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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : : : : : : : : ...o0o... MEMORANDUM Now pending before the court is a motion for summary judgment filed by defendant Jacobs Facilities, Inc. ("JFI"). Plaintiff Timothy Leppo filed this personal injury suit against JFI and alleges that the company's negligence caused his injuries. The issues in this case have been fully briefed and no hearing is necessary. For the reasons stated below, the defendant's motion for summary judgment will be granted.

TIMOTHY LEPPO v. JACOBS FACILITIES, INC.

Civil Action No. CCB-09-3415

BACKGROUND In October 2005, Mr. Leppo worked for a subcontractor as a drywaller on a construction project ("the Project") at the Fallon Federal Building, located at 31 Hopkins Plaza, Baltimore, Maryland. The General Services Administration ("GSA") undertook the Project and selected JFI as the Construction Manager and Whiting-Turner Contractors ("Whiting-Turner") as the general contractor. As Construction Manager, JFI was responsible for various managerial tasks, such as preventing construction delays, checking compliance with building codes and construction plans, and "monitoring construction contractor compliance with established safety standards." (Def.'s Summ. J. Mot. Ex. A at I-C-10 to I-C-11.) Pursuant to this last responsibility, JFI was to "note and report unsafe working conditions [and] failures to adhere to [the] safety plan required by

construction requirement." (Id. at I-C-11.) Furthermore, JFI's inspectors were required to physically inspect the worksite to monitor safety requirements and "notify the construction contractor orally and in writing when unsafe working conditions are observed." (Id. at I-C-5.) JFI's contract with the GSA also stated: "Nothing in this contract shall be construed to mean that the [Construction Manager] assumes any of the contractual responsibilities or duties of the architects-engineers or the construction contractors. The construction contractors are solely responsible for construction means, methods, sequences and procedures used in the construction of the projects...." (Id. at I-C-4.) On October 31, 2005, Mr. Leppo was working on scaffolding that moved on wheels. Unbeknownst to Mr. Leppo, one of the wheels was situated on top of a hole that been covered with duct tape, but not marked. When the scaffolding moved, the wheel broke through the tape, causing Mr. Leppo to fall from the scaffolding and injure himself. Mr. Leppo filed suit against JFI and EwingCole, Inc., the architect/engineer of the Project, in state court, alleging that both defendants negligently breached their duty of care to maintain the premises safely and to protect Mr. Leppo against injury caused by unreasonable risk. The parties then stipulated to the dismissal of all claims against EwingCole, Inc., and Mr. Leppo filed an amended complaint naming JFI as sole defendant. With EwingCole, Inc. no longer in the case, the remaining parties were completely diverse from each other, and JFI removed the case to federal court, invoking the court's diversity jurisdiction. JFI now moves for summary judgment, arguing that it had no duty to protect Mr. Leppo and, in the alternative, that it did not know, nor should it have known, about the alleged hole in the floor.1

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Mr. Leppo testified that he did not see the hole, and that the floor appeared "flat" and all the same color. (See Def.'s Summ. J. Mot. Ex. C at 69.) 2

ANALYSIS Federal Rule of Civil Procedure 56(c) provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). The Supreme Court has clarified that this does not mean that any factual dispute will defeat the motion. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (emphasis in original). Whether a fact is material depends upon the substantive law. See id. "A party opposing a properly supported motion for summary judgment `may not rest upon the mere allegations or denials of [his] pleadings,' but rather must `set forth specific facts showing that there is a genuine issue for trial.'" Bouchat v. Baltimore Ravens Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003) (alteration in original) (quoting Fed. R. Civ. P. 56(e)). The court must "view the facts and draw reasonable inferences `in the light most favorable to the party opposing the [summary judgment] motion,'" Scott v. Harris, 550 U.S. 372, 378 (2007) (alteration in original) (quoting United States v. Diebold, 369 U.S. 654, 655 (1962)), but the court also must abide by the "affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial." Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993) (internal quotation marks omitted). To prevail on a claim of negligence, a plaintiff must prove: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from
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the defendant's breach of the duty." Muthukumarana v. Montgomery County, 805 A.2d 372, 395 (Md. 2002) (quoting BG & E v. Lane, 656 A.2d 307, 311 (Md. 1995)). JFI argues that Mr. Leppo's claims fail because, although JFI agreed to monitor safety on behalf of the GSA, it did not owe the employees of construction contractors and subcontractors a duty of care. See Brady v. Ralph M. Parsons Co., 609 A.2d 297, 282 (Md. 1992) (noting in dicta that "when parties contract with one another to undertake a duty which neither of them is under a legal obligation to perform, they may have a responsibility to each other for a breach of that agreement, but a previously non-existent tort duty to third persons will not thereby be created"). Mr. Leppo, however, contends that JFI had a duty to note and warn of unsafe conditions. He relies on Restatement (Second) of Torts

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Maryland Law