Walsh v. Potomac Airfield Airport

31 F. App'x 818
CourtCourt of Appeals for the Fourth Circuit
DecidedMarch 26, 2002
Docket01-1126
StatusUnpublished
Cited by1 cases

This text of 31 F. App'x 818 (Walsh v. Potomac Airfield Airport) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fourth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Walsh v. Potomac Airfield Airport, 31 F. App'x 818 (4th Cir. 2002).

Opinions

OPINION

LUTTIG, Circuit Judge.

This diversity case arises from the crash of a Piper PA 28-140, a four-seat aircraft, shortly after takeoff from the Potomac Airfield Airport in Fort Washington, Maryland. The Piper clipped trees on neighboring property and crashed, killing the pilot, Hank Griffioen, and injuring Maureen Walsh, one of the passengers. An autopsy revealed marijuana in Griffioen’s lung fluid and urine, J.A. 741, and Walsh’s expert acknowledged that Griffioen erred in failing to use proper short field take-off procedures, given the density altitude that day and the weight in the aircraft. J.A. at 186.

Having settled with Griffioen’s estate and employer, Walsh now sues the neighboring landowners for maintaining the tall trees on their property and the Potomac Airfield for operating its runway in an unsafe location. The district court dismissed Walsh’s complaint against the landowners pursuant to Fed.R.Civ.P. 12(b)(6) and granted summary judgment for Potomac Airfield. For the reasons that follow, we affirm.

I.

Under Maryland law, the duty owed by an owner or occupier of land depends on the plaintiffs status as an invitee, invited licensee, bare licensee, or trespasser. See Wells v. Pollard, 120 Md.App. 699, 708 A.2d 34, 39 (App.1998). The district court held that Walsh was a trespasser, or, at best, a bare licensee, to whom the landowners owed no duty of reasonable care. J.A. at 6.

On appeal, Walsh asserts that premises liability law should not apply, because contact with the trees occurred in publicly-owned “navigable airspace,” and not on the landowners’ property. Appellant’s Br. at 30-33. Although she cites no legal authority to establish precisely where the landowners’ property ends and where “navigable airspace” begins,1 Walsh argues [821]*821that the landowners’ trees are like trees encroaching on public highways on land. Id. The district court rejected this argument, holding that the crash occurred on the landowners’ property, and not in publicly-owned “navigable airspace.” J.A. at 37. We agree.

The Supreme Court of the United States has recognized that the common law ad coelwm doctrine2 “has no place in the modern world.” United States v. Causby, 328 U.S. 256, 261, 66 S.Ct. 1062, 90 L.Ed. 1206 (1946). Nevertheless, Maryland law holds that “[t]he landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land.” Friendship Cemetery v. Baltimore, 197 Md. 610, 81 A.2d 57, 62 (1951); see also Causby, 328 U.S. at 264, 66 S.Ct. 1062 (“[I]t is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run.”). Therefore, declaring the space occupied by the trees to be publicly-owned would be inconsistent with Maryland law.

Walsh further argues that the landowners’ duty of care should be defined according to the Code of Maryland Aviation Regulation (“COMAR”) § 11.03.05.03(B)(1), which prohibits vegetation from growing “to such a height as to be an airport hazard.” Appellant’s Br. at 20-23. However, the violation of a statute or ordinance confers no right of action on a trespasser or a bare licensee. See Osterman v. Peters, 260 Md. 313, 272 A.2d 21, 23 (1971) (“A trespasser can acquire no such right except in case of willful injury. The mere violation of a statute would not give it.”). Given Walsh’s status as an uninvited entrant on the landowners’ property, we reject appellant’s argument that COMAR § 11.03.05.03 establishes the landowners’ duty of care.3

[822]*822Walsh finally argues, relying on Baltimore Gas & Electric Co. v. Flippo, 112 Md.App. 75, 684 A.2d 456 (Ct. Spec.App.1996), that she should not be regarded as a trespasser because she did not intentionally or voluntarily enter the landowners’ property. Appellant’s Br. at 27-29. However, on appeal in Flippo, the Maryland Court of Appeals expressly declined to hold that a trespass must consist of an intentional or voluntary act. See Baltimore Gas & Electric Co. v. Flippo, 348 Md. 680, 705 A.2d 1144, 1151. Instead, the court held that Flippo was not a trespasser because he was a licensee by invitation on the real property through which the electric company’s easement ran. Id. at 1153. Flippo does not help Walsh, as she was not a social guest on the real property where the accident occurred. Hence, she was owed no duty of reasonable care.

The landowners’ duty to Walsh was not one of reasonable care, but, rather, to refrain from wanton or wilful misconduct. Id. Because Walsh’s complaint does not allege willful or wanton behavior by the landowners, the district court’s dismissal of the counts against the landowners was proper.

II.

As to Potomac Airfield, Walsh seeks to impose a duty under Maryland air regulations, arguing that the obstruction clearance slope to the airport’s runway was less than the ratio required by the Maryland Aviation Administration (“MAA”). Appellant’s Br. at 10, 43-46. However, the COMAR regulations apply only to approach paths, not departure paths. Maryland law imposes no duty on the airport to provide any particular obstacle clearance slope for takeoffs.

In arguing that COMAR imposes a duty of care regarding takeoffs, Walsh relies on the definition of “hazard” in COMAR § 11.03.05.01(B)(7), which states as follows:

“Hazard” means any object which affects the area available for landing, takeoff, and maneuvering of aircraft, thus tending to impair or destroy the utility of an airport and present a potential danger to users of the airport and residents of the area.

(Emphasis added). However, this is merely a definition of “hazard,” not a prohibition of hazard, and imposes no duty on an airfield or on anyone else. The prohibited “hazard to air navigation” is defined more narrowly in COMAR § 11.03.05.04(A):

An obstruction is a hazard to air navigation if it: (1) Is greater than 200 feet above ground level and within 3 nautical miles of the established reference point of any public-use airport licensed by the Administration; or (2)[p]enetrates any [823]*823imaginary surface specified in this regulation as applied to any airport.

(Emphasis added). It is undisputed that the trees are less than 200 feet high; thus, to be a “hazard to air navigation,” the trees must penetrate an “imaginary surface.” However, “imaginary surface” applies only to approach paths, not departure paths. COMAR § 11.03.05.01(B)(8) states:

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31 F. App'x 818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/walsh-v-potomac-airfield-airport-ca4-2002.