Third Party Claim – EMPLOYEE CAN SUE HIS SUPERVISOR

THIRD PARTY CASE.CAN AN EMPLOYEE SUE HIS SUPERVISOR WHO ALSO IS THE SOLE STOCKHOLDER OF HIS EMPLOYER CORPORATION?

Facts:

A third -party case was filed because employer operates as a recreational and team building company. Employer leases the property. The supervisor who is the sole stockholder of employer and his employees construct the obstacles on the leased property including a 600 foot zip line. The zipline procedure was that employee was to be at the end of the zip line to help clients as they safely crossed and to help them land and unhook from the line. The company allegedly had procedures in place where once a person lands safely on the other side, a command of “ready” is yelled across to the employee waiting on the other side. Once the employee lands safely, plants both feet on the ground, disconnects from zip line and unhooks, and finally responds “all Clear”, then the next person can be sent down safely. Supervisor first sent employee over to the other side to assist guide for the 2 clients. Supervisor noticed that employee’s feet were on the ground at the landing area and supervisor yelled “ready”. Supervisor then sent first customer while employee was still attached to the zip line. Employee then lost his traction to the ground and was propelled back up the zip line and collided with the customer.

LAW

In Nicholas Athas v. Robert Lee Hill etal. 54 Md App 283, 458 A2d 859(1983) the Court of Special Appeals of Maryland stated.

We believe that, in the circumstances of this case, whether Athas’ amended declaration alleges a cause of action (third party case) can be determined only upon consideration of the provisions of Maryland’s workmen’s compensation statute.

The Act embodies a comprehensive scheme to withdraw all phases of extra-hazardous employments from private controversy and to provide sure and certain relief for injured workmen, their families and dependents regardless of questions of fault. Continental Cas. Co. v. Mirabile, 52 Md. App. 387, 395, 449 A.2d 1176, cert. denied, 294 Md. 652, (1982). It is designed inter alia to preclude tort actions against an employer.[5] Shining bright and clear from 298*298 the intent of the General Assembly as gleaned from the Preamble to the Act, from the provisions of the Act, and from the cases of the Court of Appeals and this Court interpreting and applying those provisions is the proposition that upon claim and award or payment of compensation by an employer to an employee suffering an injury arising out of and in the course of his employment, no further liability shall inure to the employer. The Preamble to Acts 1914 announces that the relief to injured workmen set out in the Act shall be “to the exclusion of every other remedy, except as otherwise provided in this Act.”

Hutzell v. Boyer, 252 Md. 227, 232, 249 A.2d 449 (1969), states flatly that the Act “excludes an action in tort by an employee against his employer….”(third party case)

Our inquiry now turns to whether Athas is entitled to proceed at law against Pollack, et al., who are his co-employees and his employer’s officers and supervisors, despite that he is precluded from proceeding at law against his employer.(third party case)

Athas could be entitled to proceed at law against Pollack, et al.(third party case) only if so authorized by § 58 of the Act. The section “creates a special statutory remedy, and the rights of all persons affected by the proceedings are, so far as they are applicable, measured and limited by the terms of the statute.”[6] Barrett v. Indemnity Ins. Co., supra, at 259. See Transit Co. v. Harroll, supra, at 176; Johnson v. Miles, 188 Md. 455, 460, 53 A.2d 30 (1947). He would be entitled to proceed (third party case) by virtue of § 58 only if Pollack, et al. were third party tort-feasors in the contemplation of the section. We have seen that Summit, as Athas’ employer, is expressly excluded from being a third party tort-feasor. As we see it, the issue, therefore, does not present a determination of the law of agency but rather a determination of the scope of immunity from liability granted by the Act. The issue is  to whether Pollack, et al. share the immunity of Summit.

The Act “excludes an action in tort by an employee against his employer, but does not exclude tort actions between co-employees.” Hutzell v. Boyer, supra, at 232. It permits an employee, “suffering a compensable injury because of the negligence of a fellow employee, to bring a personal injury action against that co-employee.” Hauch v. Connor, et al. 295 Md. 120, 121, 453 A.2d 1207, 1208 (1983), affirming Connor v. Hauch, 50 Md. App. 217, 237 A.2d 661 (1981). See Leonard v. Sav-A-Stop Services, supra, 289 Md. at 208.(third party case)

A fourth approach deems that a corporate officer or supervisor performs in a dual capacity. He has immunity under the workmen’s compensation law where his negligence is based upon a general nondelegable duty of the employer. To hold him liable something extra is required beyond a breach of duty of general supervision and safety, 304*304 for that duty is owed by the employer, not the employee. This approach has been most frequently expounded by Wisconsin courts. See Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973); Garchek v. Norton Co., 67 Wis.2d 125, 226 N.W.2d 432 (1975); Ortman v. Jensen & Johnson, Inc., 66 Wis.2d 508, 225 N.W.2d 635 (1975); Kruse v. Schieve, 72 Wis.2d 126, 240 N.W.2d 159 (1976); Laffin v. Chemical Supply Co., 77 Wis.2d 353, 253 N.W.2d 51 (1977). Other states have adopted a comparable approach. Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969); Zurich Ins. Co. v. Scofi, 366 So.2d 1193 (Fla. App. 1979); Vaughn v. Jernigan, 144 Ga. App. 745, 242 S.E.2d 482 (1978); Collier v. Wagner Castings Co., 70 Ill. App.3d 233, 26 Ill. Dec. 641, 388 N.E.2d 265 (1979); Kerrigan v. Errett, 256 N.W.2d 394 (Iowa 1977); Dawley v. Thisius, 304 Minn. 453, 231 N.W.2d 555 (1975); Blumhardt v. Hartung, 283 N.W.2d 229 (S.D. 1979); Wilson v. Hasvold, 86 S.D. 286, 194 N.W.2d 251 (1972); Steele v. Eaton, 130 Vt. 1, 285 A.2d 749 (1971). This approach is succinctly expressed in 2 A. Larson, The Law of Workmen’s Compensation, § 72.13 (1982): “[M]ost courts will hold [corporate officers, directors and stockholders as co-employees] immune if the act with which he is charged is an act done in his official capacity as an agent or representative of the corporation. Suit is also barred if the duty allegedly violated was a nondelegable duty of the corporation, such as the duty to provide a safe place to work — as distinguished from the duty of care owed by one employee to another.” Professor Larson includes supervisors and foremen as co-employees. He asserts: “Some states have held … that a supervisor, like a corporate officer, cannot be held liable by a co-employee for breach of a corporate duty, such as that to provide a safe place to work, but can be held only for breach of a personal duty.”[10]

The fourth approach is closely aligned with the “alter ego” concept. “If the defendant so dominates the corporation, perhaps as stockholder, president and manager, that he can honestly be said to be the alter ego of the corporation, this in itself may suffice to bar any action against him.” Larson at § 72.13. See Cunningham v. Heard, 184 Ga. App. 276, 214 S.E.2d 190 (1975); Chambers v. Gibson, 145 Ga. App. 27, 243 S.E.2d 309 (1978) We shall apply the concept expressed in the fourth or “Wisconsin” approach in determining whether Pollack, et al. are subject to or immune from a suit at law by Athas for their negligence in performing the duty of Summit, delegated to them. We believe that the approach developed by the Wisconsin courts is more in accord with the intent of our legislature in enacting the Workmen’s Compensation Law, with the philosophy behind and the specifics of the provisions of that Act, and with the interpretation and application of those provisions by the appellate courts of this State. We are in full agreement with the reasons stated by the court in Gaertner for adopting the “Wisconsin” approach:

And we are especially impressed with Gaertner’s evaluation of the practical aspects:

“Further, we need not avoid consideration of the practical effects of upholding liability of defendants here. Under present day industrial operations, to impose upon executive officers or supervisory personnel personal liability for an accident arising from a condition at a place of employment which a jury may find to be unsafe would almost mandate that the employer provide indemnity to such employees. That would effectively destroy the immunity provisions of the workmen’s compensation law.” Id.

Like reasoning, even more elaborately expressed, is found in the comprehensive dissenting opinion of Summers, J. in Canter v. Koehring, 283 So.2d 716, 728-732 (La. 1973), in which a workmen’s compensation act containing provisions comparable to § 58 in our Act is involved. We adopt the fourth approach.

Summit authorized Pollack, et al. to perform the nondelegable duty owed by it to Athas as its employee, to provide a safe place to work by the employment of competent, peaceful and law-abiding co-employees. Pollack, et al. assumed the discharge of the duty, and, with respect to Hill, failed to carry it out properly. Athas, as a result of the negligence in the hiring of Hill or the retention of him as an employee, suffered an injury arising out of and in the course of his employment. Athas proceeded against Summit for compensation and it was awarded.(third party case)

We apply these facts to the law encompassed by the approach which we endorse. Summit paid for the injury suffered by Athas at the hands of Hill by way of workmen’s compensation. That exclusive remedy satisfied in full 307*307 Summit’s liability to Athas. Whether or not Pollack, et al. were realistically the alter ego of Summit, they acted solely as the representative of their employer in their official capacity with respect to Summit’s nondelegable duty, as distinguished from the general duty of care owed by one employee to another. Therefore, there were no circumstances “creating a legal liability in some person other than the employer to pay damages …” under § 58 of the Act. In relation to the injury suffered by Athas due to the conduct of Hill, Pollack, et al. stood in the shoes of Summit, and were not “some person other than the employer.” In short, they share Summit’s immunity from a suit at law.

That case was appealed to the Maryland Court of Appeals in In Nicholas Athas v. Robert Lee Hill etal 300 Md. 133, 476 A.2d 710(1984). The court of appeals affirmed the Court f Special Appeals but the emphasis in reasoning was different.

“ We are faced with the question of whether Maryland Code (1957, 1979 Repl.Vol., 1983 Cum.Supp.) Article 101, § 58 authorizes an employee to sue a supervisory coemployee for negligently discharging the employer’s duty to provide a safe place to work. We conclude that supervisory coemployees may be subject to liability only for negligently breaching a duty of care which they personally owe to the employee. (third party case) Therefore, we shall affirm the judgment of the Court of Special Appeals in Athas v. Hill, 54 Md. App. 293, 458 A.2d 859 (1983)

In the same action at law, Athas alleged that Jack Pollack,[1] Summit’s president and managing agent; Jerome Hurwitz, Summit’s vice president; and Mitchell Rosenfeld, Summit’s house chairman, were negligent in that each failed to exercise due care in providing Athas with a safe place to work.

This Court has determined that § 58 authorizes an employee to bring a cause of action for damages against a coemployee whose negligence caused plaintiff’s injury. (third party case) In Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969), the Court stated that the Maryland workmen’s compensation law “excludes an action in tort by an employee against his employer, but does not exclude tort actions between co-employees.” 252 Md. at 232, 249 A.2d at 452.

Since the decision in Hutzell, this Court has recognized in two cases that negligent coemployees are subject to actions at law for damages. (third party case) In Leonard v. Sav-A-Stop Services, 289 Md. 204, 424 A.2d 336 (1981), we stated, “The Maryland Workmen’s Compensation Act does not give immunity to a worker against claims for damages based on injury or death tortiously caused to a co-worker in the course of their employment.” 289 Md. at 206, 424 A.2d at 337. Similarly, in Hauch v. Connor, 295 Md. 120, 453 A.2d 1207 (1983), we noted that the rationale for precluding tort suits between employers and employees was not applicable to suits between coemployees. 295 Md. at 128, 453 A.2d at 1211-12. In Hauch we held that Maryland residents, who were injured in an automobile accident in Delaware while furthering the employer’s business (Maryland was the regular place of employment), could maintain a cause of action in Maryland against the negligent coemployee even though they had previously received benefits under the Maryland workmen’s compensation law. 295 Md. at 133-34, 453 A.2d at 1214.

The Maryland workmen’s compensation statute was enacted in 1914. This Court has held consistently that the Act provides the employee or his dependents with an exclusive right for recovery as against the employer. See, e.g., Hauch, 295 Md. at 127, 453 A.2d at 1211; Wood v. Aetna Cas. & Sur. Co., 260 Md. 651, 660-61, 273 A.2d 125, 131 (1971); American Rad. Corp. v. Mark Co., 230 Md. 584, 590, 187 A.2d 864, 867 (1963); Barrett v. Indemnity Ins. Co., 152 Md. 253, 259, 136 A. 542, 544 (1927); Hagerstown v. Schreiner, 135 Md. 650, 653, 109 A. 464, 465 (1920). “There is no doubt that the Workmen’s Compensation Act substituted for the common law liability of an employer for negligence, subject to the corresponding common law defenses, an absolute, but limited, liability regardless of fault, and made that liability exclusive, in the case of a conforming employer.” Baltimore Transit Co. v. State, 183 Md. 674, 677, 39 A.2d 858, 859 (1944). Accord Cox v. Sandler’s, Inc., 209 Md. 193, 198-99, 120 A.2d 674, 677 (1956).

No Maryland case has confronted the issue raised in this case: whether supervisory employees or corporate officers may be held liable for negligently performing a duty which the employer owes to his employee where the employer conforms to the Workmen’s Compensation Act.

It is stated in 2A A. Larson, The Law of Workmen’s Compensation § 72.11, at 14-54 to 14-55 & n. 131 (1983), that as of 1983, only eleven states, including Maryland, extended immunity from liability for negligence to the employer alone and thus permitted suit against coemployees. It is interesting to note that, as Larson puts it, “A strong tide toward coemployee immunity has been running. As recently as 1974, a majority of states permitted suits against coemployees.” Id. at 14-55 n. 13.1.[4]Several of the courts which have determined that coemployees are subject to tort liability have extended this rationale to corporate officers and supervisory employees. Larson states that, “The clearest case for such liability is that in which the corporate officer is acting in his capacity as an employee — even a managerial employee — and in which the conduct involved is merely the kind of negligence or other misconduct that would normally make any coemployee liable.” Id. § 72.13, at 14-64 (footnote omitted). Other cases turn on “the extent to which the defendant is in effect the alter ego of the corporation, or is at least acting as an agent or representative of the corporation, or being charged with violation of duties that are not his personal duties, but the nondelegable duties of the corporation.” Id. at 14-65. Further, Larson notes that, “Suit is also barred if the duty allegedly violated was a nondelegable duty of the corporation, such as the duty to provide a safe place to work — as distinguished from the duty of care owed by one employee to another.” Id. at 14-65 to 14-69 (citations omitted).

Before a statutory amendment in 1974 precluded an employee from bringing a negligence action against a coemployee for injury sustained in the course of employment, the courts of Georgia had held that coemployees could be subject to common law liability if they were not acting as the alter ego of the corporation. In other words, “where it is conclusively shown that an executive of a corporation acts in his representative capacity as the alter ego of the corporation an employee injured in the course of his employment may not recover workmen’s compensation benefits and then sue the executive of the corporation in tort….” Chambers v. Gibson, 145 Ga. App. 27, 28, 243 S.E.2d 309 (1978). Liability would attach only in cases where “there was active, direct, individual action by the employer’s officer specifically directed toward the employee.” Cunningham v. Heard, 134 Ga. App. 276, 277, 214 S.E.2d 190 (1975).

Several out-of-state courts have adopted what the Court of Special Appeals termed the “Wisconsin approach.” A significant number of these decisions, including those of the Supreme Court of Wisconsin, have been superseded by legislative amendments to the workmen’s compensation statutes. Nevertheless, the reasoning of these courts is instructive. Under the Wisconsin approach, a corporate officer or supervisory coemployee is subject to liability for negligence if he breaches a duty of care which he personally owed to the plaintiff. (third party case) The negligence must have been directed toward the particular plaintiff and the tortious act must have been outside the scope of the employer’s responsibility. The coemployee is not liable merely for breaching a duty that the employer owed the injured employee.

As the Supreme Court of Wisconsin stated, “Liability of a corporate officer in a third-party action must derive from acts done by such officer in the capacity of a coemployee, and may not be predicated upon acts done by such officer in his capacity as corporate officer(third party case) .” Kruse v. Schieve, 61 Wis.2d 421, 426, 213 N.W.2d 64 (1973) (Kruse I). The rationale of this view “is that worker’s compensation is the exclusive remedy against an employer, and if there is a failure of an officer or employee to perform a duty owed to the employer, the employee’s recourse is solely against the employer. When an officer or supervisor fails to perform the employer’s duty, the failure is that of the employer, not the officer or supervisor.” Laffin v. Chemical Supply Co., 77 Wis.2d 353, 358, 253 N.W.2d 51 (1977) (footnote omitted). Accord Crawford v. Dickman, 72 Wis.2d 151, 152-53, 240 N.W.2d 165 (1976). The court in Laffin further stated:

“The duty of the officer to supervise an employee is the duty owed to the employer, not to a fellow employee. This duty is exercised in the normal course of the officer or supervisor’s activities. It is when the officer or supervisor doffs the cap of officer or supervisor and dons the cap of a coemployee that he may be personally liable for injuries caused. If the officer or supervisor is to be personally liable it is because of some affirmative act of the officer or supervisor which increased the risk of injury to the employee. If a corporate officer or supervisor engages in this affirmative act, he owes the involved employee a duty to exercise ordinary care under the circumstances. This duty is over and beyond the duty of proper supervision owed to the employer. It is the duty one employee owes another. The purpose of allowing third party actions in addition to worker’s compensation was to retain `the traditional fault concept of placing responsibility for damages sustained upon the culpable party.’ If an officer or supervisor breaches a personal duty, it does not offend the policy of the Worker’s Compensation Act to permit recovery from the officer or supervisor.” 77 Wis.2d at 359 (footnotes omitted).(third party case)

Accord Kranig v. Richer, 98 Wis.2d 438, 442, 297 N.W.2d 26 (1980); Lupovici v. Hunzinger Constr. Co., 79 Wis.2d 491, 498, 255 N.W.2d 590 (1977); Kruse v. Schieve, 72 Wis.2d 126, 128, 240 N.W.2d 159 (1976) (Kruse II); Garchek v. Norton Co., 67 Wis.2d 125, 128-29, 226 N.W.2d 432 (1975); Ortman v. Jensen & Johnson, Inc., 66 Wis.2d 508, 514, 225 N.W.2d 635 (1975).

In order for an injured employee to succeed in his cause of action against the corporate officer or supervisory coemployee, he had to allege that the coemployee “increases the risk of injury to the employee, that is he breaches his duty of exercising ordinary care in respect to the injured party.” Lupovici, 79 Wis.2d at 495, 255 N.W.2d 590. Accord Crawford, 72 Wis.2d at 153, 240 N.W.2d 165. Therefore, the coemployee was not liable for breaching: the nondelegable duty of the employer to furnish a safe place of employment, see, e.g., Crawford, 72 Wis.2d at 154, 240 N.W.2d 165; Garchek, 67 Wis.2d at 129, 226 N.W.2d 432; Ortman, 66 Wis.2d at 514-15, 225 N.W.2d 635; Kruse I, 61 Wis.2d at 427-28, 213 N.W.2d 64; the employer’s duty to furnish proper tools or machinery, see Kranig, 98 Wis.2d at 442, 297 N.W.2d 26; or the employer’s nondelegable duty to control his employees, see Crawford, 72 Wis.2d at 154, 240 N.W.2d 165.(third party case)

Kruse I, 61 Wis.2d 421, 213 N.W.2d 64, is instructive:

“The duty of proper supervision is a duty owed by a corporate officer or supervisory employee to the employer, not to a fellow employee. Under what circumstances can a duty be owed to a fellow employee additional to and different from the duty of proper supervision that is owed to the employer by a corporate officer or supervisory employee? Clearly something extra is needed over and beyond the duty owed the employer. In Hoeverman [v. Feldman, 220 Wis. 557, 265 N.W. 580 (1936)], that added element was provided by the company president directing a particular employee to operate a particular machine in a particular manner. In Wasley [v. Kosmatka, 50 Wis.2d 738, 184 N.W.2d 821 (1971)], that additional factor was provided by the corporate officeractually driving the truck which caused the fatal injury. In both cases we deal not with any general duty or responsibility owed the employer but an affirmative act which increased the risk of injury. In both cases the officer’s or supervisory employee’s affirmative act of negligence went beyond the scope of the duty of the employer, which is nondelegable, to `provide his employees with a safe place to work, i.e., safe conditions.’ If the corporate officer, in Hoeverman, had not personally directed the particular operation to be done in a particular manner, there would have been no basis for holding that he had become a coemployee and owed a common-law duty to a fellow employee under the circumstances. If the corporate officer, in Wasley, had not driven the truck that caused the injury, there would have been in that case no factual basis for finding him to have the status and duty of a fellow employee. If the company president and supervisory employee, in Pitrowski [v. Taylor, 55 Wis.2d 615, 201 N.W.2d 52 (1972)], had not been directly engaged in the truck loading that caused the injury, we see in that record no basis for holding either to have been coemployees with a common-law duty owed to the worker injured.” 61 Wis.2d at 428-29, 213 N.W.2d 64.(third party case)

Courts in other jurisdictions have adopted reasoning similar to that of the Wisconsin Supreme Court. For example, in Canter v. Koehring Co., 283 So.2d 716 (La. 1973) (superseded by statutory amendment), the Louisiana Supreme Court delineated various principles for determining when an officer, agent, or employee should be held individually liable to the injured plaintiff. The rules are as follows:

“1. The principal or employer owes a duty of care to the third person (which in this sense includes a co-employee), breach of which has caused the damage for which recovery is sought.

“2. This duty is delegated by the principal or employer to the defendant.

“3. The defendant officer, agent, or employee has breached this duty through personal (as contrasted with technical or vicarious) fault. The breach occurs when the defendant has failed to discharge the obligation with the degree of care required by ordinary prudence under the same or similar circumstances — whether such failure be due to malfeasance, misfeasance, or nonfeasance, including when the failure results from not acting upon actual knowledge of the risk to others as well as from a lack of ordinary care in discovering and avoiding such risk of harm which has resulted from the breach of the duty.

“4. With regard to the personal (as contrasted with technical or vicarious) fault, personal liability cannot be imposed upon the officer, agent, or employee simply because of his general administrative responsibility for performance of some function of the employment. He must have a personal duty towards the injured plaintiff, breach of which specifically has caused the plaintiff’s damages. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate or subordinates, he is not himself personally at fault and liable for the negligent performance of this responsibility unless he personally knows or personally should know of its non-performance or mal-performance and has nevertheless failed to cure the risk of harm.” 283 So.2d at 721 (footnote omitted).(third party case)

We find the “Wisconsin” reasoning persuasive and thus base our decision on such an interpretation as well as the logic of Maryland law.

We conclude that the supervisory coemployees in this case are not amenable to Athas’ suit in tort even though the law of this State does permit one employee to sue a fellow employee for negligence. This principle derives from judicial construction of § 58 and relies on the fact that the General Assembly has failed to immunize coemployees from suit during the seventy years that the workmen’s compensation statute has been in force. Logically, the term “coemployees” includes supervisors and corporate officers as well as fellow employees with similar rank.

Nevertheless, the duties to provide a safe place to work and to retain competent, nonviolent employees have always rested on the employer. Nothing in Maryland statutory law indicates a change from this principle; indeed, Art. 89, § 32 reaffirms its validity. Under Maryland law the employer owes his employees a nondelegable duty to provide a safe place to work and, thus, the employer cannot escape liability for breach of this duty. Therefore, a supervisory coemployee who performs the nondelegable duty of the employer does not thereby assume a personal duty toward his fellow employees. The decisions in Jarka Co. v. Gancl, 149 Md. 425, 131 A. 754 (1926), and Wood v. Abell, 268 Md. 214, 300 A.2d 665 (1973), established that at common law the ultimate responsibility of performing nondelegable duties remains with the employer notwithstanding the fact that an employee has been charged with carrying them out. Thus, under the workmen’s compensation scheme as well as under the common law, the supervisory employee should not be held liable for breaching a duty such as providing a safe place to work. ( alter ego)On the other hand, if a supervisory employee commits an affirmative, direct act of negligence toward an employee, and therefore negligently breaches a personal duty of care which is reasonably owed by him to the fellow employee, then he would not be immunized from liability. In that circumstance, he would be a third party within the meaning of § 58.( not alter ego)(third party case)

In this case, Pollack, Hurwitz, and Rosenfeld were supervisory coemployees as well as corporate officers. As such, they were responsible for discharging Summit’s duty to provide Athas with a safe place to work and to retain only competent, nonviolent employees. In undertaking such managerial and personnel functions, the officers assumed an obligation to the employer only. Corporations perform their acts only through agents. The acts of the corporate officers and agents here cannot be separated from that of the corporation. As previously stated, these supervisory employees cannot be held liable for negligently performing the employer’s nondelegable duties.(third party case)

Moreover, the defendants did not commit any affirmative, direct act of negligence toward Athas. This Court held in Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978), that a person who hires employees to deal with the public is required to make reasonable inquiries or have an otherwise sufficient basis for reliance on the employee’s capability. Beyond this obligation, there is no need to inquire about a criminal record. 284 Md. at 166-67, 395 A.2d at 484. In this case, Hill was not hired to deal with the public. Assuming a similar rationale applies, however, it is apparent that Summit’s officers did not breach a duty of care personally owed to Athas in hiring Hill. They had no reason to know of, and were not required to inquire into, Hill’s prior criminal record. Further, if indeed the officers knew of Hill’s involvement in altercations while employed at the club and did nothing about this behavior, then they merely breached the duty of providing a safe place to work which Summit owed to Athas. Therefore, for the reasons stated in this opinion, we affirm the judgment of the Court of Special Appeals.

In Hayes v. Pratchett, 205 Md.App. 459 (2012) 45 A.3d 861, Tire center employee, who was involved in an automobile accident in employer’s parking lot, in which employee’s car collided with a customer’s car being driven by employee’s supervisor, filed negligence action against supervisor. the Court of Special Appeals of Maryland held, Tire center employee, who was involved in an automobile accident in employer’s parking lot, in which employee’s car collided with a customer’s car being driven by employee’s supervisor, filed negligence action against supervisor.(third party case)

This immunity from suit can extend to supervisory coemployees when the supervisor is performing a nondelegable duty of the employer: [A] supervisory coemployee performing a nondelegable duty of the employer—such as providing a safe place to work—does not thereby assume a personal duty toward his or her fellow employees. [Athas v. Hill, 300 Md. 133, 148, 476 A.2d 710 (1984) ]. Such an employee is entitled to the benefit of the employer’s immunity, even though he or she negligently performed the employer’s duty. [ 5 ] Hastings, 336 Md. at 673, 650 A.2d 274. Kruse v. Schieve, 61 Wis.2d 421, 213 N.W.2d 64 (1973), 6 which the Athas and Hastings Courts cited, is instructive: **867 *468 “The duty of proper supervision is a duty owed by a corporate officer or supervisory employee to the employer, not to a fellow employee. Under what circumstances can a duty be owed to a fellow employee additional to and different from the duty of proper supervision that is owed to the employer by a corporate officer or supervisory employee? Clearly something extra is needed over and beyond the duty owed the employer. In Hoeverman [v. Feldman, 220 Wis. 557, 265 N.W. 580 (1936) ], that added element was provided by the company president directing a particular employee to operate a particular machine in a particular manner. In Wasley [v. Kosmatka, 50 Wis.2d 738, 184 N.W.2d 821 (1971) ], that additional factor was provided by the corporate officer actually driving the truck which caused the fatal injury. In both cases we deal not with any general duty or responsibility owed the employer but an affirmative act which increased the risk of injury. In both cases the officer’s or supervisory employee’s affirmative act of negligence went beyond the scope of the duty of the employer, which is nondelegable to ‘provide his employees with a safe place to work, i.e., safe conditions.’ If the corporate officer, in Hoeverman, had not personally directed the particular operation to be done in a particular manner, there would have been no basis for holding that he had become a coemployee and owed a common-law duty to a fellow employee under the circumstances. If the corporate officer, in Wasley, had not driven the truck that caused the injury, there would have been in that case no factual basis for finding him to have the status and duty of a fellow employee. If the company president and supervisory employee, in Pitrowski [v. Taylor, 55 Wis.2d 615, 201 N.W.2d 52 (1972) ], had not been directly engaged in the truck loading that *469 caused the injury, we see in that record no basis for holding either to have been coemployees with a common-law duty owned to the worker injured.” Athas, 300 Md. at 145–46, 476 A.2d 710 (quoting Kruse, 213 N.W.2d at 67–68). In Athas, the Court of Appeals thoroughly discussed the liability of a supervisory coemployee under the Workers’ Compensation Statute. There, Athas, a restaurant employee at a country club, was attacked with a knife by a coemployee. Athas, 300 Md. at 134, 476 A.2d 710. Athas sued the supervisors at the country club asserting that they negligently discharged their duty to provide a safe place to work by hiring Athas’s attacker despite knowing of the attacker’s violent disposition. Id. at 135, 476 A.2d 710. The Court of Appeals held that the Workers’ Compensation Statute prevented Athas from recovering from the supervisors because the supervisors were performing the nondelegable duty of their employer to provide a safe place to work. Id. at 149, 476 A.2d 710. In reaching this conclusion, the Court stated as follows: Under Maryland law the employer owes his employees a nondelegable duty to provide a safe place to work and, thus, the employer cannot escape liability for breach of this duty. Therefore, a supervisory coemployee who performs the nondelegable duty of the employer does not thereby assume a personal duty toward his fellow employees. The decisions in Jarka Co. v. Gancl, 149 Md. 425, 131 A. 754 (1926), and Wood v. Abell, 268 Md. 214, 300 A.2d 665 (1973), established that at common law the ultimate responsibility of performing nondelegable duties remains with the employer notwithstanding **868 the fact that an employee has been charged with carrying them out. Thus, under the workmens’ compensation scheme as well as under the common law, the supervisory employee should not be held liable for breaching a duty such as providing a safe place to work. On the other hand, if a supervisory employee commits an affirmative, direct act of negligence toward an employee, and therefore negligently breaches a personal duty of care which is reasonably owed by him to the fellow employee, then he would not be *470 immunized from liability. In that circumstance, he would be a third party within the meaning of [Md.Code, (1985), Maryland Workmen’s Compensation Act, Article 101, § 58.] [ 7 ] Id. at 148–49, 476 A.2d 710. Thus, the Court in Athas recognized the established rule that § 58 allows an employee to sue a coemployee whose negligence caused an injury. The Court concluded that in performing managerial and personnel functions, such as providing Athas a safe place to work and retaining only non-violent employees, the supervisors discharged only a nondelegable duty of the country club, their employer, and had no duty to Athas. Id. at 149, 476 A.2d 710. Nor did the Court find evidence that the supervisors committed any direct act of negligence by failing to reveal or inquire into the chef’s criminal record. Id. The Court, therefore, found no duty of care owed by the supervisor to Athas. Hayes v. Pratchett, 205 Md.App. 459 (2012) 45 A.3d 861 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 6 In reaching this conclusion, the Athas Court adopted the “Wisconsin approach” 8 regarding the liability of a supervisory coemployee, which it described as follows: Under the Wisconsin approach, a corporate officer or supervisory coemployee is subject to liability for negligence if he breaches a duty of care which he personally owed to the plaintiff. The negligence must have been directed toward the particular plaintiff and the tortious act must have been outside the scope of the employer’s responsibility. The coemployee is not liable merely for breaching a duty that the employer owed the injured employee. *471 As the Supreme Court of Wisconsin stated, “Liability of a corporate officer in a third party action must derive from acts done by such officer in the capacity of a coemployee, and may not be predicated upon acts done by such officer in his capacity as corporate officer.” Kruse v. Schieve, 61 Wis.2d 421, 426, 213 N.W.2d 64 (1973) (Kruse I ). The rationale of this view “is that worker’s compensation is the exclusive remedy against an employer, and if there is a failure of an officer or employee to perform a duty owed to the employer, the employee’s recourse is solely against the employer. When an officer or supervisor fails to perform the employer’s duty, the failure is that of the employer, not the officer or supervisor.” [ 9 ] **869 300 Md. at 143–44, 476 A.2d 710 (citations omitted). The Athas Court further illustrated the Wisconsin approach by making reference to the decision of the Supreme Court of Louisiana in Canter v. Koehring Co., 283 So.2d 716 (La.1973). 10 There, the Court delineated several principles for determining when an officer, agent, or employee should be held individually liable to the injured coemployee. The Canter Court concluded that an officer, agent, or employee could be held individually liable to an injured coemployee where the officer, agent, or employee has breached a duty delegated to him or her by the employer through personal fault. Id. at 721. However, the Court immediately clarified that: personal liability cannot be imposed upon the … employee simply because of his general administrative responsibility for the performance of some function of the employ *472 ment…. If the defendant’s general responsibility has been delegated with due care to some responsible subordinate … he is not himself personally at fault … unless he … knows or … should know of its non-performance or mal-performance and has nonetheless failed to cure the risk of harm. Id. Thus, the Athas Court concluded that “[t]he duty of proper supervision is a duty owed by a corporate officer or supervisory employee to the employer, not to a fellow employee.” 300 Md. at 147, 476 A.2d 710 (citation omitted). Therefore, a supervisory coemployee is not liable for injuries to a covered employee when the supervisor is delegating work assignments or supervising others in the performance of these assignments because such conduct is an aspect of the employer’s nondelegable duty to provide a safe place to work. [3] The Court of Appeals later stated: Athas … makes clear that a supervisor’s negligence in the performance of his or her supervisory duties is not enough to subject him or her to personal liability. Only if the supervisor directs a negligent act toward a particular fellow employee will the supervisor be held personally liable. Thus, in order for a supervisory coemployee to avoid liability under the Act, at the time of the accident, the supervisor must be: (1) performing a nondelegable duty of the employer; and (2) acting within the course of his or her employment. Hastings, 336 Md. at 676, 650 A.2d 274. With regard to the first prong, 11 the Court **870 of Appeals defined a nondelegable *473 duty as “a duty which the employer is ‘primarily and absolutely obliged’ to perform properly.” Id. (quoting Wood v. Abell, 268 Md. 214, 238–39, 300 A.2d 665 (1973)). “In other words, the employer remains liable with respect to the duty, regardless of the acts or omissions of the person entrusted to perform it.” Id. (citations omitted). Under the Statute, “an employer has the nondelegable duty to provide each employee of the employer with employment and a place of employment that are (1) safe and healthful; and (2) free from each recognized hazard that is causing or likely to cause Hayes v. Pratchett, 205 Md.App. 459 (2012) 45 A.3d 861 © 2017 Thomson Reuters. No claim to original U.S. Government Works. 7 death or serious physical harm to the employee.” Id. at 676–77. Additionally, the Court stated that “ ‘routine work assignments and supervision are aspects of the nondelegable duty of providing employees a safe place to work.’ ” Id. at 677 (quoting Ramey v. Martin–Baker Aircraft Co. Ltd., 874 F.2d 946, 952 (4th Cir.1989)). [4] Under the Workers’ Compensation Statute, as well as the common law, the supervisory employee will not be held liable for breaching a duty such as providing a safe place to work. Athas, 300 Md. at 149, 476 A.2d 710. “On the other hand, if a supervisory employee commits an affirmative, direct act of negligence towards an employee, and therefore negligently breaches a personal duty of care which is reasonably owed by him to the fellow employee, then he would not be immune from liability.” Id. [5] In this case, the essence of Hayes’s argument is that Pratchett was not performing the nondelegable duty of his employer to provide a safe place to work because he was not acting in a supervisory capacity when moving the customer’s car. Rather, Hayes asserts that because Pratchett moved the car himself, he was acting in his capacity as a coemployee, and he owed Hayes a personal duty to exercise due care when *474 operating a motor vehicle.

 Argument

The Plaintiff, alleges that the Defendant(s) supervisor had a duty to make sure employee had all of his safety equipment on including a helmet, supervisor had a duty to visually see and then confirm with the employee that the plaintiff after having completed his ride on the zip line, landed on the opposite side with two feet, had good footing. Employer had a duty to make sure employee had prepared himself to catch the next person sent down the zip line. Supervisor had a duty to make sure employee had detached and unhooked himself from the zip line. Supervisor had a duty to make sure employee had in fact turned around to face in the direction of the oncoming rider and readied himself for the next person. Supervisor had a duty to communicate with the plaintiff to see if he was “ready” in a method so that the employee could hear. Supervisor had a duty to wait until the employee actually responded in a precise verbal confirmation of  “all Clear” or other method of communicating that he was ready for the next person. Supervisor had a duty to verify visually and have a clear unobstructed view that plaintiff in fact appeared ready,

The facts here are similar to  Hayes v. Pratchett, 205 Md.App. 459 (2012) 45 A.3d 861 ” Under what circumstances can a duty be owed to a fellow employee additional to and different from the duty of proper supervision that is owed to the employer by a corporate officer or supervisory employee? Clearly something extra is needed over and beyond the duty owed the employer. In Hoeverman [v. Feldman, 220 Wis. 557, 265 N.W. 580 (1936) ], that added element was provided by the company president directing a particular employee to operate a particular machine in a particular manner. In Wasley [v. Kosmatka, 50 Wis.2d 738, 184 N.W.2d 821 (1971) ], that additional factor was provided by the corporate officer actually driving the truck which caused the fatal injury. (third party case) In both cases we deal not with Hayes v. Pratchett, 205 Md.App. 459 (2012) 45 A.3d 861… In both cases we deal not with any general duty or responsibility owed the employer but an affirmative act which increased the risk of injury. In both cases the officer’s or supervisory employee’s affirmative act of negligence went beyond the scope of the duty of the employer, which is nondelegable to ‘provide his employees with a safe place to work, i.e., safe conditions.’ If the corporate officer, in Hoeverman, had not personally directed the particular operation to be done in a particular manner, there would have been no basis for holding that he had become a coemployee and owed a common-law duty to a fellow employee under the circumstances. If the corporate officer, in Wasley, had not driven the truck that caused the injury, there would have been in that case no factual basis for finding him to have the status and duty of a fellow employee. If the company president and supervisory employee, in Pitrowski [v. Taylor, 55 Wis.2d 615, 201 N.W.2d 52 (1972) ], had not been directly engaged in the truck loading that *469 caused the injury, we see in that record no basis for holding either to have been coemployees with a common-law duty owned to the worker injured.” Hayes v. Pratchett, 205 Md.App. 459 (2012) 45 A.3d 861(third party case)

Defendants did commit an affirmative, direct act of negligence toward the plaintiff and therefore he is personally liable even as a supervisor and as a stock holder because of his personal actions and inactions.



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