Markey, Stephen A., III

English

University of Baltimore School of Law

University of Baltimore Law ForumVolume 16Number 3 Spring, 1986 Article 51986Recent Developments: Johnson v. MountaireFarms of Delmarva: Maryland Fails to ExpandWorkmen's Compensation ActStephen A. Markey IIIFollow this and additional works at: http://scholarworks.law.ubalt.edu/lfPart of the Law CommonsThis Article is brought to you for free and open access by ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion inUniversity of Baltimore Law Forum by an authorized editor of ScholarWorks@University of Baltimore School of Law. For more information, pleasecontact snolan@ubalt.edu.Recommended CitationMarkey, Stephen A. III (1986) "Recent Developments: Johnson v. Mountaire Farms of Delmarva: Maryland Fails to ExpandWorkmen's Compensation Act," University of Baltimore Law Forum: Vol. 16 : No. 3 , Article 5.Available at: http://scholarworks.law.ubalt.edu/lf/vol16/iss3/5Johnson v. Mountaire Farms of Delmarva: MARYLAND FAILS TO EXPAND WORKMEN'S COMPENSA nON ACT Recently, the Court of Appeals of Mary-land declined to take part in a trend occur-ring in a minority of jurisdictions, towards the expansion of the "exclusive remedy" ex-ceptions under the Workmen's Compensa-tion Act (Act). Md. Ann. Code, art. 10 1 (1985). In Johnson v. Mountaire Farms of Delmarva, Inc., 305 Md. 246, 503 A.2d 708 (1986), the court held that the inten-tional tort exception to the Act requires an actual, specific and "deliberate intention" of the employer to injure an employee. Id. at 258,503 A.2d at 712. In so holding, the court affirmed the Circuit Court for Somer-set County's decision to dismiss a wrong-ful death and survivorship action brought against an employer, by the estate of an employee, who was killed during the course of employment. In Johnson, Rodney Adams, a sixteen year old employee of Mountaire Farms of Delmarva, Inc. (Mountaire), was electro-cuted while at work. The electrocution oc-curred as Rodney was "using a sump pump to remove liquid chicken fat and water from a ground depression." !d. at 248, 503 A.2d at 709. Approximately two months prior to this accident, Mountaire had been cited by the Maryland Occupational Safety and Health Administration (MOSHA), for a "serious violation" under article 89, §40(b) of the Annotated Code of Maryland (1979). A "serious violation" is defined by the stat-ute as a condition existing in which "there is a substantial probability that death or serious physical harm could result .... " Johnson, at 248, 503 A.2d at 709, n.1; Md. Ann. Code art. 89, §40(b) (1979). Mount-aire was issued this citation because of the defective condition of the sump pump which ultimately caused the electrocution. The pump's extension cord cover was broken and its wires exposed. Also, the cord was improperly spliced and the plug was missing a ground prong. Soon after MOSHA issued the citation, Mountaire deliberately misinformed MOSHA that they had corrected the serious violation. Thereafter, on June 3, 1981, Rodney was electrocuted. On January 17, 1983, Rodney's mother, Nancy Johnson, individually and as per-sonal representative of the estate of her son, filed a wrongful death and survivor-ship action against Mountaire. Mrs. J ohn-son alleged: (1) that the deliberate intention excep-tion of Art. 101, §44 does not require the allegation or proof of the employer's actual intent to injure, but requires only that the employer intentionally do the act which happens to cause in-jury or death; and (2) thatthe deliberate intention exception includes willful, wanton, or reckless conduct under-taken with a knowledge and apprecia-tion of a high degree of risk to another. Johnson, at 254, 503 A.2d at 712. Mountaire filed a special plea request-ing dismissal of the action arguing that the allegations in the claimant's declaration did not satisfy the requirement of"deliber-ate intention to injure" as required under §44 of the Act. !d. at 248,503 A.2d at 709. On January 31, 1984, Judge Simpkin, of the Circuit Court for Somerset County, filed a Memorandum Opinion agreeing with Mountaire and dismissed the case on May 23, 1984. Johnson appealed to the court of special appeals and also filed a petition for writ of certiorari in the court of appeals. The court of appeals granted certiorari prior to consideration by the in-termediate appellate court. In her appeal, Johnson requested the court to adopt the view that something less than actual specific intention, on the part of an employer to injure an employee, is required to satisfy the deliberate intention requirement of §44 of the Act. This sec-tion states in pertinent part that: [i]f injury or death results to a work-man from the deliberate intention of his employer to produce such injury or death, the employee ... shall have the privilege either to take under this article, or have a cause of action against the employer, as if this article had never been passed. Johnson alleged that a showing of gross, wanton or reckless negligence, and that the employer provided an unsafe workplace was sufficient under the Act. In support of this proposition, Johnson cited decisions from West Virginia and Ohio. In Mandolidis v. Elkins Industries, Inc., 161 W.Va. 695,246 S.E.2d 907 (1978), the West Virginia Supreme Court of Appeals held that an employee could sue his em-ployer for damages when the employers conduct, which causes injury or death, was "willful, wanton and reckless ... " Johnson, at 253,503 A.2d at 711, citing, Mandolidis, 246 S.E.2d at 914. The Ohio Supreme Court in Blankenship v. Cincinnati Milacron Chemicals, Inc., 69 Ohio St.2d 608, 433 N.E.2d 572 (1982), held that an employer could be held liable to an injured employee in tort if the employer knew or should have known that an employee may be injured as a result of unsafe work conditions. John-son, at 253, 503 A.2d at 711. In declining to expand Maryland's in-tentional tort exception to the exclusivity rule under the Act, the court first looked to the history and legislative intent of the Workmen's Compensation Act. The court noted that the first legislation in Maryland designed to compensate injured employees was passed by the Maryland General As-sembly in 1914. The Workmen's Compen-sation Act was designed to strike a "bal-ance between workers and employers ... [whereby] [w]orkers lost their right to sue their employers for negligence but gained the right to quick and certain compensation for injuries sustained during the course of their employment, regardless offault." Id. at 250, 503 A.2d at 710. On the other hand, the employer's liability is limited in exchange for losing the "defenses of con-tributory negligence, assumption of risk and the fellow servant rule." Id. The court further explained that § 15 of the Act outlines the employer's duties and liabilities in the event that an employee is disabled or killed from an accidental in-jury arising out of and in the course of his employment. This section of the Act states that "[t]he liability prescribed by ... [this Act] shall be exclusive ... " Maryland An-notated Code, article 101 §15 (1985). In interpreting the Act, the court held that aside from the exclusions under the Act itself, the remedies under the Act are ex-clusive of all other remedies. Finally, the court held that Rodney's death did not fall within any exceptions under the Act. The court found that under §44 there must be a deliberate intention on the part of the employer to injure the employee. The court went on to state that the vast majority of jurisdictions define "deliberate intention" under workmen's compensation statutes as requiring specific intention to cause death or injury, coupled with some action to accomplish this result. Johnson, at 252, 503 A.2d at 711; citing, 2A A. Larson, The Law of Workmen's Com-pensation, §68.13 (1983); Restatement (2nd) of Torts, §500 Comment F (1965); Prosser and Keeton on Torts, §8 (5th ed. 1984). In adopting the majority view, the court held that Johnson had failed to allege sufficient facts to fall within the exception of §44, and thus the wrongful death and survivorship actions were properly dis-missed. Recent Developments articles are continued on page 25 Spring, 19861The Law Forum-17 (Supp. 1985). 871d. § 9-102(a)(ii). 881d. § 9-102(a)(2). 891d. § 9-102(b)(I). 90ld. § 9-102(2). 911d. § 9-102(3)(c). 921d. 593 F.2d 815 (8th Cir. 1979). 931d. 941d. at 817. 9sld. 961d. at 82l. 97 See, e.g., State v. Sheppard, 197 N.J. Super. 411, 484 A.2d 1330 (N.J. Super. Ct. 1984)(In prosecu-tion for sexual assault and child abuse the defen-dant waived his right to confrontation by threat-ening to kill the victim). 98 525 S.W.2d. 336 (1975). 991d. at 339. 100Mattox, 156 U.S. at 237. 10lDouglas, 380 U.S. at 415. 102 197 N.J. Super. 411, 484 A.2d 1330 (N.J. Super. Ct. 1984). 103See id. at 484 A.2d at 1332. Although the court used the term "videotape," the procedures to be employed are analogous to closed circuit tele-vision. 104Id., 484 A.2d at 1334. 105 Annot., 80 A.L.R.3d 1212, 1214 (1977). 1061d. 107 Mattox, 156 U.S. at 243. 108 Roberts, 448 U.S. at 64 (quoting Chambers, 410 U.S. at 295). 109 See FED. R. EVID. 403 ("Although relevant, evi-dence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, ... "). l1OU.S. CaNST. amend. VI. 111U.S. CaNST. amend. XIV. 112U.S. CaNST. amend. I. 113 Washington v. Texas, 388 U.S. 14,23 (1967). 1141d. at 23 n. 2l. l1SU.S. CaNST. amend. VI. 116 Globe Newspaper Co. v. Superior Court, 457 U.S. 596, 604 (1982). 117Id. at 606-07. 118See California v. Trombetta, 104 S. Ct. 2528, 2532, (1984) ("Under the due process clause of the fourteenth amendment, criminal prosecu-tions must comport with prevailing notions of fundamental fairness"). 119 E.g., Some videotape statutes permit the admis-sion of videotape testimony, recorded prior to trial, in lieu of direct testimony at trial. Patricia A. Cleaveland is a recent graduate of the University of Baltimore School of Law. Johnson v. Mountaire Farms of Delmarva continued from page 17 Although the court's decision in Johnson is in line with the majority of other state holdings, it is at odds with the slowly de-veloping current trend. In fact, on May 31, 1985, the Court of Appeals of Maryland held that §44 of the Act allows an employee to hold his employer's insurer liable under the theory of intentional infliction of emo-tional distress resulting from the actions of the insurer. Young v. Hartford Accident & Indemnity, 303 Md. 182, 492 A.2d 1270 (1985); see also Gallagher v. Bituminous Fire and Marine Insurance Company, 303 Md. 201,492 A.2d 1280 (1985). Johnson seems to put an end to any further expand-ing of the exclusive remedy exceptions un-der the Act. In Maryland, as in the major-ity of jurisdictions, without a showing of a "deliberate intention" to injure an em-ployee, an employer will not be held liable outside of the Act, no matter how grossly negligent he might be. The end result in Johnson was that Rodney Adams' estate, because Rodney had no dependents, could only recover medical and funeral expenses. -Stephen A. Markey, III u.s. V. 1966 Beechcraft Aircraft: COURT UPHOLDS THIRD PARTY FORFEITURE UNDER 21 U.S.C. §881 In U.S. v. 1966 Beechcraft Aircraft, 777 F.2d 947 (4th Cir. 1985), the United States Court of Appeals for the Fourth Circuit fol-lowed precedents from the Second, Fifth and Eleventh Circuits to hold that the use of an airplane to transport conspirators to the scene of a drug deal exposes that vehicle to forfeiture under 21 U.S.C. §881 (1982). The court further held that an airplane owned by an uninvolved third party was subject to forfeiture because of his "con-scious indifference." !d. at 952. In early 1983, an informant in Greenville, South Carolina contacted the Drug Enforce-ment Agency (DEA) about a possible co-caine sale. The informant was directed to negotiate a buy and a DEA surveillance op-eration began. The informant arranged a deal with Brown and Montgomery to buy ten kilograms of cocaine for $500,000. In late February, Montgomery flew to Ft. Lauderdale, Florida to meet with Gerant and Butler, the cocaine suppliers, and Coddington, a middleman, to negotiate the purcnase. After weighing the cocaine and checking its purity, Montgomery flew back to Greenville. Gerant and Coddington then flew a 1966 Beechcraft from Ft. Lauderdale to South Carolina. There was circumstantial evi-dence suggesting that the Beechcraft car-ried the ten kilograms of cocaine. Butler flew a 1969 Aerostar from Ft. Lauderdale to South Carolina with a passenger, Hanna. All parties involved in the deal met at a Howard Johnson's and eventually all were . arrested, with the exception of Coddington, who escaped. In addition to recovering the cocaine from an automobile, a search of the hotel rooms revealed an electric money counter, a microscope, several guns, $4,960 in cash and a marijuana cigarette. A search of the Beechcraft revealed documents in-dicating that Gerant and Butler were on the plane in the Bahamas three months earlier. Under authority granted by 21 U.S.C. § 881 (b)( 4), law enforcement officers seized the two airplanes once it was determined they were used to promote the drug trans-action. Forfeiture proceedings against To-tal Time Aircraft, Inc., the owner of the Beechcraft, and Sundance Air, Inc., the owner of the Aerostar, were instituted in federal district court. The consolidated cases were tried without a jury and the dis-trict court ruled both aircraft were subject to forfeiture. Sundance Air is a Florida corporation wholly owned by Gerant. The district court determined that by trans-porting two drug conspirators, Gerant was utilizing the corporation's plane to assist in the illegal act of selling cocaine. Therefore, the Aerostar was used to "facilitate the sale, transportation, possession or conceal-ment of cocaine" which the corporation was aware of through its owner and was subject to forfeiture. Id. at 949. Total Time, is also a Florida corporation owned by David and Virgil Seeright. Total Time allowed Gerant touse the Beechcraft on several occasions, including the trip to South Carolina. The district court found that the Beechcraft transported the cocaine on this particular trip, concluding that it was used to further the "sale, transporta-tion, possession or concealment" of cocaine in violation of21 U.S.c. §881(a)(4). It fur-ther found that David Seeright, the corpo-ration's president, did not inquire into the "purpose of the trip, or what cargo would be carried, required no signed contract, had no clear understanding as to when the plane would be returned, and received no money for its use." Id. at 950. In addition, a flight plan was not filed and there was no insurance on the plane. The district court concluded that Total Time did nothing to guard against the illegal use of its plane, and therefore, was not an "innocent owner" within the meaning of the Supreme Court's decision in Calero- Toledo v. Pearson Yacht Spring, 19861The Law Forum-25 

Recent Developments: Johnson v. Mountaire Farms of Delmarva: Maryland Fails to Expand Workmen\u27s Compensation Act

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Recent Developments: Johnson v. Mountaire Farms of Delmarva: Maryland Fails to Expand Workmen\u27s Compensation Act

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