September 12, 2011|Dan Rodricks
In an era of high unemployment — and with many of the gainfully employed working too many hours because companies are either still downsizing or avoiding new hires — it would be helpful if the Maryland Court of Appeals allowed this question to be decided by a jury: Should an employer be held responsible when an overworked, sleep-deprived employee causes a terrible accident?
That's the question at the center of a lawsuit that has been grinding through the state courts for a few years. It stems from an accident that occurred nearly six years ago.
Picture this: Tuesday, Jan. 18, 2006, and two men from New Windsor, in Carroll County, are in the midst of their long, morning commutes. Michael Barclay, 37, a narcotics sergeant with the Anne Arundel County police, is on his way to work from home. Christopher Richardson, 55, a longshoreman at the Dundalk Marine Terminal, is on his way home from work.
Sergeant Barclay's pickup truck is eastbound on Maryland Route 31, known as New Windsor Road; Mr. Richardson's SUV is westbound on the same road. It's about 7:30 am.
Mr. Richardson had not been home in a full day. He had arrived for work at the Port of Baltimore at 8 a.m. Monday. He'd worked 22 straight hours by the time he got off, Tuesday at 6 a.m.
Now, on a clear and dry winter morning, on a flat stretch of rural road near his home, Mr. Richardson's SUV crosses the center line and slams head-on into Sergeant Barclay's pickup truck.
Mr. Richardson dies in the crash. Testing later would show that the longshoreman was not impaired by drugs or alcohol. His SUV had left no skid marks, leading a medical expert to conclude that Mr. Richardson had fallen asleep at the wheel.
Sergeant Barclay is airlifted to the University of Maryland Shock Trauma Center, where doctors and nurses save his life. His ankles and legs, arms and hands are broken. He suffers severe abdominal injuries that require doctors and nurses to repeatedly treat severe infections.
By the time I speak to Sergeant Barclay, more than five years after the accident, he is no longer working for the Anne Arundel County police. He still lives in New Windsor, with his wife and three daughters. His journey back from the injuries has been arduous — long hospital stays, recurring infections and more than 50 surgical procedures. He was in the hospital again for another month earlier this year. That was in winter; his summer was better.
"This was the first year I was able to go swimming down the ocean," he says, noting that concern for infection had required avoiding exposure to surf and sand. Michael Barclay believes his medical bills are approaching $2 million. Those costs are borne by Anne Arundel County. Mr. Barclay won a worker's compensation claim and, combined with his pension after 15 years with the county police, he receives two-thirds of his salary. These days, he works part time as a front-desk security officer for a company in Millersville.
Mr. Barclay filed a negligence suit against Mr. Richardson's employer, Ports of America, in 2008, claiming the company should not have allowed the longshoreman to work 22 consecutive hours. Sleep deprivation caused the accident, Mr. Barclay's suit alleges. A lawyer representing Mr. Richardson's estate also has joined the suit.
But Mr. Barclay has not succeeded with his claim in Carroll County Circuit Court or at the Court of Special Appeals. Both courts agreed with Mr. Richardson's employer that, as a matter of law in Maryland, the boss was not responsible for his employee's decision to work such long hours.
However, the state's highest court, the Maryland Court of Appeals, recently agreed to hear the case. Henry Belsky, the Baltimore attorney representing Mr. Barclay, wants his client to get a full hearing on the facts and for a jury or trial judge to decide if Mr. Richardson's employer's actions contributed to the sleep deprivation that led to the accident and to Mr. Barclay's severe injuries.
There's also the matter of who pays Mr. Barclay's large medical bills, and Anne Arundel taxpayers should be keenly interested in that. So should anyone who works to the point of stress and acute fatigue — and those who employ them. We'll be following this case. Arguments are set for January.
Dan Rodricks' column appears Tuesdays, Thursdays and Sundays. He is the host of Midday on WYPR 88.1 FM. His email is dan.rodricks@baltsun.com.
