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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND * * * * * * Civil No. JFM 98-1791 * * * * * ***** MEMORANDUM

JAMES DEAN BONDS, et al., Plaintiffs, v. CENTEX CONSTRUCTION COMPANY, INC., et al., Defendants.

On September 19, 1995, James Dean Bonds ("Bonds") was hurt while working at the Northwest Division of the Mass Transit Authority ("MTA"). Bonds was an "A-repairman" assigned to repair and maintain buses. The Northwest Division used a machine called a Dynamometer, which simulated road conditions by running buses in a stationary position. The Dynamometer consisted of two tire rollers, one each on different sides of a pit. From the pit, repairmen such as Bonds could evaluate a bus in its operating condition. On the day in question, Bonds was walking down a staircase into the pit at the beginning of his midnight shift. The pit lights were off. As he descended the stairs, he reached to turn on the light switch to his right. The plate covering the switch was missing, however, and Bonds received an electrical shock. A few hours later, another worker found Bonds laying on the ground. Bonds was taken to the hospital, where he was examined and released the next day. MTA's Northwest Division was constructed in the mid-1980's. Centex Construction Company, Inc. ("Centex") was the general contractor and Dynalectric Inc. ("Dynalectric") was the

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electrical subcontractor. Dynalectric installed the switch plate in question. Bonds and his wife brought suit against Centex and Dynalectric alleging that their negligence caused his injuries. The suit, which was originally filed in state court, was removed to federal court. Discovery has been completed and defendants have moved for summary judgment. I. To prevail on a claim for negligence a plaintiff must prove (1) that the defendant had a duty to protect the plaintiff from harm; (2) that the defendant breached that duty; and (3) that the plaintiff suffered actual loss or injury proximately resulting from the breach. Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 642 A.2d 219, 225 (Md. 1994). Bonds contends that vibration from the Dynamometer loosened two screws in the switch plate, causing the plate to fall off, resulting in his electrocution. He claims that Dynalectric was negligent in two alternative ways for failing to prevent this injury. First, he argues that Dynalectric knew or should have known that the Dynamometer would cause severe vibration on top of the pit, requiring the use of a sturdier switch plate with four screws to prevent the plate from dislodging.1 Second, he argues that even if Dynalectric did not know about the Dynamometer's vibration, Dynalectric was negligent because it installed a switch plate that did not conform to the proper electrical code. Bonds notes that the switch plate Dynalectric installed did not conform to Class I, Division II standards required by the National Electrical Code. According to

I refer only to Dynalectric in resolving this matter. Bonds has not provided any cases or evidence supporting a theory that Centex is liable for "its own negligence in supervising the project." Pls.' Resp. to Defs.' Mot. Summ. J. at 15. Bonds rests on a theory of vicarious liability. Because I conclude that Dynalectric was not negligent, I do not reach the question of whether Centex could be held vicariously liable. 2

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Howard Rutherford, plaintiffs' expert, the Division II switch plate, which was a sturdier model with four screws, might have prevented the accident. (Rutherford Dep. at 78-79, 88). Fatal to Bonds' first theory is the fact that the evidence demonstrates that the harm to Bonds was not foreseeable. Foreseeability is an element of a negligence action affecting both the duty and causation analyses. Atlantic Mut. Ins. Co. v. Kenney, 591 A.2d 507, 514-15 (Md. 1991); Henley v. Prince George's County, 503 A.2d 1333, 1340 (Md. 1986). As part of the duty analysis, foreseeability requires a prospective evaluation of the facts existing at the time of the alleged negligence. Atlantic Mut. Ins., 591 A.2d at 515; Henley, 503 A.2d at 1341. The only testimony bearing on the foreseeability of Bonds' injury comes from Rutherford. He has stated that the possibility of the switch plate falling off from vibration "would be very difficult to foresee . . . unless [Dynalectric] had firsthand knowledge that this particular bay was to have equipment installed that was prone to excessive vibration." (Rutherford Dep. at 89.) It would be foreseeable only if the installing contractor "had experience with [the Dynamometer]." (Rutherford Dep. at 89-90.) Although Bonds has produced change orders indicating that Centex was aware that the MTA was going to use a Dynamometer at the Northwest Facility, see Pls.' Resp. to Defs.' Mot. Summ. J. Ex. 8, there is no evidence demonstrating that Dynalectric (or Centex) had previous experience with the Dynamometer such that it knew that the Dynamometer caused severe vibration. The only evidence pertaining to the vibration of the Dynamometer comes from Joseph Doggendorf, an employee at the Northwest Division, who agreed that the Dynamometer causes "serious vibration" and "makes a lot of noise." Doggendorf Dep. at 35. But Bonds has not produced evidence that Dynalectric possessed, or should have possessed, this

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knowledge.2 Bonds' second theory also fails. The standard established by the electrical code requiring Division II switch plates did not protect against the harm that accrued to Bonds. "`[T]here is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent.'" Moran v. Faberge, 332 A.2d 11, 19 (1975) (citation omitted); Restatement (Second) of Torts

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