B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co.

578 A.2d 274, 84 Md. App. 103, 1990 Md. App. LEXIS 139
CourtCourt of Special Appeals of Maryland
DecidedAugust 30, 1990
DocketNo. 480
StatusPublished
Cited by6 cases

This text of 578 A.2d 274 (B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co.) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
B & K Rentals & Sales Co. v. Universal Leaf Tobacco Co., 578 A.2d 274, 84 Md. App. 103, 1990 Md. App. LEXIS 139 (Md. Ct. App. 1990).

Opinion

WILNER, Judge.

Appellant is in the business of supplying scaffolding and seating for public gatherings. In May, 1980, it entered into a lease with appellee to store some of its equipment in appellee’s tobacco warehouse in Anne Arundel County. On April 6, 1985, a fire broke out at the warehouse that destroyed all or most of the equipment appellant had stored there. Believing that the fire was caused by the negligence of appellee and its employees, appellant brought this action for damages in the Circuit Court for Anne Arundel County.

For reasons that we shall shortly discuss, appellant had a difficult time establishing at trial how the fire started, and appellee twice moved for judgment based on appellant’s failure to prove negligence, either directly or by inference. Those motions were denied, however, and the case was submitted to a jury, which returned a verdict in appellant’s favor for $123,252. The court thereupon decided that the evidence as to negligence really was insufficient and granted appellee’s motion for judgment NOV. After its own motion to alter or amend that judgment was denied, appellant brought this appeal.

When the appeal was first before this Court, appellee insisted that our review was limited to whether the circuit court abused its discretion in denying appellant’s motion to alter or amend the judgment NOV and did not extend to the substantive correctness of that judgment. That argument was based on some restrictive language in appellant’s notice of appeal. We found the argument plausible, limited our consideration to whether the court abused its discretion in granting the judgment NOV, found that it had not, and therefore affirmed the judgment. B & K Rentals v. Universal Leaf, 73 Md.App. 530, 535 A.2d 492 (1988). The Court of Appeals disagreed with that limited approach, however, concluding that the appeal presented for consideration the issues raised by appellant as to the validity of the [107]*107judgment NOV. It therefore reversed our judgment and remanded the case to us for further proceedings. B & K Rentals v. Universal Leaf, 319 Md. 127, 571 A.2d 1213 (1990). We turn then to the issues presented by appellant.

Trial Proceedings

There were only two people who had any direct knowledge of how the fire at the warehouse started—Walter Johnson and Leonard Grimes. Both men were employees of appellee and were working at the warehouse when the fire started. Neither of them was available to testify, however. Mr. Johnson was killed in the fire, and Mr. Grimes had apparently moved to Kentucky and could not be located. Lacking the benefit of those witnesses, appellant was forced to rely on evidence gathered by two fire investigators, Lieutenants Stallings and Klasmeier of the Anne Arundel County Fire Department. Some of that evidence consisted of their observations and photographs of the scene, which were admitted without objection.

The crux of the dispute was over appellant’s attempt to introduce, through the investigators, statements made by Mr. Grimes to Lt. Stallings as to the conduct of Grimes and Johnson and as to how the fire may have started. This arose in essentially three contexts—the testimony of Lt. Klasmeier, the testimony of Lt. Stallings, and two written reports prepared by Lt. Stallings. The two reports were ruled inadmissible; Lt. Stallings was not permitted to express an opinion as to the cause of the fire because his opinion was based in part on statements made to him during his investigation by Mr. Grimes and other witnesses. Lt. Klasmeier, however, was allowed to express an opinion as to the cause of the fire even though his opinion was based in large measure on Lt. Stallings’s report and the information supplied to Lt. Stallings by Mr. Grimes.

In its complaint, appellant averred that the fire started when, and because, Mr. Johnson “negligently, carelessly and improperly left a burning acetylene torch untended in the [warehouse].” No evidence of that was presented at [108]*108trial. There was evidence, essentially undisputed, that Johnson and Grimes were working in the warehouse that day, that there was no indication of vandalism, that an acetylene torch was present in the warehouse but that when found by Lt. Klasmeier the knob was in an “off” position, and that there were also present in the warehouse a number of dollies on small wheels that were used for moving tobacco. There was also evidence that string used to bundle the tobacco often became tangled in the dolly wheels and that it was appellee’s practice to unclog the wheels by burning the string with a torch. The theory espoused at trial was that Johnson was burning string from the dolly wheels and that the fire somehow started from that operation.

The significance of the evidence as to the presence in the warehouse of the torch and the dollies came principally, as we said, from statements made by Mr. Grimes to Lt. Stallings. In a supplemental written report prepared for his Division Chief, Lt. Stallings stated that he arrived at the scene at about 2:00 p.m., while the fire was still burning, and that he spoke with a number of firefighters and other witnesses, including Mr. Grimes. Grimes told him that he (Grimes) had lit an acetylene torch for Mr. Johnson at about 11:00 that morning, that Johnson used the torch to burn string from the dolly wheels, that at some point Johnson went to chase some youngsters who were riding their bikes in the warehouse, that Johnson later reported that he had finished working with the wheels in the receiving area, and that, prior to beginning new chores, they walked to the office area to make some coffee. While waiting for the coffee to brew, “Leonard Grimes began to hear a ‘popping’ noise and looked out the office door seeing smoke coming from the area where Walter Johnson had just finished burning the string from the jack wheels.” Lt. Stallings reported further that Grimes “did feel the cause for the fire was related to the strings being burned off the ‘jack wheels’ with the acetylene torch. The rear door was to have been open and the wind was blowing strong this date.”

[109]*109Upon this and the other information gathered by him, Lt. Stallings opined in his supplemental report that “the cause for the 9 alarm tobacco warehouse fire seems directly related to the open flame acetylene torch that was being used by Mr. Walter Johnson in burning strings from the jack wheels.” He expressed essentially the same opinion in a separate report he prepared for the National Fire Protection Association, stating that “[t]he probable cause for the fire was as the result of a warehouse employee using an Acetylene torch to burn string off wheel Jacks/Dolly.”

These two reports, though written by Lt. Stallings, were offered into evidence during the direct examination of Lt. Klasmeier. They were objected to on the ground of hearsay, actually double-level hearsay. Appellee urged that Mr. Grimes’s statements to Lt. Stallings constituted the first level of hearsay and that Lt. Stallings’s written report of those statements represented the second level of hearsay. Appellant acknowledged that to be the case but argued that Grimes’s statements to Stallings were admissible as an admission of a party and that Stallings’s report itself was admissible under the business record exception to the hearsay rule.

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Bluebook (online)
578 A.2d 274, 84 Md. App. 103, 1990 Md. App. LEXIS 139, Counsel Stack Legal Research, https://law.counselstack.com/opinion/b-k-rentals-sales-co-v-universal-leaf-tobacco-co-mdctspecapp-1990.