Blue Ink, Ltd. v. Two Farms, Inc.

LEAHY, J. Drive-in movie theaters, like soda fountains, juke boxes, and The Platters, are instances of 1950s post-war Americana that trigger instant feelings of nostalgia. Maryland once boasted as many as 47 drive-ins; 1 today, however, only Bengies Drive-In Movie Theatre (“Bengies”) remains. This case involves a jury’s verdict in favor of Bengies against Royal ⁸⁰ Farms for private nuisance. The jury awarded Bengies $838,000.00 in damages to construct a fence to block light that emanates at night from the Royal Farms.

The Circuit Court for Baltimore County considered Royal Farms’ Motion for Judgment Notwithstanding the Verdict (“JNOV”) and, after concluding there was insufficient evidence for a jury to find a private nuisance, set the jury’s verdict aside and entered judgment in favor of Royal Farms. On appeal, Bengies, through its operator Blue Ink, Ltd., presents one question for our review, 2 which we have rephrased as follows: Was the evidence presented at trial, when viewed in the light most favorable to Bengies Drive-In, legally sufficient for the jury to find the existence of a private nuisance by a preponderance of the evidence? Two Farms, Inc. (doing business as “Royal Farms”) filed a Cross-Appeal raising an additional issue, which we have rephrased as follows: 3 In the event this Court concludes that the trial court erred in granting the Motion for JNOV, did Blue Ink Limited meet its burden to prove damages using the proper measure of damages? Maryland requires that in order to recover for private nuisance, a plaintiff must demonstrate that the defendant’s interference with plaintiffs property rights is both unreasonable and substantial, and that the harm or inconvenience created by such interference is “objectively reasonable” to the ordinary person.

Accordingly, we find the evidence presented at trial was not legally sufficient to support a jury verdict in favor of Bengies against Royal Farms for a private nuisance. ⁸¹ In light of this holding, we do not address the Cross-Appeal. We affirm the judgment of the Circuit Court for Baltimore County. BACKGROUND A. The Bengies Drive-In In the late 1950s, Jack K. Vogel and his three brothers constructed Bengies Drive-In, which has remained a family business since its establishment. Eventually, D. Edward Vogel (“Mr. Vogel”) began operating the drive-in and in 2000, negotiated a buy-lease agreement to purchase Bengies from his parents, Jack and Aileen Vogel.

In order to facilitate a commercial loan in connection with the transfer, 4 Mr. Vogel needed to ensure that the property was accurately zoned. During the re-zoning process, Mr. Vogel entered into a Restrictive Covenant Agreement, dated August 25, 2004, with a community group called Bowleys Quarters Improvement Association. The Association agreed to forego opposition to the zoning reclassification in exchange for Bengies’ agreement limiting future expansions on the property to an indoor theatre, a second outdoor drive-in screen, miniature golf, batting cages, a restaurant, a dairy bar, cell communications, and a souvenir shop. Drawings exhibiting two possible locations for a second screen accompanied the Agreement.

Mr. Vogel officially acquired the property in December 2007, but apart from a cell communications tower, none of the other improvements were constructed. 5 ⁸² Today, Bengies is located at 3417 Eastern Boulevard in an area that has been commercially developed for many years. Other businesses surrounding Bengies and pre-dating the Royal Farms include a Wal-Mart, McDonald’s, Home Depot, Rite-Aid, and a restaurant called “By the Docks.” B. The Royal Farms Peppermint Woods, Ltd. owns the property at 3300 Eastern Boulevard located on the opposite side of Eastern Boulevard across from Bengies. 6 In 2003, Peppermint Woods, Ltd. filed a petition for special exception with the Zoning Commissioner of Baltimore County for the construction of a service station and accompanying carryout restaurant and rollover car wash. Mr. Vogel attended the public hearing on special exception to represent Bengies’ interests. The Zoning Commissioner granted the petition, subject to submission of “a landscape and lighting plan for review and approval by the Office of Planning and Avery Harden, Landscape Architect for Baltimore County” that “provide[s] sufficient screening so that security lights, permanent lighting and vehicle headlines do not inappropriately spill onto adjacent properties, particularly the Bengies Drive-In Movie Theater.” Avery Harden and the Office of Planning thereafter approved the plans for the construction of a convenience store, gas pumps, and a car wash.

In an e-mail dated October 8, 2008, Avery Harden stated, “All together [Royal Farms’ use of new LED technology] sounds like a precedent setting lighting design for convenience stores in Baltimore County. I can now point to this for others to follow. The drive-in should be fine.” The Royal Farms opened its doors for business in December 2008. The general layout of the subject Royal Farms may ⁸³ be described as follows: 7 [T]he gas station aspect of the facility consists of a number of gasoline pumps located below a canopy of the type designed to protect those pumping gas from inclement weather.

The canopy runs parallel to Eastern Boulevard; the pumps are located below it. The pumps are illuminated by Crossover Ambient Canopy Lights and Crossover Focus Canopy Lights, which are aimed downward from the canopy to allow those pumping gas at night to see. Behind the canopy sits the Royal Farms convenience store, 3936 square feet in size.... Behind the convenience store sits a car wash....

There are parking spaces about the convenience store, illuminated by lighting mounted on the poles pointed downwards toward the parking spaces.... There are several lighted signs—white, green and blue in color on and about the convenience store property ... which can be seen from the drive-in.... Mr. Vogel filed an official complaint about the Royal Farms lights with Baltimore County Department of Code Enforcement (the “Department”). In 2010, when the Department declined to issue a citation for the lights, Mr. Vogel sought a Writ of Mandamus from the Circuit Court for Baltimore County, requesting that the court compel the Department to issue a citation.

The circuit court dismissed the complaint. C. The Litigation On June 28, 2010, Bengies, by and through Blue Ink, Ltd. and The Last Picture Show, LLC (the landowner), filed a lawsuit against Peppermint Woods, Ltd. and Two Farms, Inc. in the Circuit Court for Baltimore County, alleging claims of negligence, trespass, and private nuisance relating to the ⁸⁴ lights emanating from the Royal Farms premises onto Bengies’ property. 8 On May 22, 2012, the case proceeded to trial on the negligence and private nuisance claims. 9 At trial, Mr. Vogel testified that the lights emitted from the Royal Farms prevent him from executing his plan to build the second screen. He admitted that no artificial light from Royal Farms is aimed or directed at the currently existing screen, but claimed that some of the lights are aimed “inadvertently” at the spot reserved for the second screen by “bouncing off of the poles” located in the back of the theatre. At the time of trial, Mr. Vogel had not initiated the steps necessary to build the second screen, such as applying for a permit.

During cross-examination, Mr. Vogel admitted that the potential location for the second screen, as represented in the Covenant ⁸⁵ Agreement, would have been farther away from the Royal Farms store. Mr. Vogel described himself as a diligent owner when monitoring activities affecting the drive-in’s lighting and provided numerous examples of how he has resolved lighting concerns with other local business owners in the area. To provide examples, Mr. Vogel stated that he attended the hearing when the Wal-Mart opened, but ultimately concluded that the lights were not problematic. The Rite-Aid also assisted Mr. Vogel in correcting its light, and the “By the Docks” restaurant owner replaced his outdoor lights with smaller bulbs to reduce the brightness per Mr. Vogel’s request.

Mr. Vogel framed the problem in this case as “[t]he light interfer[ing] with the business that thrives on darkness.” When asked during direct examination if there is “any special sensitivity to light in the operation of a drive-in movie theatre,” Mr. Vogel responded that with any theatre, “you have to watch light, of course, indoor or drive-in.” During cross-examination, Mr. Vogel responded “yes” when asked whether drive-in theatres are unique in their need for darkness. He also conceded that if he owned a tire store or a doctor’s office, the lights probably would not bother him and that he could not “think of any other occupation that would require that unique night sky.” When asked whether he was sensitive to light, Mr. Vogel admitted that he was, explaining, “I’ve been trained to, in the art of projection and I am, I know how to keep that picture correct.” According to Mr. Vogel, attendance and profits at Bengies have increased annually. Further, Mr. Vogel did not receive customer complaints about the Royal Farms lights, even though he has a method in place for receiving complaints and had received complaints about other matters. Both parties called several witnesses to testify about whether the Royal Farms lights created a nuisance to Bengies.

On behalf of Bengies, Dr. Brett Levinson, qualified as an expert in ophthalmology, provided testimony about the anatomy and ⁸⁶ mechanics of the human eye. To a reasonable degree of scientific certainty, Dr. Levinson opined that the blue and green lights emanating from Royal Farms, which is situated in viewers’ peripheral vision, are “stimuli that’s very well picked up by the retina” and that eyes are “highly sensitized to things at night, especially low light and blue greens.” Bruce Dunlop, qualified as an expert in lighting design, opined to a reasonable degree of scientific certainty that the “Royal Farms store’s lights creates [sic] a distraction for the moviegoer at the Bengies” and that “light pollution exists at the Bengies.” Mr. Dunlop defined light pollution as “light that emanates from the property and causes harm or inconvenience to another” and light trespass as “light that is generated on one property and impinges on another.” 10 Mr. Dunlop also testified that “[o]ne reason [the lights create a distraction], other than the brightness and proximity of the lights to the patron, is the color of the light. The lighting at the Farms stores is cool white LED’s and cool white metal halide sources, both of which the eye is sensitive to at night.” He noted that eyes are also sensitive to blue and green lights at nighttime. Specifically, Mr. Dunlop testified that the pylon sign, the gas canopy, and the accent lights on the advertising above the pumps and car wash are the brightest lights.

The accent lights refer to advertising panels above the pumps; these panels have LED accent lights, which are aimed to illuminate a vertical surface. In doing so, the lights reflect light off of the blue and green signs. In order to resolve the light pollution, Mr. Dunlop concluded that a barrier could block the light physically. ⁸⁷ Avery Harden was also called to testify on behalf of Bengies, and said that he thought the glare coming from lights over the pumps at the Royal Farms was a problem, but that “[th]ere is a traffic signal that would be a little more off to the right ... than the Royal Farm that could be an issue too.” When asked whether Baltimore County made a determination about the Royal Farms’ lights, Mr. Harden replied, “Yeah, we judged it to be in compliance.” On behalf of Royal Farms, Jayme Leonard, qualified as an expert in the discipline of lighting convenience stores and gas stations, opined that Royal Farms’ site was very well-contained and did not generate light pollution; in fact, he believed that the lighting was too low for security purposes. Mr. Leonard also testified that from a foot candle measurement, there is no light pollution or light trespass from the Royal Farms store onto Bengies’ property.

Mr. Leonard based his opinions on his visual observations, not from meter measurements. Timothy Michael Kotroco, the former Director of Baltimore County’s Department of Permits and Development Management, testified about investigating Mr. Vogel’s formal complaint regarding Royal Farms’ light. In his opinion, “there wasn’t anything occurring that could infringe upon the people’s enjoyment there to watch a movie” and “the lights from the Royal Farms store did not inappropriately spill onto the Bengies Drive-In.” On the issue of damages, Joseph Stallmann, Jr., president of Olympic Fence and Guardrail, testified that he consulted with Mr. Vogel about constructing an 850 x 25 foot stone wall to shield Bengies from Royal Farms’ light. An exhibit admitted into evidence estimated the cost of construction as $798,000.00.

Francesco Taliano, a partner at Patuxent Insurance Group, testified that the annual insurance premium for a fence of that size would be $10,000.00. This figure is based on the value of the fence, as opposed to its size. At the close of evidence, the circuit court granted Royal Farms’ Motion for Judgment as to the negligence claim, but ⁸⁸ denied its Motion as to the private nuisance claim. The jury-found in favor of Bengies and awarded $838,000.00 in damages, valuing the cost of constructing a fence to shield Bengies from Royal Farms’ lights and an insurance policy.

On July 9, 2012, Royal Farms filed a Motion for JNOV or, in the alternative, Motion for New Trial. On September 13, 2012, the circuit court issued a Memorandum Opinion and Order granting Royal Farms’ Motion for JNOV. The court observed that the jury was provided with “scant proof’ depicting the actual lighting conditions at the drive-in at night; that neither party requested a view of the properties pursuant to Maryland Rule 2-515; and that, overall, there was “little objective evidence presented as to the intrusive or non-intrusive effect of the Royal Farms’ lighting on the drive-in.” The court noted that no customer testified that the lights from the Royal Farms store ever interfered with their viewing experience, and that “Mr. Vogel actually testified that ‘[e]ach year [business] increases and it has had that habit since 1989 when I took over.’ ” Plaintiffs evidence was beside the point: Exhibits 10 through 15, introduced by Plaintiff strictly for the purpose of showing the locations of light meter readings, reflect objectively that the Farm Stores’ lighting does not sit behind the movie screen, or anywhere near the movie screen, so as to diminish or distort the projected movie picture, but rather is located off to the right of the movie screen and on the far side of Eastern Boulevard—at a distance from the Bengies property. Based on what was presented at trial, the court found: All of the evidence adduced in this case, demonstrative and testimonial, established that Royal Farms lighting is not aimed, directed or oriented towards the Bengies property.

The evidence established that the Royal Farms’ light does not encroach onto the Bengies property or otherwise intrude or spill across Eastern Boulevard onto the drive-in land. And the evidence established that the Royal Farms’ lighting is located away from the Bengies picture screen on a horizontal plane and does not distort or diminish the image projected onto the picture screen. At best, the ⁸⁹ evidence established that a movie patron’s attention could be drawn to the Royal Farms’ operation by the color or the brightness of the Royal Farms’ lighting as he or she watched a movie.... Bruce Dunlop, a lighting designer who testified not that the Royal Farms’ lighting interfered with the projection of movie images at the Bengies at night, but rather, that because of the color and/or intensity of the Royal Farms’ lights in the distance, theater patrons could be distracted....

The evidence also established that ... patrons could be distracted by the “By the Docks” lighting or the other visible lighting along Eastern Boulevard. In its analysis, the court surveyed cases from Maryland and from other jurisdictions determining that drive-ins could not maintain a nuisance action due to the light-sensitive nature of their industry. The court noted that Mr. Vogel admitted that his drive-in was especially sensitive and found that the location of the drive-in “in the midst of other commercial and retail establishments which must be adequately lit to do business at night makes the case for a finding of nuisance due to light spillage all the more impossible.” Considering both Maryland and other jurisdictions’ case law, the court concluded: It is beyond any reasonable dispute that the drive-in operation involved in this action is one that is peculiarly sensitive to light, and that this drive-in’s owner, Mr. Vogel, is a particularly sensitive drive-in owner. In any event, this Court finds that the evidentiary record in this action does not support a conclusion that light emanating from the Royal Farms’ location would constitute a nuisance to a business “no more than ordinarily susceptible to light” such as another convenience store, a restaurant or any other commercial or industrial use.

If the business located on the Bengies property was a 7 Eleven or a Walmart or a car dealership, there would not be even a colorable claim for nuisance based on light spillage. Therefore, the verdict reflecting a finding of nuisance cannot stand. (footnote omitted). The court continued: Even assuming, however, that Maryland law or a common law principle recognized elsewhere allowed this verdict to ⁹⁰ stand, the facts presented simply do not allow for a rational jury conclusion that Royal Farms’ lighting constitutes a nuisance to the drive-in.

The Royal Farms’ lighting is not aimed or directed or oriented towards the drive-in.... There is simply no reasoned or rational basis to conclude that these very typical and ordinary commercial lights, employed lawfully by a business on the far side of the road from the drive-in could conceivably have constituted the type of substantial and unreasonable interference with the operation of the drive-in required by Maryland Law before a fact-finder can conclude that there is nuisance. Accordingly, the circuit court set aside the judgment in favor of Bengies and entered judgment in favor of Royal Farms. 11 This appeal followed. DISCUSSION It is the responsibility of the court to aid a jury in the correct discharge of its duty and to correct error. 12 The Maryland Rules equip circuit courts with several means to minimize or correct trial errors.

Gen. Motors Corp. v. Seay, 388 Md. 341, 352-53 , 879 A.2d 1049 (2005) (discussing the legislative history of Maryland Rule 2-532). Maryland Rule 2-532, which governs motions for JNOV, is intended “to ⁹¹ reduce costs to litigants and promote time efficiency by reducing both retrials and duplicate trials due to errors.” Id. at 352 , 879 A.2d 1049 . A motion for JNOV under Rule 2-532 “tests the legal sufficiency of the evidence.” Impala Platinum, Ltd. v. Impala Sales (USA), Inc., 283 Md. 296, 326 , 389 A.2d 887 (1978).

It gives the circuit court a last chance to order the judgment that the law requires. See, e.g., Goss v. Estate of Jennings, 207 Md.App. 151, 174 , 51 A.3d 761 (2012) (affirming a circuit court’s grant of JNOV because it was “apparent that the evidence was legally insufficient to establish” negligence); Gallagher v. H.V. Pierhomes, LLC, 182 Md.App. 94 , 957 A.2d 628 (2008) (affirming a circuit court’s grant of JNOV because the evidence presented at trial was “legally insufficient to support the imposition of strict liability in tort for the conduct in issue, or to establish a private or public nuisance”). On review of a circuit court’s decision to grant or deny a motion for JNOV, we are concerned with the dichotomy between the role of the judge, to apply the law, and the role of the jury, to decide the facts. As we explained in Pickett v. Haislip, 73 Md.App. 89, 98 , 533 A.2d 287 (1987), “[o]nly where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury.” Although we review the circuit court’s legal findings de novo, MBC Realty, LLC v. Mayor & City Council of Balt., 192 Md.App. 218, 233 , 993 A.2d 1190 (2010), we must determine “whether on the evidence presented a reasonable fact-finder could find the elements of the cause of action by a preponderance of the evidence.” Univ. of Md. Med.

Sys. Corp. v. Gholston, 203 Md.App. 321, 329 , 37 A.3d 1074 cert. denied, 427 Md. 65 , 46 A.3d 406 (2012). Bengies argues that the circuit court erred in granting Royal Farms’ Motion for JNOV because Bengies presented sufficient evidence at trial upon which the jury could conclude that the Royal Farms lights caused an unreasonable and ⁹² substantial interference with the use and enjoyment of its property. As Bengies correctly argues on appeal, if the record presents any evidence, however slight, from which the jury could have reached its verdict, then Royal Farms is not entitled to a JNOY.

Nationwide Mut. Fire Ins. Co. v. Tufts, 118 Md.App. 180, 190-91 , 702 A.2d 422 (1997) (citing Houston v. Safeway Stores, Inc., 109 Md.App. 177, 183 , 674 A.2d 87 (1996)). Applying this standard, we find that the circuit court correctly set aside the jury’s verdict where the evidence did not support a private nuisance action.

The concept of nuisance is deeply-rooted in common law and in Maryland case law. Wash. Suburban Sanitary Comm’n v. CAE-Link Corp., 330 Md. 115, 124 , 622 A.2d 745 (1993). Although the doctrine originally aimed to safeguard private landowners from being dispossessed of their property, it evolved to protect private landowners from “substantial interferences” with the possession of land.

Wietzke v. Chesapeake Conference Ass’n, 421 Md. 355, 373-74 , 26 A.3d 931 (2011) (citing David A. Thomas, Thompson on Real Property § 67.01.02, at 111, 113 (2d ed. 2010 Supp.)). 13 Maryland courts have adopted Section 821D of the Restatement (Second) of Torts (1965), which more narrowly defines a private nuisance as “a nontrespassory invasion of another’s interest in the private use or enjoyment of land.” See, e.g., Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 80 , 642 A.2d 180 (1994); Exxon Corp. v. Yarema, 69 Md.App. 124, 147 , 516 A.2d 990 (1986). Nuisance is not confined to physical intrusions onto another’s property; rather, it broadly encompasses all tangible invasions, including noise, odor, and light. Yarema, 69 Md.App. at 147 , 516 A.2d 990 . And, although there is no requirement that a plaintiff demonstrate physical injury from an alleged nuisance, a plaintiff must demonstrate that the defendant’s interference with the plaintiffs property rights is both unreasonable and substantial in order to recover for ⁹³ nuisance.

Exxon Mobil Corp. v. Albright (Albright I), 433 Md. 303, 409-11 , 71 A.3d 30 modified on other grounds, Exxon Mobil Corp. v. Albright (Albright II), 433 Md. 502 , 71 A.3d 150 (2013); accord Exxon Mobil Corp. v. Ford, 433 Md. 426, 485-86 , 71 A.3d 105 (2013) (following Albright I’s rationale and concluding that appellees with potable wells that had not tested positive for contamination failed to show substantial interference sufficient to sustain actions in nuisance). The case