Baltimore Gas & Electric Co. v. Flippo

CHASANOW, Judge. This appeal arises out of a suit in negligence instituted by Donna Rae Flippo individually and on behalf of her son, J.J. Flippo (Flippo), who was injured when he came into contact •with an electric wire owned by Baltimore Gas and Electric Company (BGE). For the following reasons, we shall affirm the judgment of the Court of Special Appeals. ⁶⁸⁷ I. On October 1, 1992, Flippo 1 was playing with his sister and other children in the backyard of the residence of Richard and Christine Gaines at 1512 Pickford Lane in Bowie, Maryland. Flippo and the Gaineses’ son decided to climb a white pine tree that was located at or near the Gaineses’ rear property line.

At trial, there was some evidence presented that Flippo had implicit permission from the Gaineses to be in the tree on the day he was injured. Near the higher branches of this tree were two overhead, high voltage electric wires that ran parallel to the Gaineses’ rear property line. 2 Flippo testified that he had climbed about half or three-quarters of the way up the tree when his right foot slipped and he began to fall. Reaching out, Flippo’s hand came into contact with one of the two electric wires. As a result, Flippo sustained severe injuries.

Donna Rae Flippo filed a negligence suit in the Circuit Court for Prince George’s County alleging that BGE was negligent in failing to trim the tree that Flippo was climbing when he was injured. After an eight-day trial in September 1995, the jury returned a verdict in favor of Flippo in the amount of $487,516. Upon BGE’s motion, the trial court subsequently reduced the award to $483,162 because there was insufficient evidence to support $4,354 of the $12,000 awarded to Flippo for future medical expenses. On appeal, the Court of Special Appeals affirmed the judgment of the trial court in a reported opinion.

BG & E v. Flippo, 112 Md.App. 75 , 684 A.2d 456 (1996). Additional facts will be provided as necessary. In the instant case, we granted BGE’s petition for writ of certiorari in order to determine: ⁶⁸⁸ (1) Whether an unintentional contact with BGE’s electric wire constitutes a trespass as a matter of law? (2) Whether a public service company has a duty to identify and trim a “climbable” tree located in the backyard of a residence near its overhead electric wires?

(3) Whether a ten-year-old boy who knew there was electricity in overhead wires and that electricity is dangerous is contributorily negligent as a matter of law when he nevertheless climbs into a tree and contacts the wires? (4) Whether it is error to refuse to give a jury instruction on assumption of risk when an instruction has been given on contributory negligence?

II

TRESPASS BGE argues that Flippo was a trespasser, as a matter of law, as to BGE’s overhead electric wire. In addition, BGE asserts that Flippo was a trespasser as to BGE’s easement. Thus, BGE contends, it owed Flippo no duty other than to avoid willfully or wantonly injuring him. Counsel for Flippo counters that Flippo was not a trespasser as to BGE’s electric wire because there is no evidence that Flippo deliberately and voluntarily came into contact with the electric wire.

On this issue, the Court of Special Appeals concluded that Flippo’s contact with BGE’s electric wire was not a trespass because his act was neither intentional, nor volitional; “it was an obviously involuntary reaction.” Flippo, 112 Md.App. at 86-87 , 684 A.2d at 461 . With regard to premises liability, this Court has “long recognized that a possessor of property owes a certain duty to a person who comes in contact with the property. The extent of this duty depends upon the person’s status while on the property.” BG & E v. Lane, 338 Md. 34, 44 , 656 A.2d 307, 311 (1995). Historically, in Maryland, four classifications have been recognized: invitee, licensee by invitation, bare licensee, and trespasser.

Id. An invitee is a person “on the property for a purpose related to the possessor’s business.” Id. The ⁶⁸⁹ possessor owes an invitee a duty of ordinary care to keep the possessor’s property safe. Id.

A licensee by invitation is a social guest to whom the “possessor owes a duty to exercise reasonable care to warn the guest of dangerous conditions that are known to the possessor but not easily discoverable.” Id. A bare licensee is a person on the property with permission, but for his or her own purposes; the possessor owes no duty except to refrain from willfully or wantonly injuring the licensee and from creating “ ‘new and undisclosed sources of danger without warning the licensee.’ ” Wagner v. Doehring, 315 Md. 97, 102 , 553 A.2d 684, 687 (1989) (quoting Sherman v. Suburban Trust Co., 282 Md. 238, 242 , 384 A.2d 76, 79 (1978)). “Finally, a trespasser is one who intentionally and without consent or privilege enters another’s property.” Id. As for a trespasser, even one of tender years, no duty is owed except that the possessor may not willfully or wantonly injure or entrap the trespasser. Murphy v. Baltimore Gas & Elec., 290 Md. 186, 190 , 428 A.2d 459, 462-63 (1981).

In the case before us, it is clear that Flippo was a licensee by invitation on the Gaineses’ property. As the Gaineses’ social guest, Flippo had a right to be on the Gaines-es’ property. In addition, Mrs. Gaines testified that she was aware that children occasionally climbed the particular tree that Flippo was climbing when he was injured. Furthermore, there was some evidence at trial that Flippo had implicit permission from the Gaineses to be in the tree on October 1, 1992.

Thus, Flippo was not a trespasser to the Gaineses’ property when he climbed the tree. Furthermore, Flippo was not a trespasser as to BGE’s easement. An easement is a “nonpossessory interest in the real property of another.” Boucher v. Boyer, 301 Md. 679, 688 , 484 A.2d 630, 635 (1984). Although the owner of the dominant estate, BGE, is entitled to use its easement, the Gaineses, as owners of the servient estate, are “entitled to use and enjoy [their] property to the fullest extent consistent with the reasonably necessary use thereof by [BGE] in accordance with the terms and conditions of the grant.” Millson v. ⁶⁹⁰ Laughlin, 217 Md. 576, 585 , 142 A.2d 810, 814 (1958).

Since BGE could not rightfully exclude an invitee of the servient estate owner from the premises, Flippo was not a trespasser as to BGE’s easement. See Wagner, 315 Md. at 108 n. 5, 553 A.2d at 689 n. 5. BGE asserts, however, that the rule limiting liability to a trespasser applies to an owner or a possessor of personal property as well as real property, and that because Flippo trespassed upon BGE’s personal property (the electric wire) without its permission, BGE owed no duty to Flippo except to refrain from willfully or wantonly injuring him. We will first address BGE’s argument that it owes no duty to Flippo because he trespassed upon BGE’s personal property.

A. BGE argues that Flippo was a trespasser, as a matter of law, as to BGE’s electric wire. Discussing Bramble v. Thompson, 264 Md. 518 , 287 A.2d 265 (1972); Gore v. Jarrett, 192 Md. 513 , 64 A.2d 550 (1949); Atlantic Coal Co. v. Maryland Coal Co., 62 Md.-135 (1884); Barton Coal Co. v. Cox, 39 Md. 1 (1873); Scott v. Bay, 3 Md. 431 (1853), 3 BGE broadly asserts that “this Court has repeatedly held that, under Maryland trespass law, trespass can be committed unintentionally.” In the instant case, the Court of Special Appeals concluded that: “[0]ne can commit a trespass by entering, intruding, or encroaching on personal property, and no tortious intent, i.e., intent to trespass, is required in order for one to be a trespasser. What is required, however, is volition, i.e., 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.” Flippo, 112 Md.App. at 85 , 684 A.2d at 461 .

It is a well-settled rule in this State that an action for trespass to real property may be maintained “whether the ⁶⁹¹ defendant committed the trespass unwittingly ... or willfully and wantonly.” Atlantic Coal Co., 62 Md. at 143 (noting that a trespass is committed even when a trespasser makes a mistake regarding the title or boundaries of his land and mines coal on an adjoining neighbor’s property thinking he is on his own property); see also Gore, 192 Md. at 516 , 64 A.2d at 551 (noting that a trespass may be committed unwittingly by a person who believes he or she has title to land); Barton Coal Co., 39 Md. at 29-30 (noting that every trespass is an injury whether willful or not even if the defendant honestly believed it was mining its own coal and inadvertently committed a trespass); Scott, 3 Md. at 443 (noting that trespass was the proper remedy where the defendant had blasted rocks on his property causing rocks to be thrown onto the premises of the plaintiff and that it was immaterial whether the defendant committed the act willfully or not). As we noted earlier, a trespasser has been defined by this Court as “one who intentionally and without consent or privilege enters another’s property.” Wagner, 315 Md. at 102 , 553 A.2d at 687 . BGE further asserts that given the “settled state of Maryland law, it is not surprising that this Court has barred recovery to a trespasser without discussing the fact that the trespass in question was in fact unintentional and involuntary.” As examples, BGE relies on Grube v. Mayor, etc., of Balto., 132 Md. 355 , 103 A. 948 (1918) and Murphy, supra. In Grube , a ten-year-old boy was injured during summer break as a result of coming into contact with electric wires while climbing a utility pole that was located in a school yard owned by Baltimore City.

Grube, 132 Md. at 356 , 103 A. at 949 . This Court held that the plaintiff was not entitled to recover because he was a trespasser as to the utility pole. Grube, 132 Md. at 361 , 103 A. at 951 . The boy had climbed to the top of the utility pole apparently to watch a baseball game.

Grube, 132 Md. at 357 , 103 A. at 949 . We noted that, while resting on the crossarm of the utility pole, the boy somehow slipped and grabbed the electric wire. Id. BGE argues that the Grube case is indistinguishable from the instant case.

We disagree. Although the plaintiff in Grube slipped and, as a ⁶⁹² result, grabbed the electric wire, he had already attained trespasser status by intentionally climbing the utility pole where he had no right to be. Climbing a utility pole embedded in the ground was treated as a trespass to realty. The poles were obviously intended for the exclusive use of employees maintaining the electric wires and were also placed by the electric company to make the dangerous wires inaccessible.

In addition, this Court noted that boys had often been driven from the pole such that “it would be impossible to believe that [the plaintiff] did not know it was not permitted.” Grube, 132 Md. at 360 , 103 A. at 950 . In the instant case, however, Flippo climbed the Gaineses’ tree with their permission, and thus had not attained trespasser status prior to coming into contact with BGE’s electric wire. In Murphy , the plaintiff was injured when his hand came into contact with an electrical transformer owned by BGE. 290 Md. at 188 , 428 A.2d at 461 . The plaintiff had been bowling and returned to his vehicle that was located in the parking lot of the bowling alley.

Id. After discovering that his CB radio was missing, he approached what he believed to be a trash dumpster located on the same parking lot. Id. Because of darkness, the plaintiff was unable to see that this was in fact a high voltage electric transformer and that the doors on the front of the unit were equipped with locks.

Id. When the plaintiff first lifted the top of the unit causing it to slide off, he was unable to see anything but darkness inside. Murphy, 290 Md. at 188-89 , 428 A.2d at 461-62 . The plaintiff subsequently lit two matches to see if his radio was located within the container and in doing so sustained a severe electric shock.

Murphy, 290 Md. at 189 , 428 A.2d at 462 . This Court held that the plaintiff was barred from recovery because his actions “constituted a substantial and deliberate trespass upon the electric company’s property caused by neither emergency nor inadvertence.” Murphy, 290 Md. at 193 , 428 A.2d at 464 . Like the Grube case, Murphy can be distinguished from the instant case in that it is clear that the plaintiff intentionally lifted the protective cover to the unit and reached inside of ⁶⁹³ BGE’s transformer, even though he was unaware of its true nature. Further supporting its assertion that a trespass can be committed unintentionally, BGE also cites to language contained in the Bramble case.

In that case, this Court held that even inadvertent trespassers are considered trespassers. See Bramble, 264 Md. at 522 , 287 A.2d at 267-68 . BGE views the inadvertent trespasser as including one who unintentionally and involuntarily comes into contact with the property of another. Because the concept of the inadvertent trespasser was not further explained in Bramble , however, it is not clear that this Court’s use of the phrase “inadvertent trespasser” takes on the meaning that BGE asserts.

In Bramble , the plaintiffs had docked their boat at the defendant’s pier and were attacked by the defendant’s dog when they disembarked from their boat. Bramble, 264 Md. at 520 , 287 A.2d at 266-67 . The plaintiffs’ docking and entry onto the defendant’s pier was clearly intentional. A close reading of the Bramble case indicates that the plaintiffs asserted that they were inadvertent trespassers because they did not willfully intend to trespass.

See Bramble, 264 Md. at 522 , 287 A.2d at 267-68 . We noted that “[i]t would be ludicrous to hold that someone is liable because his watchdog failed to discriminate between an inadvertent trespasser on the property and one who is there bent on criminal activity.” Bramble, 264 Md. at 522 , 287 A.2d at 268 . Our review of the case law regarding the amount of volition required for a trespass indicates that some jurisdictions have held that a trespass requires a voluntary act. See, e.g., Cover v. Phillips Pipe Line Company, 454 S.W.2d 507, 512 (Mo. 1970) (noting that, “[wjhere there is no intentional, voluntary, conscious act there is no trespass”); McDermott v. Sway, 78 N.D. 521 , 50 N.W.2d 235, 240 (1951) (same); Puchlopek v. Portsmouth Power Co., 82 N.H. 440 , 136 A. 259, 260 (1926) (noting that an involuntary or accidental act is not a trespass).

With regard to the rule in Maryland limiting a landowner’s liability to trespassers, however, this rule may well extend to inadvertent, unintentional trespassers. In the instant case, it ⁶⁹⁴ appears that a factual dispute exists as to whether Flippo’s actions constituted mere contact or whether Flippo intended to make contact with BGE’s electric wire. Although the Court of Special Appeals determined that an involuntary entry onto another’s property does not constitute a trespass, we decline to determine whether, as BGE asserts, a trespass can be based on an unintentional, involuntary act because we conclude that the rule limiting liability to a trespasser does not apply under the circumstances of this case. B. In past decisions, we have indicated that the same principles regarding a property owner’s liability to trespassers apply to personal property as well as real property.

See, e.g., Murphy, 290 Md. at 190 , 428 A.2d at 462 (noting that “owners of real and personal property have consistently been held to owe no duty to a trespasser, except to abstain from willfully or wantonly injuring or entrapping such a person”); Mondshour v. Moore, 256 Md. 617 , 261 A.2d 482 (1970) (noting that child was a trespasser as to a wheel where he stepped onto a wheel of a bus sitting at an intersection); Grube v. Mayor, etc., of Balto., 132 Md. 355 , 103 A. 948 (1918) (noting that a child was a trespasser as to the utility pole he was climbing); Stansfield v. C. & P. Tel. Co., 123 Md. 120 , 91 A. 149 (1914) (noting that a man was a trespasser or a mere licensee where he climbed onto a teléphone pole located on a public street). In the cases involving injury to people who climbed utility poles, this Court pointed out that those injured had reached the place of danger by climbing on the pole maintained by the defendants for the purpose of making the dangerous wires inaccessible. In our most recent case, BG & E v. Lane, this Court used the same language limiting a possessor’s liability to a trespasser on real property in discussing personal property, but in light of the holding that language may have been dicta. 338 Md. at 44-45 , 656 A.2d at 312 .

We also noted the possibility that a person could trespass “upon personal property without trespassing on the real property upon which the personal property sits.” Lane, 338 Md. at 45 , 656 A.2d at 312 . Both ⁶⁹⁵ parties, as well as the Court of Special Appeals, assumed that the rule limiting liability to a trespasser applies in the instant case. Because of the circumstances of this case, however, we revisit the language used in Lane and hold that the rule limiting liability to a trespasser is not applicable in the instant case where the plaintiff is not a trespasser, but is a licensee by invitation as to the real property. To the extent that the language of our prior cases is inconsistent with this opinion, those cases are overruled.

In Lane , young Tyrone Lane sued BGE alleging that he sustained injuries as a result of BGE’s negligence. 338 Md. at 40 , 656 A.2d at 310 . Specifically, the complaint alleged that BGE had left a large empty wooden cable spool, weighing approximately lk ton, unattended in an area known by BGE to be frequented by children. Id. While playing on BGE’s spool with other children, Lane was injured when the spool rolled over his head and body.

Id. At issue before this Court was “whether the trespasser rule should preclude liability in [Lane’s] case.” Lane, 338 Md. at 42 , 656 A.2d at 311 . Reviewing the rule regarding trespasser liability, this Court noted that: “Two points regarding the duty of the possessor of property are often overlooked in this area of the law which is sometimes labelled, too narrowly, ‘landowner liability’ or ‘premises liability.’ First, the property need not be real property. The same principles apply to personal property as to real property. * * * Second, it is the possession of property, not the ownership, from which the duty flows.” Lane, 338 Md. at 44-45 , 656 A.2d at 312 .

The Court then focused on its second point, that the duty flows from the possession of property, and concluded that Lane was not a trespasser because, where an owner gives up possession of personal property, the owner gives up the right to exclude others and, thus, the benefit of a lessened duty to trespassers. Lane, 338 Md. at 47 , 656 A.2d at 313 . Therefore, the Court held that the circuit court’s grant of summary ⁶⁹⁶ judgment could not be supported by a conclusion, as a matter of law, that Lane was a trespasser because a reasonable fact-finder “could conclude that BGE had lost possession of the spool when some other neighborhood children—not including Lane—took possession of it for recreational purposes,” and that “Lane came in contact with the spool only after the other children took possession of it, moved it to the community playground, and began rolling it down a hill.” Lane, 338 Md. at 47-48 , 656 A.2d at 313-14 . Relying on the broad language contained in Stansfield, Grube, Mondshour, and Murphy , the Lane Court assumed that the trespasser rule would apply to personal property.

Although this Court has used language indicating that the same principles regarding a property owner’s liability to trespassers apply to personal property as well as real property, a careful analysis of our prior cases - reveals that such language may, as in Lane , have been dictum. Unlike the instant case, the plaintiffs in these cases intentionally trespassed on real property or made contact with the property of the defendant in a manner that may have constituted contributory negligence or assumption of risk as a matter of law. 4 In Stansfield , the adult plaintiff was killed when he came into contact with an electric wire while climbing a utility pole in order to recover a kitten. 123 Md. at 123 , 91 A. at 149-50 . Likewise, the child plaintiff in Grube was injured when he came into contact with an electric wire after he deliberately climbed a utility pole in order to watch a baseball game. 132 Md. at 356-57 , 103 A. at 949 . In Mondshour , the six-year-old plaintiff climbed on the rear wheel of a bus that was stopped at an intersection in order to show his friend a trick. 256 Md. at 619 , 261 A.2d at 483 .

The child was injured when the bus began to move. Id. This Court concluded that the boy’s injuries “flow[ed] from his ‘trick,’not from the breach of any ⁶⁹⁷ duty owed him by the defendants.... ” Mondshour, 256 Md. at 623 , 261 A.2d at 485 . In addition, there is no duty on the part of an owner “ ‘to protect children from their own negligence under the given circumstances.’ ” Mondshour, 256 Md. at 622 , 261 A.2d at 484 (quoting State v. Fidelity Warehouse Co., 176 Md. 341, 347 , 4 A.2d 739, 742 (1939)).

As for Murphy, supra part II.A, the plaintiff may have been contributorily negligent, or may have assumed the risk, as a matter of law. In Murphy and Grube , it also appears that the plaintiffs trespassed upon the defendants’ real property. In Murphy , the electric transformer at issue was surrounded on three sides by a brick wall attached to a building and “was situated on a concrete support slab imbedded in the ground----” Murphy, 290 Md. at 188 , 428 A.2d at 461 . Murphy arguably trespassed upon BGE’s real property by entering the area surrounded by the brick wall in order to reach the transformer.

The same is true regarding the plaintiff in Grube . Although the Court indicated that the boy “had the right to be in the [school] yard,” he could have been considered a trespasser to the real property because the accident occurred in August when school was not in session. Grube, 132 Md. at 357, 359 , 103 A. at 949-50 . In addition, the school yard was fenced and ordinarily kept locked when it was not intended to be used, but the gate was open at the time of the plaintiffs injury because the locks had been broken.

Grube, 132 Md. at 356 , 103 A. at 949 . In other jurisdictions, cases similar to the instant case involving “trespasses” to personal property have been decided under traditional negligence principles. See, e.g., Petroski v. Northern Indiana Pub. Service Co., 171 Ind.App. 14 , 354 N.E.2d 736 (1976) (holding that it was a jury question whether electric company should have anticipated children climbing a tree with an electric wire that passed through the upper branches of the tree); Alabama Power Company v. Taylor, 293 Ala. 484 , 306 So.2d 236