Teresa Macias De Toscano,  v. Brian Sterner

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
 ANA LUISA OROPEZA DE TOSCANO,
Individually and as mother and next
friend of Gerardo Alonso Toscano
and Jesus Javier Toscano, minors;
ELEAZAR ESTABAN TOSCANO; MARIA
No. 03-1557 TERESA MACIAS DE TOSCANO, 
Plaintiffs-Appellants,
v.
BRIAN STERNER,
Defendant-Appellee. 
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Marvin J. Garbis, Senior District Judge.
(CA-02-2898-MJG)
Argued: October 31, 2003
Decided: March 11, 2004
Before LUTTIG and SHEDD, Circuit Judges, and
James H. MICHAEL, Jr., Senior District Judge of the
United States District Court for the
Western District of Virginia, sitting by designation.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Gerald Ira Holtz, LAW OFFICES OF GERALD I.
HOLTZ, L.L.C., Rockville, Maryland, for Appellants. Robert L.

-- 1 of 5 --

Hebb, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for
Appellee.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
The Toscano family brought this diversity action against Brian
Sterner, alleging that Sterner’s negligence resulted in the worksite-
related death of Javier Toscano. The district court determined that
Sterner is entitled to immunity under Maryland workers’ compensa-
tion law and granted summary judgment in his favor. For the reasons
set forth below, we affirm.
I.
Toscano was employed by T&W Concrete Company ("T&W") to
lay concrete floor at a construction site in Baltimore County, Mary-
land. T&W was a subcontractor to Sody Concrete Company ("Sody"),
which was itself a subcontractor to F.M. Harvey Construction Com-
pany ("F.M. Harvey"), the principal contractor at the site. While
Toscano was spreading a concrete floor, a cinder block wall collapsed
and crushed him to death. The accident occurred shortly after Sterner,
an employee of F.M. Harvey and the superintendent at the job site,
swung several of the wall’s safety braces out of the way to facilitate
the pouring of the concrete floor. Sterner also left the unsecured
braces hanging from the wall, and the excess weight of the braces
may have contributed to the instability of the wall.
The Toscano family subsequently brought this wrongful death
action against Sterner. The district court granted Sterner’s motion for
summary judgment, determining that Sterner is entitled to the same
2 TOSCANO v. STERNER

-- 2 of 5 --

immunity available to his employer, F.M. Harvey, under Maryland
law. This appeal followed.
II.
We review the grant of summary judgment de novo. Thompson v.
Potomac Elec. Power Co., 312 F.3d 645, 649 (4th Cir. 2002). Sum-
mary judgment is appropriate when there is no genuine issue of mate-
rial fact and the moving party is entitled to judgment as a matter of
law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). We
review the evidence in the light most favorable to the non-moving
party. Id. at 255.
Under Maryland law, an injured employee’s exclusive method of
recovery against an employer is by way of workers’ compensation.
Md. Code Ann., Lab. & Empl. § 9-509 (1999); Hastings v. Mechal-
ske, 650 A.2d 274, 278 (Md. 1994). The employer, therefore, is
immune from tort liability in actions brought by injured employees or
their personal representatives or dependents. A principal contractor
that is not the direct employer of an injured worker is considered the
"statutory employer" and is thus immune from tort liability if (1) the
principal contractor undertakes to perform any work that is part of the
business, occupation, or trade of the principal contractor; (2) the prin-
cipal contractor contracts with a subcontractor for the execution by or
under the subcontractor of all or part of the work undertaken by the
principal contractor; and (3) the injured worker is employed in the
execution of that work. Md. Code Ann., Lab. & Empl. § 9-508.
The Toscano family does not seek to hold F.M. Harvey liable for
the death of Toscano; rather, they seek to hold Sterner personally lia-
ble. In response, Sterner asserts that F.M. Harvey is immune from lia-
bility as the statutory employer, and that he, as a supervisory
employee of F.M. Harvey, may avail himself of the same immunity.
The district court found, and the Toscano family does not dispute, that
F.M. Harvey is a statutory employer. Our inquiry, therefore, focuses
on whether Sterner is entitled to the same immunity that is available
to F.M. Harvey.
Under Maryland law, an action may be maintained against a "per-
son other than the employer" who is liable for a worker’s injury or
3 TOSCANO v. STERNER

-- 3 of 5 --

death. Md. Code Ann., Lab. & Empl. § 9-901. A "person other than
the employer" includes a supervisory coemployee who breaches a
duty of care that the supervisor personally owes to the injured
employee. Athas v. Hill, 476 A.2d 710, 718 (Md. 1984). The supervi-
sory coemployee is not subject to liability, however, if at the time of
the accident, the supervisor is (1) performing a nondelegable duty of
the employer and (2) acting within the scope of his or her employ-
ment. Hastings v. Mechalske, 650 A.2d 274, 280 (Md. 1994).
Under the first prong of the Hastings test outlined above, we look
to the nature of the duty that Sterner allegedly breached. Sterner
argues that his actions were performed in furtherance of the employ-
er’s duty to provide a safe workplace. Because it is well established
under Maryland law that the duty to provide a safe workplace is a
nondelegable duty of the employer, see Hastings, 650 A.2d at 282,
Sterner asserts that he is entitled to immunity. The Toscano family,
on the other hand, argues that Sterner violated a duty that he person-
ally owed Toscano. They characterize Sterner’s action in moving the
braces as unrelated to safety, but performed for the sole purpose of
pouring the concrete floor.
Our consideration of this question is guided by the analysis
employed by the court in Hastings. There, the foreman at a construc-
tion site instructed a temporary laborer to use a backhoe, even though
the laborer had little experience operating backhoes of that particular
type. In the course of operating the backhoe, the laborer ran into scaf-
folding on which the plaintiff was working. The plaintiff fell to the
ground and sustained injuries. The plaintiff subsequently brought suit
against several parties, including the foreman. In addressing whether
the foreman was engaged in a nondelegable duty of the employer at
the time of the accident, the court noted that the foreman was respon-
sible for ensuring that workers had the ability to perform their tasks
in a competent and safe manner. These responsibilities, according to
the court, were performed by the foreman "in furtherance of his
employer’s responsibility to provide a safe workplace for its employ-
ees." Id. at 282. Because the duty to provide a safe workplace is a
nondelegable duty of the employer, the court determined that the fore-
man’s assignment of the backhoe to the temporary laborer was an act
undertaken "in fulfillment of a nondelegable duty the employer owed
its employees." Id.
4 TOSCANO v. STERNER

-- 4 of 5 --

We conclude, based upon the reasoning in Hastings, that at the
time of Toscano’s death, Sterner was engaged in the nondelegable
duty of the employer to provide a safe workplace. As the site supervi-
sor, Sterner was responsible for worksite safety. While he may have
moved the safety braces for the express purpose of pouring concrete,
Sterner’s action clearly implicated the overarching duty that F.M.
Harvey owes its employees to provide a safe work environment. As
supervisor, Sterner’s decisions regarding the movement of support
braces simply cannot be divorced from the employer’s nondelegable
duty to provide a safe workplace to its employees. Sterner’s action,
therefore, was taken "in fulfillment" of a nondelegable duty of the
employer. See Hastings, 650 A.2d at 282.
As to the second prong of the Hastings test, it is clear that Sterner
acted in the scope of his employment. As site supervisor, he was
responsible for securing the safety of the wall. In moving the safety
braces, Sterner performed a supervisory task well within the course
of his duties.
III.
Because Sterner was engaged in the nondelegable duty of the
employer to provide a safe workplace and was acting within the scope
of his employment, he is entitled to the immunity available to F.M.
Harvey. The district court therefore properly granted summary judg-
ment in Sterner’s favor. Accordingly, we affirm the judgment of the
district court.
AFFIRMED
5 TOSCANO v. STERNER

-- 5 of 5 --