-596, 168 A.2d 879, 882 (1961) ("The mere negligent breach of a contract, absent a duty or obligation imposed by law independent of that arising out of the contract itself, is not enough to sustain an action sounding in tort. * * * For it is only when a breach of contract is also a violation of a duty imposed by law that the injured party has a choice of remedies"). Jones v. Hyatt Ins. Agency, Inc., 356 Md. 639, 741 A.2d 1099, 1107 (1999)(some citations omitted; alterations in original). Thus, under Jones , Firstline owed no tort duty to Crawford. Crawford's citation

to Heinrich v. Goodyear Tire & Rubber Co ., 532 F.Supp. 1348, 1354-56 (D.Md. 1982)(denying motion to dismiss complaint seeking damages based on personal injuries, which was filed against corporate parent of subsidiary employing plaintiff, on the ground, in part, that Maryland is likely to adopt the "Good Samaritan" doctrine of Restatement (Second) of Torts

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