Motion Opposing Dismissal Based on Workers Comp Preemption


– Plaintiffs,


– Defendant,

CASE NO. 24-C-05-007073

Opposition to Motion to Dismiss of Defendant Blakeley

Plaintiffs, Kevin Winbrow and Susan Winbrow, by and through his attorneys, Ronald V. Miller, Jr. and Miller & Zois, oppose the Motion to Dismiss filed by Defendant Joseph Blakeley. In support, Plaintiffs state as follows:

More Workers’ Comp and Torts

I. Background and Maryland Law

Plaintiffs’ Complaint alleges that Defendant Joseph Blakeley (“Blakeley”) among other Defendants, negligently caused injury to Plaintiff Kevin Winbrow (“Plaintiff” for the purpose of this motion) when steel trusses were dropped on Plaintiff on August 12, 2003. Plaintiff incurred over $400,000 in medical bills and has suffered permanent injuries.

It is well settled in Maryland that workers’ compensation law does not exclude an action in tort by an employee against co-employees. See Suburban v. Hosp. v. Kirson, 362 Md. 140, 177, 763 A.2d 185, 205(2000); Connor v. Hauch, 50 Md. App. 217, 437 A.2d 661 (1981), aff’d, 295 Md. 120, 453 A.2d 1207 (1983); Schatz v. York Steak House Sys., 51 Md. App. 494, 444 A.2d 1045 (1982); Hutzell v. Boyer, 252 Md. 227, 249 A.2d 449 (1969).

In Athas v. Hill, 300 Md. 133, 476 A.2d 710 (1984), the Court also found that a supervisor committing a negligent affirmative act may also be subject to a civil lawsuit. Specifically, the Athas Court quoted with approval the following language from the Wisconsin Supreme Court:

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 co-employee 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.

Id. at 19-20; 476 A.2d at 717, citing Laffin v. Chemical Supply Co., 77 Wis.2d 353, 358, 359 (1977).
Ten years later, the court in Hastings v. Mechalske, 366 Md. 663, 650 A.2d 274 (1994) citing Athas, found that “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.” Id. at 673, 650 A.2d 279.

II. Analysis

A. Blakeley Was Not Acting as a Supervisor in the Context of the Negligence Alleged as Required for Immunity Under Maryland Law

Assuming, arguendo, that Blakeley was Plaintiff’s supervisor, a fact Plaintiff specifically denies below, Maryland law does not give blanket immunity to individuals who are deemed supervisors in every context. As set forth above, the Court of Appeals makes an exception when a “supervisor doffs the cap of officer or supervisor and dons the cap of a co-employee.”

It would be difficult to conjure up a scenario more in line with this statement of law than the one presented in the instant case. In a statement after the accident given by Blakeley to Plaintiff and Blakeley’s employer shortly after the accident describes Blakeley’s role in the accident:

Unloading overhead sign truss pieces. Before I could hook my crane to the top load of truss pieces the driver of the truck released the last cargo strap holding the load. This caused a piece of truss to fall from the truck, hitting [Plaintiff] and pinning him under the truck.

See Witness Statement of Defendant Joseph Blakeley from Midasco, Inc. attached as Exhibit 1 (emphasis added). Clearly, Blakeley was not simply supervising the situation and his negligence does not stem from a non-delegable supervisory duty. Instead, he was actively involved in working the crane that was involved in Plaintiff’s injuries.

Accordingly, Plaintiff contends that this affirmative act, the inability of Defendant Blakeley to secure his crane to the top load of the trusses in a timely and appropriate fashion, negligently caused or contributed to the accident that is the subject of this lawsuit. Therefore, under the rationale of Athas and Mechalske, he is clearly amenable to suit as a co-employee.

In addition, a Safety Officer of the Commonwealth of Virginia, Department of Transportation, Office of Employee Safety and Health, Abbott Costello, performed an investigation of this accident. In his report he noted the following:

In speaking with Joe Blakeley, the first time, Joe said that, “I told the driver not to loosen the strap until I had the crane attached to the lifting strap.” I then spoke with Steve [Sturgeon], and he said that Joe, “Never said anything to me.”

I then re-interviewed Joe, who said, “I may not have said that to him, you know, sometimes you get in a hurry, and things might not get said.”

See Construction Accident Report of Abbott Costello, Commonwealth of Virginia, Department of Transportation, Office of Employee Safety and Health attached as Exhibit 2.

Again, Defendant Blakeley’s own statement that he was in a hurry and neglected to speak with the driver regarding the unloading of the straps takes him out of his role of supervisory employee and puts him squarely in the shoes of a co-employee. This affirmative act increased the risk of injury to Plaintiff and is direct evidence that Defendant Blakeley failed to exercise ordinary care for a co-employee, thus making him amenable to suit.

Plaintiffs’ Complaint reflects these contentions. Plaintiffs allege that Defendant Blakeley was “negligent” in actions contributing or causing the occurrence. See Complaint, Paragraph 23. More specifically, Plaintiff alleges that Blakeley was negligent in “failing to exercise to due care and caution for the safety of Plaintiff.” See Complaint, Paragraph 25. Both the language of the Complaint and the documentary evidence make clear that Plaintiff’s claim is not based on Defendant’s non-delegable duties.1

It is clear that, not only is there a genuine dispute of fact, but tha
t the weight of the available evidence leans heavily toward Defendant Blakeley being amenable to suit as a co-employee in this accident. Viewing all inferences in the Plaintiff’s favor, it is clear that Defendant Blakeley’s Motion to Dismiss should be denied.

B. There is a Dispute of Material Fact as to Whether Blakeley was Plaintiff’s Supervisor

As a threshold matter, there is a dispute of material fact as to whether Blakeley was Plaintiff’s supervisor. The affidavit of Cindy McManus is inconclusive.2 Ms. McManus’ affidavit indicates that Blakeley was the site supervisor. The affidavit is unclear as to whether Blakeley is Plaintiff’s supervisor.

But even if the affidavit were on point that Blakeley was Plaintiff’s supervisor, Ms. McManus’ statement would not simply make it so. The day of the accident was Plaintiff’s second day on the job. Plaintiff was told all three of the gentlemen working with him on the date of the accident were his supervisors. Clearly, the definition of a supervisor is not a mere declaration from the employer that everyone working with the Plaintiff is a supervisor. Accordingly, discovery is needed to ascertain whether Blakeley was in fact Plaintiff’s supervisor at the time of the accident.

III. Conclusion

Before conducting any discovery, Blakeley contends Plaintiffs cannot bring a claim against him because their claim is barred by the Workers’ Compensation Act as a matter of law. There are, however, too many material facts in dispute that if resolved in Plaintiff’s favor, as the available evidence suggests that they will be, will leave Blakeley

Respectfully submitted,

Ronald V. Miller, Jr.
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
Counsel for Plaintiff

1 Blakeley makes much ado about Paragraph 21 of Plaintiffs’ Complaint, which he claims is an allegation of a non-delegable duty. Plaintiffs deny the duty reference in Paragraph 21 is non-delegable. But even assuming that it is, Defendant cannot seek protection under the Maryland Workers’ Compensation Act because he also committed negligence in his non-delegable duties in addition to his affirmative acts of negligence.

2Contrary to Defendant Blakeley’s repeated assertions, there is absolutely no affidavit from him contained in his Motion to Dismiss.

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