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Construction
7 min read
Areas of Expertise :
Construction, Construction Management, Building Code, Structural Engineering, Guardrail
Published Date:
Last Modified Date:
Jurisdiction:
Maryland State
A guardrail failure at a residence in Dunkirk, Maryland, led to the litigation in Marrick Homes LLC v. Rutkowski, 232 Md. App. 689, 161 A.3d 53 (2017). Marrick Properties, Inc. (“Marrick”) served as the builder and general contractor when the home was completed in 2005. Creative Trim, Inc. constructed a guardrail outside a sliding glass door intended to provide access to a possible future deck. Because of the slope of the lot, the opening was approximately 12 to 13 feet above the ground. Adam Rutkowski and Sara Mastropole purchased the property in 2012. On November 11, 2012, Rutkowski leaned against the guardrail while shaking out a kitchen mat. The railing gave way, and he fell to the patio below, sustaining multiple fractures and a traumatic brain injury.
The lawsuit addressed the railing’s construction, Marrick’s supervision of its subcontractor, compliance with the applicable Calvert County building code, and whether the construction condition caused Rutkowski’s injuries. At trial, the parties presented competing testimony about the finishing nails used in the railing, its structural capacity, and a code requirement that the guardrail withstand 200 pounds of lateral force. The jury found a building code violation, negligence, and proximate causation. After adjustments to the damages award, the Circuit Court for Calvert County entered a $976,700 judgment, which the Maryland Court of Special Appeals affirmed in 2017.
Marrick Properties, Inc. completed construction of the Dunkirk, Maryland, residence in 2005 and served as the builder and general contractor. The home included a sliding glass door intended to provide access to a possible future deck, but no deck had been built at that location. Because the doorway was approximately 12 to 13 feet above the ground, a safety guardrail was installed across the exterior opening. Creative Trim, Inc. was the subcontractor responsible for constructing and installing the guardrail.
Adam Rutkowski and Sara Mastropole purchased the home in 2012. On November 11, Rutkowski opened the sliding glass door to shake out a kitchen mat and leaned against the guardrail. The railing gave way, causing him to fall approximately 12 to 13 feet onto the concrete below. He suffered multiple broken bones and a traumatic brain injury.
Rutkowski and Mastropole filed suit in the Circuit Court for Calvert County against Marrick, Creative Trim, Creative Trim owners Richard and Donna Haupt, and former homeowners Mark and Sandra Smith. Their claims against Marrick included negligence, negligent supervision, and loss of consortium. Marrick raised contributory negligence and assumption of risk as affirmative defenses. Before trial, all defendants other than Marrick were dismissed.
The case was tried before a jury over five days in February 2016. Plaintiffs’ residential construction and homebuilding expert Jeff Bayer testified that a general contractor should inspect and supervise subcontractor work and that Marrick should have determined how Creative Trim attached the guardrail. Bayer also testified that the use of finishing nails rather than screws was the reason the railing failed and that, had he encountered a guardrail attached with finishing nails on one of his projects, he would have required it to be taken down and redone.
Plaintiffs’ engineering expert Greg Harrison testified that the guardrail would not have been able to withstand the 200 pounds of force required by the applicable building code when it was constructed. He estimated that Rutkowski applied approximately 35 to 45 pounds of force when he leaned against the railing and identified the location where finishing nails had been used as the point of failure. Marrick’s engineering expert Brian Bramel reached a different conclusion about structural compliance, testifying that his analysis showed the guardrail complied with the housing code and could withstand the required load. Bramel nevertheless agreed that the railing failed at the location where finishing nails had been used.
The jury found that construction of the railing violated the building code and that the violation was a proximate cause of Rutkowski’s injuries. It also found Marrick negligent in the construction or supervision of the railing and determined that Marrick’s negligence was a proximate cause of the injuries. The jury awarded $1,306,700 in damages.
After the verdict, Marrick sought judgment notwithstanding the verdict, a new trial, and remittitur. The Circuit Court for Calvert County denied the motion except for applying Maryland’s statutory cap on noneconomic damages. The damages award was later amended because of a clerical error. On May 20, 2016, the resulting judgment totaled $976,700.
Marrick appealed and challenged the building code duty imposed on a general contractor, the sufficiency of the negligence and causation evidence, and the treatment of its contributory-negligence and assumption-of-risk defenses. The Maryland Court of Special Appeals held that a general contractor may bear a nondelegable duty to comply with applicable building code provisions even when the relevant work is assigned to a subcontractor. The court also concluded that sufficient evidence supported submission of the negligence and causation issues to the jury. On May 31, 2017, the court affirmed the Circuit Court for Calvert County judgment.
Court:
Court of Special Appeals of Maryland
Case Name:
Marrick Homes LLC v. Rutkowski
A residential guardrail failed in 2012, causing Adam Rutkowski to fall 12 to 13 feet and suffer multiple fractures and a traumatic brain injury.
The case focused on building code compliance, finishing-nail connections, guardrail strength, and Marrick’s supervision of its subcontractor.
The jury found a building code violation, negligence, and proximate causation against Marrick.
The final judgment totaled $976,700 after application of Maryland’s noneconomic-damages cap and a clerical correction.
The Maryland Court of Special Appeals affirmed the judgment and held that the general contractor could remain responsible for subcontractor code violations.
Building Code Compliance
Construction Building Codes
Construction Inspections
Structural Analysis
Home Safety
Construction Accidents
A guardrail failure at a residence in Dunkirk, Maryland, led to the litigation in Marrick Homes LLC v. Rutkowski, 232 Md. App. 689, 161 A.3d 53 (2017). Marrick Properties, Inc. (“Marrick”) served as the builder and general contractor when the home was completed in 2005. Creative Trim, Inc. constructed a guardrail outside a sliding glass door intended to provide access to a possible future deck. Because of the slope of the lot, the opening was approximately 12 to 13 feet above the ground. Adam Rutkowski and Sara Mastropole purchased the property in 2012. On November 11, 2012, Rutkowski leaned against the guardrail while shaking out a kitchen mat. The railing gave way, and he fell to the patio below, sustaining multiple fractures and a traumatic brain injury.
The lawsuit addressed the railing’s construction, Marrick’s supervision of its subcontractor, compliance with the applicable Calvert County building code, and whether the construction condition caused Rutkowski’s injuries. At trial, the parties presented competing testimony about the finishing nails used in the railing, its structural capacity, and a code requirement that the guardrail withstand 200 pounds of lateral force. The jury found a building code violation, negligence, and proximate causation. After adjustments to the damages award, the Circuit Court for Calvert County entered a $976,700 judgment, which the Maryland Court of Special Appeals affirmed in 2017.
Marrick Properties, Inc. completed construction of the Dunkirk, Maryland, residence in 2005 and served as the builder and general contractor. The home included a sliding glass door intended to provide access to a possible future deck, but no deck had been built at that location. Because the doorway was approximately 12 to 13 feet above the ground, a safety guardrail was installed across the exterior opening. Creative Trim, Inc. was the subcontractor responsible for constructing and installing the guardrail.
Adam Rutkowski and Sara Mastropole purchased the home in 2012. On November 11, Rutkowski opened the sliding glass door to shake out a kitchen mat and leaned against the guardrail. The railing gave way, causing him to fall approximately 12 to 13 feet onto the concrete below. He suffered multiple broken bones and a traumatic brain injury.
Rutkowski and Mastropole filed suit in the Circuit Court for Calvert County against Marrick, Creative Trim, Creative Trim owners Richard and Donna Haupt, and former homeowners Mark and Sandra Smith. Their claims against Marrick included negligence, negligent supervision, and loss of consortium. Marrick raised contributory negligence and assumption of risk as affirmative defenses. Before trial, all defendants other than Marrick were dismissed.
The case was tried before a jury over five days in February 2016. Plaintiffs’ residential construction and homebuilding expert Jeff Bayer testified that a general contractor should inspect and supervise subcontractor work and that Marrick should have determined how Creative Trim attached the guardrail. Bayer also testified that the use of finishing nails rather than screws was the reason the railing failed and that, had he encountered a guardrail attached with finishing nails on one of his projects, he would have required it to be taken down and redone.
Plaintiffs’ engineering expert Greg Harrison testified that the guardrail would not have been able to withstand the 200 pounds of force required by the applicable building code when it was constructed. He estimated that Rutkowski applied approximately 35 to 45 pounds of force when he leaned against the railing and identified the location where finishing nails had been used as the point of failure. Marrick’s engineering expert Brian Bramel reached a different conclusion about structural compliance, testifying that his analysis showed the guardrail complied with the housing code and could withstand the required load. Bramel nevertheless agreed that the railing failed at the location where finishing nails had been used.
The jury found that construction of the railing violated the building code and that the violation was a proximate cause of Rutkowski’s injuries. It also found Marrick negligent in the construction or supervision of the railing and determined that Marrick’s negligence was a proximate cause of the injuries. The jury awarded $1,306,700 in damages.
After the verdict, Marrick sought judgment notwithstanding the verdict, a new trial, and remittitur. The Circuit Court for Calvert County denied the motion except for applying Maryland’s statutory cap on noneconomic damages. The damages award was later amended because of a clerical error. On May 20, 2016, the resulting judgment totaled $976,700.
Marrick appealed and challenged the building code duty imposed on a general contractor, the sufficiency of the negligence and causation evidence, and the treatment of its contributory-negligence and assumption-of-risk defenses. The Maryland Court of Special Appeals held that a general contractor may bear a nondelegable duty to comply with applicable building code provisions even when the relevant work is assigned to a subcontractor. The court also concluded that sufficient evidence supported submission of the negligence and causation issues to the jury. On May 31, 2017, the court affirmed the Circuit Court for Calvert County judgment.
Residential Construction and Homebuilding Expert Witness - Plaintiff
Jeff Bayer testified about the standard of care for a builder and general contractor, including supervision and inspection of subcontractor work. He stated that Marrick should have inspected Creative Trim’s work and, where fasteners were hidden, should have determined how the guardrail was constructed. Bayer testified that the use of finishing nails rather than screws was the reason the guardrail failed and said that a guardrail attached with finishing nails on one of his projects would have been taken down and redone.
Engineering Expert Witnesses
Plaintiff: Greg Harrison testified about the guardrail’s structural capacity in relation to the applicable building code requirement. He concluded that the railing would not have been able to withstand the required 200 pounds of force when it was built. Harrison estimated that Rutkowski applied approximately 35 to 45 pounds of force when he leaned against the railing and identified the location where finishing nails had been used as the point of failure.
Defense: Brian Bramel
Bramel testified that, based on his structural analysis, the guardrail complied with the housing code and was constructed in a manner that would allow it to withstand the required load. His conclusion differed from Harrison’s opinion about the railing’s structural capacity. Bramel agreed, however, that the location where finishing nails had been used was the point at which the guardrail failed.
Building Code Compliance Expert Witness
A building code compliance expert witness could evaluate the guardrail against the Calvert County code provisions in effect when the home was constructed. This type of expert could address the applicable guardrail load requirements, code interpretation, inspection obligations, and whether the installation met required safety provisions.
General Contractor Liability for Subcontractor Building Code Violations
Marrick argued that Creative Trim performed the guardrail work as an independent subcontractor and that Marrick should not be liable for the way the railing was constructed. The Maryland Court of Special Appeals applied Section 424 of the Restatement (Second) of Torts and concluded that assigning the work to a subcontractor did not automatically remove Marrick’s responsibility. Under the court’s analysis, a contractor may remain liable when work performed by another party fails to comply with a statute or regulation requiring specific safety precautions.
The Guardrail Was Evaluated Against a 200-Pound Lateral Load Requirement
The applicable building code required the guardrail to withstand 200 pounds of lateral force. Harrison testified that the railing did not have sufficient structural capacity to meet that requirement and that the force Rutkowski applied was substantially lower. Bramel reached a different conclusion and testified that the railing was structurally compliant. The competing engineering opinions were presented to the jury.
Finishing Nails Were Examined as Part of the Guardrail Construction
The type of fastener used in the railing became part of the construction dispute. Bayer testified that the use of finishing nails rather than screws caused the railing to fail and that he would have required a similarly constructed guardrail on one of his projects to be taken down and redone. Harrison identified the finishing-nail connection as the location of the failure. Bramel disputed the plaintiffs’ structural-compliance opinion but also agreed that the railing failed where finishing nails had been used.
The Jury Considered Both the Building Code Violation and Proximate Cause
The jury was asked separately whether construction of the railing violated the building code and whether that violation proximately caused Rutkowski’s injuries. It answered both questions in the affirmative. Testimony concerning the fasteners, structural capacity, amount of force applied, and physical failure of the guardrail formed part of the evidence considered on those issues.
Contributory Negligence and Assumption of Risk Remained Jury Questions
Marrick argued that Rutkowski should have inspected the railing before leaning against it and that his conduct supported contributory negligence or assumption of risk. Rutkowski testified that he had no reason to believe the guardrail would fail because he assumed it had been constructed properly. Other evidence indicated that the railing appeared sturdy and that trim concealed the finishing nails. The appellate court concluded that the evidence did not establish either defense as a matter of law, leaving those questions for the jury.
The jury in Marrick Homes LLC v. Rutkowski considered how an exterior residential guardrail had been constructed, whether it complied with the applicable building code, and whether Marrick properly supervised the subcontractor that installed it. Testimony addressed the use of finishing nails, the railing’s structural capacity, and the amount of force it was required to withstand. The jury found a building code violation, negligence, and proximate causation and returned a damages award that was later adjusted to $976,700. Marrick appealed the verdict, challenging its responsibility for the subcontractor’s work as well as the negligence, causation, contributory-negligence, and assumption-of-risk findings. The Maryland Court of Special Appeals rejected those challenges and affirmed the Circuit Court for Calvert County judgment on May 31, 2017.
When and where did the Marrick Homes guardrail accident occur?
The accident occurred on November 11, 2012, at Rutkowski and Mastropole’s home in Dunkirk, Maryland. Rutkowski was at a sliding glass doorway when the exterior guardrail gave way. He fell approximately 12 to 13 feet onto a concrete area below.
What injuries did Adam Rutkowski suffer in the guardrail fall?
Rutkowski suffered multiple broken bones and a traumatic brain injury. His injuries were part of the damages evidence presented at trial. The jury ultimately returned a verdict in favor of Rutkowski and Mastropole.
Which construction and engineering experts testified in Marrick Homes LLC v. Rutkowski?
The plaintiffs presented residential construction and homebuilding expert Jeff Bayer and engineering expert Greg Harrison. Bayer addressed general-contractor supervision, inspection, and the use of finishing nails, while Harrison testified about structural capacity and the 200-pound building code requirement. Marrick presented engineering expert Brian Bramel, who concluded that the railing complied with the housing code but agreed that it failed at the location where finishing nails had been used.
How much did the jury award in the Marrick Homes case?
The jury initially awarded Rutkowski and Mastropole $1,306,700. The trial court later applied Maryland’s statutory cap on noneconomic damages and corrected a clerical error. The amended judgment entered in May 2016 totaled $976,700.
What did the Maryland Court of Special Appeals decide?
The Maryland Court of Special Appeals affirmed the Circuit Court for Calvert County judgment on May 31, 2017. The court rejected Marrick’s argument that responsibility could be avoided solely because an independent subcontractor performed the guardrail work. It also upheld the jury’s negligence and causation findings and rejected Marrick’s request for judgment based on contributory negligence or assumption of risk.
Residential Construction and Homebuilding Expert Witness - Plaintiff
Jeff Bayer testified about the standard of care for a builder and general contractor, including supervision and inspection of subcontractor work. He stated that Marrick should have inspected Creative Trim’s work and, where fasteners were hidden, should have determined how the guardrail was constructed. Bayer testified that the use of finishing nails rather than screws was the reason the guardrail failed and said that a guardrail attached with finishing nails on one of his projects would have been taken down and redone.
Engineering Expert Witnesses
Plaintiff: Greg Harrison testified about the guardrail’s structural capacity in relation to the applicable building code requirement. He concluded that the railing would not have been able to withstand the required 200 pounds of force when it was built. Harrison estimated that Rutkowski applied approximately 35 to 45 pounds of force when he leaned against the railing and identified the location where finishing nails had been used as the point of failure.
Defense: Brian Bramel
Bramel testified that, based on his structural analysis, the guardrail complied with the housing code and was constructed in a manner that would allow it to withstand the required load. His conclusion differed from Harrison’s opinion about the railing’s structural capacity. Bramel agreed, however, that the location where finishing nails had been used was the point at which the guardrail failed.
Building Code Compliance Expert Witness
A building code compliance expert witness could evaluate the guardrail against the Calvert County code provisions in effect when the home was constructed. This type of expert could address the applicable guardrail load requirements, code interpretation, inspection obligations, and whether the installation met required safety provisions.
General Contractor Liability for Subcontractor Building Code Violations
Marrick argued that Creative Trim performed the guardrail work as an independent subcontractor and that Marrick should not be liable for the way the railing was constructed. The Maryland Court of Special Appeals applied Section 424 of the Restatement (Second) of Torts and concluded that assigning the work to a subcontractor did not automatically remove Marrick’s responsibility. Under the court’s analysis, a contractor may remain liable when work performed by another party fails to comply with a statute or regulation requiring specific safety precautions.
The Guardrail Was Evaluated Against a 200-Pound Lateral Load Requirement
The applicable building code required the guardrail to withstand 200 pounds of lateral force. Harrison testified that the railing did not have sufficient structural capacity to meet that requirement and that the force Rutkowski applied was substantially lower. Bramel reached a different conclusion and testified that the railing was structurally compliant. The competing engineering opinions were presented to the jury.
Finishing Nails Were Examined as Part of the Guardrail Construction
The type of fastener used in the railing became part of the construction dispute. Bayer testified that the use of finishing nails rather than screws caused the railing to fail and that he would have required a similarly constructed guardrail on one of his projects to be taken down and redone. Harrison identified the finishing-nail connection as the location of the failure. Bramel disputed the plaintiffs’ structural-compliance opinion but also agreed that the railing failed where finishing nails had been used.
The Jury Considered Both the Building Code Violation and Proximate Cause
The jury was asked separately whether construction of the railing violated the building code and whether that violation proximately caused Rutkowski’s injuries. It answered both questions in the affirmative. Testimony concerning the fasteners, structural capacity, amount of force applied, and physical failure of the guardrail formed part of the evidence considered on those issues.
Contributory Negligence and Assumption of Risk Remained Jury Questions
Marrick argued that Rutkowski should have inspected the railing before leaning against it and that his conduct supported contributory negligence or assumption of risk. Rutkowski testified that he had no reason to believe the guardrail would fail because he assumed it had been constructed properly. Other evidence indicated that the railing appeared sturdy and that trim concealed the finishing nails. The appellate court concluded that the evidence did not establish either defense as a matter of law, leaving those questions for the jury.
The jury in Marrick Homes LLC v. Rutkowski considered how an exterior residential guardrail had been constructed, whether it complied with the applicable building code, and whether Marrick properly supervised the subcontractor that installed it. Testimony addressed the use of finishing nails, the railing’s structural capacity, and the amount of force it was required to withstand. The jury found a building code violation, negligence, and proximate causation and returned a damages award that was later adjusted to $976,700. Marrick appealed the verdict, challenging its responsibility for the subcontractor’s work as well as the negligence, causation, contributory-negligence, and assumption-of-risk findings. The Maryland Court of Special Appeals rejected those challenges and affirmed the Circuit Court for Calvert County judgment on May 31, 2017.
When and where did the Marrick Homes guardrail accident occur?
The accident occurred on November 11, 2012, at Rutkowski and Mastropole’s home in Dunkirk, Maryland. Rutkowski was at a sliding glass doorway when the exterior guardrail gave way. He fell approximately 12 to 13 feet onto a concrete area below.
What injuries did Adam Rutkowski suffer in the guardrail fall?
Rutkowski suffered multiple broken bones and a traumatic brain injury. His injuries were part of the damages evidence presented at trial. The jury ultimately returned a verdict in favor of Rutkowski and Mastropole.
Which construction and engineering experts testified in Marrick Homes LLC v. Rutkowski?
The plaintiffs presented residential construction and homebuilding expert Jeff Bayer and engineering expert Greg Harrison. Bayer addressed general-contractor supervision, inspection, and the use of finishing nails, while Harrison testified about structural capacity and the 200-pound building code requirement. Marrick presented engineering expert Brian Bramel, who concluded that the railing complied with the housing code but agreed that it failed at the location where finishing nails had been used.
How much did the jury award in the Marrick Homes case?
The jury initially awarded Rutkowski and Mastropole $1,306,700. The trial court later applied Maryland’s statutory cap on noneconomic damages and corrected a clerical error. The amended judgment entered in May 2016 totaled $976,700.
What did the Maryland Court of Special Appeals decide?
The Maryland Court of Special Appeals affirmed the Circuit Court for Calvert County judgment on May 31, 2017. The court rejected Marrick’s argument that responsibility could be avoided solely because an independent subcontractor performed the guardrail work. It also upheld the jury’s negligence and causation findings and rejected Marrick’s request for judgment based on contributory negligence or assumption of risk.
Building Code Compliance
Construction Building Codes
Construction Inspections
Structural Analysis
Home Safety
Construction Accidents
Geotechnical Engineering, +4
Construction
Industrial Hygiene, +7
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