Maryland Court of Special Appeals Affirms Summary Judgment In Favor of Landowner in Asbestos Case

In Wajer v. Baltimore Gas and Electric Co., No. 697, Sept. Term, 2003 (Maryland Court of Special Appeals, June 4, 2004), the court affirmed the trial court's award of summary judgment to BG&E, which had been sued by a mesothelioma plaintiff on various theories of landowner liability.

The plaintiffs sought damages for loss of consortium and injuries associated with Mr. Wajer's mesothelioma and asbestosis. Plaintiffs sued BG&E under theories of negligence, strict liability, and premises liability, based on BG&E's status as the property owner where Mr. Wajer allegedly sustained his injuries. Plaintiffs alleged that while Mr. Wajer was working on BG&E's property, he was exposed to asbestos inhalation and subsequently developed non-malignant pleural changes, asbestosis, and mesothelioma. Mr. Wajer did not directly handle asbestos products, but contended that his exposure occurred while working in proximity to other contractors who were installing asbestos insulation or products.

BG&E moved for summary judgment, arguing that it was a premises owner and that it did not owe a duty to plaintiffs because Mr. Wajer was the employee of an independent contractor when the alleged injuries occurred. The trial court granted summary judgment, and the plaintiffs appealed.

On appeal, the Court of Special Appeals affirmed, after considering the applicability of sections 414 and 343 of the Restatement (Second) of Torts. Regarding section 414, the Court noted that to satisfy the requirements of the retention of control doctrine under 414, the plaintiffs had to show that the defendant had the right to control the details of the asbestos installers' movements during their performance of their contracts, and that the right to control existed in respect to the very thing from which the injury arose. The Court reasoned that while BG&E had general safety rules, that was not enough control, as BG&E could not dictate in detail which procedures or methods the contracts had to use. Rather, the operative detail concerning what and how products were to be applied during construction remained in the control of the independent contractors.

Regarding section 343, the safe workplace doctrine, that requires the premises owner to notify the employees of the contractor of any latent or concealed dangers, provided he knows of the condition or should know of it. The owner must furnish a safe place to work for the employees of an independent contractor as though they were his or her own employees. Here, not only did BG&E not have control of the work, the asbestos products were not "latent conditions" that pre-existed the independent contractors' taking control of the premises; rather, they were brought onto BG&E's premises by the contractors and any hazards therefrom arose after and as a result of the independent contract, and did not fall under section 343.