Webb v. Giant of Maryland: New Independent Contractor Opinion

In Webb v. Giant of Maryland LLC, the Maryland Court of Appeals (COA) was asked to revisit the decision of the Court of Special Appeals (COSA).

The issue was whether the grocery store could be liable for an injury caused by a Pepsi delivery driver while stocking shelves at the store. The Pepsi delivery driver was an independent contractor and not a store employee of Giant. So the question was whether Giant still be liable for the Pepsi driver’s acts based on the level of control they had over him inside the store.

The  Maryland Court of Appeal affirmed the decision of COSA holding that Giant could not be held liable because the store did not exercise the necessary high level of control over the Pepsi driver.

The COA held that Giant’s “general control” over delivery drivers in the store was not enough. In order to be held liable for the driver’s negligence, Giant would need to have more extensive control over the details and methods of the contractor’s work.

Summary of Giant v. Webb

This case originated as a “slip and fall” or premises liability suit against a Giant grocery store in the Circuit Court for Anne Arundel County. The plaintiff, Karen Webb, claimed that she was in the frozen foods section when a “Giant employee” negligently hit her with a cart. She fell and suffered numerous injuries. (This is the “best” type of premises liability case when the employee’s active conduct causes the injury.) The original complaint named Giant as the sole defendant.

Statute of Limitations Missed

It was eventually revealed that the individual who allegedly struck the plaintiff with the cart was not an employee of Giant. He was a delivery driver employed by PepsiCo. The Pepsi driver was in the Giant store restocking products on the shelves.

After realizing this fact, the plaintiff attempted to file an amended complaint naming PepsiCo as an additional defendant. By that time, however, the statute of limitations on her slip and fall claim had expired. So PepsiCo was promptly dismissed from the case. The take-home message is always file suit long before the statute of limitations expires and conduct discovery to avoid this very thing from happening.

Plaintiff Pushes Forward Against Giant

After the dismissal of Pepsi, the plaintiff pushed forward with her case against Giant under the theory that Giant had control over the delivery driver and could therefore be held liable like an employer. Giant moved for summary judgment arguing that it had no liability since the Pepsi driver was not a Giant employee.

The court granted judgment for Giant on the negligent hiring, supervision, training, or retention counts but denied that motion (and later motions) on the negligence count. The case went to trial. The jury found Giant liable and awarded $400,000 in damages. Giant appealed.

COSA Reversal

On appeal, the COSA reversed the Circuit Court decision and vacated the jury verdict against Giant. The COSA held that Giant could not be liable for the actions of the Pepsi driver because he was a contractor, not an employee, and Giant’s generalized control over delivery drivers in the store was not enough.

Legal Analysis of Giant v. Webb

The COA essentially adopted and affirmed the COSA’s reasoning in reaching its decision.  First, the COA noted the general rule that an employer of an independent contractor is not liable for harm caused by that contractor’s acts or omissions. Appiah v. Hall, 416 Md. 533, 562-63 (2010)(citing Restatement (Second) of Torts §§ 409-415). The Court went on to explain that one exception to this rule is where the employer retains extensive control over the contractor such that they are effectively an employee.

Specifically, when an employer exercises “control over the details” of a contractor’s work, the employer can be held directly liable for that contractor’s actions. Id. The COA explained that the simple rationale behind this exception is that when the employer has a detailed level of control, the contractor is not really “independent” but more like an employee. See Comment c – Restatement (Second) of Torts § 414.

The plaintiff argued that Giant exercised sufficient control over all of its 3rd party vendors (including the Pepsi driver) while they were inside the story. In support of this position, the plaintiff cited the following facts:

  1. The Pepsi driver had to check-in and out with a Giant employee at each visit.
  2. The Pepsi driver used Giant’s equipment and followed store rules for what equipment they could use in the store.
  3. Giant reserved the right to monitor the Pepsi driver’s behavior and force them to leave the store if not acting properly.

The COA agreed with the COSA’s conclusion that these facts did not amount to the type or level of detailed control that would make Giant liable for the acts of the Pepsi driver. Giant merely had the same “generalized control and authority” over the driver that any employer has over independent contractors working for them.

The COA explained that generalized control is not enough. In order to hold Giant liable in this case, the plaintiff would have to show that Giant exercised significant control over the “operative detail and methods” of the Pepsi driver’s work, including the “very thing from which the injury arose.” The Court found that requiring vendors to check-in and supervise their conduct in the store were simply the general rights that any store retains over contractors.

Based on this conclusion, the COA affirmed the judgment of the Court of Special Appeals reversing the Circuit Court and vacating the verdict against Giant.

Notes and Comments on Webb v. Giant

I wrote about the COSA decision earlier this year and I was rooting for the Court of Appeals to find some way to overturn this and adopt a new rule for holding employers liable for the acts of independent contractors. I was rooting for this because all too often, the independent is someone who has no insurance or assets. So the application of this particular rule prevents a victim from getting financial compensation.

The decision of the Court of Appeals was a disappointment. But hardly a surprise. This case probably didn’t give the court much incentive to adopt a new approach. Giant’s level of control over the Pepsi driver was minimal and admittedly not enough to warrant holding Giant liable.

The only reason the plaintiff tried to hold Giant liable in the first place was that their last claim against Pepsi was barred under the statute of limitations.  After realizing that the guy involved in the incident was not a Giant employee, the plaintiff attempted to sue Pepsi but by then it was too late. The statute of limitations on her claim had apparently expired, just 2 months after her original complaint was filed.

Webb v. Giant Footnote

Plaintiff’s counsel pushed a lot of “Reptile” type arguments in closing. Reptile is a method of trying personal injury cases for the plaintiff.  The Reptile premise originated in the 1960s and was repurposed as a unifying theory of appealing to juries by jury consultant David Ball and famed plaintiffs attorney Don Keenan.

Reptile Brain Theory

The Reptile theory postulates that our brains are divided in three.   The first area, our “ape” brain, controls high cognitive functions like reasoning and thought.

The second area, our “dog” brain, holds and emotions and memories.

The third area, the Reptile, is what we use to keep safe and reproduce.  Call it our survival instinct.

The Application of the Reptile Theory at Trial

At the risk of oversimplification, the Reptile theory is that the Reptile brain is the part of the brain really in charge and jurors will focus on how a verdict impacts their personal safety and the safety of the people they love.  So a Reptile argument pushes the jury to focus on safety as opposed to logic and reason (again, oversimplifying but you get the idea).

Reptile in Webb v. Giant

Giant’s lawyers argued that Webb’s attorneys’ use of the Reptile inappropriate violated the “Golden Rule” that you can’t ask the jury to put themselves in the victim’s shoes.  Here were the arguments in closing:

  •  “You determine what safety system you want.”
  •  “… one of the things I think is significant is kind of this quid pro quo. It’s this for that. It’s the customer’s safety expectations when they come in the store. And it’s the expectations that you’re not going to be hit by someone pulling a power jack. It’s, we’re coming in here to buy goods and in return we don’t want someone to be negligent and impact our safety.”
  •  “You have an opportunity to make sure that conduct doesn’t happen again. And so when you look at those things you ultimately determine whether there’s a system of responsibility, of accountability that works *10 for everyone, where their actions do in fact have consequences. You determine whether there’s going to be closure.”
  • “This is and always has been about community safety when customers go to stores.”
  • “And what you ultimately need to determine is whether they get to avoid holding up their end of the bargain for customers being safe in the store … [a]nd at the end of the day you get to serve as the last time of defense to bring closure to everyone.”

Giant’s lawyers are correct. This is an appeal to safety that is very much what the Reptile theory is about.  That does not mean it is improper – the judge did not think so – and it does not violate the Golden Rule (in my opinion, anyway.)

All for Naught

Giant’s win on the independent contractor issue meant the Maryland Court of Appeals did not have to tackle this issue.  That is a shame.