Murphy v. Baltimore Gas & Electric Co.

428 A.2d 459, 290 Md. 186

• Court: Court of Appeals of Maryland
• Decided: May 14, 1981
• Docket: [No. 59, September Term, 1980.] [No. 87, September Term, 1980.]
• Status: Published

Opinions

Digges, J.,

delivered the opinion of the Court. Davidson, J., concurs in part and dissents in part. Davidson, J., filed an opinion concurring in part and dissenting in part at page 196 infra.

These two independent appeals bring before this Court issues relating to the tort liability of owners of property to those injured while using it. Since the contentions being made here by the appellants in both actions are essentially legal in nature and either identical or closely related, we deem it expedient to dispose of the two appeals in one opinion. A brief summary of the unfortunate historical facts of each action will suffice.

In the first case we ponder, appellant Timothy Paul Murphy obtained a judgment in the amount of $150,000.00 following a jury trial in the Superior Court of Baltimore City for damages sustained when his hand came in contact with an electrical transformer owned by appellee Baltimore Gas & Electric Company. Judge Greenfeld, who presided at the trial, after determining that the evidence was legally insufficient to support the verdict, entered a judgment N.O.V. in favor of the electric company, and we granted certiorari prior to the intermediate appellate court’s consideration of Murphy’s appeal. The accident out of which this proceeding arises occurred on February 4, 1977, after Mr. Murphy and his wife emerged from the Brunswick Cedonia Bowling Lanes on Hamilton Avenue in Baltimore City at around 9:00 p.m. and proceeded to their vehicle located in Brunswick’s adjacent parking lot. Upon observing that the citizen’s band radio was missing from his newly purchased vehicle, this apellant approached several teenage children standing near the side of the bowling alley whom he believed might have knowledge of the disappearance. As he advanced, Mr. Murphy heard a "clanking” noise which he thought sounded like the closing of the top of a trash dumpster, so, when a discussion with the youths proved not to be helpful, he proceeded toward what he thought was a rubbish receptacle located at the side of the building to determine whether the CB radio had been disposed of there. The area surrounding what was in reality a high voltage electrical transformer was dark, and it was for this reason that appellant was unable to see the doors equipped with locks on the front of the unit. The transformer, surrounded on three sides by a brick wall attached to the building, was situated on a concrete support slab imbedded in the ground, with a protective metal pole centered in the opening to the pad. When Mr. Murphy lifted the top of the container about a foot, causing it to slide off the rear, he was unable to observe anything but darkness inside the unit.¹ He then returned to the bowling alley, and waited for the police to respond to a call made by a friend on his behalf. Apparently becoming somewhat impatient when the police failed to arrive after twenty minutes, this appellant reapproached the container, lit two matches in an attempt to see whether his radio lay within it, and received a severe electric shock when his hand came in contact with the transformer located within the unit.

The other case we consider arose out of the death by drowning on October 7, 1977, of 3x/2 year old Christopher Smith in a pond belonging to appellee, Reeders Memorial Home, Inc. Since the appeal brings into question the propriety of the Circuit Court for Baltimore County granting both Reeders’ demurrer and co-appellee Baltimore County’s motion raising preliminary objection, we assume the truth of the facts alleged in appellants’ amended declaration. The parcel of land on which the "abandoned quarry” known as "Becky’s Pond” is situated is adjacent to an apartment building where appellants Douglas and Pamela Smith lived with their victim child. The pond, for some twenty years, had been utilized by residents of the neighborhood for recreational purposes. Reeders, having knowledge of this use, posted "no trespassing” signs and erected a barbed wire fence around the property at some point in the past, but, by the time of Christopher’s death, the signs had disappeared and the fence had fallen into such disrepair that uninhibited access to the parcel existed. These appellants additionally alleged that two other children have drowned in the pond during the preceding decade, and that the failure to maintain a fence is a violation of the Baltimore County Code. The Smiths also joined Baltimore County as a defendant, alleging that this political entity deliberately failed to require that Reeders provide a fence complying with county law, and prevented that appellee from draining the pond, in order that the County could purchase the property at a reduced price. In this way, it is alleged, the County (as well as Reeders) "deliberately us[ed] the possibility of another death as a bargaining point in an effort to gain an economic advantage of $20,000.00 or more with respect to the other.” A motion raising preliminary objection filed by the County grounded On that body’s claimed immunity was granted, and Reeders’ demurrer was sustained without leave to amend. When the Smiths appealed, we issued our writ of certiorari before the Court of Special Appeals decided the issues presented.

The previous decisions of this Court well document that in Maryland, while required to provide ordinary care for an invitee, owners of real and personal property have consistently been held to owe no duty to a trespasser, except to abstain from willfully or wantonly injuring or entrapping such a person. E.g., Sherman v. Suburban Trust, 282 Md. 238, 241-42, 384 A.2d 76, 79 (1978); Bramble v. Thompson, 264 Md. 518, 521-22, 287 A.2d 265, 267 (1972); Osterman v. Peters, 260 Md. 313, 314, 272 A.2d 21, 22 (1971); Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 398, 265 A.2d 897, 898 (1970) (in which Judge Smith for the Court exhaustively reviewed the applicable law of this and other states); Hicks v. Hitaffer, 256 Md. 659, 666-68, 261 A.2d 769, 772 (1970); Mondshour v. Moore, 256 Md. 617, 619-20, 261 A.2d 482, 483 (1970); Fopma v. Bd. of County Comm’rs, 254 Md. 232, 234, 254 A.2d 351, 352 (1969); Herring v. Christensen, 252 Md. 240, 241, 249 A.2d 718, 719 (1969); Carroll v. Spencer, 204 Md. 387, 391-94, 104 A.2d 628, 630-31 (1954); State v. Machen, 164 Md. 579, 582-83, 165 A. 695, 696 (1933); Stansfield v. C. & P. Tel. Co., 123 Md. 120, 123-25, 91 A. 149, 150 (1914) (no liability to man who was electrocuted while climbing a telephone pole located on or over public property to rescue kitten). And this is true even though the trespasser be a child of tender age. Osterman v. Peters, supra (4¥2 years); Mondshour v. Moore, supra (6 years); Hensley v. Henkels & McCoy, Inc., supra (10 years); Carroll v. Spencer, supra (8 years); Fopma v. Bd. of County Comm’rs, supra (7 years); Herring v. Christensen, supra (3 years). Being fully aware that this great array of authority (which could have been expanded), constitutes virtually an impregnable barrier to their recovery in these cases, appellants invite this Court to abolish the common Jaw distinctions between the duties owed the various classes of users of another’s property in favor of applying the general negligence standard to all. At least with respect to trespassers, the status of the injured parties in the two cases here, we decline this entreaty.² The basis for the existing allocation of responsibility between owner and trespasser, reaffirmed today, has so frequently been broadcast by this Court over the last century that it would be superfluous to do more here than refer those interested to the cases earlier cited and the authorities relied on in each.³

Each appellant, recognizing the possibility that we will not alter the common law with respect to an owner’s responsibility to trespassers, claims the existence of an exception which, it is insisted, renders the general rule of no liability inapplicable to his case.

We initially consider Mr. Murphy’s claim. He asserts that under the abutting owner principles iterated in Pindell v. Rubenstein, 139 Md. 567, 115 A. 859 (1921), the electric company is responsible for his injuries and the jury verdict should be reinstated. Mr. Murphy can gain no solace from Pindell, where a young boy was injured by a gate that fell on him as he walked along the adjacent public sidewalk. The Court there explained that even assuming the child had climbed upon or otherwise come info contact with the gate,

... it is the duty of an abutting owner, maintaining structures along and adjacent to a highway, to use reasonable care to see that they are kept in such a condition as not to endanger the safety of persons engaged in the reasonable and lawful use of the highway. In measuring the extent of that duty we must be mindful of the fact that the public highways are the common and universal avenues of travel and communication for the entire public, and they may lawfully be used by children of tender ages, by the aged and infirm and by persons suffering from physical disability. Having in mind those considerations, it would be unreasonable to hold that an abutting owner could maintain a structure immediately adjacent to the highway in such a position that a person travelling along the highway could by merely taking hold of it cause it to fall and injure him, without being guilty of negligence and responsibility for the damage thus caused. Such a theory would, in the light of common experience of the manner in which highways are used, be contrary to the public safety and welfare. Persons may touch or even take hold of the structures lining a public highway under an infinite variety of circumstances without being thereby guilty of negligence. As for instance a traveler might stumble or make a misstep, or be suddenly overcome by illness and lean or take hold of the structure for support, or in the case of a child it might touch or take hold of it thoughtlessly. And in doing these commonplace and ordinary things such persons cannot lawfully be subjected to the perils of serious bodily injury through the collapse or fall of the object thus casually touched or grasped merely because it was not actually within the highway, but on the contrary the maintenance of such dangerous agencies, which may be little else than traps, constitutes a violation of the duty owed by the abutter to the public. [139 Md. at 580-81, 115 A. at 864 (citations omitted and emphasis added).]

Since the accident in this case did not involve an instrumentality along or adjacent to a public highway, nor the injury occur to one engaged in the lawful and reasonable use of such a way, the principle announced and discussed in Pindell is inapplicable. In addition, we note that the intrusion of Mr. Murphy was of a different order than what was contemplated by the Pindell court, since the actions in the case before us constituted a substantial and deliberate trespass upon the electric company’s property caused by neither emergency nor hnadvertance. Mr. Murphy’s claim does not lie within the ambit of Pindell.

Utilizing the facts present in their case, appellants Smiths hypothesize that a landowner is

liable for the death of a trespassing 3Via year old child, where the landowner has permitted constant public access for ten years in part to cause sale of its property, where the landowner has failed to fence the land as required by law, in order to save itself money, and where the landowner was aware that these conditions had caused the prior deaths of two other children, and would eventually cause the present death.

On its face, it would seem that the appellants request this Court to create an exception to the trespasser rule based on the coalescence of these alleged extraordinary facts. If this be the implication, we reject it out of hand since this Court would be extremely reluctant to recognize an exception posited on such near unique circumstances. However, the argument being made may encompass: (i) that the violation of a statute designed to physically protect users of property (in this case, an ordinance requiring a fence or other enclosure around bodies of water) constitutes a breach of duty owed to all users of the property including trespassers; and (ii) that what is frequently denominated the "attractive nuisance doctrine” or something closely akin to it should be adopted in this State, so as to permit recovery when an otherwise trespassing child of tender years is injured. We believe the decisions of this Court in Osterman v. Peters, 260 Md. 313, 272 A.2d 21 (1971), and State v. Longeley, 161 Md. , 158 A. 6 (1932), are factually so similar to the Smith case facts that the law we found applicable in these earlier cases controls our disposition of both contentions. In Osterman, the four and one-half year old son of the plaintiff drowned when he fell into a swimming pool in the yard of a neighbor’s vacant house while attempting to retrieve a ball that had gone over the fence and onto the neighbor’s property. A county code provision required that private pools be fenced, and have a gate equipped with a self-closing and self-latching device. Though the pool was fenced, there was testimony the gate was kept closed by placing a stone in front of it. The young lad pushed the stone aside to gain access to the pool area itself and we assumed for purposes of our decision that there was a statutory violation with respect to the required enclosure. In Longeley, the 12 year old infant son of the plaintiff drowned in an abandoned quarry filled with water and it was alleged that the defendant who owned the quarry negligently failed to adequately fence the property as required by the applicable city ordinance. The teachings of these two cases are combined and explained in Osterman when the Court, while noting the distressing situation presented, utilized the words and reasoning of the Longeley court in explaining:

"The ordinance in this case was passed for the benefit of the public. Any violation of it subjects the owner of a quarry to a fine. But, before an individual can hold such owner liable for an injury alleged to have resulted from such violation, there must be shown a right on the part of the plaintiff, a duty on the part of the defendant with respect to that right, and a breach of that duty by the defendant whereby the plaintiff has suffered injury. A trespasser can acquire no such right except in case of willful injury. The mere violation of a statute would not give it. The effect of such violation is only to raise a presumption of negligence in favor of one entitled to assert it.”

For these reasons, we conclude that Dr. Osterman could no more take his case from under the Maryland rule than could the plaintiff in Hensley v. Henkels & McCoy, Inc., supra, 258 Md. 397, who attempted to do so by alleging that the contractor knew that the area where tit;; accident occurred was customarily traversed by children. [ Osterman v. Peters, supra at 316-17, 272 A.2d at 23 (quoting State v. Longeley, supra at 569-70, 158 A. at 8 (citations omitted).]

Moreover, the "attractive nuisance doctrine” has been expressly rejected in this State. Osterman v. Peters, supra at 315, 272 A.2d at 22; Hensley v. Henkels & McCoy, Inc., supra at 411, 265 A.2d at 905.

The Smiths’ claim of responsibility on the part of Baltimore County for young Christopher’s death is similarly without merit. The duty of a political entity to enforce the law is manifestly that type of "discretionary policy-making, planning or judgmental governmental” function for which a county is, unless waived, ordinarily immune from suit. Janies v. Prince George's County, 288 Md. 315, 418 A.2d 1173 (1980). While it is true that a governmental body performing acts not of this type, in some circumstances, may be liable in tort, the mere receipt of financial benefit in the form of land purchased at a reduced cost is not sufficient to metamorphose what is otherwise a discretionary governmental function into one for which there can be tort liability. The trial court was correct in its rulings on both the demurrer and the motion raising preliminary objection.

The law is clear that no plaintiff here can recover. As we have frequently said before, if there is to be a change in the law with respect to the duty owed a trespasser by a property owner, we think the Legislature should make it. The judgments as entered in each of the two cases before us will be affirmed.

Judgment of the Superior Court of Baltimore City in Case No. 59 affirmed.

Costs to be paid by appellant.

Judgment of the Circuit Court for Baltimore County in Case No. 87 affirmed.

1 . As to why Mr. Murphy was able to raise the top. the electric company offered expert testimony of a metallurgist to show that the tabs and welds affixing the top of the transformer to its container were bent and broken, and that the fractures occurred within the two weeks preceding the examination, which was conducted ten days after the mishap.

2 . There are a number of jurisdictions that seemingly have merged the duty due an invitee and licensee, on the theory that each is using the property with permission of the owner (not true of a trespasser), and as to these two categories, have applied a general negligence standard. See Dooley, Modern Tort Law I, § 19.01, p. 376-77 (1977) (and cases gathered therein).

3 . Whether the property being used is personalty or realty is of no consequence in the present cases because it is clear that the same common law rule applies to both types of property. Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972); Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 411, 265 A.2d 897, 905 (1970) (and cases cited in each).