Opinion
Civil Action No. 22-cv-00141-LKG
2023-03-29
The ESTATE OF Trina L. CUNNINGHAM, et al., Plaintiffs, v. MAYOR AND CITY COUNCIL OF BALTIMORE, et al., Defendants.
Randy E. McDonald, The Law Office of Randy Evan McDonald, LLC, Washington, DC, for Plaintiffs. Thomas Patrick George Webb, Baltimore City Law Department, Litigation Division, Baltimore, MD, for Defendants Mayor and City Council of Baltimore, Baltimore City Department of Public Works, Jason W. Mitchell, Michael Hallmen, Yosef Kebede, Michael Gallagher, Neal Jackson. Victoria M. Shearer, Eccleston and Wolf, P.C., Hanover, MD, for Defendant Freeland Hoist & Crane, Inc. John A. Rego, Cipriani & Werner, P.C., Greenbelt, MD, for Defendant Crane 1 Services, Inc. John L. Doran, Pessin Katz Law, PA, Towson, MD, Paul McDermott Finamore, Pessin Katz Law, P.A., Columbia, MD, for Defendant Ohio Grating, Inc. Jonathan C. Shoemaker, Dalton Patterson, Lee/Shoemaker PLLC, Washington, DC, for Defendant Gannett Fleming, Inc. Matthew J. McCloskey, Stephen Salvatore McCloskey, Semmes, Bowen & Semmes, Baltimore, MD, for Defendant Poole & Kent Corporation.
Randy E. McDonald, The Law Office of Randy Evan McDonald, LLC, Washington, DC, for Plaintiffs. Thomas Patrick George Webb, Baltimore City Law Department, Litigation Division, Baltimore, MD, for Defendants Mayor and City Council of Baltimore, Baltimore City Department of Public Works, Jason W. Mitchell, Michael Hallmen, Yosef Kebede, Michael Gallagher, Neal Jackson. Victoria M. Shearer, Eccleston and Wolf, P.C., Hanover, MD, for Defendant Freeland Hoist & Crane, Inc. John A. Rego, Cipriani & Werner, P.C., Greenbelt, MD, for Defendant Crane 1 Services, Inc. John L. Doran, Pessin Katz Law, PA, Towson, MD, Paul McDermott Finamore, Pessin Katz Law, P.A., Columbia, MD, for Defendant Ohio Grating, Inc. Jonathan C. Shoemaker, Dalton Patterson, Lee/Shoemaker PLLC, Washington, DC, for Defendant Gannett Fleming, Inc. Matthew J. McCloskey, Stephen Salvatore McCloskey, Semmes, Bowen & Semmes, Baltimore, MD, for Defendant Poole & Kent Corporation. MEMORANDUM OPINION AND ORDER LYDIA KAY GRIGGSBY, United States District Judge
I. INTRODUCTION
In this civil action, Plaintiffs, The Estate of Trina Cunningham, Towanda Grant-Cunningham, Faith Cunningham and Brock Birden, bring Section 1983 claims under the 14th Amendment, based upon state-created danger, failure to train and customs and practices, and various state law claims against Defendants, the Mayor and City of Baltimore and certain City Employees (collectively, the "City Defendants"). ECF No. 190. Plaintiffs also bring negligence, strict products liability, survival action, wrongful death and loss of consortium claims against the City Employees and Defendants: Freeland Hoist & Crane, Inc. ("Freeland Hoist"); Poole & Kent Corporation ("Poole & Kent"); Gannett & Fleming, Inc. ("Gannett Fleming") and Ohio Gratings, Inc. ("Ohio Gratings"). Id.
The City Defendants have moved to dismiss the claims brought against them in Counts I, II, III, V, XIII, XIV and XV of the amended complaint pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 154. In addition, Defendant Freeland Hoist has moved to dismiss the claims against it in Counts IX, XIII, XIV and XV of the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 162. Defendant Gannett & Fleming has also moved to dismiss the claims against it in Counts X, XIII, XIV, and XV of the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 165.
In addition, Defendant Ohio Gratings has moved to dismiss the claims against it in Counts IV, VI, XIII, XIV and XV of the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6). ECF No. 167. Lastly, Defendant Poole & Kent has moved to dismiss the claims against it in Counts XI and XIII of the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), and for a more definite statement, pursuant to Fed. R. Civ. P. 12 (e). ECF No. 164. The motions are fully briefed. ECF Nos. 154, 162, 164, 165, 167, 171, 174, 175, 178, 181, 184, 185, and 190. No hearing is necessary to resolve the motions. See Local Rule 105.6 (D. Md. 2021).
For the reasons set forth below, the Court: (1) GRANTS the City Defendants' motion to dismiss; (2) GRANTS-in-PART Defendant Freeland Hoist's motion to dismiss; (3) GRANTS-in-PART Defendant Gannett & Fleming's motion to dismiss; (4) GRANTS-in-PART Defendant Ohio Gratings' motion to dismiss; (5) GRANTS-in-PART Defendant Poole & Kent's motions to dismiss and for a more definite statement; and (6) DISMISSES the amended complaint. II. FACTUAL AND PROCEDURAL BACKGROUND
The facts recited in this Memorandum Opinion and Order are taken from the second amended complaint; the City Defendants' motion to dismiss; Freeland Hoist's motion to dismiss; Poole & Kent's motion to dismiss; Gannett Fleming's motion to dismiss; and Ohio Grating's motion to dismiss. ECF Nos. 190, 154, 162, 164, 165, and 167.
A. Factual Background
This case arises out of the tragic death of the City of Baltimore employee Trina L. Cunningham during a workplace incident that occurred at the Patapsco Wastewater Treatment Plant (the "Plant") on June 3, 2019. ECF No. 190 at ¶¶ 45-56. In the amended complaint, Plaintiffs assert several causes of action against the City Defendants, namely: (1) a state-created danger claim under the 14th Amendment and the Maryland Declaration of Rights (Count I); (2) a Monell claim alleging that the City Defendants failed to properly train the City's Department of Public Works ("DPW") employees (Count II); a Monell claim alleging that the City Defendants maintain customs, policies and practices that "encourage DPW employees to fail to adequately and properly use and maintain" the Plant (Count III); and Maryland common law survival, wrongful death and loss of consortium claims (Counts VIII-X). Id. at ¶¶ 47-56. Plaintiffs also bring claims for negligence, strict products liability, survival action, wrongful death and loss of consortium against Defendants Freeland Hoist, Gannett & Fleming, Ohio Gratings and Poole & Kent (Counts IV-XI; XIII-XV). Id. at ¶¶ 57-69.
Plaintiff Towanda Grant-Cunningham is the wife of Trina Cunningham and the personal representative of The Estate of Trina Cunningham. Id. at ¶ 9. Plaintiff Faith Cunningham is the mother of Trina Cunningham. Id. at ¶ 11. Plaintiff Brock Birden is the son of Trina Cunningham. Id. at ¶ 10.
The City Defendants are the Mayor and City Council of Baltimore, Maryland; DPW, which manages the Patapsco Wastewater Treatment Plant; and several City Employees who worked for either DPW, or at the Plant during the time period relevant to this case. Id. at ¶¶ 9-17.
Defendant Poole & Kent is a mechanical, HVAC and plumbing services company located in Baltimore, Maryland. Id. at ¶ 33; see also https://www.poole-kent.com/about-us. Defendant Gannett Fleming is an architecture and engineering, and construction company with a location in Baltimore, Maryland. Id. at ¶ 34. Defendant Ohio Gratings is a manufacturer that specializes in metal bar grating design, manufacturing and custom fabrication using aluminum, carbon steel and stainless steel located in Ohio. Id. at ¶ 36. Defendant Freeland Hoist is an equipment distributor for hoist and cranes located in Baltimore, Maryland. Id. at ¶ 39.
The June 3, 2019 Incident
Plaintiffs allege that, on June 3, 2019, Trina Cunningham was an employee of the City at the Plant, working in an area of the Plant known as the Grit Facility. Id. at ¶¶ 43-49. Plaintiffs also allege that DPW assigned Ms. Cunningham the responsibility of ensuring that water flowed into and out of the Plant. Id. at ¶¶ 44-45.
Plaintiffs allege that, "[w]hile working in The Grit Facility [on June 3, 2019] . . . Trina L. Cunningham fell through a . . . catwalk system" and subsequently perished. Id. at ¶ 50. In this regard, Plaintiffs allege that Ms. Cunningham tragically drowned in a chamber of wastewater that included urine, feces and other wastes. Id. at ¶ 56.
Plaintiffs allege that, as designed, the grates or catwalks at the Grit Facility were supported by structural I-beams. Id. at ¶ 61. But Plaintiffs allege that, on the date of this incident, the grates were supposed to be secured to the I-beams by clips or fasteners, which were missing or loose, and that the loosened clips and fasteners made the grates unstable. Id. at ¶¶ 84, 193.
In this regard, Plaintiffs contend that the structural I-beams that gave way under Ms. Cunningham had been damaged and bent from being struck by a 7.5-ton clamshell attachment that was connected to the overhead crane. Id. at ¶ 62. Plaintiffs also contend that the cranes inside the Grit Facility were not approved for hazardous locations. Id. at ¶ 67.
The MOSH Report
Following an investigation into Ms. Cunningham's death, the Maryland Occupational Safety and Health, Division of Labor and Industry ("MOSH") issued a report ("MOSH Report") addressing this tragic incident. Id. at ¶ 98. The MOSH Report found 28 violations of federal and state workplace safety regulations by DPW and the City. Id. at ¶¶ 98, 112.
Notably, 24 of the violations found by MOSH were deemed to be "serious violations," which contributed to the death of Ms. Cunningham. Id. at ¶ 112. Specifically, the MOSH report found that the City's failures included, among other things: (1) the failure to correct or repair damaged walking surfaces above Grit Chambers #1-6 for at least a year prior to Ms. Cunningham's death; (2) the failure to establish a preventative maintenance program for the two overhead cranes that struck the catwalk; and (3) the failure to inspect the cranes at the Grit Facility and to generally inspect and maintain the Grit Facility at the Plant. Id. at ¶¶ 98-111.
Plaintiffs allege that the MOSH Report also found elevated levels of hydrogen sulfide at the Grit Facility, in violation of state and federal law, and that the presence of elevated levels of hydrogen sulfide caused the corrosion of the catwalk's grates and contributed to Ms. Cunningham's fall. Id. at ¶ 137. Plaintiffs also allege that the MOSH inspectors tested the braking ability of the crane at issue in this case and found that the entire crane, block and clamshell moved an additional five feet after breaking. Id. at ¶ 139.
Plaintiffs' Claims Against The City Defendants
Plaintiffs contend that, as a result of a negligently designed, manufactured, installed, and maintained catwalk at the Grit Facility, Ms. Cunningham fell to her death after stepping on two grates that gave way. Id. at ¶ 54; see also id. at ¶ 190. And so, Plaintiffs also contend that Ms. Cunningham's death was "due to the compounded intentional decisions, negligence, incompetence, and failure of [Defendants]." Id. at ¶ 59.
Specifically, Plaintiffs allege that the Grit Facility was poorly maintained and inspected by the City and by the safety inspectors that were hired by the City to assure safety inside the facility. Id. at ¶¶ 39, 297-98. In this regard, Plaintiffs allege that "the City, and specifically DPW, refused to inspect and maintain walking-working surfaces at [the Grit Facility] and that the City and DPW "refused to correct or repair damages walking surfaces above Grit Chamber 6 for at least a year prior to Trina Cunningham's death." Id. at ¶¶ 94, 99.
Plaintiffs also allege that the City and DPW "refused to ensure that employees had acquired knowledge and skill necessary, through training, to operate the cranes at the Grit Facility." Id. at ¶ 159. In this regard, Plaintiffs allege that the City Employees refused to maintain a safe environment at the Plant and instructed employees to work in hazardous conditions. Id. at ¶¶ 14-32. And so, Plaintiffs also allege that the City Defendants violated Ms. Cunningham's due process right to bodily integrity under the 14th Amendment by, among other things, removing safety precautions from the Grit Facility, refusing to abate "numerous known and foreseeable dangers or to take any precautions to prevent death or serious bodily injury." Id. at ¶ 47.
Plaintiffs' Claims Against The Other Defendants
With regard to the other Defendants in this action, Plaintiffs allege that Defendant Ohio Gratings "designed, constructed, and manufactured the grates, clips and walking surfaces [at the Grit Facility] in a defective manner." Id. at ¶ 264. Plaintiffs also allege that Ohio Gratings breached a "duty to design and manufacture grates, clips and I-beams in a proper fashion and/or exercise a degree of care that reasonable manufacturers should use in designing and manufacturing grates, clips and I-beams." Id. at ¶¶ 263-70, 276-79. And so, Plaintiffs contend that Ohio Gratings should have been aware of the risks posed by the environment at the Grit Facility and should have known that the grates and clips it sold to the City of Baltimore were more prone to loosening and creating an unstable grate, and that the material it sold would be subjected to excessive corrosion due to the environment at the Grit Facility. Id. at ¶¶ 185-87.
Plaintiffs further allege that Defendants Gannett Fleming and Poole & Kent acted as engineers, contractors and architects of the Grit Facility. Id. at ¶¶ 33-34. In this regard, Plaintiffs allege that these two Defendants had a duty to "consult with the Mayor and City Council of Baltimore in a proper fashion and/or to exercise the degree of care that reasonable consultants should use in assuring that the Grit Facility and equipment therein, which was verified as safe, were in fact safe." Id. at ¶¶ 303, 307. Plaintiffs further allege that Gannett Fleming and Poole & Kent breached this duty by negligently and carelessly designing, engineering and constructing the Grit Facility. Id. at ¶¶ 304-05, 308-09.
Lastly, Plaintiffs allege that Freeland Hoist also had a duty to "consult with the Mayor and City Council of Baltimore in a proper fashion and/or to exercise the degree of care that reasonable consultants should use in assuring that the Grit Facility and equipment therein, which was verified as safe, were in fact safe." Id. at ¶ 297. Plaintiffs allege that Freeland Hoist breached this duty by "negligently . . . certif[ying] that the Grit Facility and equipment therein was safe." Id. at ¶ 300. In this regard, Plaintiffs allege that Freeland Hoist "contracted with the City prior to 2018 to inspect the cranes inside of the Grit Facility." Id. at ¶ 298.
Plaintiffs contend that Ohio Gratings, Poole & Kent, Gannett Fleming and Freeland Hoist knew, or should have known, of the potential hazards posed by work operations and that the attachment of the grates to an I-beam, C-channel or flange would make the grate more prone to clips loosening and the grating becoming unstable. Id. at ¶¶ 191, 192. And so, Plaintiffs contend that these Defendants should have, but did not, plan for this eventuality to prevent Ms. Cunningham's death. Id. at ¶ 193.
Lastly, Plaintiffs contend that all Defendants in this action are jointly and severally liable for Ms. Cunningham's death. Id. at ¶ 42. As relief, Plaintiffs seek to recover pecuniary, compensatory and punitive damages from Defendants, attorney's fees and other costs. Id. at Prayer for Relief.
B. Procedural Background
Plaintiffs commenced this civil action on or about November 4, 2021, in the Circuit Court for Baltimore City. ECF No. 1 at ¶ 1. On January 19, 2022, the matter was removed to this Court. See generally ECF No. 1.
On June 1, 2022, Plaintiffs filed an amended complaint by leave of the Court. ECF No. 141.
On June 22, 2022, the City Defendants filed a motion to dismiss the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), and a memorandum in support thereof. ECF No. 154.
On June 28, 2022, Defendant Freeland Hoist filed a motion to dismiss the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), and a memorandum in support thereof. ECF No. 162.
On June 30, 2022, Defendant Poole & Kent filed a motion to dismiss or, in the alternative, for a more definite statement, pursuant to Fed. R. Civ. P. 12(b)(6) and 12(e), and a memorandum in support thereof. ECF No. 164. On June 30, 2022, Defendant Gannett Fleming filed a motion to dismiss the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), and a memorandum in support thereof. ECF No. 165. On July 5, 2022, Defendant Ohio Gratings filed a motion to dismiss the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), and a memorandum in support thereof. ECF No. 167.
On August 1, 2022, Plaintiffs filed a consolidated response in opposition to Defendants Freeland Hoist, Poole & Kent, Gannett Fleming, and Ohio Gratings' respective motions to dismiss. ECF No. 171. On August 12, 2022, Plaintiffs filed a response in opposition to the City Defendants' motion to dismiss. ECF No. 174.
On August 15, 2022, Defendant Freeland Hoist filed a reply brief. ECF No. 175. On August 16, 2022, Defendant Gannett Fleming filed a reply brief. ECF No. 178.
On August 17, 2022, Defendant Poole & Kent filed a reply brief. ECF No. 181. On August 17, 2022, Defendant Ohio Gratings filed a reply brief. ECF No. 184. On August 26, 2022, City Defendants filed a reply brief. ECF No. 185.
Lastly, on January 4, 2023, Plaintiffs filed a second amended complaint by leave of the Court. ECF Nos. 189, 190.
Defendants' motions to dismiss having been fully briefed, the Court resolves the pending motions.
III. LEGAL STANDARDS
To survive a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6), a complaint must allege enough facts to state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). A claim is plausible when "the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556, 127 S.Ct. 1955). When evaluating the sufficiency of a plaintiff's claims under Fed. R. Civ. P. 12(b)(6), the Court accepts the factual allegations in the complaint as true and construes them in the light most favorable to the plaintiff. Nemet Chevrolet, Inc. v. Consumeraffairs.com, Inc., 591 F.3d 250, 253 (4th Cir. 2009); Lambeth v. Bd. of Comm'rs of Davidson Cty., 407 F.3d 266, 268 (4th Cir. 2005) (citations omitted). But, the complaint must contain more than "legal conclusions, elements of a cause of action, and bare assertions devoid of further factual enhancement . . . ." Nemet Chevrolet, 591 F.3d at 255. And so, the Court should grant a motion to dismiss for failure to state a claim if "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations." GE Inv. Private Placement Partners II, L.P. v. Parker, 247 F.3d 543, 548 (4th Cir. 2001) (quoting H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229, 249-50, 109 S.Ct. 2893, 106 L.Ed.2d 195 (1989)).
B. Section 1983 And The State Created Danger Doctrine
Title 42, United States Code, Section 1983 provides a mechanism for individuals who have had their constitutional rights violated to seek a remedy against individual state actors. See 42 U.S.C. § 1983 (providing that if any person acting "under color of any statute, ordinance, regulation, custom, or usage, of any State" deprives a United States citizen of any constitutional right, that person may be liable in a suit for money damages). Specifically, Section 1983 permits a plaintiff to bring a claim directly against a municipality if the municipality causes a deprivation of a constitutional right through an official policy or custom. See Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978).
But, "a municipality can be found liable under § 1983 only where the municipality itself causes the constitutional violation at issue." City of Canton v. Harris, 489 U.S. 378, 385, 109 S.Ct. 1197, 103 L.Ed.2d 412 (1989) (emphasis in original). Given this, a local government "may not be sued under § 1983 for an injury inflicted solely by its employees or agents." Monell, 436 U.S. at 694, 98 S.Ct. 2018. And so, the Supreme Court has held that a municipality may be liable under § 1983 "when a municipality's policy or custom has caused the violation of an individual's federal rights." Gonzaga Univ. v. Doe, 536 U.S. 273, 296, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002) (J. Stevens, dissenting).
A Monell plaintiff need only meet the basic "short and plain statement" requirement of Fed. R. Civ. P. 8(a) in the complaint. Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69, 113 S.Ct. 1160, 122 L.Ed.2d 517 (1993). But, the United States Court of Appeals for the Fourth Circuit has held that a Monell plaintiff must adequately plead "the existence of an official policy or custom that is fairly attributable to the municipality and that proximately caused the deprivation of their rights." Jordan ex rel. Jordan v. Jackson, 15 F.3d 333, 338 (4th Cir. 1994). The Fourth Circuit has also held that "a municipal policy or custom giving rise to § 1983 liability will not be inferred merely from municipal inaction in the face of isolated constitutional deprivations by municipal employees." Milligan v. City of Newport News, 743 F.2d 227, 230 (4th Cir. 1984). And so, the municipality's conduct must demonstrate "deliberate indifference to the rights of potentially affected citizens," in order for conduct to be properly thought of as a "policy." Jones v. Wellham, 104 F.3d 620, 626 (4th Cir. 1997).
Relevant to this dispute, the Fourth Circuit has held that the doctrine of state-created danger is an exception to the general rule that "a defendant's mere failure to act does not give rise to liability for a due process violation." Turner v. Thomas, 930 F.3d 640, 644 (4th Cir. 2019). This doctrine requires a showing that "the state actor created or increased the risk of private danger, and did so directly through affirmative acts, not merely through inaction or omissions." Doe v. Rosa, 795 F.3d 429, 439 (4th Cir. 2015).
The Fourth Circuit has recognized that "the state-created doctrine is narrowly drawn, and the bar for what constitutes an 'affirmative act' is high." Turner, 930 F.3d at 645. The Fourth Circuit has also recognized that the narrow application of this doctrine is particularly appropriate where a claim "sounds both in state tort law and substantive due process." Waybright v. Frederick Cty., Md., 528 F.3d 199, 205 (4th Cir. 2008); see also Paul v. Davis, 424 U.S. 693, 701, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976) (cautioning against any approach to the Fourteenth Amendment that would make it "a font of tort law to be superimposed upon" state tort law principals.).
In this regard, the Supreme Court has held that "[n]either the text nor the history of the Due Process Clause supports [a] claim that the governmental employer's duty to provide its employees with a safe working environment is a substantive component of the Due Process Clause." Collins v. City of Harker Heights, Tex., 503 U.S. 115 at 126, 112 S.Ct. 1061, 117 L.Ed.2d 261 (1992). The Supreme Court has also observed that such a claim is substantively distinct from the 14th Amendment protections long recognized by the Court, such as protections for pretrial detainees, persons in mental institutions, or persons under arrest. Id. at 127, 112 S.Ct. 1061. And so, while the due process guaranteed by the Constitution "includes a continuing obligation to satisfy certain minimal custodial standards," it does not provide protection for an employee who voluntarily reports to work. Id. at 128, 112 S.Ct. 1061.
The Supreme Court also held that the Due Process Clause "does not purport to supplant traditional tort law in laying down rules of conduct to regulate liability for injuries that attend living together in society." Id. (quoting Daniels v. Williams, 474 U.S. 327, 332, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986)). The Fourth Circuit has similarly cautioned against cloaking workplace safety tort claims as constitutional violations. See Waybright, 528 F.3d at 205.
In Slaughter v. Mayor & City Council of Baltimore, 682 F.3d 317 (4th Cir. 2012), the Fourth Circuit upheld dismissal of a § 1983 action brought by the personal representative of a firefighter recruit's estate, alleging that the Mayor and City of Baltimore violated the recruit's due process rights during a live fire training exercise that resulted in the recruit's death, and held that:
[I]n the voluntary employment context the plaintiffs have not alleged arbitrary (in the constitutional sense) or conscience-shocking conduct because they did not assert that the Fire Department intended to harm Wilson, as would be necessary to establish a substantive due process violation.Id. at 322 (emphasis in original). Given this, the Fourth Circuit held that the City's "constitutional liability . . . turns on whether it intended to harm the new recruits." Id. at 323 (emphasis in original). And so, this Court has held that a plaintiff must show that the governmental employer intended to harm its employee to establish a substantive due process violation. See, e.g., Murphy-Taylor v. Hofmann, 968 F. Supp. 2d 693, 735 (D. Md. 2013) ("[T]he employee plaintiff must show that the governmental employer defendant 'intended to harm' its employee in order to 'establish a substantive due process violation' "); Evans v. Md. Nat'l Cap. Parks & Plan. Comm'n, No. CV TDC-19-2651, 2020 WL 6703718, at *13 (D. Md. Nov. 13, 2020) ("In the voluntary employment context, a plaintiff must allege intentional harm, not mere deliberate indifference."); see also Smith v. City of Greensboro, No. 1:19CV386, 2020 WL 1452114, at *15 (M.D.N.C. Mar. 25, 2020) ("Outside of the custodial context, government conduct normally does not shock the conscience (at least not in the constitutional sense) unless it was 'intended to injure . . . .' ").
IV. LEGAL ANALYSIS
The City Defendants have moved to dismiss Counts I, II, III, V, XIII, XIV, and XV of the amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6), upon the grounds that: (1) Plaintiffs' state law claims in Counts V, XIII, XIV and XV are barred by the Local Government Tort Claims Act ("LGTCA") and (2) Plaintiffs fail to state plausible Section 1983 claims in Counts I, II and III of the amended complaint.
In addition, Defendants Freeland Hoist, Poole & Kent, Gannett Fleming and Ohio Gratings have moved to dismiss the respective claims brought against them in Counts IV and VI-XV of the amended complaint, upon the grounds that: (1) Plaintiffs fail to allege sufficient facts to state plausible claims for relief against these Defendants; (2) Plaintiffs fail to state plausible negligence claims; (3) Plaintiffs' claims against Gannett Fleming and Poole & Kent are barred by Maryland's applicable statute of repose; (4) Plaintiffs cannot recover punitive damages from Gannett Fleming and Ohio Gratings; (5) Plaintiffs cannot prevail on their tort claims because there were superseding acts that cause the death of Ms. Cunningham; and (6) Plaintiffs fail to state a plausible strict liability claim against Ohio Gratings. See generally ECF Nos. 162-1, 164-1, 165-1 and 167-1. Lastly, Defendant Poole & Kent has moved for a more definite statement pursuant to Fed. R. Civ. P. 12 (e). ECF Nos. 164, 164-1.
Plaintiffs concede that their state law claims against the City Defendants are barred by the LGTCA and that they cannot recover punitive damages from Gannett Fleming. ECF No. 171 at 15. But, they counter that dismissal of this matter is not warranted because: (1) they state a viable state-created danger claim in the amended complaint; (2) the amended complaint contains factual allegations to support the elements of their remaining negligence claims; (3) Maryland's applicable statute of repose does not bar their claims against Poole & Kent and Gannett Fleming; (4) there is a question of fact as to whether superseding events caused Ms. Cunningham's death; (5) the amended complaint alleges a plausible strict liability claim against Ohio Gratings; and (6) the amended complaint sufficiently alleges actual knowledge of the condition of the grates at the Grit Facility, and disregard of foreseeable harm, for Plaintiffs to recover punitive damages from Ohio Gratings. See ECF No. 174 at 12-23; ECF No. 171 at 7-17. And so, Plaintiffs request that the Court otherwise deny Defendants' motions to dismiss. ECF No. 174 at 24; ECF No. 171 at 17.
For the reasons set forth below, the Court agrees with the parties that Plaintiffs' state law claims against the City Defendants in Counts V, XIII, XIV and XV of the amended complaint, are barred by the LGTCA. A careful reading of the amended complaint also shows that Plaintiffs have not alleged facts to show that the City Defendants intended to harm Ms. Cunningham to support their Section 1983 claims.
When read in the light most favorable to Plaintiffs, the amended complaint also makes clear that: (1) Plaintiffs' claims against Poole & Kent and Gannett Fleming are time-barred under Maryland's 10-year statute of repose and (2) Plaintiffs fail to state plausible tort claims against Freeland Hoist and Ohio Gratings. And so, the Court: (1) GRANTS the City Defendants' motion to dismiss; (2) GRANTS-in-PART Defendant Freeland Hoist's motion to dismiss; (3) GRANTS-in PART Defendant Gannett & Fleming's motion to dismiss; (4) GRANTS-in-PART Defendant Ohio Gratings' motion to dismiss; (5) GRANTS-in-PART Defendant Poole & Kent's motion to dismiss and for a more definite statement; and (6) DISMISSES the amended complaint.
A. Plaintiff's State Law Claims Are Barred By The LGTCA
As an initial matter, the parties agree that the Court should dismiss Plaintiffs' state law claims against the City Defendants in Counts V, XIII, XIV and XV of the amended complaint, because these claims are barred by the LGTCA. As both parties acknowledge, the Maryland Workers Compensation Act ("WCA") "provides the exclusive remedy to an employee for an injury or death arising out of and in the course of employment." McCullough v. Liberty Heights Health & Rehab. Ctr., 830 F. Supp. 2d 94, 99 (D. Md. 2011); see also ECF No. 154-1 at 6-9; ECF No. 174 at 11; ECF No. 185 at 1. Because it is undisputed that the tragic incident that led to Ms. Cunningham's death took place in the course of her employment with the City of Baltimore, and that this incident does not fall under the WCA's "deliberate intent" exception, Ms. Cunningham's death is covered by the WCA.
The LGTCA also makes clear that "if the injury sustained is compensable under the [WCA], an employee may not sue a fellow employee for tortious acts or omissions committed within the scope of employment." Md. Code Ann., Cts. & Jud. Proc. § 5-302. Again, there is no dispute that all individual Defendant City Employees in this action are being sued for conduct undertaken when they were employed by the City and working in their official capacities as Baltimore City employees. ECF No. 190 at 9-19. Given this, Section 5-302 of the LGTCA applies, and Plaintiffs may not bring suit against these City Employees for "tortious acts or omissions." Md. Code Ann., Cts. & Jud. Proc. § 5-302. And so, the Court DISMISSES Plaintiffs' state law claims against the City Defendants in Counts V, XIII, XIV and XV of the amended complaint. See Fed. R. Civ. P. 12 (b)(6).
B. Plaintiffs Fail To State A State-Created Danger Claim
The City Defendants also persuasively argue that Plaintiffs fail to state a plausible Section 1983 claim based upon the state-created danger doctrine. To state a claim under § 1983, Plaintiffs must allege that: (1) a right secured by the Constitution or laws of the United States was violated and (2) the alleged violation was committed by a person acting under the color of responsibility for Plaintiff's safety and well-being. Henry A. v. Willden, 678 F.3d 991, 998 (9th Cir. 2012) (citing DeShaney v. Winnebago Cnty. Dep't of Soc. Servs., 489 U.S. 189, 198-202, 109 S. Ct. 998, 103 L. Ed. 2d 249 (1989)). Relevant here, the Fourth Circuit has held that the doctrine of state-created danger is an exception to the general rule that "a defendant's mere failure to act does not give rise to liability for a due process violation." Turner, 930 F.3d at 644. And so, this doctrine requires a showing that "the state actor created or increased the risk of private danger, and did so directly through affirmative acts, not merely through inaction or omissions." Rosa, 795 F.3d at 439.
The Fourth Circuit has also recognized that the state-created danger doctrine is "narrowly drawn, and the bar for what constitutes an 'affirmative act' is high.' " Turner, 930 F.3d at 645. In Slaughter, the Fourth Circuit held that:
[I]n the voluntary employment context the plaintiffs have not alleged arbitrary (in the constitutional sense) or conscience-shocking conduct because they did not assert that the Fire Department intended to harm Wilson, as would be necessary to establish a substantive due process violation.Slaughter, 682 F.3d at 321. Given this, the Fourth Circuit also held that the City's "constitutional liability . . . turns on whether it intended to harm the new recruits." Id. at 323 (emphasis in original). And so, Plaintiffs must show here that the City Defendants intended to harm Ms. Cunningham to establish a substantive due process violation in this case. See, e.g., Murphy-Taylor, 968 F. Supp. 2d at 735 (D. Md. 2013) ("[T]he employee plaintiff must show that the governmental employer defendant 'intended to harm' its employee in order to 'establish a substantive due process violation' ").
A careful reading of the amended complaint shows that Plaintiffs have not sufficiently alleged facts to show that the City Defendants intended to harm Ms. Cunningham to satisfy this standard. In Count I of the amended complaint, Plaintiffs allege that the City Employees refused to maintain a safe environment at the Plant and instructed Ms. Cunningham and other employees to work in hazardous conditions. ECF No. 190 at ¶¶ 213-14. In this regard, Plaintiffs also allege that the Grit Facility was poorly maintained by the City and by the safety inspectors that were hired by the City to insure safety inside the facility. Id. at ¶¶ 219. And so, Plaintiffs contend that the City Defendants violated Ms. Cunningham's due process right to bodily integrity under the 14th Amendment by, among other things, removing safety precautions from the Grit Facility, refusing to abate "numerous known and foreseeable dangers, or to take any precautions to prevent death or serious bodily injury," and allowing employees to work in a dangerous environment. Id. at ¶¶ 210-14.
The Court reads Plaintiffs' allegations to describe negligent, or even egregious, conduct by the City Defendants. But the Court agrees with the City Defendants that the allegations in the amended complaint do not show that the City Defendants intended to harm Ms. Cunningham.
In fact, while the amended complaint alleges that the City Defendants "deliberately chose not to repair or properly maintain the Grit Facility or train their employees," and that the City Defendants "deliberately chose not to inform or train their employees and/or agents regarding safety policies," these allegations do not state or show that the City intended for Ms. Cunningham to fall through the grating at the Grit Facility. See id. at ¶¶ 219-20. Given this, when read in the light most favorable to Plaintiffs, the amended complaint alleges that Ms. Cunningham was harmed because of the negligent acts or omissions of the City Defendants, rather than that the City Defendants intended to harm Ms. Cunningham. See generally ECF No. 190.
Plaintiffs' argument that the City Defendants' intent to harm Ms. Cunningham can be measured by the natural and probable consequences of their actions is equally unavailing. ECF No. 190 at 48-50. Plaintiffs rely upon Fisher v. City of Memphis, 234 F.3d 312 (6th Cir. 2000), to argue that "the intent in question is the intent to commit the act, not the intent that a certain result be achieved." Id. But, Fisher did not involve allegations of a workplace state-created danger.
The Court is also not persuaded by Plaintiffs' argument that the deliberate indifference standard should apply to their state-created danger claim. ECF No. 174 at 19-21. As discussed above, the Fourth Circuit held in Slaughter that an intent to harm is required to allege a state-created danger claim based upon an unsafe work environment. Slaughter, 682 F.3d at 322. Because the amended complaint fails to allege facts to show that the City Defendants intended to harm Ms. Cunningham, the Court GRANTS the City Defendants' motion to dismiss Plaintiffs' Section 1983 claim based upon the state-created danger doctrine and DISMISSES Count I of the amended complaint.
C. Plaintiffs Fail To State A Monell Claim
Because Plaintiffs do not allege a plausible Section 1983 claim based upon the state-created danger doctrine, the Court must also dismiss Plaintiffs' Monell claims against the City Defendants in Counts II and III of the amended complaint. Counts II and III of the amended complaint assert Monell claims against the Mayor and City Council of Baltimore that are based upon alleged unconstitutional conduct by the City Employees. ECF No. 190 at ¶¶ 229-62. As this Court has recognized, it is "axiomatic that a Monell claim cannot lie where there is no underlying constitutional violation by the employee." Johnson v. Baltimore Police Dep't, 500 F. Supp. 3d 454, 459 (D. Md. 2020) (citations and quotations omitted). The dismissal of Plaintiffs' state-created danger claim against the City Employees means that there can be no plausible constitutional claim alleged against the City Employees in this case. Given this, Plaintiffs' Monell claims cannot lie. See Id.; ECF No. 190 at ¶¶ 229-62. And so, the Court also DISMISSES Counts II and III of the amended complaint.
D. Plaintiffs' Claims Against Poole & Kent And Gannett Fleming Are Time-Barred
Defendants Poole & Kent and Gannett Fleming also persuasively argue that the claims brought against them in Counts X, XI, XII, XIII, XIV and XV of the amended complaint are time-barred under the applicable Maryland statute of repose. Maryland's applicable statute of repose provides as follows:
Except as provided by this section, a cause of action for damages does not accrue and a person may not seek contribution or indemnity from any architect, professional engineer, or contractor for damages incurred when wrongful death, personal injury, or injury to real or personal property, resulting from the defective and unsafe condition of an improvement to real property, occurs more than 10 years after the date the entire improvement first became available for its intended use.See Md. Code Ann., Cts. & Jud. Proc. § 5-108(b). It is undisputed that construction of the Grit Facility was completed in 1996. ECF Nos. 165-1 at 2; 165-2; 164-1 at 7; 190 at 60. And so, to be timely, Plaintiffs claims for damages against Poole & Kent and Gannett Fleming, related to their respective roles in designing the Grit Facility, must have accrued by 2006. Id.
A plain reading of the amended complaint makes clear that Plaintiffs claims against Gannett Fleming and Poole & Kent involve the role that these Defendants had in designing the Grit Facility in the 1990s. ECF No. 190 at ¶¶ 33-34; 323-24 (alleging, among other things, that Gannett Fleming and Poole & Kent acted as the engineers, contractors and architects for the Grit Facility.). Given this, the amended complaint makes clear that Maryland's 10-year statute of repose applies to Plaintiffs' claims. Md. Code Ann., Cts. & Jud. Proc. § 5-108(b).
The amended complaint also makes clear that this action arises from events that occurred on June 3, 2019, which falls well-beyond the 10-year statute of repose. ECF No. 190 at ¶ 43. Given this, Plaintiffs' claims against Gannett Fleming and Poole & Kent are untimely.
Plaintiffs' argument that the statute of repose does not apply to their claims, because the Grit Facility is not an "improvement to real property," is also unconvincing. The Maryland Court of Appeals has described an "improvement to real property" within the meaning of the statute of repose as follows:
[A] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes. Generally, this has referenced buildings, but may also include any permanent structure or other development, such as a street, sidewalks, sewers, utilities, etc. An expenditure to extend the useful life of an asset or to improve its performance over that of the expenditures are capitalized as part of the asset's cost.Rose v. Fox Pool Corp., 335 Md. 351, 376, 643 A.2d 906 (1994) (emphasis added); see also Black's Law Dictionary (6th ed. 1990).
There can be no genuine dispute in this case that the Grit Facility, and the catwalks contained therein, are improvements to real property under this definition. As Plaintiffs state in the amended complaint, "[t]he Grit Facility is a 24,099-foot, multistory brick building that separates wastewater debris from the effluent waste stream." ECF No. 190 at ¶ 46. Plaintiffs also state that "[t]here are a total of six catwalks, with one catwalk above each wastewater aerated grit chamber [in the Grit Facility]." Id. at ¶ 48. And so, as described in the amended complaint, the Grit Facility and catwalks are improvements that enhance the value and utility of real property and they fall within the definition of an "improvement to real property" adopted by the Court of Appeals. See Rose, 335 Md. at 376, 643 A.2d 906. Given this, the Court DISMISSES Counts X, XI, XII, XIII, XIV and XV of the amended complaint as to Defendants Poole & Kent and Gannett Fleming as untimely.
E. Plaintiffs Fail To State Plausible Tort Claims Against Freeland Hoist
The Court also agrees with Defendants that the amended complaint fails to state plausible tort claims against Freeland Hoist. In Count IX of the amended complaint, Plaintiffs assert a negligence claim against Freeland Hoist. ECF No. 190 at ¶¶ 296-301. To prevail on their negligence claim, Plaintiffs must show: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Lloyd v. General Motors Corp., 397 Md. 108, 131-32, 916 A.2d 257 (2007) (citing Valentine v. On Target, 353 Md. 544, 549, 727 A.2d 947 (1999)).
Plaintiffs allege that Freeland Hoist had a duty to "consult with the Mayor and City Council of Baltimore in a proper fashion and/or to exercise the degree of care that reasonable consultants should use in assuring that the Grit Facility and equipment therein, which was verified as safe, were in fact safe." ECF No. 190 at ¶ 297. But Plaintiffs do not explain or substantiate their allegation that Freeland Hoist had such a duty. Id. at ¶¶ 296-301.
Freeland Hoist also represents to the Court, and Plaintiffs do not dispute, that it did not provide any certifications about the safety of the Grit Facility or the equipment used in the facility. ECF No. 104-1 at 4-5.
Plaintiffs also allege that Freeland Hoist breached this duty by "negligently certifying that the Grit Facility and equipment herein was safe." Id. at ¶ 300. But, again, the amended complaint is also devoid of any factual allegations to show how any breach of this alleged duty proximately resulted in the events that occurred on June 3, 2019. Id. at ¶¶ 296-301.
Notably, Plaintiffs allege in the amended complaint that Ms. Cunningham fell to her death after falling through the catwalk grates at the Grit Facility. Id. at ¶ 50. But there are no facts in the amended complaint to show that Freeland Hoist had a responsibility for the safety of the catwalks at the Grit Facility. Id. at ¶ 54 (alleging that "[a]s a result of the negligently designed, manufactured, installed and maintained catwalk system's failure to maintain structural integrity Trina L. Cunningham fell into a wastewater aerated grit chamber."). In fact, while Plaintiffs allege that Freeland Hoist "contracted with the City prior to 2018 to inspect the cranes inside of the Grit Facility," the amended complaint lacks facts to show how these inspections relate to the death of Ms. Cunningham. Id. at ¶ 298. Given this, Plaintiffs' negligence claim against Freeland Hoist is simply not plausible.
For similar reasons, the allegations in the amended complaint are also not sufficient to support Plaintiffs' other tort claims against Freeland Hoist. In Counts XII, XIV and XV of the amended complaint, Plaintiffs assert survival action, wrongful death and loss of consortium claims against, among others, Freeland Hoist. Id. at ¶¶ 316-30. These claims are based upon an alleged duty to use reasonable care to provide Ms. Cunningham with a safe work environment. Id. But, again, the amended complaint lacks facts to show that Freeland Hoist owed such a duty to Ms. Cunningham, or to show how Freeland Hoist allegedly breached this duty. Id. at ¶¶ 296-301.
Given this, the Court agrees with Freeland Hoist that the factual allegations in the amended complaint are not sufficient to state plausible tort claims against Freeland Hoist. And so, the Court DISMISSES Counts IX, XII, XIV and XV of the amended complaint as to Freeland Hoist. See Fed. R. Civ. P. 12 (b)(6).
F. Plaintiffs Fail To State Plausible Tort Claims Against Ohio Gratings
The parties agree that Plaintiffs fail to state a plausible strict liability claim against Ohio Gratings. See generally ECF Nos. 167, 171.
While a somewhat closer question, the Court also concludes that Plaintiffs fail to state plausible tort claims against Ohio Gratings. As discussed above, to prevail on their negligence claim against Ohio Gratings, Plaintiffs must show: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." Lloyd, 397 Md. at 132, 916 A.2d 257 (citing Valentine, 353 Md. at 549, 727 A.2d 947).
In Count VI of the amended complaint, Plaintiffs allege that Ohio Gratings had a "duty to design and manufacture grates, clips and I-beams in a proper fashion and/or exercise a degree of care that reasonable manufacturers should use in designing and manufacturing grates, clips and I-beams." Id. at ¶¶ 263-79. Plaintiffs also allege that Ohio Gratings breached this duty, by "negligently and carelessly [designing and manufacturing] the grates, clips and I-beams" at the Grit Facility. Id. at ¶ 278. And so, Plaintiffs contend that this conduct proximately caused Ms. Cunningham's fall through the grates at the facility. Id. at ¶ 279.
The Court agrees with Ohio Gratings that this negligence claim is not plausible. Taken as true, the facts in the amended complaint fail to show that Ohio Gratings proximately caused Ms. Cunningham's death.
In paragraph 195 of the amended complaint, Plaintiffs allege that Ms. Cunningham's death was caused by a "substandard" design "for the support of the walkway" at the Grit Facility. ECF No. 190. But there are no facts in the amended complaint to show that Ohio Gratings designed the Grit Facility's walkway. See generally id. In fact, Ohio Gratings maintains that it had no role in the design of the catwalk for the Grit Facility. ECF No. 167-1 at 7.
Plaintiffs, nonetheless, point to their allegation that Ohio Gratings "made the grates, plank clips, grating clamps and/or other anchoring devices for the grates" at the Grit Facility to support the viability of their negligence claim. ECF No. 190 at ¶ 36. But Ohio Gratings states, and Plaintiffs do not dispute, that Ohio Gratings does not manufacture grating clips and did not install or maintain the grates at the Grit Facility. ECF No. 167 at 2; ECF No. 190 at ¶¶ 36, 171. Given this, the factual allegations in the amended complaint, taken as true, simply do not show that Ms. Cunningham's death proximately resulted from Ohio Gratings' alleged conduct. And so, the Court must also DISMISS Plaintiffs' negligence claim against Ohio Gratings in Count VI of the amended complaint.
Plaintiffs remaining tort claims against Ohio Gratings in Counts XII, XIV and XV of the amended complaint are problematic for similar reasons. As discussed above, Plaintiffs assert survival action, wrongful death and loss of consortium claims that are based upon the alleged duty to use reasonable care to provide Ms. Cunningham with a safe work environment. ECF No. 190 at ¶¶ 321-30. But, as with Freeland Hoist, the amended complaint lacks facts to show that Ohio Gratings owed such a duty to Ms. Cunningham, or to show how Ohio Gratings allegedly breached this duty. Id. at ¶¶ 317-318, 323 (alleging generally that Defendants owed a duty to Ms. Cunningham to provide a safe work environment and prevent her from drowning and breached that duty by failing to properly design, and manufacture the grates, clips and I-beams.).
Given this, the factual allegations in the amended complaint are simply not sufficient to state plausible tort claims against Ohio Gratings. And so, the Court also DISMISSES Counts IX, XII, XIV and XV of the amended complaint as to Ohio Gratings. Fed. R. Civ. P. 12 (b)(6).
Because the Court concludes that Plaintiffs claims against Gannett Fleming and Poole & Kent are time-barred, and that Plaintiffs fail to state plausible tort claims against Freeland Hoist and Ohio Gratings, the Court does not reach the remaining issues raised in the Defendants' motions.
V. CONCLUSION
In sum, this case highlights the very tragic events that lead to the death of Trina Cunningham. Given the findings in the MOSH Report, there can be no genuine dispute that the lax maintenance at the Grit Facility played a role in this unfortunate incident. But, there can also be no genuine dispute that Plaintiffs' state law claims against the City Defendants in Counts V, XIII, XIV and XV of the amended complaint are barred by the LGTCA.
A careful reading of the amended complaint also shows that Plaintiffs have not alleged facts to show that the City Defendants intended to harm Ms. Cunningham to support their state-created danger claim under Section 1983. For this reason, Plaintiffs also cannot pursue their Monell claims against the City Defendants.
When read in the light most favorable to Plaintiffs, the amended complaint also makes clear that: (1) Plaintiffs' claims against Poole & Kent and Gannett Fleming are time-barred under Maryland's 10-year statute of repose and (2) Plaintiffs fail to state plausible tort claims against Ohio Gratings and Freeland Hoist. And so, for the foregoing reasons, the Court:
(1) GRANTS the City Defendants' motion to dismiss;
(2) GRANTS-in-PART Defendant Freeland Hoist's motion to dismiss;
(3) GRANTS-in PART Defendant Gannett & Fleming's motion to dismiss;
(4) GRANTS-in-PART Defendant Ohio Gratings' motion to dismiss;
(5) GRANTS-in-PART Defendant Poole & Kent's motion to dismiss and for a more definite statement; and
(6) DISMISSES the amended complaint.
Judgment shall be entered accordingly.
Each party to bear its own costs.