James REMSBURG, Sr. v. Charles MONTGOMERY, et al.
No. 129, Sept. Term, 2002
Court of Appeals of Maryland
Aug. 27, 2003
831 A.2d 18
Philip J. McNutt (Hughes & Bentzen, PLLC, on brief), Washington, DC, for respondents.
Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.
HARRELL, J.
I.
On 28 November 1998, James Remsburg, Jr. (“Remsburg Jr.“), during a hunting expedition led by this father, James Remsburg, Sr. (“Remsburg Sr.“), accidentally shot and wounded Charles and Brian Montgomery. The Montgomerys timely filed suit in the Circuit Court for Frederick County against the Remsburgs alleging trespass and negligence. Remsburg Jr. settled with the Montgomerys and was dismissed from the suit.
Remsburg Sr. filed a Motion for Summary Judgment. He contended that there were no material facts in dispute and that the Montgomerys failed to assert properly the existence of a legally cognizable duty owed by Remsburg Sr. to the Montgomerys to protect them from the negligent acts of a third party, namely Remsburg Jr. The Montgomerys filed a timely opposition. A hearing was held on 15 April 2001, at which time summary judgment was entered for Remsburg Sr. on all counts. The Montgomerys appealed to the Court of Special Appeals.
The Court of Special Appeals issued a reported opinion on 1 November 2002 affirming the Circuit Court judgment as to the trespass count, but vacating with respect to the negligence claim. Montgomery v. Remsburg, 147 Md.App. 564, 810 A.2d 14 (2002). As to the latter, the intermediate appellate court
II.
At approximately 4:30 a.m. on the morning of 28 November 1998, Brian Montgomery arrived at the Frederick, Maryland, house of his father, Charles Montgomery. Brian, an avid hunter, and Charles, who previously had hunted only smaller animals, proceeded to the northerly edge of the father‘s property where they hid themselves in underbrush awaiting the official start of deer hunting season.1 At approximately 6:00 a.m. the two heard what they determined to be the sound of another hunter taking a position in a nearby tree stand. In order to avoid scaring away any deer in the area, and because legal hunting time did not commence for approximately 20 minutes, the Montgomerys prepared to leave the area without alerting any nearby deer or the newly arrived hunter to their presence.
At or about 6:15 a.m., while preparing to depart from his hidden position, Charles Montgomery moved to massage a leg
After realizing his mistake, Remsburg Jr. called to his father who was positioned in another tree stand approximately 250 yards away, off the Montgomery property. Remsburg Sr. and other members of the Remsburg hunting party responded to the call. Upon arriving at the scene of the accident, Remsburg Sr. commented, “I guess that rules out telling Jamie [Remsburg Jr.] to shoot at the first thing that moves,” and also indicated to Charles Montgomery that he should have been wearing more orange outerwear.
Although the Montgomerys and the Remsburgs respectively were unaware that the members of the other group planned to hunt on that particular section of the Montgomery property on the morning of 28 November 1998, the two families were well acquainted and had a long history of interactions regarding hunting rights on the Montgomery property. For a number of years prior to the pertinent incident, Remsburg Sr. leased hunting rights on the property from James Montgomery, Charles Montgomery‘s father. This right was granted in exchange for $500, which was paid annually by way of services performed by Remsburg Sr. on the Montgomery farm.2 After James Montgomery‘s death in 1995, control of the Montgom-
Whatever the status of his understanding with the Montgomery family, Remsburg Sr. also entered into a written agreement with Howard Payne, in or about 1997, that provided Remsburg Sr. with rights to hunt on Payne‘s property adjacent to the Montgomery property. On the morning of the accident in this case, all members of Remsburg Sr.‘s hunting party, with the exception of Remsburg Jr., were positioned on the Payne property. As noted supra, Remsburg Jr. was positioned in a tree stand located on the Montgomery property, which stand had been built years earlier by Remsburg Jr.4
In their complaint, the Montgomerys alleged generally that Remsburg Sr. was liable to the Montgomerys for the injuries they sustained as a result of a member of Remsburg Sr.‘s hunting party trespassing on the Montgomery property and negligently hunting there. The Montgomerys further alleged that the trespass was at the direction of Remsburg Sr., that Remsburg Sr. negligently breached his duty of care to the
The Circuit Court granted Remsburg Sr. summary judgment on all counts. In dismissing the negligence action, the judge observed that the element of “duty would have to arise out of a special relationship under Maryland law, and there just simply is no—its not a factual matter, but there‘s not any relationship that‘s proffered or pled or presumed under any theory in Maryland law that would support a finding of liability.” The judge also noted that there was no Maryland precedent supporting an action for bodily damages as a result of a trespass action.6
On appeal, the Montgomerys argued to the Court of Special Appeals that the Circuit Court judgment was erroneous as a matter of law because a duty was imposed by both Maryland‘s hunting laws and the long term relationship between Remsburg Sr. and the Montgomery family. Additionally, the Montgomerys contended that the existence of such a relationship “is a matter of factual determination to be decided by the trier of fact,” and may not be resolved, therefore, in a motion for summary judgment. They further maintained that summary judgment was granted erroneously because the trial judge drew factual inferences favoring the moving party, Remsburg Sr.
III.
Petitioner presents the following questions for our consideration:
- whether the Court of Special Appeals applied an incorrect standard of review for summary judgment by considering and relying upon factual proffers that were not supported by, and in some cases were contradicted by, admissible evidence on record;
- whether the Court of Special Appeals erred in holding that Remsburg Sr. could owe a duty in tort to the Montgomerys to protect them from the negligent acts of a third party, experienced hunter; and
- whether, even if Remsburg Sr. owed a duty to the Montgomerys, the independent act by Remsburg Jr. of shooting was a superceding cause of the Montgomerys’ injuries, which relieved Remsburg Sr. of liability.7
Because we find the answer to the second question dispositive of this matter, we reach and decide only that question. We conclude as to that, under the undisputed, material facts of the case sub judice, Remsburg Sr. had no duty in tort to protect the Montgomerys from the negligent acts of Remsburg Jr. Accordingly, we shall reverse the judgment of the Court of Special Appeals and remand the case to that court with
IV.
“the court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law” (emphasis added).
An appellate court reviews a trial court‘s grant of a motion for summary judgment de novo. Todd v. MTA, 373 Md. 149, 154, 816 A.2d 930, 933 (2003); Beyer v. Morgan State Univ., 369 Md. 335, 359, 800 A.2d 707, 721 (2002); Schmerling v. Injured Workers’ Ins. Fund, 368 Md. 434, 443, 795 A.2d 715, 720 (2002); see also Fister v. Allstate Life Ins. Co. 366 Md. 201, 210, 783 A.2d 194, 199 (2001). “The trial court will not determine any disputed facts, but rather makes a ruling as a matter of law. The standard of appellate review, therefore, is whether the trial court was legally correct.” Williams v. Mayor & City Council of Baltimore, 359 Md. 101, 114, 753 A.2d 41, 48 (2000) (internal citations omitted) (quoting Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 42-43, 656 A.2d 307, 311 (1995)); see also Eng‘g Mgmt. Servs. v. Md. State Highway Admin., 375 Md. 211, 229, 825 A.2d 966 (2003) (“[w]hether summary judgment is properly granted as a matter of law is a question of law. The standard for appellate review of a summary judgment is whether it is ‘legally correct’ “).
When reviewing a grant of summary judgment, we must make the threshold determination as to whether a genuine dispute of material fact exists, and only where such dispute is absent will we proceed to review determinations of law. See Todd, 373 Md. at 154-55, 816 A.2d at 933; Beyer, 369 Md. at 359-60, 800 A.2d at 721; Schmerling, 368 Md. at 443, 795 A.2d at 720. In so doing, we construe the facts properly before the court, and any reasonable inferences that
We have held that neither general denials nor proffered facts which lack detail and precision are sufficient to defeat a properly plead motion for summary judgment. Beatty v. Trailmaster, 330 Md. 726, 737-38, 625 A.2d 1005, 1011 (1993)(citing Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7-8, 327 A.2d 502, 509 (1974)); see also Goodwich v. Sinai Hospital of Baltimore, Inc., 343 Md. 185, 207, 680 A.2d 1067, 1078 (1996) (citations omitted). To oppose properly a motion for summary judgment, the facts presented must not only be detailed, but also admissible in evidence. See Beatty, 330 Md. at 737-38, 625 A.2d at 1011 (citing Hoffman Chev. v. Wash. Co. Nat‘l Sav., 297 Md. 691, 711-15, 467 A.2d 758 (1983); Shaffer v. Lohr, 264 Md. 397, 404, 287 A.2d 42 (1972); Broadfording Church v. Western Md. Ry., 262 Md. 84, 89, 277 A.2d 276 (1971)). Furthermore, the mere presence of a factual dispute in general will not render summary judgment improper. See Beatty, 330 Md. at 738, 625 A.2d at 1011 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986)). As we explained in Lippert v. Jung, 366 Md. 221, 783 A.2d 206 (2001), “a dispute as to facts relating to grounds upon which the decision is not rested is not a dispute with respect to a material fact and such dispute does not prevent the entry of summary judgment.” 366 Md. at 227, 783 A.2d at 209 (quoting Salisbury Beauty Schs. v. State Bd. of Cosmetologists, 268 Md. 32, 40, 300 A.2d 367, 374 (1973)) (Emphasis in original). “Where the record shows that there was no such genuine dispute as to any material fact necessary to resolve the controversy as a matter of law, and it is shown that the movant is entitled to judgment, the entry of summary judgment is proper.” Lynx, 273 Md. at 8, 327 A.2d at 509 (citing Selected Risks Ins. Co. v. Willis, 266 Md. 674, 296 A.2d 424 (1972); S.L. Hammerman Organization, Inc. v. Community Health Facilities, Inc., 264 Md. 37, 50, 284 A.2d 599, 605 (1971)).
V.
The case sub judice presents a matter of first impression in this Court. The essential question is whether, under the facts of this case, a hunter who organizes a hunting party may be held liable in negligence for injuries caused to others as a result of the negligent acts of another member of his or her hunting party. Remsburg Sr. argues that under Maryland law, no duty is imposed upon him to protect persons from the negligent acts of other hunters in his or her hunting party. Therefore, Remsburg Sr. contends that because he may not be held liable for the acts of Remsburg Jr., he was under no legal duty to protect the Montgomerys from injuries resulting from Remsburg Jr.‘s negligence.
The Montgomerys counter that where a special relationship exists, a duty is owed not only to the parties involved in the relationship, but also to third parties. They argue that Remsburg Sr.‘s status as father of Remsburg Jr. and “organizer” of the hunting party, as well as his encouragement of his son to hunt in a manner dangerous to others, provide the necessary elements to support a determination that a “special relationship” existed between Remsburg Sr. and his son whereby Remsburg Sr. was obligated to control his son‘s conduct. In the alternative, Respondents argue that a special relationship existed between Remsburg Sr. and the Montgomerys by virtue of a history of contractual and other relations between
We have said that for a plaintiff to state a prima facie claim in negligence, he or she must allege facts demonstrating “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant‘s breach of the duty.” Muthukumarana v. Montgomery Co., 370 Md. 447, 486, 805 A.2d 372, 395 (2002) (quoting Valentine, 353 Md. at 549, 727 A.2d at 949)(citations omitted). As first established in Maryland nearly a century ago:
there can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury.... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.
Bobo v. State, 346 Md. 706, 714, 697 A.2d 1371, 1375 (1997) (quoting West Virginia Cent. & P.R. v. State ex rel. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903)). Thus, our analysis of a negligence cause of action usually begins with the question of whether a legally cognizable duty existed.
When assessing whether a tort duty may exist, we often look to the definition in Prosser and Keeton on Torts § 53 (W. Keeton 5th ed.1984), which characterizes “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” See Muthukumarana, 370 Md. at 486, 805 A.2d at
the foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the injury, the closeness of the connection between the defendant‘s conduct and the injury suffered, the moral blame attached to the defendant‘s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.
Ashburn, 306 Md. at 627, 510 A.2d at 1083 (quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434, 131 Cal.Rptr. 14, 22, 551 P.2d 334, 342 (1976)). While foreseeability is often considered among the most important of these factors, its existence alone does not suffice to establish a duty under Maryland law. As we further clarified in Ashburn:
[t]he fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person‘s conduct so as to prevent personal harm to another, unless a “special relationship” exists either between the actor and the third person or between the actor and the person injured.
306 Md. at 628, 510 A.2d at 1083 (citations omitted); see also Scott v. Watson, 278 Md. 160, 166, 359 A.2d 548, 552 (1976)(“a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship“). As noted, supra, the Montgomerys allege that such special relationships exist in the case sub judice sufficient to allow liability to attach to Remsburg Sr. for the negligent acts of Remsburg Jr.
In Bobo v. State, 346 Md. 706, 697 A.2d 1371 (1997), we held that such a “special duty” to protect another from the acts of a third party may be established “(1) by statute or rule; (2) by contractual or other private relationship; or (3) indirect-
A.
We first examine whether Maryland statutes or regulations regarding hunting create a duty in tort upon Remsburg Sr. to protect the Montgomerys. Evidence of negligence may be established by the breach of a statutory duty “when the plaintiff is a member of the class of persons the statute was designed to protect and the injury was of the type the statute was designed to prevent.” Erie Ins. Co. v. Chops, 322 Md. 79, 84, 585 A.2d 232, 234 (1991) (citing Pahanish v. Western Trails, Inc., 69 Md.App. 342, 362, 517 A.2d 1122 (1986)); see also Geo. Byers Sons, Inc. v. East Europe Import Export, Inc., 463 F.Supp. 135, 138 (D.Md. 1979) (“To use a statutory duty as a foundation for a negligence claim, the plaintiff must show that it was within the class of persons the legislation was intended to protect and that the alleged injury was of the type of harm which the statute was intended to prevent“). Furthermore, the statute must “set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole.” Ashburn, 306 Md. at 635, 510 A.2d at 1087 (quoting Morgan v. District of Columbia, 468 A.2d 1306, 1314 (D.C.1983))(citations omitted).
In support of their contentions that Maryland statutory or regulatory law creates a duty upon Remsburg Sr. to protect the Montgomerys as landowners, the Montgomerys allude sweepingly to ”
[e]xcept as otherwise provided, a person may not come to hunt upon any pretense whatever on lands owned by another person without the permission of the landowner or the landowner‘s agent or lessee. Any person hunting on private property shall be liable for any damage he causes to the private property while hunting. The landowner is not liable for accidental injury or damage to the person, whether or not the landowner or the landowner‘s agent or lessee gave the permission to hunt.
Regarding deer hunting specifically, the statute provides that:
[i]n Allegany, Anne Arundel, Baltimore, Carroll, Charles, Garrett, Frederick, Wicomico, Somerset, Howard, or Worcester counties, a person may not enter or trespass upon land owned by another person for the purpose of hunting deer on the land with gun, rifle, bow and arrow, or any other means without first securing the written permission of the landowner or the landowner‘s agent or lessee. Any person hunting deer on land owned by another person shall exhibit written permission upon the request of any Natural Resources police officer, any law enforcement officer, the landowner, or the landowner‘s agent or lessee. The Natural Resources police officer or any law enforcement officer shall arrest any person hunting without written permission upon the request of the landowner or the landowner‘s agent or lessee.
This statute, like the other provisions cited by the Montgomerys, does not serve to impose either an explicit or implicit duty upon Remsburg Sr. to protect the Montgomerys from the negligent acts of Remsburg Jr. Explicit in this statute is a duty placed upon hunters to gain written permission from landowners prior to hunting on privately owned land, and also a duty upon law enforcement officers, upon the request of the landowner or his or her representative, to arrest any person without such permission. While the statute is framed so as to
B.
We turn next to the question of whether a contractual relationship existed in the case sub judice that would place a special duty upon Remsburg Sr. It is undisputed that no contract existed between Remsburg Sr. and Remsburg Jr.
In support of their contention, the Montgomerys look to Griesi v. Atlantic General Hospital Corp., 360 Md. 1, 756 A.2d 548 (2000). The facts of and legal analysis employed in that case are inapposite to the case sub judice. In Griesi, we examined whether Griesi, a jobseeker, had a valid claim of negligent misrepresentation resulting in economic loss where he rejected other offers of employment based upon affirmative statements made to him during pre-employment negotiations with the hospital, a prospective employer. We examined whether the requisite intimate nexus existed between the parties such that a negligent misrepresentation claim could be maintained. In this regard, we observed that “Maryland law has found the equivalent of contractual privity in special relationships consummated during the course of pre-contract negotiations.” 360 Md. at 12, 756 A.2d at 554. We found that evidence of extensive and detailed communications between the parties was sufficient for a jury to find that the hospital “failed to exercise reasonable care” in its communication of information to Griesi, that the hospital‘s chief executive officer responsible for making the statements knew or should have known that they would be relied upon to Griesi‘s detriment, and that Griesi in fact relied on those statements of information and was injured as a result when the hospital denied him employment after he refused alternative offers of employment.
The case sub judice does not involve an examination of the
C.
Finally, we examine whether, on the alleged material facts, a special duty was created between Remsburg Sr. and the Montgomerys by virtue of the implied or indirect relationship between Remsburg Sr. and Remsburg Jr. or, alternatively, between Remsburg Sr. and the Montgomerys. Our review of the relevant case law reveals that the creation of a “special duty” by virtue of a “special relationship” between the parties can be established by either (1) the inherent nature of the relationship between the parties; or (2) by one party undertaking to protect or assist the other party, and thus often
1.
In Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985), we discussed in detail the inherent nature of the relationship between parties which could give rise to liability for the actions of a third party. In Lamb, we found that the Restatement (Second) of Torts was applicable to analysis of negligence liability for third party actions. Regarding the Restatement, we observed that:
[s]ection 315 is a special application of the general rule set forth in § 314. Section 314 states that “[t]he fact that the actor realizes or should realize that action on his part is necessary for another‘s aid or protection does not of itself impose upon him a duty to take such action.” In turn, § 315 articulates the general rule that:
[t]here is no duty so to control the conduct of a third person as to prevent him from causing physical harm to another unless
(a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person‘s conduct, or
(b) a special relation exists between the actor and the other which gives to the other a right to protection.
303 Md. at 242, 492 A.2d at 1300. In reviewing our history of both citation and reference to § 315, we found that our decision in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976), “suggests that § 315, which reflects the common law of this State, outlines the appropriate analytical framework for determining whether an actor has a duty to control a third person.” Lamb, 303 Md. at 245, 492 A.2d at 1302.
We continued by examining in further detail the class of special relationships giving rise to a duty to control a third person‘s conduct based on the relationship between the third
[s]ection 316 provides that a parent has a duty to control the conduct of his minor child; § 317 establishes a master‘s duty to control the conduct of his servant; § 318 sets forth the duty of a possessor of land or chattels to control the conduct of a licensee; and § 319 deals with the duty of those in charge of persons having dangerous propensities.
Lamb, 303 Md. at 243, 492 A.2d at 1300-01; see also Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 150, 642 A.2d 219, 226 (1994) (“[a]lthough section 315 of the Restatement states the general rule, section 319 addresses a particular exception to that general rule“). We expressly adopted as Maryland common law § 319, which provides: “[o]ne who takes charge of a third person whom he knows or should know to be likely to cause bodily harm to others if not controlled is under a duty to exercise reasonable care to control the third person to prevent him from doing such harm.” Lamb, 303 Md. at 243, 492 A.2d at 1301. Delineating the boundaries of § 319, we stated that:
[t]he operative words of this section, such as “takes charge” and “control,” are obviously vague, and the Restatement makes no formal attempt to define them. The comment to §§ 319, however, indicates that the rule stated in that section applies to two situations. First, §§ 319 applies to those situations where the actor has charge of one or more of a class of persons to whom the tendency to act injuriously is normal. Second, §§ 319 applies to those situations where the actor has charge of a third person who does not belong to such a class but who has a peculiar tendency so to act of which the actor from personal experience or otherwise knows or should know.
Illustrations appended to §§ 319, which concern the negligent release of an infectious patient from a private hospital for contagious diseases and the escape of a homicidal maniac patient through the negligence of guards employed by a private sanitarium for the insane, provide further guidance regarding the scope of §§ 319. Because there are degrees
The Montgomerys have not alleged any evidence which would establish sufficiently that any of the above relationships existed between Remsburg Sr. (the actor) and Remsburg Jr. (the third person). Section 316 does not apply as Remsburg Jr. was an emancipated adult, not a minor child, and thus Remsburg Sr. was under no duty to control his son‘s behavior. Section 319 is also inapplicable for a number of reasons. The Montgomerys allege that Remsburg Sr. should have known that his son would have the tendency to act injuriously. This contention, however, is unsubstantiated. They point to no evidence in the record even suggesting that Remsburg Sr. knew or should have known of such. It is undisputed that Remsburg Jr. was an experienced hunter who had been on over 550 previous hunting trips. Remsburg Jr. had been hunting numerous times before with his father, and the Montgomerys have not alleged any evidentiary facts that Remsburg Jr. ever acted negligently at any time prior to the day of the accident in question here.
The Montgomerys further allege that Remsburg Sr.‘s comment after the accident, “I guess that rules out telling Jamie [Remsburg Jr.] to shoot at the first thing that moves,” evidenced his knowledge of Remsburg Jr.‘s tendency to act injuriously. While inappropriate at best, this comment may not be viewed reasonably in context as an indication of any knowledge as to Remsburg Jr.‘s tendencies. Had Remsburg Sr. commented that Remsburg Jr. “always shoots the first thing that moves” or such other similar admissions, it would more likely support an inference of prior knowledge on the part of Remsburg Sr.
A special relationship nonetheless may be found to exist under the second class of relations described by the Restatement, relations between the actor and the third party that create a duty upon the actor to protect another from the third party. These relations are described in §§ 314 A and 320 of the Restatement. Lamb, 303 Md. at 243, 492 A.2d at 1301, n. 5. We have adopted previously as Maryland common law § 314A of the Restatement, entitled “Special Relations Giving Rise to a Duty to Aid or Protect,” which provides that:
(1) [a] common carrier is under a duty to its passengers to take reasonable action
(a) to protect them against unreasonable risk of physical harm....
(2) An innkeeper is under a similar duty to his guests.
(3) A possessor of land who holds it open to the public is under a similar duty to members of the public who enter in response to his invitation.
(4) One who is required by law to take or who voluntarily takes the custody of another under circumstance such as to deprive the other of his normal opportunities for protection is under a similar duty to the other.
While this list was not intended to provide an exhaustive or inclusive description of the relationships between two parties such that it might give rise to a duty, a review of our previous cases reveals that the type of relationships where we have found such a duty require an element of dependence not present in the case sub judice. See, e.g., Todd v. MTA, 373 Md. 149, 165, 816 A.2d 930, 939 (2003) (finding that an employee of a common carrier has a legal duty to take affirmative action for the aid or protection of a passenger under attack by another passenger); Southland, 332 Md. at 720, 633 A.2d at 91 (finding that a convenience store, through its employee and by virtue of special relationship between the business and its customers, owed a legal duty to a customer being assaulted in store parking lot to call the police for assistance when requested to do so). While we have permitted some flexibility in defining this limited exception, such as including the employer-to-employee relationship and also that of the business owner-to-patron, we have been careful not to expand this class of “special relationships” in such a manner as to impose broad liability for every group outing.
In the case sub judice, there is no relationship of dependence between Remsburg Sr. and the Montgomerys sufficient to establish a duty to protect. The fact that Remsburg Sr. had a history of interactions with the Montgomery family regarding hunting rights and work arrangements does not make Charles or Brian Montgomery dependent upon Remsburg Sr. for protection against the negligent acts of third parties. The Montgomerys, as the landowners, had complete control of their property and chose to hunt upon it. The Montgomerys contend that they lacked even the knowledge that the Remsburgs intended to hunt on the property that morning. Thus, there clearly was no dependence upon Remsburg Sr. to protect the Montgomerys from the negligent acts of other hunters. Remsburg Sr.‘s presence on the neighbor-
2.
We also have found that a “special relationship” may be created in limited circumstances by virtue of a party‘s actions. In determining whether a “special relationship” between the parties has been created as a result of one party‘s actions, we have declined to adopt a formulaic test, preferring instead to review each case in light of the general standard formulated in Ashburn. Muthukumarana, 370 Md. at 495, 805 A.2d at 401. In Ashburn, the plaintiff filed suit against a law enforcement officer who failed to prevent an allegedly drunk driver from continuing to operate his vehicle which ultimately collided with plaintiff. 306 Md. at 619-20, 510 A.2d at 1079. The officer allegedly encountered John Millham in the driver‘s seat of his pickup truck outside of a convenience store. Noticing his intoxicated condition, the officer instructed Millham to park his truck and discontinue driving for the rest of the evening; however, after the officer left, Millham drove the truck out of the parking lot and subsequently hit and injured a pedestrian, Ashburn.
After first recognizing the general rule that an officer‘s duty to protect is a public duty, and “absent a ‘special relationship’ between police and the victim, liability for failure to protect an individual citizen against injury caused by another citizen does not lie against police officers,” we went on to examine whether the actions of the police officer or Maryland statute created a “special duty.” 306 Md. at 628, 510 A.2d at 1083. We explained:
This “special duty rule,” as it has been termed by the courts, is nothing more than a modified application of the principle that although generally there is no duty in negligence terms to act for the benefit of any particular person, when one does indeed act for the benefit of another, he must act in a reasonable manner.
In Muthukumarana, 370 Md. 447, 805 A.2d 372 (2002), we recently applied the Ashburn standard in our evaluation of two consolidated negligence claims against emergency telephone system operators. In the first of the consolidated cases, a communications officer with the Harford County Sheriff‘s Office received a call reporting a female laying semiconscious in the woods behind the K Court buildings in the Harford Square residential development. Upon dispatching the information to police officers on patrol, the communications officer erroneously reported that the female was lying to the rear of J Court, instead of K Court. The two responding police officers searched the areas behind the J Court and J1 Court townhomes, but did not locate the female. Later that night, the unconscious female died from hypothermia at the location behind K Court. The decedent‘s mother, Ms. Fried, filed suit against the communications officer and her supervisors, arguing that they owed a duty of care to the decedent “based on the fact that the [decedent] was an individual and a member of the class of persons who are the subjects of 911 or emergency calls, ... and injury to her from failing to give correct location information was readily foreseeable,” 370 Md. at 462, 805 A.2d at 381 (quoting Fried v. Archer, 139 Md.App. 229, 243, 775 A.2d 430, 438, cert. granted, 366 Md. 246, 783 A.2d 221 (2001)).
...
Appellant, Ms. Muthukumarana, filed a wrongful death and survival action for her two children against the emergency dispatch operator. Appellant argued that the emergency operator “negligently and carelessly failed to discharge her responsibilities,” by failing to advise her to leave the premises in a timely manner. She further maintained that even if the emergency operator typically was protected by a qualified immunity, a “special relationship” existed between Ms. Muthukumarana and the operator by virtue of certain affirmative actions taken by the operator upon which Ms. Muthukumarana relied to her detriment. Thus, a special duty arose. In addition, Ms. Muthukumarana maintained that a “special relationship” was created between herself and the 911 operator because Montgomery County government previously acted to send her, as a victim of prior domestic violence, a pamphlet instructing her to call 911 in the event of a future attack.
After consolidation of the cases on appeal, the question before this Court was whether the lower courts erred in Fried and Muthukumarana “in applying the special relationship test to 911 employees, specifically to operators, dispatchers, and managers, and in subsequently determining that the employees in questions had no special relationship with or special
Initially, we determined that emergency assistance operators enjoy a qualified immunity under the public duty doctrine and, absent a “special relationship” with a caller, held that no such special relationship was established in either case. We stated:
Under [the Ashburn] test, in order for a special relationship between a 911 employee and a person in need of assistance to exist, it must be shown that the 911 employee affirmatively acted to protect or assist the specific individual, or a specific group of individuals like the individual, in need of assistance, thereby often inducing the specific reliance of the individual on the employee. See Ashburn, 306 Md. at 631, 510 A.2d at 1085. Absent the existence of those factors, a special relationship may not be found to exist between the employee and the individual, and a 911 employee may not be held liable in tort to an individual.
370 Md. at 496, 805 A.2d at 401. Applying the Ashburn analysis to the facts of the Fried case, we found no evidence that the emergency operator handled the telephone call at issue any differently than other calls received; thus, there was no action taken by the operator sufficient to impose a special duty in tort upon her. Furthermore, with regard to the emergency operator‘s supervisor, we found that no evidence was provided “of any action taken by [the supervisor] in this case in excess of or substantially different than his actions towards other individuals in need of 911 assistance.” 370 Md. at 500, 805 A.2d at 404. As such, we found it unnecessary to determine the applicability of the second prong of the special relationship test.
In the Muthukumarana case, we held that the emergency operator was not negligent because the undisputed facts indicated that she had not deviated from the proper protocol for dealing with emergency telephone calls. Additionally, we stated that, even if the 911 operator had been deemed negligent, Ms. Muthukumarana could not prevail because the un-
We conclude that Remsburg Sr. did not owe a duty to the Montgomerys to protect them from the negligent acts of Remsburg Jr. While our previous cases examining the existence of a “special relationship” created by a party‘s actions or inactions involve public officials for the most part, we extract from them the general principle that we examine whether such a relationship exists on a case-by-case basis, looking especially for the existence of conduct by one party that ordinarily induces reliance by the injured party upon the acting party. In the case sub judice, we find no conduct by Remsburg Sr. to protect the Montgomerys, or a class of persons including them, which induced their reliance upon him. Remsburg Sr.‘s previous relations with the Montgomerys concerning hunting on their property did not constitute an act to protect the Montgomerys under the facts of this case. Furthermore, nothing in the record to which our attention has been directed by the Montgomerys supports the allegation that Remsburg Sr. told Remsburg Jr. to take a position in the tree stand on the Montgomery property. Regardless, even such an instruction, had it been given, would not constitute conduct taken for the protection of the Montgomerys sufficient to induce their reliance.
The Montgomerys finally argue that the nature of hunting makes it inherently dangerous and, as such, a heightened duty must be attached to those who undertake it. Maryland precedent does not support such a heightened duty under the circumstances present in this case. It is the inherent
VI.
Finally, it is worthwhile to mention briefly that the only other state court seemingly confronted with a comparable situation to that presented in the present case reached a conclusion similar to that reached here. In Kramschuster v. Shawn E., 211 Wis.2d 699, 565 N.W.2d 581 (Wis.Ct.App.1997), the Court of Appeals of Wisconsin granted summary judgment to the leader of a hunting party, finding he was not liable for the death of the plaintiff‘s husband, who was shot and killed as a result of the negligence of a minor who was a member of the hunting party.11 In that case, a 15-year old, Shawn E., was
The Kramschuster court first observed that although Shawn was a minor, he had completed hunting safety courses and was familiar with hunting safety regulations. Using this knowledge, he had made an independent determination as to where and when to fire his weapon. 211 Wis.2d at 707, 565 N.W.2d at 584. While McClelland had failed to instruct Shawn regarding the presence of the path and the initiation of the hunting season, the court concluded that “failure to reiterate basic hunting rules to an independent member of the hunting party
[t]he record does not show that McClelland ever told Shawn that there would be no other humans in the area. Even if McClelland had made such a statement, Shawn had seen other people in the area and was aware that the trail could be utilized by other hunters. Therefore, Shawn could not have reasonably relied on any statement that no humans would be in the area.
The evidence also does not support any suggestion that McClelland communicated to Shawn a time to start shooting. Shawn had independently, although incorrectly, concluded what time the hunting season began in his area and admittedly shot before the start of the season, as he believed it to be. Therefore, there is no evidence that McClelland actively induced Shawn to fire before it was safe.
211 Wis.2d at 708-09, 565 N.W.2d at 585.
Like Shawn, Remsburg Jr. was an experienced hunter who was familiar with the land on which he was hunting. Remsburg Jr. made an independent determination as to the appropriate time and direction to fire his weapon. The record in the case sub judice shows no evidence that Remsburg Sr. acted to induce Remsburg Jr. into believing that there would be no other persons hunting on the property, or that he should fire his gun at any time prior to the legal inception of the deer hunting season. Maryland law, like Wisconsin law, does not support the creation of a duty to supervise or control the actions of another experienced hunter merely by inviting that
VII.
For the above reasons, we conclude that Remsburg Sr., as a matter of law, was not liable for the injuries to the Montgomerys arising out of Remsburg Jr.‘s negligent conduct. Remsburg Sr. was under no duty to the Montgomerys to control the acts of Remsburg Jr. or to protect them from the acts of Remsburg Jr. Without a duty there can be no actionable negligence and, as such, the trial court‘s grant of summary judgment in favor of Remsburg Sr. was proper.
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THAT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR FREDERICK COUNTY; COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENTS.
Chief Judge BELL concurs in the result only.
Dissenting opinion by WILNER, J.
With respect, I dissent. I agree with the Court that, as a general rule, a person who organizes a hunting party is not liable in negligence for injuries caused solely by the negligence of another member of the party. I agree that Remsburg, Sr. was not in “control” of his adult son, Remsburg, Jr., although there is no evidence that the son would not have obeyed a reasonable directive of the father. Finally, I agree that neither
I do believe, however, that a limited duty does exist under
“A person may not upon any pretense come to hunt on the lands owned by another person without the written permission of the landowner or the landowner‘s agent or lessee. Any person hunting on this private property is liable for any damage the person causes to the private property while hunting on the private property. The landowner may not be liable for accidental injury or damage to the person whether or not the landowner or the landowner‘s agent gave permission to hunt on the private property.”
...
The Court correctly construes the second sentence of
What is the purpose of requiring written permission from a landowner before a stranger can enter his/her land to hunt? The Court seems to infer that the only purpose is to create
It is undisputed that Remsburg, Sr. was, in fact, the leader and organizer of the hunt. There was clear, competent, admissible evidence that he did not have written permission from Charles Montgomery to hunt on his land and that he knew, or should have known, that no other member of his hunting party, including his negligent son, had such permission. Although he, himself, was not on Montgomery‘s land when the errant shot was fired, he knew that his son was on that land, perhaps at his direction and certainly with his acquiescence. Whether or not, as leader of the hunt, he had any duty to ascertain the whereabouts of the other members of the party, it seems to me that he at least had the duty to make sure that a member of the party whom he knew was illegally trespassing, whom he knew or should have known may thereby be endangering other people, and whom he presumably could cause to move, relocated to a lawful place.
Although a violation of