Wajer v. Baltimore Gas & Electric Co.

850 A.2d 394, 157 Md. App. 228, 2004 Md. App. LEXIS 92
CourtCourt of Special Appeals of Maryland
DecidedJune 4, 2004
Docket697, Sept. Term, 2003
StatusPublished
Cited by8 cases

This text of 850 A.2d 394 (Wajer v. Baltimore Gas & Electric Co.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wajer v. Baltimore Gas & Electric Co., 850 A.2d 394, 157 Md. App. 228, 2004 Md. App. LEXIS 92 (Md. Ct. App. 2004).

Opinion

DAVIS, Judge.

On July 25, 2001, appellants 1 Anthony A. Wajer and Frances Wajer filed a complaint in the Circuit Court for Baltimore City against appellee Baltimore Gas and Electric Company (BGE) and twenty-nine other defendants, seeking damages for loss of consortium and injuries associated with appellant’s alleged contraction of mesothelioma, a form of cancer linked to asbestos exposure. Appellants brought their action under the theories of negligence, strict liability, and premises liability— with BGE identified as the property owner where appellant allegedly sustained his injuries. On April 7, 2003, appellee filed a motion for summary judgment, arguing that it was a premises owner and that it did not owe a duty to appellant because he was the employee of an independent contractor when the alleged injuries occurred. Appellee’s motion for summary judgment was granted on May 16, 2003.

Appellants filed their timely notice of appeal on May 29, 2003, presenting six questions for our review, which we reorder and rephrase as follows:

I. Did the trial court err by granting summary judgment with regard to appellants’ claim under § 414 of the Restatement (Second) of Torts?
II. Did the trial court err by granting summary judgment regarding appellants’ claim under § 343?
*232 III. Did the trial court err by granting summary judgment concerning appellants’ claim under § 410?
IV. Did the trial court err by granting summary judgment regarding appellants’ claim under § 413?
V. Did the trial court err by granting summary judgment in regard to appellants’ claims under §§ 416-429?
VT. Did the trial court err by granting summary judgment on the basis that appellant was not within the class of persons protected by Chapter 15 of the Restatement (Second) of Torts?

We answer questions I and II in the negative and do not reach questions III, IV, V, and VI because they are not preserved for our review. 2 Therefore, we affirm the judgment of the circuit court.

FACTUAL BACKGROUND

Appellant is a seventy-nine-year-old retired general electrician whose career lasted for approximately forty-five years. In the course of his profession, he worked for an assortment of employers and performed electrical services at an extensive list of job sites. Although appellant was never directly employed by appellee, he did work as an electrician for various independent contractors during construction projects at three of appellee’s power plants: the Westport Power Plant (West-port), the Crane/Carroll Island Power Plant (Crane), and the Calvert Cliffs Nuclear Power Plant (Calvert Cliffs). Appellant alleges that, while he was working on appellee’s property, he was exposed to asbestos inhalation and subsequently developed non-malignant pleural changes, asbestosis, and mesothelioma. He does not assert that he directly handled asbestos products, but, instead, contends that his exposure occurred *233 while working in proximity to other contractors who were installing asbestos insulation or products.

From approximately 1947 to 1951, appellant was employed as an electrician by H.P. Foley Company (Foley). In 1948, appellee contracted with the Arundel Corporation (Arundel) to construct an additional generator at the Westport power plant. Arundel, acting as the general contractor, subcontracted with Foley to perform electrical work for the new generator construction. As a result, appellant was assigned by Foley to work at Westport for three or four months sometime in or about 1948. During that time, appellant claims he was exposed to insulation products containing asbestos, which were being installed by piping tradesmen working in the same vicinity at the Westport plant. The piping tradesmen were employed by W.K. Mitchell & Company, Inc. (Mitchell), which was the subcontractor employed to install a piping system for the generator.

Appellant’s work at Westport was supervised, in part, by a BGE employee referred to as Mr. Sweeney. According to appellants, Sweeney was the electrical superintendent and he would instruct the general foreman on what electrical work to perform. The general foreman instructed appellant’s foreman, who then instructed appellant on what should be done. Appellant also described Sweeney as the “[sjafety man” and stated that Sweeney “had the authority to stop anybody who was doing the job unsafe.” Sweeney’s authority, however, did not permit him directly to inform appellant that he was improperly performing his job. Instead, Sweeney would report any safety concerns to the general foreman and, as noted above, the instructions would be passed down to appellant’s foreman and then to appellant.

In February 1959, appellee contracted with Arundel to construct two generator units at the Crane plant. At the time, appellant was employed as an electrician by RiggsDistler, an Arundel subcontractor and, from April 1960 until June or July 1961, he worked on the construction project at the Crane site. Appellant received his work instructions from *234 foremen employed by Riggs-Distler and he was not supervised or otherwise instructed by any employee of appellee concerning the performance of his job. Riggs-Distler also provided appellant with the tools and supplies necessary to complete his assigned work and it issued all of his paychecks. In addition to the contract with Arundel, appellee also contracted with the Babcock & Wilcox Company (Babcock) to install a boiler and to supply all necessary labor and manage all insulation work related to the boiler. Appellant maintains that he was exposed to asbestos at the Crane site while working in close proximity to the subcontractors who were hired by Babcock to install and insulate the boiler at the plant.

In July 1967, appellee entered into a contract with the Bechtel Corporation (Bechtel) to perform the engineering and construction work for the new Calvert Cliffs power plant. From 1972 until 1974, appellant was employed as an electrician by Bechtel to work at the Calvert Cliffs plant, where he worked in the plant’s turbine and reactor buildings. Appellant did not have contact with any of appellee’s employees. His daily work instructions were provided by a Bechtel foreman and appellant either used his own tools and supplies or those furnished by Bechtel. According to appellant, he was exposed to asbestos because other subcontractors, working under a contract with Bechtel, used asbestos products at the plant, creating a dust in the air.

As noted, supra, appellants filed a complaint on July 25, 2001, naming appellee a defendant under the theory of landowner liability. Appellee filed a motion for summary judgment, which the court granted on May 16, 2003. In granting the motion, the trial court issued a brief letter opinion stating that it had addressed very similar facts in a memorandum opinion in Mackenzie, et al. v. AcandS, Inc., et al. (Wilson) 3 *235

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Bluebook (online)
850 A.2d 394, 157 Md. App. 228, 2004 Md. App. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wajer-v-baltimore-gas-electric-co-mdctspecapp-2004.