Adam Rutkowski and Sara Mastropole brought a personal injury case to the Calvert County Circuit Court in Maryland after a safety rail at their home failed and sent Rutkowski falling 12 feet below. He broke several bones and incurred a brain injury. The suit was filed against Marrick Properties (Marrick), the general contractor and builder of the home, and Creative Trim, a subcontractor who installed the guard rail. The case against Creative Trim was dismissed; however, the jury found Marrick liable and awarded $1,306,700 in damages.
Marrick appealed the decision and tasked the court with reviewing several issues as follows:
- Whether a builder or general contractor owes a duty to subsequent buyers of the home, particularly when the work in question was performed by a subcontractor?
- Does the duty still exist seven years after the first buyer lived there and the new owner had two more months to recognize a defect?
- Does significant evidence exist that Marrick exhibited negligence?
- By leaning on the guardrail, did Rutkowski exhibit contributory negligence or act under the assumption of risk?
In 2005, the house was built in Dunkirk, Maryland, and the first owners lived there for seven years prior to Rutkowski and Mastropole. The accident occurred when Rutkowski exited the sliding door to shake out a kitchen mat and extended his arms over the railing pushing his weight against the rail when it collapsed. The plaintiffs provided evidence that the safety rail was secured to the home with standard finishing nails; therefore, it was not sufficient to withstand 200 pounds of pressure as required by building code. The nails were not exposed, as a wooden trim was added over them. In determining negligence, the plaintiff must prove the following:
- The defendant had a duty to protect from injury
- That duty was breached
- The plaintiff suffered an injury
- That the injury was the caused by the breach
The Plaintiffs used experts to first confirm that the failure of the railing resulted from negligent construction by using screws rather than the nails. Another expert explained that the railing would not have ever been able to withstand 200 pounds of pressure as required by the building code, even just after installation. They determined that the amount of weight Rutkowski placed on the railing was roughly 35-45 pounds.
Merrick had suggested that Rutkowski had assumed the risk of the railing’s failure, as indicated in his testimony that it had crossed his mind that he could fall and be injured if the railing collapsed. Merrick also suggested that Rutkowski was partially negligent by failing to inspect the construction of the railing before leaning against it. The court determined that Merrick did not provide evidence that Rutkowski would have had a reason to think that the railing would fail. At the time, Rutkowski assumed that the railing had been properly built. Based on these findings, the appellate court affirmed the lower court’s decision.
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