Miscellaneous Premises Liability Issues

Blankenship v. Wagner, 261 MD 37 (1971) stands for the proposition that outside back steps to a home were held in the exclusive control of the owner of the property, even though many people probably use them. Also see Apper v. Eastgate, 28 MD. App 581 (1975). In this case, a soap dish in the shower of a motel was held to be in exclusive control of the landlord even though many people likely used it as well.

There is authority for the proposition that if a plaintiff does not see something on the ground, that it may not be contributory negligence. This is because store owners often put merchandise in aisles that are designed to attract customer’s gaze away from the floor. See Diffendal v. Cash and Carry Service, 74 MD App 170 (1988); GC Murphy v. Greer, 75 MD App 399 (1988). You do not need to show notice if the store owner put the merchandise there, since that is notice. See Moore v. American Stores Company, 169 MD 541 (1936).

Morgan State University v. Pamela R. Walker, 397 Md. 509; 919 A.2nd 21 held that where a person walked across University’s parking lot with knowledge that the lot was covered with ice and snow and fell, that the person assumed the risk of her injuries as a matter of law. Essentially it states that the danger of slipping on ice is one of the risks that anyone of adult age must be able to appreciate. This case makes slip and falls on ice very problematical from a Plaintiff’s perspective.

Rountree v. Lerner 52 Md App 281 stands for the proposition that an apartment dweller has a right to enter and exit their own building in a safe manner and it is a jury question regarding whether it is assumption of the risk to do so when there is ice known to be present. The tenant has a right to egress from his own apartment and assume a complex owner would have taken all appropriate steps to make safe egress possible. Prosser & Keeton, Chapter 11, section 68 5th edition also supports this result(For other assumption of risk cases see ADM Partnership V. Martin 384 Md 84; Maryland State Fair v. Lee 29 Md App 374; Schroyer v. McNeal 323 Md 275; Kasten Construction v. Evans 260 Md 536. The Lee decision above adopted the principle that the issue of whether one has voluntarily assumed the risk is dependent on whether they are required to forego a legal right or privilege. If the evidence demonstrates that a Plaintiff was left with no reasonable alternative to an unsafe condition and was faced with foregoing a valuable legal right, a finding that the Plaintiff did not voluntarily assume the risk of his injury will not be disturbed. Thus it is important to determine whether the Plaintiff made a conscious choice for his own convenience versus a reasonable alternative. It is not assumption of risk to use a toilet seat that one knows is problematic since one has a right to use a toilet seat. See Sacks v. Pleasant 253 Md 40.

Section 303(i) of the Restatement of Torts states that a possessor of land is not liable for physical harm caused to a person by any activity or condition on the land whose danger is known or obvious to them, unless the possessor should anticipate the harm despite such knowledge or obviousness. See also Restatement of Torts, 2d, Section 473. It is not contributory negligence as a matter of law for a store patron to fail to observe and subsequently trip over or slips on some substance obstructing the clear passage of a store aisle. Chalmers v. Great Atlantic & Pacific Tea Co. 172 Md at 558-559.Sidewalk elevations and defects must be more than slight inequalities to be actionable. Minor defects or obstructions do not give rise to a cause of action. To be actionable there must be a dangerous obstruction or depression. Martin V. Mayor and City Council of Rockville 258 Md 177.

See Johns Hopkins Hospital, et al v. Correia et ux, Case Number 2453, September term, 2005 (filed April 30, 2007), a Court of Special Appeals opinion affirming a verdict in an elevator case where the court ruled that the operator of the elevator owed the highest degree of care to those using the elevator. In elevator cases one is entitled to a res ipsa loquitor instruction if he has satisfied the three part test for its use by showing the type of injury, that it was in the exclusive control of the defendant and the Plaintiff was not responsible. Swann v. Prudential 95 Md App 365. However, this law may not be applicable in the District of Columbia. An expert witness is likely needed in D.C. Also, see Dorsey v. General elevator Co 241 Md 99 for a case that suggests the doctrine may not be applicable under certain circumstances.

A new case from the Court of Special Appeals (Rivers v. Hagner Management Corp) stands for the proposition that if a landlord is not in compliance with a code and a criminal act (arson) caused a fire, the landlord cannot relay on the intentional act as a defense. It does not matter what the source of the fire was, what mattered was the violation of the statutory duty enacted to protect a person in the same class as the plaintiff. This established the duty which, if breached, could give rise to a Plaintiff’s verdict.

Property owners can be exposed to verdicts for negligent security under many circumstances. To establish the duty in a negligence action owed by the landlord see Farwell v. un, 902 F. 2d 282, 288 (4th Cir. 1990); Davis v. Johns Hopkins Hosp., 86 Md. App. 134, 145, 585 A. 2d 841, 847 (1991). In establishing a duty owed by a landlord in protecting invitees from criminal conduct see Lloyd v. Bowles, 260 Md. 568, 572, 273 A. 2d 193, 196 (1971); Moulden v. Greenbelt Consumers Serv., Inc., 239 Md. 229, 232, 210 A. 2d 724, 725 (1964); Ludloff v. Hansen, 220 Md. 218, 224, 151` A. 2d 753 (1959). The landlord’s liability is premised on the fact that he should know about the dangerous condition. See also Section 344 of the Restatement (Second) of Torts for the duty of a landlord to discover acts that are being done, give adequate warnings and duty to police the premises. See Ashburn v. Anne Arundel County, 306 Md. 617, 510 A. 2d 1078 (1986). Lamb v. Hopkins, 303 Md. 236, 492 A. 2d 1297 (1985) wherein it is stated that the Restatement (Second) of Torts reflects the common law of Maryland. The opinions and the Restatement suggest a special relationship sufficient to control the conduct of a third party may not apply between a business owner and a business invitee. In other words, and employee does not have to take affirmative action with regard to a third person if the employee is in the path of danger other than the general duty to warn of hidden dangers. With regard to criminal conduct, one should consider any prior similar incidents. If a security guard agency is hired, they must be licensed under Title 19 Business Occupations and Professions Article of the Annotated Code of Maryland. However, if a manager of property hires security guard not from an agency, they need not be licensed although their training and background are relevant regarding the appropriateness of their hire.

False imprisonment and false arrest cases are common law tort. The important issue is whether the detention was with legal justification. Great Atlantic & Pacific tea Co. v. Paul, 256 Md. 643, 261 A. 2d 731 (1970). Whether there was justification depends on the status of the person. See Article 27 Section 594 B regarding arrests without a warrant. Security guards are not vested with arrest powers. They are private citizens. Waters v. State, 320 Md. 52, 575 A. 2d 1244, 1247 (1990). A merchant would need probable cause to believe the person committed a crime of theft for example. See Nilson v. State, 272 Md. 179, 184, 321 A. 2d 301, 304 (1974) for definition of probable cause. The may not be probable cause where a proper investigation would have cleared away suspicious circumstances. See K-Mart v. Salmon, 76 Md. App. 568, 547 A. 2d 1069 (1988).

For malicious prosecution requirements see Exxon Corp. v. Kelly, 281 Md. 689, 693, 381 A. 2d 1146, 1149 (1978); Montgomery Ward v. Wilson, 339 Md. 701, 664 A. 2d 916, 927 (1995); Wood v. Palmer Ford, Inc., 47 Md. App. 692, 700-701, 425 A. 2d 671 (1981).

Vicarious liability between a landlord and an independent contractor requires control, otherwise a property manager who hires an independent contractor may not be liable. Rowley v. City of Baltimore, 305 Md. 456, 505 A. 2d 494 (1986). The test for independent contractor is indicated in Brady v. Ralph Parsons Co., 308 Md. 486, 520 A. 2d 717. If the injury to the person was directly caused by the thing contracted to be done rather than by collateral or causal actions of the contractor, the employer can still be held liable under Rowley, supra. See also Section 426 of the Restatement.

Expert witness testimony in premises liability cases is controlled by Rule 5-702 of the Maryland Rules. Establishing the standard of care, forseeability, establishing and determining the nature of a breach, proximate cause and damages are all areas of proper expert analysis.

Numerous lawsuits are being filed because of inadequate security being provided by property owners. For example, a landlord or property owner may be responsible for criminal conduct that occurs on their property if inadequate security has been provided. A business owner is not an insurer of the safety of an invitee (Lloyd v. Bowles, 260 Md. 568 (1971)). However, if the business owner or landlord knew or should have known about a dangerous condition, the Courts in Maryland have opined that the landlord or business owner can be guilty of negligence for failure to provide adequate security (Ludloff v. Hansen, 220 Md. 218 (1959)). In addition, Restatement Second, Section 344 sets forth the standard required of possessors of land. Essentially, the courts have ruled that one has no duty to protect another from a criminal act Ashburn v. Anne Arundel County, 306 Md. 617 (1986)). The courts have held that a business owner’s duty to warn against conduct of third parties does not exceed the general duty to warn against hidden dangers (Tucker v. KFC Nat’l Mgmt. Co 689 F. Supp. 560 (1988). On the other hand, if there is a special relationship that gives rise to a duty to protect, the owner may be held liable such as a common carrier, an innkeeper, (see Section 314 A of Restatement Second)). There can be a duty to summon assistance if the owner is aware that a customer is being attacked as long as there is no risk of harm to the person (Southland Corp. v. Griffith, 332 Md. 704 (1993)). Thus, if a 911 call could have been made without endangering the person making the call, there could be a duty established. If a landlord has actual or implied knowledge of criminal acts because of similar prior acts, one might be able to hold the landlord responsible for failing to provide security (Scott v. Watson, 278 Md. 160(1976)). Because the danger was foreseeable as a result of prior criminal acts, the landlord thus would have a heightened responsibility to provide security. Shopping mall owners and operators may be held responsible for the parking lots and common areas such as bathrooms. Businesses may be held responsible for incidents happening within their stores. Banks may be held liable for incidents occurring at their ATM machine or lobbies. In order to establish the standard of care required of owners of property one can look at national and local business codes, industry or trade group publications, federal and state workplace standards, OSHA guidelines for Workplace Violence Prevention Programs for Night Retail Establishments, statutory requirements (for example Md. Code Ann., Fin. Inst. 1-207 that set forth standards for ATM safety). One can also bring a claim for overzealous special policeman. Md. Code, Article 41, Section 4-901 authorizes the commission of special policemen. The case of Waters v. State, 320 Md. 52 (1990) stands for the proposition that these special policemen may exercise police powers on the property. Similarly, Md. Code, Title 19 of the Business Occupations and Professions Article provides for certain licensing requirements. If the person hiring a security guard does not use reasonable care to select persons fit for the particular job, they can be held liable for negligent hiring (Henley v. Prince George’s County, 305 Md. 320 (1986); Evans v. Morsett, 284 Md. 160(1978)). False imprisonment and false arrest are also claims that are made against business establishments. The case of Great Atlantic and Pacific Tea Company v. Paul, 256 Md. 643 (1970) defines these common law torts. False imprisonment occurs when a person is deprived of his liberty without his consent and without legal justification. Montgomery Ward v. Wilson, 339 Md. 701 (1995). Legal justification of the arrest is controlled by Article 27, Section 594 B that concerns arrests without a warrant. Essentially the arresting person must either be in the presence of the person committing a felony or misdemeanor, have probable cause to believe a crime is being committed. Security guards do not have arrest or police powers (see Waters, supra). A security guard is therefore treated like any private citizen Their authority is controlled by Md. Code, Article 27 section 342 and Md. Code Cts & Jud. Proc., Section 5-307.See also Montgomery Ward v. Wilson, 339 Md. 701. Probable cause is defined in various cases (Nilson v. State, 272 Md. 179 (1974); Kimbrough v. Giant Food, Inc. 26 Md. App.640 (1975). In addition, there is a duty to investigate properly if such an investigation would have demonstrated there was no probable cause (K-Mart v. Salmon, 76 Md. App. 568 (1988); Montgomery Ward & Co. v. Keulemans, 23 Md. App. 81 (1974).