*1 Marie MECH CORPORATION, HEARST News American Baltimore. t/a Term, Sept.
No. SpecialAppeals Maryland. Court of
Sept. 9, 1985. *3 Miller, Miller, (Susan S. Balti- Baltimore Wm. Frederick brief), more, appellant. for on the King, Balti- Nelson, (Anderson, Coe & Baltimore Macy
G. brief), more, appellee. on the for M. WEANT, and ROBERT ALPERT
Argued before BELL, JJ.
WEANT, Judge. these facts. On precipitated
This was argle-bargle spend part decided to Marie Mech August searching City lunch in Baltimore hour day’s a reasonable reputedly charged lot which parking public from one of her had heard about which she fee monthly difficulty, she came to the After some initial co-workers. found a lot surrounded given she she had been where block large The had a open fence. fence high chain-link open with an door. “plain building” gate; inside was or in lot. on fence any signs did not observe woman lot but no cars. Mech some trucks There were right place. she at the assumed that lot public parking had not found a but she Unfortunately, the Hearst appellant, garage facility belonging a truck *4 News American. of the Baltimore publisher Corporation, through open gate steps a few After Mech had walked guard dog, “Smo- appellee’s appellee’s property, and onto unchained, snarl- key,” “growling and appeared, apparently causing dam- ground, to the knocked Mech ing.” Smokey injuries. other right to her knee and age damages Superior an brought Mech action Court) City. for Baltimore She (now the Circuit Court alleged theories, was liable under two negli- and gence liability. strict The case was tried before a jury At April, 1984. the close of all evidence the trial granted motion judge for directed verdict as to grounds Mech, both counts on the that appellee owed a licensee,” trespasser or “bare duty other than to refrain willful entrapment, or wanton or injury that the evidence was insufficient to support finding of breach of Mech duty. appeal, presents this On questions: these 1. Was there sufficient evidence for the to deter- jury mine the status of [appellant] [appellee’s] on property?
2. Was there sufficient evidence for the jury to deter- mine if [appellee] was of willful or guilty misconduct entrapment?
3. there sufficient Was evidence for jury decide [appellee] was liable under the of strict theory liability? 4. Should Court abolish the common law distinc- duty invitee, tions in landowner’s an towards or licensee trespasser? below,
For reasons set forth we affirm. It is a venerable principle Maryland law negligence actions the standard of required care of owners occupiers of land respect individual their land determined by “the individual’s while status on the invitee, property, i.e., whether he is an licensee, or trespass er.” Bramble Thompson, person Where the “bare licensee”—one enters who for his own purpose or convenience and with the landowner’s consent but not as a social guest imposes only law a minimal obligation on the —the landowner: to refrain from or willfully wantonly injuring entrapping person “once presence his is known.” Id. The same standard applies trespassers, defined as those who enter without privilege consent the landowner. that, 264 Md. at at 267. In ruling A.2d a matter law, most, licensee,” Mech “at a bare the trial judge
427 applicable concluded that the above-described standard was in the case Mech now asserts her status judice. sub was a of appellee’s question judge land fact which the to In particular, should have submitted the Mech jury. support there was sufficient evidence to a claims that invitee, an finding implied that she was therefore and to a standard care. higher entitled of invitees subject are those who enter
Generally,
the
with the owner’s
connection
business. Crown
Kane,
152, 157,
470,
and
213 Md.
131 A.2d
Cork
Seal Co.
however,
implied,
472
An invitation
be
may
“circumstances,
custom,
acquiescence
such as
of the
use,
apparent holding
premises
owner
habitual
out of
particular
public,
a
or
by
simply
general
to
use
in the
arrangement
design
of
premises.”
or
213 Md. at
Mech,
According
Md.App.
(1977),
denied,
cert.
740 (1978).
proof
Md.
There can
doubt that
encouragement
or inducement
absent from
record
us.
before
Even in an urban
setting,
pres
not,
open
leading
ence of an
to an
gate
unmarked lot does
view,
acquiescence
intrusions,
our
alone
indicate
let
Moreover,
Cork,
inducement.
supra,
contrast
Crown
there was no evidence of
Mech or
permitting
custom
Indeed,
visit the
strangers
property.
other
use
guard
several
years
hypothesis.
contradicts this
Mech
Finally,
similarly
the other cases cited
are
distin-
See,
Co.,
v. Sentinel Auto Parks
e.g., Gray
guishable.
Furness, Atran v.
(1972);
Md.
Taylor,
Hutzler Brothers Co. v.
(1968);
“Willful wanton”
for the
outrageous,
disregard
in reckless
is extreme and
Meilhammer,
rights
E.g.,
Md.App.
of others.
Medina
249-50,
A.2d
There
was no evidence
Mech.
injure
As to whether
intended
outrageous,
conduct was extreme
Bramble court’s
instructive,
though
holding
comments are
that case is
of this case.
In
dispositive
summarizing
not
its
strictly
said,
the Court
opinion,
merely conclude that
use
“[w]e
protect
a vicious
owners’
does
watchdog
constitute
entrapment
not
willful
or miscon
[wanton
Bramble,
3. Next Mech contends that the trial judge improperly granted a directed verdict for appellee Mech’s strict liability count.
The owner of an animal that injures
may
another
strictly
damages
liable for
the owner had
notice
prior
that the animal was vicious.
v.
Ryland, Md. 380
Twigg
(1884);
Villari,
462, 473,
227,
Md.App.
Slack
476 A.2d
232,
denied,
(1984).
cert.
301 Md.
eluded that recover under her negligence count, the trial judge correctly entered judgment appel- lee on the strict claim as liability well.
Finally, urges Mech us to abolish the common law distinctions regarding invitees, standard care to licensees, .so, In trespassers. declining to do we point out that in a recent case involving trespassers Court of Appeals reaffirmed these rules. Murphy v. Baltimore Gas Co., (1981). 290 Md. & Electric JUDGMENTS AFFIRMED. BE PAID BY
COSTS TO
APPELLANT.
ALPERT, Judge, concurring:
agree
I
with the
in affirming
court
judgments
trial court but
I disagree
analysis
since
with its
in issues 2
(the
and 3
application of Bramble v.
is to refrain from
injuring
him
through wilful or wanton misconduct. See Mondshour v.
Moore,
256 Md.
The court summarily answers this in the question nega- *8 tive. The court to law, seems conclude that as a matter of use of watchdog” a “vicious could never constitute such conduct. court finds this support for conclusion in an isolated passage of Thompson, Bramble v. wherein the Court of Appeals, addressing of a sufficiency plaintiffs complaint, stated:
We need not decide to any particular what extent device may deployed specific be circumstances before it be-
431
wilful
comes wanton or
misconduct
entrapment. We
that the
of a
merely
watchdog
conclude
use
vicious
protect
owners’
does not constitute such
action.
526,
at
It
Md.
majority implies that under dog circumstances can a owner be held to an trespasser liable inadvertent because under no circumstance can use of a vicious watchdog be held to entrapment constitute either or wilful or wanton misconduct. reading is, however,
The court’s of Bramble flawed. not preclude Bramble should so as to dog read being ever an instrumentality wilful wanton miscon- duct. Bramble,
The appellants,
argued
dog’s
con
gun
duct was
to a
analogous
spring
whose use constituted
wanton or wilful misconduct.
court,
The Bramble
like
courts,
other
considered this
see
analogy,
Melsheimer v.
Sullivan,
17, 19
1 Colo.App.
(1891)
27 P.
(citing Johnson
Patterson,
(1840));
v.
Conn.
Brewer v. Furtwangler,
Wash.
18 P.2d
839 (Sup.Ct.Wash.1933), and
agreed with the
distinction drawn
the intermediate appel
late court of
York
New
Marks,
Woodbridge
App.
(1897),
Div.
45 N.Y.S. at (emphasis i.e., context, It was within this is not the functional equivalent a spring gun, that the Bramble court conclud- *9 432 not did constitute wanton or watchdog the use of a
ed that
such
agree
I
that when
a distinction can
misconduct.
wilful
not
drawn,
does
amount to wanton or
dog
the use of
be
no distinction can be drawn—
misconduct. Where
wilful
spring gun—
of a
equivalent
is the functional
where a
that,
law,
as a matter of
conclude
is
reason to
there
not constitute such misconduct.
of a
use
is
protecting
property
in
one’s
close-
liability
The
incurred
same
privilege
protect
property.
with the
allied
ly
is
in that the force used must
An
limited
privilege
owner’s
defend-
necessary and not excessive. When
reasonably
be
alone,
privilege
is no
use
force
ing
there
property
bodily injury.
or serious
to cause death
See
calculated
Torts,
(3rd
1984).
ed.
Keeton,
p.
Prosser &
Law
§
of
however,
there is a
occupied,
is
property
Where
such force is
deadly
reasonably
force if
privilege to use
privilege
to defend his
person’s
In
necessary.
Maryland,
by
in a criminal context
was first discussed
State,
Appeals
of
Court
Crawford
court,
reversing manslaugh-
There the
conviction,
majority
jurisdictions:
in a
ter
noted
an
dwelling
attempted
forcible
if an assault
create a
under circumstances which would
are made
entry
design
apprehension
reasonable
or to inflict on
inhab-
felony
assailant
to commit a
of life or great
result
loss
injury
may
itants
which
harm,
design
that the
will be
danger
and that the
bodily
imminent,
a lawful
occupant
into
carried
effect
taking of the
even
dwelling may prevent
entry
intruder’s life.
(emphasis
original).
231 Md. at the defense regarding that the “rules recognized then court the defense one’s regarding the rules person one’s must the force used not similar ... generally habitation are excessive.” Id. at 13, 318 A.2d case, State, Md.App. Law v. In a later (1974), held that similarly Md. we denied, 272 cert. deadly to use privileged an owner necessary where his home an intruder who into entry to prevent force recognized, how- We felony therein. commit a intends to “ ‘unless *10 justified force was not ever, of such the use that ” The Law (quoting Id. at 318 unavoidable.’ of 345)). (2nd ed. Procedure Crimes and Criminal § the privi- have not discussed our courts Unfortunately, seeking context of a suit civil force in the use such lege to believe, however, owed to a duty that I liability. Mondshour, would not be recognized trespasser, trespasser repel some force to the use of breached occur, however, A breach would protect property. wanton or wilful used constituted of force degree where the Meilhammer, 62 Md. Medina said, in misconduct. We (1985), wilful or wanton conduct 489 A.2d App. “ con- highly of unreasonable aspect to take on the ‘tends care, in ordinary from duct, departure extreme involving an ” danger degree apparent.’ a high a situation where Keeton, Law Prosser & Id. at (quoting 489 A.2d Hence, if Torts, (5th 1984)). the force be ed. p. § could be reasonable, wanton misconduct con- no wilful strued. reasonableness, wantonness or wil-
The determination of if, of fact fulness, however, left to the trier based should be minds could differ. presented, reasonable upon the evidence Kres, Corp. v. Mondawmin Bramble on singular
I court in reliance differ from the from the consideration. jury’s so the issue as to withdraw evidence that produced I had believe that purpose on lot for placed appellee’s dog was trained to kill or dog and that the was injuring trespassers (like spring without notice bodily inflict serious harm misconduct of wilful wanton gun), sufficient evidence a determination presented permit would have been neither direct or circumstantial There was trier of fact. to inflict serious either trained dog evidence that was strangers wandering past injured in the harm or had bodily onto the lot. She offered testimony to the only effect that she wandered onto premises while searching for parking lot and that while the lot she encountered appellee’s dog, which first growled snarled and at her and then knocked her down. She offered no testimony that the dog was used for purpose her injuring and/or it was appellee’s plan to spring on unwary strangers. Further, there is proof that the posed a threat her either life or that of other inadvertant trespasser. Indeed, it appears the record that appellant was aware, albeit momentarily, dog’s presence prior to its knocking her down. Under circumstances, these where the evidence of appellee’s wanton conduct, or wilful even when considered in a light most to appellant, favorable was insufficient to cause reasonable minds to differ as to the result, not error to grant a directed verdict for appellee. *11 BELL,
ROBERT M. Judge, dissenting. I believe that the evidence regarding the nature and quality respect conduct with to the control of on its premises, presented which was during appel- case, lant’s was sufficient to enable appellant to survive a motion for Therefore, directed verdict. I dissent from that portion of the majority opinion holds, as a matter of law, the evidence was insufficient to establish willful and wanton misconduct or entrapment on the part appellee. setting
Before
out the facts presented during appellant’s
case, I think it well to rehearse the
standard
which a
trial judge’s grant of a motion for directed verdict1 is
reviewed. “If there
any
legally
competent
relevant and
evidence, however slight, from which a rational mind could
infer a
in issue,
fact
then a trial court would be invading the
province of the
by declaring
jury
In
directed verdict.
circumstances,
such
the case should be submitted to the
denied,
jury
a motion for
(citation
directed verdict
2-519).
(present
1. Former Md.Rule 552
Rule
omitted)”
Sales,
Inc.,
Impala
(U.S.A.),
v.
Impala Platinum
328,
887,
(1978).
283 Md.
389 A.2d
See also
Beahm
Shortall,
(1977), Ralph
Sons,
Md. 321
&
Pritts
Inc. v.
Butler,
(1979). Thus,
With principles firmly these the facts presented by appellant be set most light will forth favorable her. Appellant, having informed by employee been fellow parking the existence of a lot in block Front Street, she park at which her car at a reasonable rental, monthly sought to locate the parking during lot her Although lunch had difficulty break. she cor- finding the Street, rect block of Front when she arrived in block, upon she appellee’s property. came It was located area, a commercial link higher surrounded chain fence tall, she gates than open. was with the wide Inside fence a plain building open was with an door. To appellant, it looked a large like No signs lot. were kind observed or the parking Thinking about lot. “was that it for”, the lot looking was entered “make [she] car”, arrangements to “if park to ask [her] [she] right When she had taken place”. steps two three *12 lot, dog, inside the Shepherd, a German named at Smokey, growled attacked, knocking her and her to ground causing and serious various injuries.
Appellant was to transported hospital, ambulance release, in where she treated. her with Upon company was brother-in-law, her sister and revisited the scene time, her At injuries. p.m., of that around 4 gates observed secured The lot “short” chain. to the 436 inside open gasoline pumps,
were still and were an attend- station, building and ant’s a cement block a row barrels. Trucks, side, American” the name “News on the and kind parked signs any cars were on the lot. No were on the premises. visible support finds for its conclusion that appellee
The majority
entrap-
is not
willful and wanton misconduct or
guilty of
Thompson,
Bramble v.
in
ment
(1972).
underlying
the rationale
that conclusion
Implicit
opinion
proposition
itself is
that
majority
on
private property
of a known vicious
cannot
keeping
circumstances,
constitute,
willful and
under
wanton
disagreement with the
entrapment. My
misconduct or
ma-
is
and its rationale
jority’s
emphatic.
conclusion
to
evidence
proceeding
Before
consider
actually
tendency to
willful and
miscon
presented,
prove
wanton
of appellee,
applica
on the
and the
entrapment
part
duct
Bramble,
I think
that
appropriate
point
out
at
bility
are,
here
distinct
theories on which
potentially,
work
two
first,
call,
The
I
liability may
premised.
which
will
I
part
which was discussed
“premises liability”,
(with
agree),
dependent
I
is
on
majority opinion
which
property,
individual
the standard of care owed
user
which,
turn,
dependent upon
individual’s status
See,
Murphy
v. Baltimore Gas and
property.
while
Co.,
(1981); Bramble,
Md.
A.2d 459
Electric
Bowman,
v.
supra; Kight
Md.App.
opinion and to avoid the confusion
us, “dog
liability”,
the issue
owner’s
precisely define
before
Slack
dog.
an owner’s “control” of his
dependent upon
Villari, Md.App.
Liability
(1)
regard to
is shown that either:
without
arises when it
*13
viciousness,
dog’s
dog
the
the
owner
knowledge
dog
of control of
as would
degree
to exercise the
failed
(2)
person”,
“reasonable
or
“...
exercised
a by
knew,
exercise of ordinary
or reasonable
owner
care,
known, of
animal
propensity
have
to
should
mischief that was the cause of the harm.”
particular
do the
212, 216,
(1958).
I the facts presented, liability, am satisfied under exists, “premises liability” analysis. must rest on a dog owner’s has “liability” analysis importance with only regard assessing premises of the owner’s quality licensee”; conduct toward the “bare to the extent that of care owner imposed dog reference to the standard on the the control of his or her respect dog provides with evidence which would enable the trier facts to character- ize that with to the respect premises conduct willful wanton, then, extent, it has to that relevance.
I in light now consider the case sub of Bramble. judice Bramble, In was whether the stated a pleadings the issue and, therefore, cause of whether the trial court’s action2 sustaining plaintiff’s demurrers to the declaration was finding sustained proper. judge properly In that the trial demurrers, the Court out: 264 Md. at pointed Once state in their declaration that tres- they they were inadvertent, passers, simply authority albeit there is Maryland permits recovery which their unless wilful or wanton on the entrapment part misconduct of the animal’s owners can be No such allegation shown. here, added) (emphasis
made considered, having After the various theories rejected, espoused by plaintiffs escape “to their unenviable Bramble, plaintiffs alleged they In in their declaration that were land, trespassers they injured inadvertent on the defendants' were land, dog defendants’ while on defendants’ and that defendants’ propensities, had vicious of which defendants were aware.
predicament,” and particular reference to the plain- argument tiffs defendant’s was analoguous spring gun, it said: *14 We need not decide to what extent any particular device in may deployed specific be circumstances before it be- entrapment. comes wanton or wilful misconduct or We merely conclude that the use of a vicious watchdog to protect does not owners’ constitute such action[,] because,
Id. at A.2d A spring gun is more than to take human life. likely It is placed, purpose warning off, not for the of others but do design great injury, them even life is not taken come in they should contact with it. A dog is powerful so rarely endanger vicious would a used, watchdog man’s life. And the is not so much for intruder, of an but purpose injuring rather a means for him warning frightening away. dog and A gives presence spring gun notice of his and attack. A kills without notice whatever. Marks,
Woodbridge App.Div. 45 N.Y.S. Although teaches that the mere of a Bramble use vicious watchdog not, itself, of willful and wanton miscon- entrapment, recognizes duct or Bramble also that a dog may owner’s willful and wanton misconduct render dog Thus, one on wrongfully premises. owner liable even to his should standing proposition Bramble not be read as factor, cannot private property a vicious be one, which, important even an a set circumstances together, when taken could amount to willful and wanton entrapment. misconduct or To do so would render mean- ingless recognition Court’s standard care owed there in that trespasser. allegations Because were had no occasion to focus on or regard, simply Court what would discuss additional facts and circumstances necessary interesting to constitute such conduct. It is note, however, of a regard, tendency in that that the give presence his “notice of and attack” was significant in its analysis. factor
The case differs from Bramble in judice sub at least two here, respects. First, the issue of the sufficiency evidence, the sufficiency rather than of the pleadings, an not, not, issue has and could raise. Appellant, Bramble, unlike plaintiffs alleging addition to facts of strict supportive liability labeling appellee’s conduct, “reckless”, alleged facts which willful wanton or entrapment misconduct in- have been Second, ferred.3 the issue been having raised plead- ings, presented prove evidence to the nature and effect conduct. conduct,
“Willful” and “wanton” is in the nature of intentional wrong, the tendency *15 which to is known injure or should be known ordinari- and an ly accompanied by to disregard indifference and the probable harmful consequences. more is Something required attention; mere or than inadvertance lack of a there must more or less extreme departure ordinary standards care and the conduct must differ quality, degree, as well as from ordinary negligence, and known, must a disregard involve conscious of a serious It danger. regarded is usually as or “willful” “wanton” fail to prevent to exercise ordinary care to be, to injury person actually a who is known to or reasonably expected be, range to within the of a dangerous being done, act or a hidden peril premis- on the (citations omitted) es. Specifically alleged: she [appellee] negligent adequate- post signs
That was to that it failed ly warning dog’s presence of the post signs ... and failed to lot, warning keep [appellant] to off out and of its failed to have attendant, dog failed to restrict area which the could roam unattended, gates failed to close the to its lot area in when the entered, [appellant] unknowingly which danger which was known or [appellee] should have been known ... 63(38). Meilhammer, See Medina v. Negligence
65 C.J.S. § (1985) (discussing punitive Md.App. conduct is extraordinary and “wanton” damages, “willful” conduct, to amounting disregard a reckless outrageous others.) rights of the case, injuries alleged occurred to the instant
Turning was, best, at and bare property on appellee's therefore, appellant, that to sur- apparent, It is licensee. verdict, produced for directed must have vive motion it be inferred that appellee’s from which evidence to its under the circumstanc- regard premises, conduct with misconduct or constituted en- es,4 and wanton willful was appellee’s property testified that Appellant trapment. area; appeared public in a commercial that be a located unattended; lot; gates that the were that it was parking designating property private that no open; signs presence of the of a vicious were warning addition, premises. In her testi- on or about displayed permit the trier of fact to conclude such as to mony was gave warning prior secured and that the was not Moreover, Villari, supra, ample unlike Slack v. its attack. dog’s of its knowledge “mischievous appellee’s evidence of presented. deposition propensities” was trial, at contained Manager, which was read Transportation had been attacked or persons least four evidence that at Furthermore, there was evidence dog. by appellee’s bitten had circulated an inter-office memorandum been heads, alerting all them department against them watchdog warning garage had obtained *16 thus is clear that reason. It near the going propensi- vicious knowledge dog’s had full ties. location, lack themselves, appearance, property’s
By relevant, attendant, accessibility, though clearly of an and knowledge duty respect the control of its Appellee's and exclusive, major, though to be not the circumstance perhaps considered. and wanton to show willful be insufficient may arguably much more: But there is here entrapment. misconduct as to which dog’s presence, a vicious evidence attack, evidence of point up to the unwarned remained pro- dog’s of that vicious knowledge substantial appellee’s secured, not dog was this vicious evidence pensities, designating property private signs that no evidence were dis- dog’s presence of the notice giving of the circum- totality property. When played considered, evidence stances, by appellant’s revealed as especially respect property, conduct with appellee’s thereon, takes on a different kept the dog it relates from these I think that aspect. and sinister reckless more conduct was infer that jury circumstances I would entrapment. or constituted and wanton willful reverse.