Casper v. Chas. F. Smith & Son, Inc.

⁴⁴⁹ ROSALYN B. BELL, Judge. The wisdom contained in Demuth v. Old Town Bank of Baltimore, 85 Md. 315, 319-20 , 37 A. 266 (1897), is worth repeating once again: “This is a case of exceedingly great hardship, and we have diligently, but in vain, sought for some tenable ground upon which the appellants could be relieved from the loss that an affirmance of the decree appealed from will necessarily subject them to. But hard cases, it has often been said, almost always make bad law; and hence it is, in the end, far better that the established rules of law should be strictly applied, even though in particular instances serious loss may be thereby inflicted on some individuals, than that by subtle distinctions invented and resorted to solely to escape such consequences, long settled and firmly fixed doctrines should be shaken, questioned, confused or doubted. It is often difficult to resist the influence which a palpable hardship is calculated to exert; but a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured.” (Citation omitted.) Danielle Casper, aged seven, and Rachel Kirtscher, aged eight, were severely and permanently injured in 1984 when they fell into Moore’s Run, a stream located in Baltimore City, and were submerged in icy water.

As a result, both children are profoundly brain damaged and suffer from, among other conditions, spastic quadriplegia. The parents of the girls filed negligence suits individually and on behalf of the children against the City and several contractors and engineers who had done some excavation of the stream nine years earlier. The Circuit Court for Baltimore City granted ⁴⁵⁰ judgment in favor of all but one of the defendants. 1 The parents appeal the court’s rulings. Since the cases were decided on motions to dismiss or for summary judgment, the facts are taken from the parents’ complaints and are presumed to be true.

The events of this tragedy began nine years earlier when in August, 1974 the City of Baltimore awarded a contract to Chas. F. Smith & Son, Inc. to perform, as the plaintiffs alleged, “sewer construction and repair” around Moore’s Run. This work included the installation of a 21-inch sewer line to run parallel to Moore’s Run. The contract also required the construction of gabions for 200 feet along the west bank of Moore’s Run.

Gabions are wire mesh baskets filled with rocks and are used to prevent erosion. The design for the gabions required a ten-foot-wide-by-one-foot-deep “mattress” to be erected on top of the streambed, with two layers of cubical wire baskets to be placed on top of the mattress along the western bank. The baskets were to be filled with igneous rock of a specific gravity not found locally. The parents asserted the main purpose for installing the gabions “was to prevent erosion of the west bank of Moore’s Run so as to protect the 21" sewer pipe and [a nearby road] from collapse and destruction.” In March and April, 1975, Smith and Gabion Construction, Inc. (GCI) constructed the gabions under the supervision of the City and Rummel, Klepper & Kahl (RKK), the engineering consultant and project manager.

Prior to construction, the streambed of Moore’s Run at the accident site was approximately six inches to one foot deep. The parents alleged that Smith and GCI altered the depth by improperly excavating rock from the streambed to fill the gabion baskets. In so doing, they created a five-foot-deep pocket of water running the length of the gabion construction. The plaintiffs also stated that Smith and GCI ⁴⁵¹ altered the natural channel and water course resulting in an increase in the current velocity of the stream by straightening its path and narrowing its banks, which over time accelerated erosion of the streambed, further increasing the depth.

The parents in addition asserted that Smith and GCI constructed and repaired some storm water and sewer lines which emptied into Moore’s Run, increasing the water volume and current velocity and further exacerbating erosion of the streambed. They concluded that Smith’s and GCI’s negligent actions, all under the supervision and control of the City and RKK, “directly contributed to the creation of an artificial and unreasonably dangerous pocket of deep water in Moore’s Run. Defendants] knew or should have known that by altering and changing the depth of the streambed [they] had created an artificial and unreasonably dangerous condition that could cause injury to unsuspecting children and other citizens who might attempt to cross or walk through Moore’s Run in the vicinity of the gabions.” On February 8, 1984, Casper and Kirtscher left Kirtscher’s home at 5:20 p.m. to walk Kirtscher’s dog along Moore’s Run near their homes. Children frequently play in and around Moore’s Run and as the parents assert “[f]or years children and their families have used this public property as park land.” On the evening of February 8, because of winter weather conditions, the area where the gabion construction had been completed nine years earlier was six to eight feet deep and covered with ice.

Sometime after 6:00 p.m., the children were found in the area of the deep freezing water and it was estimated each child had remained submerged for at least 15 minutes until rescued by the Baltimore City Police Department. In addition to the injuries previously mentioned, each child is unable to speak and has an intelligence level comparable to a three-month-old infant. Consequently, neither child can explain how the accident occurred. The parents surmised that the accident occurred when the dog went onto the ice and fell ⁴⁵² through and the children fell through while attempting to rescue the dog.

The parents filed suits asserting that Smith, GCI, RKK and the City breached their respective duties proximately causing injury to the children. The defendants filed pretrial motions 2 in which each argued: 1) It did not owe a duty of care to either child because (1) there was no contractual duty; (2) the children were trespassers or bare licensees at the time of the accident; and (3) water is an open and obvious danger; 2) Its conduct was not the proximate cause of the accident; 3) As a matter of law, the children were contributorily negligent and assumed the risk of their injuries. The City also argued that it was immune from liability by virtue of municipal immunity. The court adopted the reasoning of the defendants and granted the respective motions.

The court then dismissed the complaints without leave to amend, precipitating these two appeals. Appellants present a number of issues for our consideration. Specifically, they assert: I. “The trial court erred in ruling that the City was immune from suit, because it was not engaged in a proprietary function at the time its negligence caused the injuries to Casper and Kirtscher.” II. “The trial court erred in ruling that appellees did not owe a duty to Casper and Kirtscher, residents and citizens of Baltimore City, because they were trespassers or, at best, bare licensees while properly upon unmarked and unposted City property naturally used as park land by Casper and Kirtscher and their neighbors.” III. “The trial court erred in ruling that the conduct of RKK and GCI was not the proximate cause of Casper’s and Kirtscher’s injuries. ⁴⁵³ A. “RKK and GCI’s negligence was active and the proximate cause of the children’s injuries. B. “Natural erosion was not an intervening cause.

C. “RKK’s and GCI’s negligence was not too remote in time to be the proximate cause of the accident.” IV. “The trial court committed reversible error: A. “Because it failed to apply the presumption that Casper and Kirtscher acted with due care and, therefore, erroneously concluded that their conduct barred them from recovery. B. “In failing to assess Casper’s and Kirtscher’s conduct by the standard of due care applicable to reasonably prudent seven and eight year old children. C. “By discarding the complaints’ description of the hidden danger awaiting the infant plaintiffs and thereby failing to take as true the allegations of the complaints and all reasonable inferences drawn therefrom. D. “Because, accepting the children’s allegations as true and presuming that they exercised such care as would a reasonably prudent child of like age and intelligence, the trial [court] could not conclude that Casper and Kirtscher were contributorily negligent as a matter of law when they confronted the concealed danger created by appellees at Moore’s Run.” V. “The trial court erred in ruling that Casper and Kirtscher assumed the risk of their injuries.” I. MUNICIPAL IMMUNITY The motions to dismiss filed by the City were based on the conclusion that when the City contracted for work to be performed at Moore’s Run in 1974, the City was engaged in a governmental as opposed to a proprietary function and thus the doctrine of municipal immunity bars appellants’ recovery.

According to appellants, the work performed by the City was in the nature of sewer work and was not a governmental function and thus no immunity attaches to the City. ⁴⁵⁴ Appellee City naturally contested this conclusion and asserted that the complaint indicates that the alleged negligent gabion construction was for erosion purposes, a governmental function. The court ruled that the City enjoyed immunity because “Moore[’]s Run, as it existed in 1984, was not a proprietary function of the City.” We need not decide the exact nature of the activity at Moore’s Run in light of our ultimate holding. We thus assume for purposes of this opinion that the City does not enjoy municipal immunity from liability. This conclusion brings appellants only one step closer to recovery.

We next examine whether any appellees, including the City, owed any duties to appellants.

II

DUTIES OWED Appellants next allege the court erred in ruling that appellees owed no duty to the youngsters because there was no contractual duty; they were trespassers or, at best, bare licensees in Moore’s Run at the time of their injuries; and because water is an open and obvious danger. It is essential to actionable negligence that there be a duty on the part of the defendant(s) to protect the plaintiffs), failure to perform that duty, and consequential injury. Mayor of Havre De Grace v. Fletcher, 112 Md. 562, 567-68 , 77 A. 114 (1910). Negligence may result from a violation of a duty to use the degree of care required under the particular circumstances.

If no duty is owed, no action can be sustained, even though injury has occurred. Bauman v. Woodfield, 244 Md. 207, 216 , 223 A.2d 364 (1966). In their complaints, appellants alleged several duties appellees owed to the children and themselves. Specifically, they suggested appellee GCI had (1) a duty to perform the contract in a workmanlike and safe manner; (2) a duty to exercise due care; (3) a duty not to alter the natural condition of Moore’s Run or its streambed; and (4) a duty not to create an “artificial and unreasonably dangerous condition” in Moore’s Run, namely a deep pocket of water. ⁴⁵⁵ With respect to appellees RKK and the City, appellants alleged they each owed the duty to properly supervise the construction and to properly design or correct any faulty design of the project, in particular, the gabions.

Appellants posited that the collective breach of these various duties “directly contributed to the creation of an artificial and unreasonable condition in Moore’s Run.” Since appellants presented three possible legal positions occupied by appellees, we consider the possible duties owed under these three positions. —Contractual Duty— Appellants first alleged appellee GCI owed a duty sounding in contract to perform the contract in a safe and workmanlike manner. On appeal, they now assert a contractual duty on the part of the other appellees not to alter the streambed. We consider the duties owed as if they had originally alleged these duties from the beginning. Appellants cite to Council of Co-Owners Atlantis Condominium, Inc. v. Whiting-Turner Contracting Co., 308 Md. 18, 32 , 517 A.2d 336 (1986), to support their theory that appellees’ failure to perform the contract properly is an actionable tort despite the fact that appellants are not in privity to the contract between appellee City and the other appellees.

While privity is no longer required in this situation under Atlantis Condominium, the Court of Appeals still ruled that “[wjhile a contract may serve to define the nature of the obligation undertaken, and thus serve to identify the allocation or assumption of duties among various parties, it will not create a legal duty where one does not exist.” 308 Md. at 32 , 517 A.2d 336 . 3 Thus, we turn to examine what, if any, legal duties appellees GCI, RKK and the City owed to appellants. ⁴⁵⁶ —Project Capacity Duty— Appellants asserted appellees, in their various project capacities in 1974, owed legal duties to protect the youngsters from harm. Appellants specifically alleged appellee GCI, as subcontractor, owed a duty not to deepen and alter the natural streambed of Moore’s Run to create an unreasonably dangerous condition. They similarly alleged appellee RKK and the City, as project supervisors, owed a duty to supervise properly and inspect the project so as not to deepen and alter Moore’s Run to create an unreasonably dangerous condition. Likewise, they asserted appellee RKK and the City, as project designers and design consultants, had a duty not to design an unreasonably dangerous condition and to correct any design defects that created an unreasonably dangerous condition.

The duties owed by project designers, supervisors and builders to third parties pursuant to work performed under a contract was recently set forth in Atlantis Condominium. Judge McAuliffe, writing for the Court of Appeals, held that “the duty of builders and [designers] [is] to use due care in the design, inspection, and construction of a [project] [and this duty] extends to those persons foresee-ably subjected to the risk of personal injury because of a latent and unreasonably dangerous condition resulting from that negligence.” Atlantis Condominium, 308 Md. at 22 , 517 A.2d 336 . From the complaints, appellants clearly alleged existent duties on the parts of appellees GCI, RKK and the City, stemming from their respective roles in construction of the project. —Landowner’s and Agents’ Duty— Appellants also asserted appellee City was and is the owner of Moore’s Run. They did not assert in their pleadings that as landowner appellee City owed a duty to the youngsters, but it is clear from the various motions filed and the court’s ruling that the status of the City as landowner presented a separate duty owed to appellants apart ⁴⁵⁷ from its position as project designer and supervisor.

The court ruled that, because the youngsters were trespassers or at best bare licensees, the City as landowner and the subcontractor and engineer, as agents of the landowner, owed no duty to the two children. There is no doubt that “[t]he nature and extent of a tort duty ... depends in part on the status of the party upon whom it is sought to be imposed, and upon [the] relationship to the party claiming the benefit of it.” Atlantis Condominium, 308 Md. at 36 , 517 A.2d 336 . As the owner of land, a person or entity owes a duty to those who may come upon it. As agents of the landowner, contractors owe the same duty to those who come upon the realty.

See Kirby v. Hylton, 51 Md.App. 365, 371 , 433 A.2d 640 (1982). The extent of that duty is fixed by the status — invitee, licensee, trespasser — of the person claiming it. Rowley v. Mayor of Baltimore, 305 Md. 456, 464-65 , 505 A.2d 494 (1986). An invitee is one invited or permitted to enter another’s property for purposes related to the landowner’s business.

A licensee is one who enters property with the knowledge and consent of the owner but for his or her own purposes. Bramble v. Thompson, 264 Md. 518, 521 , 287 A.2d 265 (1972). There are two types of licensees: a bare licensee and a licensee by invitation, known as a social guest. Bramble, 264 Md. at 521 , 287 A.2d 265 .

A trespasser is one who intentionally and without consent or privilege enters another’s property. Bramble, 264 Md. at 522 , 287 A.2d 265 . Toward an invitee, the owner of the property “must use reasonable and ordinary care to keep [the] premises safe ... and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care ... will not discover.” Bramble, 264 Md. at 521 , 287 A.2d 265 . With respect to a licensee by invitation, an owner need only provide that degree of care which the host provides for his or her own family.

Bramble, 264 Md. at 521 , 287 A.2d 265 . A trespasser and a bare licensee are ⁴⁵⁸ owed the same degree of care by the owner — that is, those with this status, even if of tender years, take the property as they find it and are owed no duty by the owner except that the owner may not wilfully or wantonly injure or entrap once the licensee’s or trespasser’s presence is known. Bramble, 264 Md. at 521 , 287 A.2d 265 . As we stated, the court ruled the youngsters were trespassers or bare licensees.

Appellants posit that since Moore’s Run has unrestricted access, since appellee City is not a private landowner but a public landowner, and since the youngsters are members of the public and thus, in essence, owners of Moore’s Run, they could not be trespassers or even licensees. 4 We have not uncovered and appellants have not cited any Maryland case which addressed the specific issue of the status of a plaintiff upon unrestricted public property. 5 We need not decide this issue, however. Even if we hold that the children enjoyed the highest status, that of invitees, as we will explain infra, the City and its agents did not fail to keep the premises safe and free from an unreasonable and latent danger. Now that we have set out the various duties owed by appellees in their respective capacities, we resolve whether, as a matter of law, appellees breached their respective duties. ⁴⁵⁹ III. BREACH OF DUTIES OF CARE Appellants’ complaints are based on the theory that the subcontractor, project supervisors, designers, and owners or owners’ agents breached their duties to protect the young girls when they designed, constructed and maintained a deep pocket of water in a natural stream.

Thus, the question before us is simply reduced to the following: Is this artificially created deep area in this natural body of water an unreasonably and latent dangerous condition? We must answer this question in the negative. —Unreasonable Danger— The trial court ruled that “water has long been held by courts everywhere as to contain its own warning of possible danger.” In Honolulu Ltd. v. Cain, 244 Md. 590, 599 , 224 A.2d 433 (1966), the Court of Appeals stated: “Where a dangerous condition is obvious, the plaintiff may be charged with knowledge of it, and the knowledge of the condition may remove the element of unreasonableness from a danger.” We hold that the danger inherent in this open and obvious body of water was discoverable by these children. Thus, by definition, this body of water, both deep and shallow, was not an unreasonably dangerous condition. In State ex rel.

Alston v. Baltimore Fidelity Warehouse Co., 176 Md. 341 , 4 A.2d 739 (1939), the parents of a deceased 11-year-old child brought a negligence suit against the owner of a raft when the child fell off the raft and drowned. The raft was moored in waters at the end of a street where children were known to frequent. The street came to an end at the water and a stone wall was built across its width. The Court ruled that “the presence of the raft [did not] add to the natural danger of the open water at the end of Battery Avenue.” Alston, 176 Md. at 346 , 4 A.2d 739 (emphasis supplied).

Similarly, in Mayor of Baltimore v. State ex rel. Ahrens, 168 Md. 619 , 179 A. 169 (1935), the Court of Appeals held that the City of Baltimore was immune from liability when a 10-year-old boy drowned ⁴⁶⁰ in Gwynns Falls. The testimony demonstrated that Gwynns Falls was a narrow stream, generally shallow until it suddenly reached a depth from 15 to 20 feet. The boy was wading in the shallow end and somehow went into the deep water and drowned.

Although the issue addressed by the Court was whether the maintenance of Gwynns Falls Park was a governmental function, the Court quoted extensively from the case of McGraw v. District of Columbia, 3 App.D.C. 405 , 409 (1894), and in so doing discussed the inherent danger of water: “ ‘Land covered by water is necessarily more or less beyond the ordinary control of man; and the margins of streams, rivers and lakes, as well as of the ocean, are subject to a power which the ordinary operations of man may neither determine nor direct. To hold that the margin of a great river, with the mighty volume of water that constantly comes down to disturb its configuration, should be kept level and smooth, free from holes and depressions, and equally safe for the use of adult man and the child of tender years, would be to demand the impossible. It is common experience that the bed of a river is in course of constant change; and that in places the sand and earth are accumulated, in other places excavated or depressed and holes and ravines formed even in a single night.’ ” Ahrens, 168 Md. at 627 , 179 A. 169 . Appellants take the position that sharp drops or deep holes artificially created in a natural stream constitute an unreasonable danger.

Although appellants urge this Court to distinguish between natural water and artificially-deepened water, on the facts of this case we decline to do so. There were no allegations in the complaints that Moore’s Run was anything other than a natural body of water that was deepened in a certain area by man-made excavation and further deepened by natural erosion. Hundreds of bodies of water, large and small, natural and artificial, dot the State of Maryland. They take their toll of human life.

All bodies of water deep enough to drown a child and situated ⁴⁶¹ within roving distance of children, present a danger from which an injury or death to some child may reasonably be anticipated. But it does not automatically follow from such a fact that due care is not exercised when a person or entity takes a body of water and alters it, either to make it wider, narrower, longer, shorter, shallower or deeper than its present state. Conditions such as sharp drops or deep holes are also found in natural ponds, pools, lakes, streams, rivers, and other bodies of water. They are common to nature and are not foreign to any body of water.

We hold that, if a landowner and its agents, such as contractors, subcontractors, designers, engineers and/or consultants, create an artificial condition in a body of water, without adding any further danger, no unreasonable danger is designed, constructed, or maintained. —Latent Danger— Appellants attempt to challenge the open and obviousness of Moore’s Run by asserting that the depth of the stream was concealed by a layer of ice and twilight, and thus it became a latent danger — “an artificial deathtrap.” In support of their argument, they cite us to several Maryland and foreign cases. We find these cases distinguishable. In Stein v. Overlook Joint Venture, 246 Md. 75 , 227 A.2d 226 (1967), the Court of Appeals reversed a directed verdict in favor of the association owners of an apartment building. An eight-year-old child visiting the building for the first time was injured when she walked into a pane of glass that was not marked or affixed with decals.

The maintenance engineer testified that there were six or seven other similar accidents that had been previously reported; he and the resident manager had discussed the “existing dangerous conditions”; and originally all panels had decals but when they were replaced, no decals were affixed to the replaced panels. Stein, 246 Md. at 79 , 227 A.2d 226 . The Court reasoned that a directed verdict was improper because the defendant had knowledge of the dangerous characteristics of clear glass, there was evidence of prior accidents, and ⁴⁶² there was evidence of the failure to replace decals. Stein, 246 Md. at 81 , 227 A.2d 226 .

In distinguishing Stein , we recognize that clear glass, unlike a body of frozen water, is not readily apparent. It is the exact property of transparency that makes the use of glass so commonplace. A body of water, on the other hand, is, by its size, color, opaqueness and current, obvious. An ice-covered body of water is no less obvious.

Moreover, unlike Stein , there was no evidence in the case sub judice of prior accidents in Moore’s Run in the gabion area, nor any express statements by any appellees of the latent danger presented by the deep water pocket. Stein simply is of no assistance to appellants in advancing their argument that Moore's Run was a latent trap. In Reiser v. Abramson, 264 Md. 372 , 286 A.2d 91 (1972), also cited by appellants, the Court of Appeals approved the reservation as a jury question the issue of the plaintiff’s contributory negligence when she fell as a result of slipping on a patch of water in the defendant’s laundry room. The Court reasoned: “Water is a colorless liquid.

The testimony here is that that which was on the floor was in fact colorless____ [I]t often is not visible to the naked eye. Its visibility depends upon the angle at which it is viewed and the direction from which light comes.” Reiser, 264 Md. at 378 , 286 A.2d 91 . The distinction between a patch of water on a floor and a partially frozen body of water in the open is too evident to elucidate. Accordingly, Reiser does not persuade us that the danger in Moore’s Run was latent.

Appellants also cite Honolulu Ltd., with facts similar to Reiser , to suggest that a concealed danger raises a jury question about primary negligence. In that case, the plaintiff was injured when she slipped and fell on a thin patch of ice which had formed on the black macadam surface of the defendant’s parking lot. The defendant argued that the ice was an “obvious danger.” Honolulu Ltd., 244 Md. at 599 , ⁴⁶³ 224 A.2d 433 . The Court ruled that the plaintiff was not contributorily negligent as a matter of law.

In discussing the danger, the Court of Appeals noted that the patch of ice had formed after the plaintiff walked through the parking lot to a store but before she had returned to her car.