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Klock v. Miller & Long Co.

December 21, 2000

ROBERT OLLIE KLOCK, APPELLANT,
V.
MILLER & LONG COMPANY, ET AL., APPELLEES.



Before Reid and Washington, Associate Judges, and Pryor, Senior Judge.

The opinion of the court was delivered by: Pryor, Senior Judge

Appeal from the Superior Court of the District of Columbia

(Hon. Susan R. Winfield, Trial Judge)

Argued October 19, 2000

In a civil action against appellees Miller & Long Company and one of its employees, the trial judge granted summary judgment against appellant, dismissing a complaint which asserted multiple causes of action. Applying familiar standards controlling in summary judgment rulings, we reverse the judgment and remand the case to the trial court.

I.

Appellant Robert Ollie Klock ("Klock") was the on-site foreman for John J. Kirlin Company ("Kirlin"), a subcontractor at a construction site in the District of Columbia. Appellee Kenneth N. Morris ("Morris") was the superintendent for appellee Miller & Long Company, Inc. ("Miller & Long"), another subcontractor at the same construction site. In August 1995, appellant approached Morris to inquire about the possibility of Kirlin's employees using Miller & Long's forklift on a part-time basis. Apparently, Miller & Long possessed the only forklift that was capable of navigating the entire construction site. Miller & Long, through Morris, agreed to allow Kirlin's employees to use the forklift, contingent upon the execution of a contractual release (hereinafter "Release"). *fn1 On August 9, 1995, appellant signed the following Release:

I, the undersigned, Robert O. Klock (Steamfitter Foreman), *fn2 an authorized representative of J.J. Kirlin in consideration of the permission granted to us on this day 8/9/95 (Duration of Job) to use the Forklift/Crane of Miller & Long Company, Inc., located at 1717 Penns. Ave. for the purpose of unload equipment; transfer to garage acknowledge that:

We know the risks and dangers of using said property/equipment, assume all risk of injury to any representative/employee of our company, any persons under our direct or implied supervision, and any property that may be sustained in connection with our use of said equipment/property and agree, for all employees/representatives of this company, any persons under our direct or implied supervision, as well as their heirs, administrators, assignees and/or successors to waive, indemnify, save harmless and generally release all claims, demands, or causes of action, whether in equity or law (including, but not limited to, actions for against Miller & Long Co., Inc. for negligence), that they, as employees of this company, may have or that may arise against Miller & Long, its representatives, officers, or employees for any personal, physical or psychological injury or property damage that may be sustained by any employees/representatives of this company, while using Miller & Long's property, equipment, machinery or motor vehicles, or while on a Miller & Long job site.

The intent of this agreement is that we shall accept all risks and responsibilities of this equipment as if it were our own and, further, to accept this risk and responsibility even if any of the above losses result from the negligence of Miller & Long or its employees. The law of the State of Maryland will govern the interpretation and construction of this release.

Robert O. Klock

Kenneth Neil Morris

On October 31, 1995, appellant allegedly fell and injured his shoulder while pushing the forklift after it had broken down. On May 11, 1998, appellant filed a complaint in the Superior Court setting forth five counts. Based upon a negligence theory, Count I alleged that Morris spilled gasoline on the ground while refueling the forklift. Klock asserted that the spill created a gasoline slick that subsequently caused him to slip and fall while attempting to push the forklift after it had broken down. Count II, a products liability claim, alleged that the forklift was defective and unreasonably dangerous because the "battery with which it was equipped was inadequate, weak, and discharged, foreseeably causing lessees . . . to attempt to push the forklift." Respectively, the three remaining counts alleged breach of express warranty, breach of the implied warranty of fitness for a particular purpose, and breach of the implied warranty of merchantability.

On July 8, 1999, appellees jointly filed a motion for summary judgment. Appellees' sole argument was that the unambiguous terms of the Release insulated them from all of appellant's claims. On July 27, 1999, appellant filed his opposition to appellees' motion for summary judgment. Appellant principally argued that: (1) the Release was void pursuant to Md. Code Ann. Cts. & Jud. Proc. § 5-305 (1997) *fn3 as an indemnification agreement collateral to a construction contract; (2) the Release was void against public policy because it was the product of grossly unequal bargaining power and otherwise affected the public interest; (3) the Release was void ...


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