Baltimore Gas & Electric Co. v. Flippo

⁸⁰ THEODORE G. BLOOM, Judge, Specially Assigned. Baltimore Gas and Electric Company (BGE) appeals from a judgment of the Circuit Court for Prince George’s County (Spellbring, J., presiding), entered on a jury verdict that awarded damages to appellees, James Jay Flippo III (J.J.), a minor, and Donna Rae Flippo, his mother, for injuries sustained by the minor when he came into contact with a BGE high voltage line while he was climbing a tree in his neighbor’s yard. Appellant asserts that the trial court committed ten reversible errors: 1. The trial court erred when it failed to conclude that J.J. Flippo could not recover as a matter of law because J. J. Flippo was a trespasser and there was no evidence that BGE engaged in willful or wanton conduct amounting to entrapment. 2.

The trial court erred when it failed to give BGE’s requested jury instructions regarding the minor plaintiff’s trespass on BGE’s property. 3. The trial court erred when it failed to conclude that a public service company has no duty or obligation to trim trees near its overhead electric distribution system for purposes of public safety. 4. The trial court erred when it failed to conclude, as a matter of law, that the minor plaintiff is barred from recovery because his own negligence was a cause of his injury. 5. The trial court erred when it failed to give BGE’s requested jury instructions regarding the contributory negligence of the minor plaintiff. 6.

The trial court erred when it failed to give any jury instruction regarding the doctrine of assumption of risk. 7. The trial court abused its discretion when it allowed the plaintiffs’ liability experts to give opinions regarding BGE’s alleged negligence. ⁸¹ 8. The trial court erred when it compelled BGE employee William Rees to testify regarding BGE’s remedial measures. 9. The trial court erred when it allowed witnesses to testify that there was no need or reason for BGE to locate a single-phase overhead primary line at the scene of the occurrence. 10.

The trial court erred when it conditioned the admissibility of BGE’s scene drawing. We shall address each of those assertions. Finding no merit in any of them, however, we shall affirm the judgment of the circuit court. Facts Appellant Donna Rae Flippo and her two children, J.J. and his sister Jaime, moved into their new home at 1606 Pittsfield Lane in Bowie, Maryland, around the middle of September 1992.

The children were enrolled at Pointer Ridge Elementary School. On 1 October 1992, J.J., who was then almost ten years old, and Jaime, who was then seven, went to play in the back yard of the home of Mr. and Mrs. Richard Gaines, on Pickford Lane in Bowie, with the Gaineses’ sons, five-year-old Richie and seven-year-old Robbie, and other neighborhood children who were Jaime’s classmates. In the back yard of the Gaines property, at or near the rear lot line, was a white pine tree. J.J. and Robbie Gaines began to climb the tree.

After he had climbed almost to the top of the tree, J.J. started to slip; instinctively he reached out and his hand came in contact with one of two BGE high voltage wires that ran through the foliage and among the limbs of the pine tree. As a result of that contact with the electric wire, J.J. sustained severe injuries. Additional facts will be added as necessary to the discussion. I. Appellant’s first contention is that, as a matter of law, J.J. was a trespasser to whom it owed no duty except to refrain from willfully and wantonly injuring him. ⁸² In Baltimore Gas & Elect.

Co. v. Lane, 338 Md. 34 , 656 A.2d 307 (1995), Chief Judge Murphy, -writing for the Court of Appeals, carefully explained that “[t]wo points regarding the duty of the possessor of property are often overlooked in this area of law that is sometimes labeled, too narrowly, ‘landowner liability,’ or ‘premises liability.’ ” First, the property need not be real property; the same principles apply to both real and personal property. Second, it is the possession of property, not the ownership, from which the duty flows. Id. at 44-45 , 656 A.2d 307 . The Court reiterated that the extent of the duty owed by the possessor of property to a person who comes in contact with that property depends on the status of that person while on the property.

Maryland law recognizes four classifications: invitee, licensee by invitation, bare licensee, and trespasser____ To an invitee — one on the property for a purpose related to the possessor’s business — the possessor owes a duty of ordinary care to keep the property safe for the invitee____ To a licensee by invitation — essentially a social guest — the possessor owes a duty of reasonable care to warn the guest of dangerous conditions that are known to the possessor but not easily discoverable.... To a bare licensee — one on the property with permission but for his or her own purposes— the possessor owes a duty only to refrain from willfully or wantonly injuring the licensee and from creating “ ‘new and undisclosed sources of danger without warning the licensee ----’” To a trespasser — one on the property without permission — the possessor owes no duty “except to refrain from -willfully or wantonly injuring or entrapping the trespasser.” Id. at 44 , 656 A.2d 307 (citations omitted). Examining appellant’s contention in the light of those principles, we can quickly eliminate any notion that J.J. trespassed when he climbed the tree. The tree was possessed by the Gainses, as to whom J.J. was a social guest, by implied invitation to play with the Gaines children. ⁸³ Appellant refers to the fact that it had an easement, granted to it by the developer of the community, to maintain its poles, and the electric lines strung from pole to pole, along the rear lot lines of the properties within the neighborhood.

An easement is not a possessory property right. BGE had neither a right of possession of the airspace in the vicinity of its wires or a right to preclude others from that airspace and thus has no basis to assert that J.J. was trespassing on its easement. Cf. Wagner v. Doehring, 315 Md. 97 , 553 A.2d 684 (1989), which involves a right-of-way from which the dominant owner could exclude others.

Appellant’s principal argument with respect to its trespass contention is that J.J. trespassed on its personal property, i.e., its high voltage line. It cites and relies upon Grube v. Mayor, etc., of Baltimore, 132 Md. 355 , 103 A. 948 (1918); Driver v. Potomac Electric Power Co., 247 Md. 75 , 230 A.2d 321 (1967); Mondshour v. Moore, 256 Md. 617 , 261 A.2d 482 (1970); Fitzgerald v. Montgomery County Board of Education, 25 Md.App. 709 , 336 A.2d 795 (1975); and Murphy v. Baltimore Gas and Electric Company, 290 Md. 186 , 428 A.2d 459 (1981). Grube was a case involving a ten-year-old boy who sustained injuries by coming into contact with an electric wire when he climbed the power company’s pole, which was erected in a school yard owned by Baltimore City. The Court of Appeals held that, because the boy was either a trespasser or bare licensee as to the City’s property and definitely a trespasser as to the power company’s pole, neither the City nor the power company owed him any duty except to refrain from willfully or intentionally injuring him.

Mondshour was a case involving a six-year-old boy who, intending to show his companion “a trick,” climbed up onto the rear tire of a transit bus that had stopped at an intersection and was severely injured when the bus started in motion. The Court held that the child was a trespasser upon the transit company’s bus and, therefore, neither the transit company nor its driver owed him any duty except to refrain from wantonly or willfully injuring him. ⁸⁴ In Fitzgerald v. Montgomery County Board of Education, a six-year-old girl who accompanied her parents and her older brother to a high school parking lot, long after school hours, to watch her brother ride a go-cart on the parking lot, climbed up onto a concrete pillar on which was erected a light pole. She was electrocuted when her leg came in contact with an exposed wire on the light pole. This Court held that the child was a trespasser or, at best, a bare licensee and, therefore, the trial court did not err in granting summary judgment in favor of the Board of Education.

Since the trespass or bare license in Fitzgerald was to the school parking lot, not the light pole, that case is obviously not applicable to appellant’s theory that J.J. trespassed upon its personal property. Grube and Mondshour , on the other hand, did involve trespasses upon personal property and therefore have some relationship to this case, but those trespasses were intentional, unlike the accidental, inadvertent contact in this case. The Driver case involved an injury incurred as a result of contact of a rig operated by the plaintiff and a high tension power line. There any similarity between that case and this one ends.

The holding in Driver was that the injured plaintiff was contributorily negligent as a matter of law. 'As a mere afterthought, and by way of dictum, the Court commented that, in any event, the plaintiff was a trespasser or, at most, a licensee, to whom the power company owed no duty except to refrain from willfully or wantonly injuring him. The Murphy case does bear some theoretical resemblance to this case. In Murphy , a man who had been bowling returned to his automobile, which was parked in the bowling alley parking lot. He approached what appeared to him to be a trash dumpster on the parking lot and reached inside in search of his missing radio.

He was able to lift the top of the metal container he thought was a dumpster because the tabs and welds on the top of the container were bent and broken. He received a severe electric shock because the metal container was a broken BGE electric transformer box rather than a dumpster. The Court of Appeals held that the injured man could not recover because he was a trespasser to whom BGE ⁸⁵ owed no duty except to abstain from willfully or wantonly injuring or entrapping him. Appellant’s reliance on Murphy is twofold: (1) Murphy stands for the proposition that one may be a trespasser to personal property and thereby entitled to no greater duty toward him from the possessor of the chattel than he would be entitled to from the possessor of land upon which he trespassed, and (2) it also stands for the proposition that one who innocently enters upon someone else’s property without intending to trespass and under the mistaken belief that he or she is entitled or authorized to enter is nevertheless a trespasser.

BGE is only partially right in relying on Murphy — one can commit a trespass by entering, intruding, or encroaching on personal property, and no tortious intent, ie., intent to trespass, is required in order for one to be a trespasser. What is required, however, is volition, ie., a conscious intent to do the act that constitutes the entry upon someone else’s real or personal property. An involuntary entry onto another’s property is not a trespass. See, e.g., Young v. Vaughan, 6 Del. 331 , 1 Houst. 331 (1857) (act must be a conscious one to constitute trespass); Edgarton v. H.P. Welch Co., 321 Mass. 603 , 74 N.E.2d 674 (1947) (unintended intrusion upon land does not constitute trespass); Wisconsin Power & Light Co. v. Columbia County, 3 Wis.2d 1 , 87 N.W.2d 279 (1958); McDermott v. Sway, 78 N.D. 521 , 50 N.W.2d 235 (1951) (when there is no intentional act voluntarily done there is no trespass); Feiges v. Racine Dry Goods, 231 Wis. 270 , 285 N.W. 799 (1939) (when there is no intentional act, there is no trespass); Socony-Vacuum Oil Co. v. Bailey, 202 Misc. 364 , 109 N.Y.S.2d 799 (N.Y.Sup.1952) (trespass requires an intentional act); Hudson v. Peavey Oil Co., 279 Or. 3 , 566 P.2d 175 (1977) (liability for trespass will not be imposed for an unintentional trespass unless it arises out of defendant’s negligence or an ultrahazardous activity); Texas-New Mexico Pipeline Co. v. Allstate Constr., 70 N.M. 15 , 369 P.2d 401 (1962) (the act must be more than voluntary — it must be intentional to make one liable for trespass); Mountain States Tel. & Tel Co. v. Horn Tower Constr.

Co., 147 Colo. 166 , 363 P.2d 175 (1961); Gallin ⁸⁶ v. Poulou, 140 Cal.App.2d 638 , 295 P.2d 958 (1956) (no liability for trespass unless it is intentional); Baker v. Newcomb, 621 S.W.2d 535 (Mo.Ct.App.1981) (liability for trespass if intent exists to do act); General Tel. Co. v. Bi-Co Pavers, Inc., 514 S.W.2d 168 (Tex.Ct.App.1974) (trespass requires an intentional act); Randall v. Shelton, 293 S.W.2d 559 (Ky.1956) (trespass requires intent); Kite v. Hamblen, 192 Tenn. 643 , 241 S.W.2d 601 (1951) (trespass requires intentional act). In Puchlopek v. Portsmouth Power Co., 82 N.H. 440 , 136 A. 259 (1926), the defendant electric company maintained a live electrical transformer surrounded by a wooden picket fence. It was alleged that when the decedent plaintiff child accidentally fell down, the resultant accidental protrusion of the child’s hand between the pickets and onto a live wire constituted trespass.

The Court stated, “[I]f the decedent slipped and fell towards the fence, it was a case of force exerted by accident on him and not of force exerted by him.” Id., 136 A. at 260 . Absent a volitional force or intent, an act cannot be affirmative in nature, and thus cannot be the subject of an action for trespass. In Nissan Motor Corp. in U.S.A. v. Maryland Shipbuilding and Drydock Co., 544 F.Supp. 1104 (D.Md.1982), affirmed, 742 F.2d 1449 (1984), an automobile company brought an action, including a claim for trespass, against a shipbuilding company to recover for damages allegedly caused to its vehicles by smoke and paint emanating from the shipbuilding company’s property adjacent to the automobile company’s property. In denying relief based on the claim of trespass, the District Court stated: [Liability results from an intentional entry onto another’s land regardless of harm....

No liability results from an unintentional non-negligent entry, even if harm is done. (Citations omitted.) The evidence on this point is clear and undisputed. J.J. Flippo’s “entry upon” or contact with BGE’s personal property, its electric wire, was not an intentional or volitional act; it ⁸⁷ was an obviously involuntary reaction. Therefore, it was not a trespass.

II Appellant asserts that the trial court erred in refusing to give the jury certain instructions regarding trespass by the injured boy on BGE’s property. Appellant wanted the court to instruct the jury that a trespass will exist even if it was committed unwittingly, regardless of intent, inadvertently, or as the result of a mistake; that a person can be an invitee or licensee by invitation on the real property but a trespasser or bare licensee as to personal property on the land; that a bare licensee or trespasser on the defendant’s property is owed no duty except that the owner may not willfully or wantonly injure or entrap the trespasser once the trespasser’s presence is known, even if the trespasser is a child of tender age. The court instructed the jury that a trespasser, one who is on the property of another without the consent of the owner or occupier of the property, takes the property as he or she finds it. The owner or occupier of the property owes no duty to a trespasser except not to injure or entrap the trespasser intentionally.

Appellant’s complaint is that the instruction given failed to inform the jury that a trespass can be inadvertent; that the minor plaintiff could have been a trespasser to personal property even if he were an invitee as to the real property; and that a child can be a trespasser. We need not dwell on the adequacy of the court’s instruction as given. Suffice it to say that, since we have determined (in Part I above) that on the basis of the only evidence in the case as to what happened to him, J.J. was not a trespasser on property of BGE by virtue of having inadvertently touched BGE’s electric wire, BGE was not entitled to any “trespasser” instruction. ⁸⁸ Ill At the heart of this case is appellant’s contention that it was entitled to judgment as a matter of law because a public service company has no duty or obligation to trim trees near its overhead electric distribution wires. Concomitantly, appellant complains that the court refused to instruct the jury that a public utility does not owe any legal duty or obligation for children who may climb trees in the vicinity of its overhead electric distribution system, nor does it have any legal duty to trim trees near its overhead electrical distribution system for purposes of public safety or, indeed, for any purpose other than to provide reliable electric service to its customers.

Instead of the instructions requested by BGE, the court instructed the jury, in effect, that in order to succeed in a negligence action the plaintiff must establish, by a preponderance of the evidence, a duty by the defendant to protect the plaintiff from injury; a breach of that duty; and actual injury or loss suffered by the plaintiff that proximately resulted from the defendant’s breach of duty. In support of its contention that it has no duty to trim trees near overhead power lines for purposes of public safety, and that a cause of action for negligence cannot be maintained properly by appellee, BGE asserts that it maintains over 9,000 miles of overhead power lines in central Maryland, with approximately one and one-half million trees adjacent thereto, and that the duty of trimming and maintaining all of those trees would be unduly burdensome. BGE’s argument misses the point-it confuses the lone tree that J.J. Flippo climbed with a multitude of central Maryland forests. At issue in this case is whether BGE had a duty to trim this one tree in a backyard in a residential neighborhood, not whether it has a duty to trim the myriad of trees adjacent to all its power lines. “The primary rule relative to the diligence required of electric companies, running through all of the decisions, is that they must observe such care as is commensurate with the danger involved.” Eastern Shore Public Service Co. v. Corbett, 227 Md. 411, 425 , 177 A.2d 701 (1962).

Special situational ⁸⁹ circumstances may mandate the highest degree of attention and care in the creation and maintenance of instrumentalities which, although they may bear high social utility, nonetheless present an unusually high risk to public welfare. We believe the following language in Restatement (Second) of Torts, § 298, Comment B (1965), accurately describes the measure of care required of BGE under the circumstances of this case: b. Care required.... [I]f the act involves a risk of death or serious bodily harm, and particularly if it is capable of causing such results to a number of persons, the highest attention and caution are required even if the act has a very considerable social utility. Those who deal with ... high tension electricity are required to exercise the closest attention and the most careful precautions, not only in preparing for their use but in using them.

(Emphasis added.) The mere maintenance of a dangerous instrumentality such as high voltage power lines does not require utility companies to foresee and guard against every conceivable circumstance in which an individual coming in contact with live wires might be injured. Driver v. Potomac Elect. Power Co., supra, 230 A.2d at 324 . Electricity, however, is a highly dangerous force, mishandling of which can cause severe ramifications.

In light of the gravity of the potential harm, those who transmit electrical current must exercise a correspondingly high degree of care in so doing. Manaia v. Potomac Elec. Power Co., 268 F.2d 793 (4th Cir.1959), cert. denied, 361 U.S. 913 , 80 S.Ct. 255 , 4 L.Ed.2d 183 (1959); Conowingo Power Co. v. Maryland, 120 F.2d 870 (4th Cir.1941); see also, Edgarton v. Welch Co., supra. There was evidence to the effect that at the time J. J. Flippo was injured BGE classified certain trees as “climbable,” i.e., easily climbed trees with low, ladder-like branches, particularly those that children are likely to come in contact with in residential neighborhoods.

The kind of tree that young Flippo was climbing when he came in contact with BGE’s wire, a white pine, was classified by BGE as a climbable tree. At the ⁹⁰ very least, therefore, appellant had implied cognizance of reasonably foreseeable harm to children such as J.J. Flippo. In 1967, appellant obtained an easement over the residential development that includes what is now part of the Gaines property, for the erection and maintenance of utility poles and high tension wires. The easement expressly conferred on BGE the right of access at all times to the lines, the right to trim, top or cut down trees adjacent to the lines to provide ample clearance....

BGE thus had the authority to trim the tree in question without seeking permission of the owner of the servient estate. In negotiating for the easement, BGE acceded to the aesthetic requirements of the developer in two respects: (1) it agreed to run its lines along the rear boundaries of lots in the development instead of along the streets, and (2) it agreed to use poles ten feet shorter than it normally or regularly used. Both concessions increased the degree of care necessary to avoid such accidents as occurred to the minor plaintiff in this case. It is more likely that a tree that children might be tempted to climb would be planted in a back yard than along the street; wires strung along a pole ten feet shorter than normal would be subject to more, or at least earlier, encroachment by growing trees than wires strung at the normal height.

We believe that in view of all the circumstances — the maintenance of a high voltage uninsulated electric line strung on shorter than usual poles and extending along an easement over back yards in a residential subdivision; the existence in those back yards of “climbable” trees, i.e., trees that are easy for children to climb; the fact that some of the limbs of those trees were in close proximity to and actually surrounding the electric line, creating a foreseeable hazard to a young child who might be tempted to climb one of those trees without observing or appreciating the significance of the electric line; BGE’s right to trim the trees; the risk of death or serious bodily harm that would result from contact with the wire by someone who had a right to climb the tree — a jury could ⁹¹ reasonably conclude that the duty of BGE to exercise a high degree of attention and care included the duty to “trim, top, or cut down” such climbable trees as posed the high risk of the great harm that occurred in this case. IV Appellant’s contention that the court erred in failing to conclude, as a matter of law, that young J. J. Flippo’s contributory negligence bars any recovery for his injuries is totally devoid of merit. The boy admitted that he knew that there was electricity in overhead lines and that electricity was dangerous. BGE points to evidence in the record to the effect that the presence of the uninsulated high voltage line amid the branches in the tree was not only observable but had been called to J.J.’s attention before he climbed the tree, but that evidence was disputed.

J. J. insists that he never saw the wire before he climbed the tree and came into contact with it, and he denied that young Robbie Gaines warned him about the wire. When there is a conflict in the evidence as to material facts relied on to establish contributory negligence, it is for the jury, not the court, to decide the issue. Schwier v. Gray, 277 Md. 631, 635 , 357 A.2d 100 (1976); Menish v. Polinger Co., 277 Md. 553, 563 , 356 A.2d 233 (1976). y Appellant asserts that the trial court erred in failing to give the following contributory negligence instructions proposed by BGE: You are instructed that a plaintiff cannot recover if his negligence, whether great or small, contributed to the happening of the accident, regardless of how great a defendant’s primary negligence may be or how slight a plaintiffs contributory negligence may be. If you should find from the evidence that any negligence, no matter how slight, of J.J. Flippo, contributed to his ⁹² accident, you are not to award the plaintiffs any damages in this case.

A party is entitled to have his or her theory of the case presented to the jury, provided that the theory is legally and factually supported. Therefore, provided there is evidentiary support for an instruction requested by a party, the court must instruct the jury on the law, either by giving particular instructions offered by the parties, by crafting its own instructions, or by combining elements of both. Shapiro v. Massengill, 105 Md.App. 743 , 661 A.2d 202 , cert. denied, 341 Md. 28 , 668 A.2d 36 (1995). The instructions requested by BGE are correct statements of law and supported by evidence raising the issue of contributory negligence.

Nevertheless, the court need not grant a requested instruction if the matter is fairly covered by the instructions given. Md.Rule 2-520(c). The trial court is not required to adopt the parties’ requested instructions verbatim. Keefover v. Giant Food, Inc., 83 Md.App. 306, 317 , 574 A.2d 339 , cert. denied, 321 Md. 385 , 582 A.2d 1256 (1990).

On the issue of contributory negligence, the court instructed the jury as follows: A plaintiff cannot recover if the plaintiffs negligence is a cause of the injuries. So they will argue to you that Mr. Flippo himself was negligent and that his negligence was a cause of his injury. The defendant has the burden of proving by a preponderance of the evidence that the plaintiffs negligence was a cause of plaintiffs injury. The instruction given by the court is a correct statement of the law.

Appellant asserts, however, that it was inadequate because it did not tell the jury that even a small amount of negligence by the minor plaintiff, compared to a great amount of negligence by the defendant, would preclude recovery. We believe that the instruction given by the court adequately covered the subject. It informed the jury that the plaintiff cannot recover if his own negligence is a cause of his injury— ⁹³ not the sole cause, not a major cause — but a cause. That was both accurate and adequate.

VI BGE requested the court to instruct the jury on the defense of assumption of risk, and presented two proposed instructions on that subject. The court gave no instruction on that issue. Assuming that it was entitled to a jury instruction on assumption of risk because the evidence raised an issue of fact regarding that defense, appellant contends that it was error for the court to fail or decline to give such an instruction. The parties are in basic agreement on the definition of assumption of risk.

Appellant quotes from Maryland Civil Pattern Jury Instructions, 19.13 (3rd ed. 1993): A person who, with knowledge and understanding of an existing danger, voluntarily chooses