Collins v. Li

DAVIS, J. On June 14, 1998, Samuel Juster and Stephon Collins, Jr., the sons of appellants Collins and Juster, perished in a house fire. Appellants’ children were overnight guests of appellants, the Chapmans, who rented a single family residence, located at 23 Grantchester Place (Grantchester Place) in Gaithersburg, Maryland, from appellees, Mr. and Mrs. Gui-Fu Li (The Lis). ⁵¹⁴ Kyle Chapman, the son of appellant, Michael Chapman, was severely burned as a result of the fire and both of his legs were amputated. Other Chapman family members also suffered injuries. The three Chapman children, as well as Samuel Juster and Stephon Collins, Jr. had been sleeping in a bedroom in the basement of the home.

The fire was caused by a candle in the basement, which was being used during an area-wide electrical outage caused by severe thunderstorms. Due to the power outage, the AC-powered smoke detector in the basement was not activated. In the Circuit Court for Montgomery County, appellants sued Gui-Fu Li and Chung Ling Li as landlords of the home. Appellants also sued Pittway Corporation, First Alert, Inc., Sunbeam Corporation, BRK Brands, Inc. and Honeywell International, Inc. (the manufacturer defendants), as manufacturers of the smoke detectors in the subject home.

Appellants sued the Ryland Group, Inc. (Ryland) as the builder of the home and Summit Electric Co. (Summit) as the electrical subcontractor, for failing to install dual-power smoke detectors, e.g., AC-power with a safety battery back-up, when the home was built in 1989 and for failing to provide the homeowner with the User’s Manual for the AC-power smoke detectors. Appellants sued David Dieffenbach as well as his employee Kevin Hightower, alleging that they renovated the basement without permits in 1994, that they failed to replace the AC-power smoke detectors with dual-power smoke detectors and that they failed to warn the owners and occupants that the enclosed rooms in the basement could not be used as sleeping areas. On January 3, 2002, the trial court heard arguments and granted several motions. The Motions for Summary Judgment of appellees Dieffenbach and Hightower were granted.

The Motion to Dismiss of appellee Ryland was granted. The Motion to Dismiss or in the Alternative, Motion for Summary Judgment of appellee Summit was granted. Appellants’ Motion for Reconsideration as to Ryland and Summit was denied on March 26,2002. ⁵¹⁵ Following dismissal of Ryland and Summit, appellants voluntarily dismissed all claims against the remaining defendants, Gui-Fu Li, Chung Ling-Li and the manufacturer defendants. Appellants then filed an appeal against Ryland and Summit, in which this Court concluded that the voluntary dismissals were inappropriate and vacated them, remanding the case to the circuit court for further proceedings.

On October 27, 2004, appellants filed a Re-Filed Omnibus Amended Complaint against appellees in this case. After the case was refiled, the circuit court granted the Motion to Dismiss of the manufacturer defendants. Appellees Gui-Fu Li and Chung Ling Li then filed a Motion to Dismiss the claims on March 29,2006 asserted by the Chapman appellants and the circuit court granted this motion on April 20, 2006. Appellants Collins and Juster and the Chapman appellants filed this timely appeal, presenting the following issues for our review, which we have rephrased and reordered: 1 ⁵¹⁶ I. Whether the circuit court erred in determining, pursuant to motions to dismiss filed by the manufacturer defendants, Ryland Homes, Summit Electric and the Lis, that the alleged intervening acts of negligence set forth in ⁵¹⁷ the Re-Filed Omnibus Amended Complaint constituted a superseding cause, relieving A. the manufacturer defendants of liability for negligence, design defect, failure to warn, strict liability, breach of express warranty and breach of implied warranties of fitness for a particular purpose and merchantability; B. Ryland Homes and Summit Electric of liability for negligence, strict liability and failure to warn and whether the circuit court erred in denying appellants’ request for a continuance to conduct further discovery in proceeding against Ryland Homes; and C. the Lis of liability for negligence, violation of building codes and violation of the Consumer Protection Act.

II

Whether the circuit court erred in granting the motion for summary judgment filed by appellees Dieffenbach and Hightower, finding, as a matter of law, that the undisputed facts did not support appellants’ claims that Dieffenbach and Hightower A. had a duty to warn that the enclosed basement rooms could not be used as sleeping areas; B. were liable by reason in their failure to apply for and obtain the proper working permits before commencing repairs to the basement of the subject property, thereby preventing inspectors from the City of Gaithersburg from discovering that the basement was being used improperly as a sleeping area and consequently, preventing the inspectors from warning the occupants of the violation; and C. had a duty to replace or recommend that the AC power smoke/fire detector be upgraded to one with an alternative power source of when they installed two or three new electrical outlets in the basement after it had flooded in 1994. ⁵¹⁸ Because the circuit court was limited, on the motions to dismiss, to facts susceptible of but one inference, we shall hold that it erred in determining whether the intervening acts of negligence constituted a superseding cause, relieving the manufacturer defendants, Summit Electric, Ryland Homes and Gui-Fu Li and Chung Ling Li of liability for the deaths and injuries sustained. We shall affirm the grant of the motions for summary judgment filed by David Dieffenbach and Kevin Hightower and hold that appellants failed to establish that they had a legally cognizable duty with reference to the deaths and injuries sustained by the Collins, Juster and Chapman children. Finally, in light of our decision regarding the grant of Ryland’s motion to dismiss, we need not reach the court’s denial of appellants’ request for a continuance to conduct further discovery as to its claim against Ryland Homes. FACTUAL AND PROCEDURAL BACKGROUND Gui-Fu Li and Chung Ling Li purchased residential property located at 23 Grantchester Place in Gaithersburg, Maryland from the Ryland Group in 1989.

Appellee Ryland Group was the builder of Grantchester Place and Summit was the electrical subcontractor. When the home was built in 1989, appellees Ryland and Summit installed an AC-power smoke detector that was hard wired into the home’s electrical system, but that did not have a safety battery back-up on each level of the home. Gui-Fu Li, a chiropractor, renovated the basement for a medical office; these renovations, however, were performed without a budding permit. When Dr. Li began to treat his acupuncture patients in the finished basement, neighbors complained to the City of Gaithersburg about his home medical office and he was cited for a zoning violation on June 6, 1989.

After the Lis were denied permission for a zoning variance for a home medical office, they relocated their residence and, thereafter, sought to rent Grantchester Place. Michael Chapman and the Lis signed a rental agreement on August 13,1991 and the Lis applied for and obtained a Rental License from the City of Gaithersburg on August 29, 1991. The enclosed basement rooms had been used as bedrooms by ⁵¹⁹ the Chapman children and the sleep-over guests of their children since 1994. Mr. Chapman lived in the home with his wife, Catherine Chapman, and their children, including his three boys from his prior marriage, Keith, Brandon and Kyle Chapman.

Grantchester Place had a finished basement, which had three enclosed rooms: (a) Brandon and Kyle Chapman’s bedroom, (b) Keith Chapman’s bedroom, and (c) Mr. Chapman’s computer room/office. The two basement bedrooms did not have any windows. In early 1994, a water pipe burst in Grantchester Place, causing extensive damage, especially to the basement, where a foot of water had accumulated. On February 2, 1994, appellee, David E. Dieffenbach, trading as DEDHICO Home Improvements, submitted a written proposal to the Lis and Mr. Chapman to repair the water damage for a total of $28,060.

The contract itself indicates that “[t]he existing metal stud framing will be replaced and repaired to facilitate replacement of the walls.” Dieffenbach did not apply for and thus never obtained a building permit. Dieffenbach subsequently submitted two invoices for extra work, which both showed that twenty electrical outlets in the basement were cleaned and re-wired by an electrician at $17.50 per outlet for a total cost of $350. Kevin Hightower, who is a journeyman electrician and an employee of Dieffenbach, performed the electrical re-wiring work. Hightower admitted that he installed two or three new electrical outlets in the basement.

Neither Dieffenbach nor Hightower obtained a permit for the electrical work performed from the City of Gaithersburg and they conceded that they were required by law to apply for an electrical permit. As a result of appellees’ failure to apply for a building and/or electrical permit, the City of Gaithersburg did not inspect the work performed by appellees Dieffenbach and Hightower. Neither the Lis, Dieffenbach or Hightower undertook to upgrade the basement’s AC-power smoke detector to dual-power smoke detector in conjunction with the renovation ⁵²⁰ project or to recommend an upgrade or to warn the owners or occupants of the limitations of the AC-power smoke detector. On Saturday, June 13, 1998, thirteen-year-old, Stephon Collins, Jr. and twelve-year-old Samuel Juster were overnight guests of Keith, Brandon and twelve-year-old Kyle, the three sons of Michael Chapman and Carolyn Hill Chapman, at Grantchester Place.

That evening, powerful thunderstorms caused an area-wide electrical power outage. In order to provide lighting in order that Brandon, Kyle and Keith, and their friends, Samuel and Stephon could continue playing their game of Monopoly, they lit approximately six candles in the basement bedroom where Kyle and Brandon slept. Keith Chapman, then seventeen years old, was the last of the boys to retire. He extinguished all but one of the candles at approximately 4:30 a.m. and removed the one remaining lit candle from Kyle’s and Brandon’s bedroom, leaving it on a triangular corner unit in the basement’s main recreational room.

Keith Chapman estimated that he went to bed at approximately 4:45 a.m. Some time around 5:00 a.m., Sunday, June 14, 1998, the candle that was left burning on the triangular corner unit in the basement’s main recreational room ignited a fire. Both the Fire Investigation Report of the Bureau of Alcohol, Tobacco and Fire Arms and the Event Report of the Montgomery County Police Department concluded that the fire was ignited by the candle left on the triangular corner unit. As noted, the smoke detector located in the basement did not trigger an alarm due to the lack of a back-up power source.

Stephon Collins, Jr. and Samuel Juster perished as a result of the fire; Kyle Chapman suffered severe burns requiring the amputation of both legs and the minor Chapman children suffered burns and injuries to their respiratory systems. THE RE-FILED OMNIBUS AMENDED COMPLAINT Appellants’ sixty-one-page Re-filed Omnibus Amended Complaint contains twenty-six counts, all of which aver acts or omissions by the defendants in relation to the smoke detectors ⁵²¹ and lack of emergency egress at Grantchester Place. The essence of the Complaint is that all of the defendants, by their acts and omissions, were in some way responsible for the lack of adequate warning to the victims of the impending conflagration, which appellants claim, resulted from the fact that the smoke detector did not have “a battery back-up, or other alternative safety power source in the event of an electrical outage or short.” The appellants also claim that the injuries and deaths were proximately caused by various acts and omissions by the Lis, resulting in the unauthorized use of an area in the basement for bedrooms. Count I and II, ¶¶ 39 through 46, as to the Lis, allege negligence, violation of the Consumer Protection Act and wrongful death as to the Juster and Collins appellants.

Alleging that the Collins, Juster and Chapman boys sustained injuries and deaths because they were unable to escape the windowless bedrooms due to lack of any means of egress, the Re-Filed Omnibus Amended Complaint recites that, had the Lis not performed the unauthorized renovation of the basement area for use as a home medical office, it “would have remained an empty concrete shell without even electrical outlets [under which] inhospitable conditions, the children would not have used the Chapman’s basement as a sleeping area on June 14, 1998; and [appellants’] children would not have perished.” An affirmative duty is also alleged, i.e., that, had the Lis “warned their tenants, [appellants’] children would not have been sleeping in the enclosed basement bedrooms .... ” The Complaint alleges the following sequence of events which constitute the negligent acts by the Lis, resulting in the injuries and deaths: Negligent Conduct The Lis finished their basement without obtaining any of the proper building permits from the City of Gaithersburg; they also made repairs to their home as a result of water damage caused by a broken pipe in early ⁵²² 1994 without obtaining any of the proper building permits. ⁵²¹ Alleged Causation Had they applied for a permit in either 1989 or 1994, they would have been required to submit a floor plan indicating the intended uses of the enclosed rooms in the basement and [t]he City of Gaithersburg would have ⁵²² informed them that the enclosed rooms could not be used as sleeping areas due to the lack of emergency egress windows; The Lis, presumed, as landlords, to know the applicable codes pertaining to habitability of the leased premises, failed to inform their tenants that they could not use the enclosed basement rooms as sleeping areas and made material representations that the enclosed basement rooms could be used as sleeping areas and condoned the Chapmans’ use of these rooms as sleeping areas. The children perished and were injured because of the Chapmans’ illegal use of the basement rooms for sleeping areas, which was the foreseeable result of finishing off the basement and having repairs done with permits and the reliance on the Lis’ initial representations and subsequent omission since both renting the home, renewing their lease, and using the basement as sleeping areas. Code violation: the Lis knew or should have known about a recal of the smoke detectors by the manufacturer; that by the time of the fire on June 14,1998, the Gaithersburg Building Code required dual power or battery-operated smoke/fire detectors. Failure to replace defective smoke/ fire detectors with dual power or battery-operated smoke/fire detectors which would have warned the occupants of the fire resulted in their deaths and injuries.

Violation of Consumer Protection Act: The Lis “had actual and/or constructive knowledge that the enclosed rooms in the basement could not be used as sleeping areas due to the applicable housing and rental codes and, as such, the basement rooms were not habitable.” The injuries to and demise of the children were the result of the use of the enclosed rooms in violation of the Act’s requirement of habitability. Counts III, IV, V, VI and VII, ¶¶ 47 through 74, of the Refiled Omnibus Amended Complaint allege, as to the manufacturer defendants, negligence, strict liability — design defect and failure to warn of the limitations of the smoke/fire detector, e.g., failing to include information, warning or labeling regarding a lack of a battery back-up or alternative safety power source; breach of implied warranty; and breach of express warranty and survivor action, all stemming from the lack of a battery back-up system. These Counts allege that, as a direct and proximate result of the defendants’ acts, omissions and duties, principally, “the failure to equip the detector at issue with a battery back-up or other alternative safety power source,” the “fire [and] smoke [ ] could not be detected, and thus no alert sounded to [appellants]” who “did ⁵²³ not have a reasonable opportunity to and could not escape the burning residence.” CAUSE OF ACTION TORTIOUS CONDUCT ¶¶ 47-56: Strict Liability — Design Defect and Failure to Warn Asserting that the lack of a battery back-up constituted a defect, this Count alleges strict liability against the manufacturer defendants for placing in the stream of commerce a defective product and for failing to warn of its limitations, i.e., that it would not operate during an electrical shortage or a power outage. ¶¶ 57 and 60: Negligence, Wrongful Death The manufacture defendants breached duty of care with regard to the design and supervision of the manufacture and distribution of the product without battery back-up, by failing to provide consumer with adequate warnings concerning the know limitation and by failing to modify the design or notice of similar incidents. ¶¶ 63-67 Breach of Implied Warranty; Annotated Code of Maryland, Commercial Law Article, §§ 2-314, 2-315 and 2-318 The manufacture defendants breached the implied warranty of merchantability and fitness for particular purpose in warranting to the public that their product was fit for the intended purpose of the early detection and alert of smoke and/or fires. ¶¶ 68-71 Breach of Express Warranty The manufacturer defendants, through their marketing, advertisements, warranties, sales literature, owners manuals, and other representations breached their express warranty that their product would provide an advance warning of smoke and/or fires. ¶¶ 72-74: Survival Action as to Collins and Juster appellants All of the causes of action against the manufacturer defendants were incorporated by reference in this Count. Appellants, as to Ryland Homes and Summit Electric, in their Re-Filed Omnibus Amended Complaint in Counts VIII to XV, allege negligence, strict liability — failure to warn, wrongful death, survival actions and vicarious liability. ⁵²⁴ CAUSE OF ACTION TORTIOUS CONDUCT ¶¶ 75-94: Negligence, Wrongful Death Strict Liability, Failure to Warn and Survival Actions Against Summit Electric Summit Electric, as the electrical contractor for Ryland Homes, is alleged to have selected the particular model, that was defective in design, at the time it left Summit’s control, and participated in the selling, placing it into the stream of commerce and installed it into the residence, failing to advise, instruct, and/or warn [ ] of the limitations of the smoke/ fire detector [and] by failing to include and/or convey any information, warning or labeling regarding their lack of a battery back-up or alternative safety power source.

Summit faded to provide the Lis, as the original purchasers of the home, the instructional materials and/or packaging and, having faded to deliver materials which warned that the detector would not function diming a power outage, neither the Lis or the Chapmans knew of its limitations and the Chap-mans, as a result, permitted their chddren to use candles during the power outage. ¶¶ 95-120: Negligence, Wrongful Death, Strict Liability, Fadure to Warn, Survival Action and Vicarious Liability against Ryland Homes Ryland Homes, in its capacity as the budder for whom Summit Electric was employed, is likewise adeged to have participated in the selling and placing into the stream of commerce a defective product and fading to warn of limitations of smoke detector. Ryland Homes, like Summit, is adeged to have faded to dedver materials which would have warned the Lis and the Chapmans that the detector would not function during a power outage. Vicarious dabdity is adeged against the Ryland Group, in ¶¶ 95-120, for any negdgence that may have been committed by Summit Electric. Finally, Count XVI alleges that Kevin Hightower, in 1994, as agent, servant and/or employee for David E. Dieffenbach, trading as Dedhico Home Improvements, was retained to repair and replace, among other things, the metal stud framing, drywall and insulation at Grantchester Place; his alleged liability is based on the following: ⁵²⁵ CAUSE OF ACTION TORTIOUS CONDUCT ¶¶ 121-129: Negligence, Wrongful Death, Survival Action against Kevin Hightower Kevin Hightower failed to obtain permits prior to the commencement of repairs in the basement of Grantchester Place which, it is alleged was in violation of the Gaithersburg Building Code.

Authorities would have been alerted had application for the required permits been made and they would have served notice that the enclosed rooms could not be used for bedrooms. It is also alleged that the building code required that Hightower install smoke/fire detectors when alterations, repairs or additions requiring a permit or “when one or more sleeping rooms are added or created in existing dwellings.” Had Hightower installed the dual power or battery-operated smoke/fire detector, according to the Complaint, the occupants would have been warned of the fire, and the decedents would not have perished. ¶¶ 130-143: Negligence, Wrongful Death Survival Action, Vicarious Liability as to David E. Dieffenbach, Trading as Dedhico Home Improvements David Dieffenbach, as Hightower’s employer, is alleged to have breached his duty to obtain the proper building permits, recommend the replacement of the hardwired smoke detector and/or replace the hardwired smoked detector. APPELLANTS’ DISMISSED CLAIMS OTHER PARTIES 1. CITY OF GAITHERSBURG AND VICTOR GREENBLATT The City of Gaithersburg requires a bi-annual inspection of rental property.

On March 4, 1998, Victor Greenblatt, in his capacity as a rental inspector for the City of Gaithersburg, conducted only the second rental inspection of Grantchester Place and noted five minor matters that needed to be corrected. None of these violations were in the basement or concerned using the basement rooms as sleeping areas. Apparently, these minor violations were corrected. The City of Gaithersburg conducted a re-inspection of the home on April 16, 1998 and issued a Final Rental Housing License on April 17, 1998.

The April 16, 1998 re-inspection did not include an inspection of the basement because no violations had been found in the basement on March 4,1998. ⁵²⁶ The City of Gaithersburg successfully moved for summary judgment against appellants’ claims on the grounds that no private cause of action exists against a municipality when it fails to enforce its own safety regulations. Willow Tree Learning Ctr., Inc. v. Prince George’s County, 85 Md.App. 508, 515 , 584 A.2d 157 (1991) (holding that duty of county and inspector under statute and ordinance to ensure safety of playground equipment at a daycare center was owed to public generally and could not be the basis for a negligence cause of action brought by a parent of an injured child). The Court entered the following Orders: November 9,2000: The court denied appellants’ Motion for Summary Judgment. March 26, 2002: The court denied appellants’ Motion for Reconsideration.

August 1, 2002: The court granted the Joint Motion by [appellants] for Voluntary Dismissal Without Prejudice of the Manufacturer Defendants. November 18, 2002: The court granted appellants’ and appellees’ voluntary dismissal without prejudice of all claims asserted between the Chapmans and the Lis. December 4,2002: The court granted the motion for summary judgment of [appellees] David Dieffenbach and Kevin Hightower seeking dismissal of all claims asserted in [appellants’] Omnibus Amended Complaint. January 22, 2003: The court granted [appellants’] motion to dismiss of their claims against [appellees] Lis and Chapmans with prejudice.

July 19,2005: The court granted appellee Summit Electric Company’s Motion to Dismiss Re-Filed Omnibus Amended Complaint and Ordered that all claims and cross-claims against Summit be dismissed with prejudice and without leave to amend. April 20,2006: The court granted the Lis’ Motion to Dismiss. CIRCUIT COURT RULINGS On June 24, 2005, the court initially rejected appellants’ argument that the concept of superseding cause does not apply in product liability cases, except where the product is misused in an unforeseeable manner, including that the authority upon which appellants relied addresses only the concepts of causation and foreseeability as it relates to the misuse of a product. Turning to its analysis of superseding cause, the court cited the factors enumerated in Restatement (Second), § 442(2), the lapse of time and whether the intervening act involves criminal conduct as opposed to negligence. ⁵²⁷ After reciting the sequence of events prior to the fire, the court essentially summarized appellants’ allegations as set forth in the Re-Filed Omnibus Amended Complaint.

Identifying whether the intervening event suffices, in law, to break the chain of causation between the injury and the negligent conduct as the issue before it, the court opined that it believed that the focus of the inquiry should be primarily on the nature of the intervening acts. Tracking essentially the deleterious effects of the various acts of negligence as set forth in the Complaint, e.g., had the Lis not allowed the use of the enclosed rooms without emergency egress as sleeping areas, the boys would not have been located where they could not escape the fire, the court issued its ruling: “As a matter of law, it was not foreseeable when the smoke detectors were manufactured in 1989 that so many different substantial intervening acts of negligence, including violations of law, would occur so as to link the ‘Manufacturer Defendants’ alleged negligent act to the Plaintiffs’ injuries nine years later. Those intervening acts constitute a superseding cause of the Plaintiffs’ injuries.” On January 3, 2002, counsel for Ryland responded to appellants’ request for continuance by reiterating, “It doesn’t matter, for purposes of my motion, what they say witnesses have said in the 18 months of discovery that took place before anybody thought to add my client to the case.... The only thing that matters is what they have said in the well-pleaded factual allegations of their complaint.” Notwithstanding, the circuit court accommodated the request, directing delivery of the experts’ reports by the end of the following week and, appellants were granted additional time, only with the court’s permission.

The request for continuance was later denied. Applying the reasoning of the Court of Appeals in Manor Inn, that the theft of a vehicle with the keys left in the ignition was foreseeable but that the thief would subsequently have an accident was not, the circuit court opined that it was inconceivable that Ryland and Summit could foresee, nine years before the fire occurred, that the Lis would finish off the basement without providing emergency egress in violation of building ⁵²⁸ codes and that the Chapman parents would allow the boys to keep candles lit while they were sleeping. Assigning particular importance to the fact that there were nine years between the acts complained of and the injury that occurred, the court concluded that “we have two [ ] negligent intervening acts— two dozen persons, occurring over two periods of time, that conspired together to bring about and/or to cause this injury.” The court, therefore, ruled that the allegations of negligence of Summit and Ryland, as set out in the Complaint, did not establish legal cause. On March 29, 2006, the Lis filed their motion to dismiss, in which they pointed out that the circuit court had previously “ruled in favor of the eodefendants’ motion to dismiss or motion for summary judgment on the grounds that there was an absence of foreseeability and/or proximate cause concerning the injuries and damages alleged by the [appellants].” On April 7, 2006, however, they withdrew their request for a hearing on their Motion to Dismiss and, on April 20, 2006, the court issued its order, stating only “that the Motion to Dismiss filed by Defendants, Gui-Fu Li and Chung Ling Li, be and is hereby GRANTED.” Because the Lis withdrew their request for a hearing on their motion to dismiss and the court accordingly issued its order without an oral or memorandum opinion, we can only look to the arguments set forth in the motion filed by the Lis as the bases for the court’s ruling.

The Lis, in Section II of their Motion to Dismiss, captioned “LEGAL ARGUMENT,” explain that they incorporated by reference “the case law” submitted to the trial court manufacture defendants regarding applicable legal standards and standards applicable to a determination of proximate cause. In their motion, the Lis contended that Keith’s parents, Michael Chapman and Carolyn Hill Chapman, knew that the children were in the basement area, which was being illuminated by candles; that they were without adult supervision; that Keith Chapman allowed a candle to remain burning in the family room of the basement when he went to sleep, contrary to his parents’ instructions; ⁵²⁹ that the foregoing constituted intervening acts operating as a superseding cause of the ultimate harm and that, ultimately, the negligence of the Chapmans was active, while any negligence on their part was passive. In the absence of a separate hearing in which the court articulated the basis for its decision to grant the Lis’ motion to dismiss, our review will proceed on the basis that the court did, indeed, apply the same rationale that had been employed in the disposition of the co-defendants’ motions to dismiss. On November 9, 2000, the circuit court entered an order denying appellants’ Motion for Summary Judgment and granting that of appellees Dieffenbach and Hightower.

The court reasoned that Dieffenbach and Hightower, “as home-improvement contractors repairing water damage to the basement of the residence in 1994, did not have a legally cognizable duty on which to impose liability for damages and injuries sustained in [the] June 1998 fire, to warn the occupants that the basement rooms should not be used for sleeping.” The court further concluded that the failure to obtain building or electrical permits from the City of Gaithersburg in 1994 prior to repairing water damage to the basement was neither a cause in fact nor a legal cause of the fire. The court further found speculative the causal connection advocated by appellants, i.e., that, had Dieffenbach and Hightower pulled the required permits, inspectors for the City of Gaithersburg would have discovered that rooms in the basement were being improperly used as bedrooms, particularly in light of the fact that the City of Gaithersburg inspected the property on one or more occasions following repairs made to the basement in 1994 and failed to inform the owners or occupants that the basement rooms could not be used for sleeping. Finally, the smoke detectors in the residence were in working order before and after the basement repair work performed in 1994, at a time when the Gaithersburg Building code did not require dual power smoke/ fire detectors to be installed in connection with repair projects. ⁵³⁰ PROCEDURAL OVERVIEW A ISSUES GENERATED IN THIS APPEAL As a preliminary matter, we deem it critical to define the parameters of the issues properly before us on this appeal. The Re-Filed Omnibus Amended Complaint alleges that the manufacturer defendants breached their “duty to design, manufacture, assemble, smoke/fire detector at issue, which was not in an unreasonably dangerous condition” because it was not “equipped with a technologically and economically feasible safety device, a battery back-up ... in the event of an electrical outage or short.” The Re-Filed Omnibus Amended Complaint also alleges that the appellee manufacturers failed to warn that their product would not operate during a power outage and that they failed to provide a product free from design and/or manufacturing defects, thereby breaching express and implied warranties for merchantability and fitness for a particular purpose.

In addition to the allegations of negligence, the Re-Filed Omnibus Amended Complaint alleges breaches based on strict liability against the manufacturer defendants, Ryland and Summit for distributing a product defective in design at the time it left appellees’ control and, further, that appellees failed to warn foreseeable users of the smoke detector’s limitations. Appellants point out in their brief that the strict liability causes of action against the manufacturer defendants, the Ryland Group and Summit Homes, alleged in Counts III through VII, IX and XIII, respectively, for the purposes of appellants’ Motion to Dismiss, challenged only with respect to causation. Having argued that their position on the motion to dismiss was, in essence, to concede that their product was defective, i.e., did not comport with industry standards, the manufacturer defendants reassert, on appeal, their position that “the injuries and fatalities occurred not because of any defect in the design of the smoke alarm, but because the children were sleeping in an illegally enclosed, windowless ⁵³¹ basement bedroom which lacked adequate emergency egress facilities.” Likewise, as appellants acknowledge, counsel for Ryland advised the trial judge, “I will accept that for purposes of this motion solely, that we had an obligation in 1989 to install a smoke detector that met standards that were even higher than the ones that our elected representatives had put in place at that time, but that doesn’t get to the causation question.” Counsel for Summit chimed in, “I would echo the motion by Ryland that, even if it were shown to be the case, there still is not causation pleaded in the complaint by the plaintiffs----” In light of the concessions by counsel that the smoke detector did not meet industry standards and, for the purposes of the motion to dismiss, were therefore defective, the court, in its rulings, focused only on the issue of causation. Because all parties proceeded on the basis that the smoke/fire detector was defective, that was not at issue.

Appellants, on this appeal, pertinaciously argue issues not considered by the trial judge and cite court decisions in support thereof 2 which do not devolve upon a determination of ⁵³² whether the circumstances asserted to be intervening acts are transmuted into superseding causes. They do address the theory espoused, on this appeal, by appellees, the manufacturer defendants, Summit and Ryland, however, that the ultimate harm was caused by the negligent acts of the Lis rather than the failure of the smoke detector to alert the children or by the lack of knowledge that it was not equipped with an alternate power source. Appellants maintain that, because the issue of whether intervening acts of negligence are foreseeable is one of fact, it may not be properly resolved on a motion to dismiss or a motion for summary judgment. ⁵³³ The Montgomery County Circuit Court judges, in then-series of rulings, based their decision to grant the motions to dismiss exclusively on the theory advanced by the manufacturer defendants, Summit and Ryland that the ultimate harm was caused by intervening acts of negligence which broke the chain of causation between the installation and failure to upgrade smoke detectors which would not function during a power outage and the deaths and the injuries sustained by the Collins, Juster and Chapman boys. The precise issue presented to the court was whether the negligence of the Chapmans, in failing to ensure that the candle was extinguished, and the Lis, in allowing the enclosed basement rooms to be used for bedrooms, among other causes, operated to attenuate the legal responsibility of the manufacturer defendants, Ryland and Summit for the injuries and deaths.

Considering how the issue was framed and presented to the court, it properly applied legal principles relative to proximate causation, intervening negligent acts and superseding cause. On appellate review, we, of course, decide only questions which were tried and decided by the lower court. Md. Rule 8-131. In their briefs, the manufacturer defendants, Ryland and Summit submit that the numerous allegations of negligent acts of others in the Re-Filed Omnibus Amended Complaint “negate” allegations that the failure of advanced warning caused the deaths and injuries.

Employing the applicable principles in a determination of causation, the appropriate response for appellants, on this appeal, is to counter the arguments of the manufacturer defendants, Ryland and Summit that, in the first instance, their failure to install a product that met industry standards and their failure to warn of its limitations was not the legal cause of the deaths and injuries sustained. Even if their negligence could be considered a factor contributing to the deaths and injuries, appellants would nevertheless be obliged to counter appellees’ arguments that the acts of negligence, not involving the defective smoke detectors, were of such a nature, applying the well-settled principles in determining causation, that such other negligent acts constitute substantial ⁵³⁴ factors, rendering the failure to provide advanced warning legally inconsequential. The threshold question, however, is whether the circuit court was sufficiently informed from the allegations in the complaint to engage in this analysis. Likewise, before reviewing the circuit court’s determination that the allegations of the negligent acts of the Chapmans and others could not be foreseen by the manufacturer defendants, Ryland and Summit as to appellants’ claims of strict liability, failure to warn and breach of implied warranties for fitness for a particular purpose and merchantability, we must first decide if the circuit court could properly make such a determination based solely on the allegations in the complaint.

For the reasons that follow, we shall hold that it could not. B MOTION TO DISMISS We are tasked, on this appeal, with the review of the circuit court’s grant of the Motion to Dismiss the Re-Filed Omnibus Amended Complaint filed by the manufacturer defendants, Ryland, Summit and the Lis. We observed recently in Pulte Home Corp. v. Parex, Inc., 174 Md.App. 681, 710 , 923 A.2d 971 (2007), that “we review de novo a trial judge’s decision involving a purely legal question.” (Quoting Ehrlich v. Perez, 394 Md. 691, 708 , 908 A.2d 1220 (2006)) (quotations omitted). We reiterated the well settled yardstick as to Motions to dismiss: “The proper standard for reviewing the grant of a motion to dismiss is whether the trial court was legally correct.

In reviewing the grant of a motion to dismiss, we must determine whether the complaint, on its face, discloses a legally sufficient cause of action.” In reviewing the complaint, we must “presume the truth of all well-pleaded facts in the complaint, along with any reasonable inferences derived therefrom.” “Dismissal is proper only if the facts and allegations, so viewed, would nevertheless fail to afford plaintiff relief if proven.” ⁵³⁵ Id. (quoting Higginbotham v. Pub. Serv. Comm’n, 171 Md. App. 254, 264 , 909 A.2d 1087 (2006)) (citations omitted).

The circuit court granted the motions to dismiss filed by the manufacturer defendants, Ryland, Summit and the Lis, finding, as a matter of law, that “so many” enumerated “different and substantial intervening acts of negligence” constituted a superseding cause of appellants’ injuries. Specifically, relying on Manor Inn, supra, it concluded that those intervening acts interrupted the chain of causation, relieving the manufacturing defendants, Summit, Ryland and the Lis of legal liability. In seeking to uphold the circuit court’s ruling granting their motion to dismiss, appellees shoulder a formidable burden. Before the circuit court, they elected, in effect, to deposit all of their proverbial eggs in one basket, choosing to assail the sufficiency of the allegations in the complaint, rather than submit depositions, documents and other matters outside of its four corners.

In Hartford Ins. Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135 , 642 A.2d 219 (1994), the decision upon which the circuit court based its ruling, the motion to dismiss filed by Manor Inn was denied. No mention was made by counsel or the court during the arguments or the decision in the case at hand that the appellee, Manor Inn, did not prevail until it obtained a ruling on its motion for summary judgment. That is not to say that, in the proper case, a motion to dismiss would not be the proper vehicle.

Appellees have seized upon the verbosity of appellants’ twenty-seven count, one hundred and seventy-two paragraph Re-Filed Omnibus Amended Complaint to essentially use the words therein against appellants. Appellees variously point out that the averment in the complaint that the deaths and injuries were caused by the negligence of Defendant A, of necessity, negates causation as to Defendant B. In excruciating detail, appellees cross reference the various negligent acts by the other appellees, positing that each of these intervening acts constitute an intervening cause. In addition to the assertions of negligence of others in the complaint, appellees cite a ruling by Judge Harrington and a deposition by Ryland and Summit. ⁵³⁶ Our research has failed to uncover prior Maryland decisions or decisions from other jurisdictions in which a court has been called upon to engage in an analysis requiring a determination of whether an intervening negligent act becomes a cause superseding the negligence of defendants responsible for manufacturing, designing and placing in the stream of commerce a device whose specialized — and only — function is to provide advance warning of fires. In addition to the highly extraordinary nature of the intervening acts of negligence, as the circuit court found, the sheer number of acts which, had they not occurred or occurred in a different manner, create endless possibilities as to how the tragedy could have been averted.

The combination of events leading up to the fire represents what could best be described as the “perfect storm.” Rendering our review more problematic is the circuit court’s disposition of the matter on appellees’ motions to dismiss. Given that foreseeability is the touchstone in any determination of proximate, intervening and superseding cause, we first address the proprietary of deciding foreseeability on a motion to dismiss. “Normally, the ‘foreseeability inquiry is ... a question of fact to be decided by the trier of fact.’ ” Yonce v. SmithKline Beecham Clinical Labs., Inc., 111 Md.App. 124, 141 , 680 A.2d 569 (1996) (quoting Balt. Gas & Elec. Co. v. Lane, 338 Md. 34, 52 , 656 A.2d 307 (1995)).

And, ordinarily, the question of whether causation is proximate or superseding is a matter to be resolved by the jury. Wankel v. A & B Contractors, Inc., 127 Md.App. 128, 165 , 732 A.2d 333 (1999); May v. Giant Food, Inc., 122 Md.App. 364, 383 , 712 A.2d 166 , cert. denied, 351 Md. 286 , 718 A.2d 234 (1998). Appellants refer us to an excerpt from Lane, 338 Md. at 53 , 656 A.2d 307 , in which the Court of Appeals addressed a determination of foreseeability on a motion for summary judgment: We concluded [in Manor Inn, 335 Md. at 149 , 642 A.2d 219 ] that it was reasonably foreseeable that a thief would take a van with keys left in the ignition, but that it was not so clear ⁵³⁷ “that the thief would drive negligently, and even more unclear that, in doing so, he or she would injure the plaintiff.” Id. 335 Md. at 160 [ 642 A.2d 219 ]. The sequence of events in the present case, however, was more foreseeable.

We think that children moving a spool left in a neighborhood, and another child riding it down a hill and getting injured is more probable than a thief stealing a car, driving negligently and injuring someone. Accordingly, the matter of foreseeability is one of fact, and not of law, and is not appropriate for resolution by summary judgment in the circumstances of this case. (Emphasis in brief of appellants). Immediately preceding the above quotation from Lane , however, is the following: This foreseeability inquiry is ordinarily a question of fact to be decided by the finder of fact.

In this regard, we have said: “The true rule is that what is proximate cause of an injury is ordinarily a question for the jury. It is only when the facts are undisputed, and are susceptible of but one inference, that the question is one of law for the court ....” Lashley v. Dawson, 162 Md. 549, 563 [ 160 A. 738 ] (1932). See also Little [v. Woodall, 244 Md. 620 ,] 626[, 224 A.2d 852 (1966) ]; Texas Company v. Pecora, 208 Md. 281, 293-94 [ 118 A.2d 377 ] (1955); Restatement § 453. 338 Md. at 52-53 , 656 A.2d 307 (emphasis added). The rule, succinctly stated, in Caroline v. Reicher, 269 Md. 125, 131 , 304 A.2d 831 (1973), is: We recognize that a determination of whether the intervening act of a third person is a superseding cause which discharges the original actor from liability may be a question for the trier of fact.

But, when the evidence presented and the logical inferences deducible therefrom admit of but one conclusion, the question becomes one of law. Katz v. Holsinger, [ 264 Md. 307 , 286 A.2d 115 (1972)]; Farley v. Yerman, [ 231 Md. 444 , 190 A.2d 773 ] (1963). It is true that the facts of a case may place it in the middleground where the issue of the existence of superseding negligence is ⁵³⁸ properly left for the trier of fact; but, some cases are such that they gravitate so close to one or the other of the two poles that resolution of the issue becomes one of law. (Emphasis added).

See also Jubb v. Ford, 221 Md. 507, 513 , 157 A.2d 422 (1960)(holding that “whether [proximate cause] exists is to be decided in a common sense fashion in the light of the attending facts and circumstances, and, unless the facts are undisputed and admit of but one inference, the question is for the jury.”). As noted earlier, Manor Inn , the decision upon which the circuit court bases its rulings, was decided on a motion for summary judgment, rather than a motion to dismiss. 335 Md. at 160 , 642 A.2d 219 . Following the teachings of Balt. Gas & Elec.

Co. v. Lane, supra and Caroline v. Reicher, supra, we may only affirm the circuit court’s determination of foreseeability if we are convinced that the facts of this case are susceptible of but one inference and that they gravitate so close to the polar extreme that the issue of causation is rendered a matter of law. As we shall explain in the discussion which follows, we are not so convinced. I Negligence PROXIMATE CAUSATION As reflected in the circuit court’s memorandum opinion, the touchstone of any determination of proximate cause requires that we engage in an analysis to determine foreseeability. Accordingly, our task is to look back from the point in time, when the harm occurred, to the actor’s negligent conduct and deduce whether it appears highly extraordinary that such conduct should have brought about harm, severing the link between the act and the harm and whether such conduct is a substantial factor in causing the harm.

Atlantic Mut. Ins. Co. v. Kenney, 323 Md. 116, 129-30 , 591 A.2d 507 (1991); § 435 of the Restatement (Second) of Torts (1965). A discussion of ⁵³⁹ certain bedrock principles explicating proximate causation is in order.

Proximate cause as a component of negligence is established if it is a cause in fact of the injury and a legally cognizable cause. Yonce, 111 Md.App. at 137-39 , 680 A.2d 569 . In determining whether a defendant’s negligence is the cause in fact of a plaintiffs injury, the “but for” and the “substantial factor” tests have been applied by Maryland courts. See Peterson, 258 Md. at 16, 264 A.2d 851 ; Bartholomee v. Casey, 103 Md.App. 34, 56-57 , 651 A.2d 908 (1994), cert. denied, 338 Md. 557 , 659 A.2d 1293 (1995).

Although the “substantial factor” test was devised to address situations in which two independent causes concur to bring about an injury, and either cause, standing alone, would have wrought the identical harm, the “substantial factor” test has been used frequently in other situations. Yonce, 111 Md.App. at 138 , 680 A.2d 569 (citing Prosser & Keeton on the Law of Torts § 41, at 266 (5th ed.1984), quoted in Eagle-Picher Indus., Inc. v. Balbos, 326 Md. 179, 208 , 604 A.2d 445 (1992)). The “substantial factor” test is set forth in the Restatement (Second) of Torts (Restatement): § 431. What Constitutes Legal Cause The actor’s negligent conduct is a legal cause of harm to another if (a) his conduct is a substantial factor in bringing about the harm, and (b) there is no rule of law relieving the actor from liability because of the manner in which his negligence has resulted in the harm. § 433.

Considerations Important in Determining Whether Negligent Conduct is Substantial Factor in Producing Harm The following considerations are in themselves or in combination with one another important in determining whether the actor’s conduct is a substantial factor in bringing about harm to another: ⁵⁴⁰ (a) the number of other factors which contribute in producing the harm and the extent of the effect which they have in producing it; (b) whether the actor’s conduct has created a force or series of forces which are in continuous and active operation up to the time of the harm, or has created a situation harmless unless acted upon by other forces for which the actor is not responsible; (c) lapse of time. See Bartholomee, 103 Md.App. at 56 , 651 A.2d 908 (explicating the “substantial factor” test). Proximate cause ultimately involves a conclusion that someone will be held legally responsible for the consequences of an act or omission. Peterson, 258 Md. at 16 , 264 A.2d 851 .

This determination is subject to considerations of fairness or social policy as well as mere causation. Id. Thus, although an injury might not have occurred “but for” an antecedent act of the defendant, liability may not be imposed if for example the negligence of one person is merely “passive and potential, while the negligence of another is the moving and effective cause of the injury.” Id.; Bloom v. Good Humor Ice Cream Co. of Balt., 179 Md. 384 , 18 A.2d 592 (1941), “or if the injury is so remote in time and space from defendant’s original negligence that another’s negligence intervenes.” Dersookian v. Helmick, 256 Md. 627, 634 , 261 A.2d 472 (1970); see Liberto v. Holfeldt, 221 Md. 62, 66 , 155 A.2d 698 (1959). If there is no causation in fact, we need go no further for our inquiry has reached a terminal point.

If, on the other hand, there is causation in fact, our inquiry continues. Mackin & Assocs. v. Harris, 342 Md. 1, 8 , 672 A.2d 1110 (1996). If causation in fact exists, a defendant will not be relieved from liability for an injury if, at the time of the defendant’s negligent act, the defendant should have foreseen the “general field of danger,” not necessarily the specific kind of harm to which the injured party would be subjected as a result of the defendant’s negligence. Stone v. Chicago Title Ins.

Co., 330 ⁵⁴¹ Md. 329, 337, 624 A.2d 496 (1993); Yonee, 111 Md.App. at 137-39 , 680 A.2d 569 . As noted, the circuit court relied almost exclusively on the decision of the Court of Appeals in Manor Inn, 335 Md. at 157 , 642 A.2d 219 . The question under consideration was: “When more than one act of negligence arguably could be responsible for the injury, the question that is presented is whether the second in point of time superseded the first, i.e., did that act intervene and supersede the original act of negligence, thus terminating its role in the causation chain?” Proceeding on the premise that Manor Inn’s employee was negligent in leaving keys in the unattended van and that the thief was negligent in the manner in which he drove the van after stealing it, the Court ultimately concluded that the thief s negligent driving of the van broke the chain of causation flowing from Manor Inn’s negligence. Noting that it had stressed the importance of foreseeability in a proximate cause analysis in Kenney, 323 Md. at 129-30 , 591 A.2d 507 , the Court then reviewed principles applicable to intervening, superseding cause, noting the importance of foreseeability in determining the existence of proximate cause, citing Sections 435 3 and 447 4 of the Restatement (Second) of Torts. ⁵⁴² Former Chief Judge Wilner, writing for this Court, in Valentine v. On Target, Inc., 112 Md.App. at 691-92, 686 A.2d 636 , iterated: The current state of the Maryland law of proximate cause, as it would apply in this setting, is, at least facially, somewhat ambiguous.

The problem arises when the direct and immediate cause of the ultimate injury is not the negligence of the defendant but intervening conduct that the defendant’s negligence allowed or made more likely to occur. The question then is raised whether the intervening event suffices, in law, to break any chain of causation between the injury and the negligent conduct which permitted the intervening event to occur. The answer, in a nutshell, is that the chain is not broken if the intervening event set in motion by the negligent conduct was foreseeable. (Internal citations omitted).

The Valentine Court then reiterated the test in assigning culpability as between actors whose negligence is not concurrent enunciated in State v. Hecht Company, 165 Md. 415, 422 , 169 A. 311 (1933), which we discuss more fully, infra. A MANUFACTURER DEFENDANTS On June 24, 2005, as noted, supra, the court rejected appellants’ primary argument and found that the concept of superseding cause does apply in product liability cases and thereby granted the manufacturer defendants’ Motion to Dismiss as to Counts III, IV, V, VI and VII. As we have noted, supra, the court, in response to the manner in which the issues had been framed by the parties, properly applied the ⁵⁴³ well-settled legal principles in an analysis of proximate causation, intervening negligent acts and superseding cause as explicated in Manor Inn and other authorities cited herein. The court began its ruling by setting forth the six factors enumerated in the Restatement (Second), § 442(2) that are determinative of “whether or not in a given instance an intervening act operates as [a] superseding cause,” along with identifying two other relevant factors, ie., the lapse of time and whether the intervening act involves criminal conduct as opposed to negligence.

The court then recounted a sequential timeline over the nine-year period prior to the fire, essentially summarizing appellants’ allegations as set forth in the Re-Filed Omnibus Amended Complaint. Considering the six Restatement factors and the two additional relevant factors and, based upon a review of the Complaint, the court reasoned that the intervening acts of other negligent parties broke the chain of causation and became superseding causes absolving appellees of liability. The opinion concludes, “As a matter of law, it was not foreseeable when the smoke detectors were manufactured in 1989 that so many different and substantial intervening acts of negligence, including violations of law, would occur so as to link the manufacturer defendants alleged negligent act to the Plaintiffs injuries nine years later.” The trial court initially stressed the lapse of time and the other factors that intervened between the original alleged negligent act, i.e., failing to provide an alternative power source, and the ultimate harm. The court concluded that those other factors constituted “substantial factors” as delineated in Restatement (Second), §§ 431 (providing that legal cause results when conduct is a substantial factor in bringing about the harm) and 432 (providing that negligent conduct is not a substantial factor if the harm would have been sustained in the absence of the original negligence).

The circuit court, basing its ruling on the holding in Manor Inn , focused its inquiry on whether the negligence of the Chapmans and the Lis was set in motion by the manufacturer ⁵⁴⁴ defendants’ failure to equip their product with an alternative power source and, if so, whether the harm was therefore foreseeable. The Manor Inn Court, in its analysis of the facts, explained: Leaving the keys in the ignition of a motor vehicle increases significantly the chances of that vehicle being stolen. Thus, viewing the total facts of the case sub judice, it is patent that it was reasonably foreseeable that, by leaving the keys in the ignition, a thief would take the van. In the case sub judice, but for the negligence of Manor Inn, Griffin would not have taken the van.

It is not so clear, however, that the thief would drive negligently, and even more unclear that, in doing so, he or she would injure the plaintiff. Consequently, while the negligence of Manor Inn clearly was the proximate cause of the theft of the van, it does not follow that that causal relationship continued from the moment of the theft to the moment of the impact between the van and Wewer’s car. Griffin’s conduct in taking the van was not “highly extraordinary”; indeed, it was highly predictable. On the other hand, the manner in which he drove the van, and its consequences, were “highly extraordinary.” Id. at 160 , 642 A.2d 219 .

The circuit court, applying Manor Inn , essentially adopted the Manor Inn Court’s reasoning that, as it might not be foreseeable that a thief would drive a stolen car negligently causing injury to another, while the theft of a car left unattended with the key in the ignition is foreseeable, the use of candles, while ill-advised, might be anticipated, but the inexplicably reckless manner in using the candles is no more foreseeable than the negligent driving of the thief. The grist of the circuit court’s legal analysis in the ease at hand is contained in the following excerpt: In addition to those factors [Restatement (Second), § 442(a) — (f) ], a review of the cited cases demonstrates that the courts consider at least two additional factors to be relevant in determining whether intervening acts give rise to a superseding cause. They are (1) the lapse of time ⁵⁴⁵ between the act complained of and the injury, and (2) whether the intervening act rises to the level of criminal conduct as opposed to negligence. Here a consideration of all of those factors leads the court to conclude, based upon review of the Complaint, that the numerous acts of the remaining [appellees] constitute a superseding cause of the [appellants’] harm relieving the “Manufacturer Defendants” of liability.

The [appellants] in their Supplemental Opposition filed March 30, 2005 describe the test of whether these intervening acts rise to the level of superseding cause as follows: “[T]he problem arises when the direct and immediate cause of the ultimate injury is not the negligence of the Defendant, but the intervening conduct that the Defendant’s negligence allowed or made more likely to occur. The question is raised whether the intervening event suffices, in law, to break the chain of causation between the injury and the negligent conduct which permitted the intervening act to occur. The answer, in a nutshell, is that the chain is not broken, if the intervening event set in motion by the negligent conduct was foreseeable. Valentine v. On Target, Inc., 112 Md.App. 679 , 691-[9]2[, 686 A.2d 636 ] (1996) (emphasis added).

While the resulting harm is one of the factors to be considered, the focus of the inquiry is primarily on the nature of the intervening acts. This analysis was a proper adjudication of the issues as framed by the parties, assuming that the analysis was of facts susceptible of but one inference. We hold that it was not. Appellants contend that the court erred because the chain of causation is not broken when negligent acts alleged to have intervened were foreseeable and it is within the purview of the jury to make the determination of foreseeability.

They further argue that the negligent acts and omissions of the manufacturer defendants created a dangerous situation, where it was foreseeable that the negligent acts of another would ⁵⁴⁶ cause damage to occur. The negligence alleged by appellants is that appellee manufacturers, through their design, manufacture, assembly, testing, labeling, distributing, marketing, and selling of the smoke detector at issue placed into the flow of commerce a product that was defective by reason of the lack of an alternative power source and that they failed to warn or adequately advise users of the smoke/fire detector of any deficiencies. Before addressing the issue upon which we believe this appeal devolves, we note that appellants acknowledge that dual power smoke detectors were not required when Grantehester Place was built in 1989. 5 They allude to the feasibility and availability of dual power smoke detectors which, they say, represented the standard of care in the industry at the time of manufacture and the time of fire in question. 6 Although the premise of appellants’ negligence claim is that the lack of a battery back-up system or alternative power source constitutes a defect, counsel for the manufacturer defendants made clear in the circuit court and have reasserted their position on appeal that they did not — and do not — contest whether their product was defective. 7 Thus, as we have noted, for purposes of the motion to dismiss, the issue of whether the smoke detector was defective (except insofar as any such defect factored into the causation analysis) was not before the court, nor did the court consider it. It is undisputed that the manufacturer defendants delivered the User’s Manual to Summit and/or Ryland, alerting the ultimate purchaser, when it ⁵⁴⁷ was installed, that the smoke detector would not operate during the power outage.

The delivery of the User’s Manual undermines the claim that the appellee manufacturers failed to warn the ultimate consumer of the smoke detector’s limitations. Appellants further argue that, failing to mount the warning/User Manual “on the outside of the product” constitutes breach of a duty to warn. We are aware of no authority to support this contention. As noted, the court’s decision rested exclusively on the issue of causation.

Although, arguably, the circuit court could determine from the allegations in the complaint that the manufacturer defendants, by delivery of the User’s Manual, had satisfied their duty to warn, as discussed, infra, we are persuaded that a determination that subsequent negligent acts relieved them of the legal responsibility to manufacture and place into the stream of commerce a product which did not meet industry standards required a record more fully developed in a motion for summary judgment or a trial on the merits. Additionally, as to Ryland and Summit, we believe that the circumstances surrounding the failure to deliver the User’s Manual to the Lis could not be discerned from the allegations in the complaint and, therefore, could only be fleshed out by evidence and/or information developed outside of the complaint. Indeed, although the fact of the warning can be discerned from the complaint, resort to examination of the actual User’s Manual is required to determine the explicitness of the language therein. We are satisfied that the circuit court engaged in the proper analysis, employing the applicable legal principles in a determination of what constitutes a superseding cause.

Because we are not convinced that the facts of this case are susceptible of but one inference, however, we hold that the circuit court erred in not first determining whether there existed material facts not discernible from the Re-Filed Omnibus Amended Complaint. In other words, the court’s analysis, although ⁵⁴⁸ proper as to the facts it had available to it, was premature. We explain. The Re-Filed Omnibus Amended Complaint, as the manufacturer defendants point out, alleges that Ryland and Summit failed to warn customers of the lack of a battery back-up or alternative power source and, thus, potential hazards associated with the use of said model detector.

The result was that the plaintiff children did not have a reasonable opportunity to escape because of the acts, omissions and breaches of Ryland and Summit. “According to the very facts alleged in the Complaint,” insist the manufacturer defendants, the warnings were sufficient to prevent the injuries and fatalities and would have done so but for the unforeseen event that the instructional materials were not provided to the occupants of the house. Finally, they postulate, “These allegations alone negate proximate causation as to the manufacturer defendants ...” The manufacturer defendants list as other intervening causes set forth in the Complaint (1) the failure of the Lis to obtain building permits, (2) the failure of the City of Gaithersburg to conduct inspections in 1995 and 1998 during which the City would have discovered the windowless basement rooms, (3) the failure of the Chapmans to properly supervise the children’s use of candles, (4) and, of course, the negligence of Keith Chapman in failing to extinguish the candle before going to sleep. Although the manufacturer defendants fault the Lis, the City of Gaithersburg, Keith Chapman and his parents, much of the blame for what happened is attributed to the use of the enclosed rooms in violation of building codes. Second only to the blameworthiness attributed to the Chapmans, appellants and the other appellees argue that the actions and omissions of the Lis in allowing the use of the enclosed rooms caused the serious and fatal injuries.

As will be discussed more fully, infra, depositions submitted depicting what transpired during the moments after the five boys awakened to a basement ablaze indicate that there was a substantial period of time during which they attempted to escape from the fire. The ⁵⁴⁹ theory advanced by the manufacturer defendants, Ryland and Summit is that, given the amount of time during which the boys attempted to escape, they had sufficient advanced warning of the impending peril but, due to lack of emergency egress, they remained trapped in the burning rooms. Thus, it was not the lack of an advance warning which caused the deaths; rather, it was the negligent acts of the defendants who created the unsafe condition. It is clear that, for at least several minutes, the boys tried unsuccessfully to escape; Brandon Chapman’s deposition indicated that he could not open the French doors which led to the upstairs of the home because the locks (handles) on the doors were too hot to grasp and his attempt to kick in the glass to the French doors was unsuccessful.

Subject to further exploration on a motion for summary judgment or at a trial on the merits is the material issue of whether, had a dual powered smoke detector provided an earlier warning, Brandon or one of the other boys could have reached the French doors before the handles/locks had become too hot to open the doors. Provided with the precise timing as to when the boys were first alerted and the duration of their entrapment, the motions judge, on motion for summary judgment, or the court, on the merits, looking back from the harm to when the hardwired detectors were distributed, could determine if it would appear highly extraordinary that the conduct of manufacturer defendants, Ryland or Summit would have brought about the injuries and deaths. Manor Inn, 335 Md. at 160 , 642 A.2d 219 (citing Kenney, 323 Md. at 131 , 591 A.2d 507 ). Even if the circuit court, on a motion for summary judgment, or the fact finder, at a trial on the merits, determined that a dual-powered smoke detector would have alerted the boys in time to open the doors before they became too hot, it would nevertheless, as it did, be required to proceed to consider “so many different and substantial intervening acts of negligence,” the nature of the intervening acts and the nine-year interval between installation of the smoke detector and ⁵⁵⁰ the fire.

The court would also be required to apply, as it did, the factors under Restatement (Second), § 442(a)-(f), 8 Manor Inn, Yonce v. SmithKline, supra and Valentine v. On Target, Inc., 112 Md.App. 679, 691-92 , 686 A.2d 636 (1996). Particularly relevant to the facts in this case, properly addressed on a motion for summary judgment or at a trial on the merits, is Restatement (Second) § 435(2). 9 Comment (a) to § 435 cross references Restatement (Second) § 433(a) which, as the trial judge found, provides that the number of other factors that contribute in producing the harm and the extent of the effect which they have in producing it, are considerations in determining whether the original negligence is a substantial factor. ⁵⁵¹ Furthermore, the facts sub judice render § 433(a) apropos. That section states that conduct that has created a force or series of forces that are in continuous and active operation up to the time of harm constitutes a substantial factor. Obviously, although the effect of any negligence by the manufacturer defendants, Ryland and Summit may be viewed as continuous, it would not be viewed as both continuous and active as in the case of the Lis.

And, on a motion for summary judgment or a trial on the merits, although the Chapmans’ negligence centered around a single episode, the extent of the effect that failing to extinguish the candle had on producing the harm was indeed extraordinary and, thus, should be considered as a possible superseding cause, breaking the chain of causation between the negligence of the manufacturer defendants, Ry-land and Summit and the ultimate harm. Restatement (Second) § 433(a). Finally, a proper intervening negligent ad/superseding cause analysis contemplates contrasting the nature of the original act and the negligence asserted to have, in terms of legal cause, superseded the original act of negligence. The specific actions surrounding the failure to extinguish the candle should be subjected to scrutiny beyond the bare allegations contained in the complaint to determine whether allowing the candle to burn constituted an extraordinarily negligent act.

For instance, Keith Chapman apparently had extinguished the candles, then re-lit the candle which caused the fire after Samuel Juster indicated that he was afraid of the dark. From the foregoing, the Montgomery County Circuit Court judges, in their rulings on the motions to dismiss, responded appropriately to the specific issues presented to them, but they, unfortunately, failed to consider whether these issues should be resolved upon a review of appellants’ allegations in the complaint, rather than a more expansive review upon motions for summary judgment or proceedings on the merits. We do not reach the question of whether the issue of foreseeability of the manufacturer defendants, Ryland and Summit is ⁵⁵² more properly determined on a motion for summary judgment, as in Manor Inn , or whether, as appellants contend, foreseeability can only be resolved by a jury or fact finder on the merits. We hold that the facts determinative of whether the negligent acts of the manufacturer defendants, Ryland and Summit are substantial factors in causing the deaths and injuries and, hence, that such injuries and deaths were foreseeable are susceptible of more than one inference.

Caroline v. Reicher, 269 Md. at 131 , 304 A.2d 831 . These facts are not so close to the polar extreme that the issue of causation is rendered a matter of law. Id. Accordingly, we reverse the grant of the motions to dismiss of the manufacturer defendants and remand Counts III through VII for farther consideration.

B RYLAND HOMES AND SUMMIT ELECTRIC The circuit court, at the outset of the proceedings on January 3, 2002, addressed counsel for Ryland and Summit: “Then we have before us Ryland’s motion to dismiss/summary judgment, I guess____Summit Electrics’ [sic] motion to dismiss/summary judgment as they view it, and then I know there are motions relating to experts, time permitting.” Counsel for Ryland responded, “It is not, as they say, a motion for summary judgment. My motion doesn’t cite anything outside of the record in this case. I don’t attach any deposition experts or other kinds of exhibits. I cite only the well-pleaded, factual allegations of their complaint and one prior ruling by the court, Judge Harrington’s ruling, entering summary judgment in favor of Dieffenbach and Hightower____” Similarly, at oral argument before the circuit court, counsel for Ryland stated that “[i]t is not ... a motion for summary judgment,” and farther explained that “[t]he only thing that matters is what they have said in the well-pled factual allegations of their Complaint.” Counsel for Ryland also stated as follows: ⁵⁵³ They allege and we will accept for purposes of this motion, their conclusion that Ryland breached, for want of a better concept, the applicable standard of care.

I will accept that for purposes of this motion, solely, that we had an obligation in 1989 to install a smoke detector that met standards that were even higher than the ones that our elected representatives had put in place at that time, but that doesn’t get to the causation question. We will assume that we were negligent or that we installed a defective product. Ryland’s counsel also conceded, for purposes of the pending motion to dismiss, that appellants had validly stated a products liability claim on all essential elements, except for causation. Counsel for Summit proceeded in similar fashion.

Summit styled its pleading as a “Motion to Dismiss or in the Alternative, Motion for Summary Judgment.” Summit’s counsel and the circuit court treated the motion as a motion to dismiss at oral argument, stating, “I would echo the motion by Ryland that, even if it were shown to be the case, there still is not causation pleaded in the complaint by the plaintiffs .... ” Like Ryland’s counsel, Summit’s counsel stated, “My motion is also a motion to dismiss, that the [appellants’] complaint fails to state a cause of action upon which relief can be granted against my client.” Appellees Ryland and Summit focus their argument on the alleged negligent acts of the homeowners, the Lis. The ReFiled Omnibus Amended Complaint alleges, they recount, that, when the Lis purchased the house, the basement was “an empty concrete shell without even electrical outlets,” and that “[s]hortly after purchasing the house, however, the Lis had their basement finished so that they could use it for a medical office,” in violation of City of Gaithersburg Building codes requiring emergency egress. Appellants’ Re-Filed Omnibus Amended Complaint continues, averring that, when the Lis had the basement repaired after a broken pipe caused extensive water damage in 1994, the Lis, Dieffenbach and Hightower were required to obtain a building permit, but did not and, ⁵⁵⁴ had they applied for a permit, “they would have had to submit a floor plan indicating the intended uses of the enclosed rooms in the basement,” thereby alerting “[t]he City of Gaithersburg [who] would have informed [them]” that the enclosed basement rooms “could not be used as sleeping areas” because of “the lack of emergency egress windows.” The complaint further alleged that the Lis’ failure to install dual-powered smoke detectors, in violation of the Gaithersburg Building Code, which “required” that a property owner “install smoke/fire detectors when alterations, repairs, or additions requiring a permit occurred] or when one or more sleeping rooms [were] added or created in existing dwellings” was “illegalf ]” conduct which proximately caused appellants’ injuries. According to Ryland and Summit, the cause of the failure to have an operable smoke detector was the negligence of the Lis and their contractors, Dieffenbach and Hightower, in not removing or replacing the original smoke detector even though they said that it may have suffered latent damage from the water that seeped through the basement ceiling during the 1994 flood.

And, finally, the Lis, Ryland and Summit cite the assertion in the complaint that “the Lis themselves ... made [a] material representation that the enclosed basement rooms could be used as sleeping areas ... especially when it is presumed that the Lis as landlords knew the applicable codes pertaining to habitability of the leased premises.” Ryland and Summit then relate the allegations which they say represent the superseding causes attributable to the Chapmans. Initially, Ryland and Summit posit that the mere fact of allowing the children and their friends to sleep in windowless bedrooms, which lacked adequate means of egress, constituted an intervening negligent act. Further, acts of negligence attributable to the Chapmans, according to Ryland and Summit, are: the fact that Michael Chapman lived in the house for seven years without once attempting to change the battery in the subject smoke detector, but failed to realize that there was no battery backup and, consequently, that it would ⁵⁵⁵ not work during a power outage, and that Michael and Catherine Chapman would allow their children and their children’s friends to use candles for illumination while sleeping in a windowless basement bedroom which lacked a means of egress. Thereafter, counsel presented arguments on the appellants’ motion to dismiss and the court, applying the holding in Manor Inn, supra, issued its ruling: I just cannot see how that, accepting as I do, that Ryland and Summit installed defective smoke detectors — that is, detectors that did not meet the standard that the industry required at the time that the house was constructed, approximately nine years before the fire occurred — how it was foreseeable then that the owner of the house would finish off an unfinished concrete basement and, at the time he would finish it off or she would finish it off, that they would not then install smoke detectors that would meet whatever code and/or industry required [sic]; that in addition thereto, that the owner of the house would finish off the basement without conforming to the requirements of the then existing codes and/or then existing industry standards; that in addition thereto, that at some point later in time, that the parents of children would permit children — sorry—that the owners would not only finish off the basement but they would finish off the basement by installing bedrooms in rooms that had no egress other than — that is, by way of windows directly to the outside from the bedroom — that in addition thereto, that it would be foreseeable that at some point in those nine years, that tenants of the premises would permit children or other occupants of the premises to sleep in those rooms and, during a power outage, would permit the occupants to, while sleeping in the rooms where there was no egress directly to the outside, light candles and keep candles lit while they were sleeping.

Summit, the party who procured the smoke detectors, and Ryland, the builder that engaged Summit to install the smoke detectors, were variously alleged to be liable for the immolation of the children on the theories of negligence, strict ⁵⁵⁶ liability, failure to warn and wrongful death. Notwithstanding that Summit and Ryland were emphatic in articulating their unequivocal reliance on the allegations contained in the ReFiled Omnibus Amended Complaint to refute the element of causation, appellants maintain that, according to the affidavit of their electrical contractor expert, they failed to adhere to the standard of care for electricians in 1989. Further, contend appellants, the fact that Ryland and Summit comported with the applicable building codes does not prevent a finding of negligence where a reasonable man would take additional precautions. As noted, the singular issue before us is whether the circuit court erred in ruling that, assuming the facts as alleged to be true, they admit of but one inference, ie., that the negligent acts of others superseded any negligence on the part of Ryland and Summit, thereby rendering such other acts as the legal cause of the deaths and injuries at issue.

We focus, therefore, only on the four corners of the complaint, without consideration of affidavits submitted. If, upon our review, we focus only on the allegations in the complaint, as Ryland and Summit urge, the affidavit of appellants’ electrical contractor offered as an expert to establish that Ryland and Summit failed to adhere to the standard of care for electricians in 1989 would not be properly before the Court. In addition to the allegation that Ryland and Summit failed to adhere to the standard of care for electrical contractors is the assertion that, as a result of their failure to deliver the instructions and warnings of the smoke detector’s limitations, the Chapmans were prevented from learning that the device would not alert to the outbreak of a fire in the event of a power outage. Invoking the substantial factor test, Summit references, inter alia, the decision of the Court of Appeals in Manor Inn .

Summit claims that, in arguing that the AC power smoke detector was the cause of the injury, appellants have ignored all other variables, including the Chapmans’ decision to allow children to use candles in the basement until 4:30 a.m., the ⁵⁵⁷ decision to leave the candle burning while they slept, another defendant’s remodeling the basement for use as a living area with no means of egress, in violation of the city code, and the fact that the violations were not discovered despite several home inspections. As we have concluded in the preceding section, any analysis, applying the recognized principles in a determination of superseding cause, requires a juxtaposition of the acts of negligence committed by Ryland and Summit, in failing to deliver the instructions and warning to the homeowners, the Lis, as opposed to the negligence of others, particularly the Lis and the Chapmans, based on facts that admit of but one inference. As noted, not only must the facts, as they relate to Ryland, admit of but one inference, but the same must be true of the acts of negligence asserted to be causes which supersede that negligence of Ryland and Summit. The same consideration that we apply to the manufacturer defendants, regarding the significance of information that cannot be discerned from the complaint, is equally applicable to Ryland and Summit.

In other words, whether the actions of Keith Chapman and his parents are highly extraordinary must be viewed in relation to the role played by Ryland and Summit in placing into the stream of commerce a product which fails to comport with industry standards and their failure to deliver the User’s Manual to the Lis, resulting ultimately in lack of knowledge by the Chapmans that the smoke detector would not function during a power outage. Of course, Ryland and Summit point out that the Chapmans lived in Grantchester Place for nine years, during which they would have discovered that the smoke detector did not have a battery backup system if they had simply attempted to change the batteries during that nine-year period. The issue raised by the allegation that the negligence of Ryland and Summit in failing to deliver the User’s Manual and the rejoinder that the limitations of the smoke detector should certainly have been discovered over the nine-year period could not properly have been determined as a matter of law. ⁵⁵⁸ It may well be that, as a result of an analysis of the facts as they are determined to be on a motion for summary judgment or at a trial on the merits, Ryland and Summit would prevail in establishing that their role in selecting, purchasing and installing a smoke detector which did not comport with industry-standards, and in failing to deliver a document that contained warnings of its limitations, was superseded by the negligence of the Lis and Chapmans. The issue, however, of whether acts of the Lis and Chapmans constituted a superseding cause could not be properly adjudicated without an examination of the contents of the User’s Manual, a consideration of whether, in light of the Chapmans’ failure to attempt to change the batteries, the failure to deliver the manual was of any consequence and a determination as to whether procuring and installing a product which did not meet industry standards is a substantial factor, particularly considering that it was compliant with all applicable building codes when it was installed.

As in the case of the manufacture defendants, we reverse the grant of the motion to dismiss of Ryland and Summit and remand Counts XIII through XV of the Re-Filed Omnibus Amended Complaint for further consideration. C THE LIS Appellants next claim that the court erred as a matter of law by granting the Motion to Dismiss appellants’ claims filed by appellees Gui-Fu Li and Chung Ling Li pursuant to Maryland Rule 2-322 on the grounds that the Re-Filed Omnibus Amended Complaint failed to include a well-pled allegation of proximate cause with regard to the injuries sustained in the house fire. As we have recounted, supra, the Re-Filed Omnibus Amended Complaint alleges that the Lis, having been notified that they could not use their refinished basement as a medical office because of zoning restrictions, knew or should have known of the legal requirement to obtain a building permit in 1989 when they refinished the basement. It is further alleged ⁵⁵⁹ that the Lis should have applied for a building permit in 1994 when they engaged Dieffenbach and Hightower to perform repairs caused by water damage from a broken pipe.

Had they attempted to obtain the proper building permits, appellants aver, the City of Gaithersburg would have notified them that the rooms could not be used as sleeping areas because of the lack of emergency egress. As a result of the City’s notification, the basement would have remained a concrete shell without electrical outlets and, thus, the basement would not have been used by the children as a sleeping area when the fire broke out on June 14,1998. Also alleged is that the Lis themselves and/or their agents made material representations that the enclosed basement rooms could be used as sleeping areas and that the Lis knew and condoned such use by the Chapmans. The conclusion asserted, from the foregoing, is that the Lis’ negligent and unlawful acts resulted in creating a deathtrap in the basement and were substantial factors in causing the injuries sustained.

On January 16, 2003, the circuit court (Rupp., J.) granted the Lis’ Joint Motion to Dismiss as to appellants Collins and Juster. In response to the counts left standing, the Lis argue that, as the last remaining defendants in the case, they should be dismissed because there was an “absence of foreseeability and/or proximate cause concerning the injuries and damages alleged by the [appellants].” They withdrew their request for a hearing on their Motion to Dismiss on April 7, 2006 and the trial court (Mason, J.) issued its order on April 20, 2006, stating “that the Motion to Dismiss filed by Defendants, Gui-Fu Li and Chung Ling Li, be and is hereby GRANTED.” Because the Lis withdrew their request for hearing on their Motion to Dismiss and the court, accordingly, issued its order without an oral or memorandum opinion, we do not have the benefit of the court’s rationale in granting the motion. The only basis advanced by the Lis, as stated in their legal argument as part of their Motion to Dismiss was that, they “hereby adopt and incorporate the case law that was sited [sic] by the Court in the Opinion and Order that granted the ⁵⁶⁰ ‘Manufacturer Defendants’ [sic] [sic] ... with regard to section III, Applicable Legal Standards, and section IV, Standards Applicable to a Determination of Proximate Cause.” On this appeal, the legal theory of the manufacturer defendants, Ryland and Summit, simply put, is that the negligent acts of Michael, Catherine and Keith Chapman, in not ensuring that the candle was extinguished before the boys went to sleep and the negligence of the Lis are the superseding causes of the injuries to the Chapman boys and the deaths of Stephon Collins and Samuel Juster. The Lis, figuratively, having drawn fire from the other defendants, not surprisingly, faced with the onslaught of allegations that it was their negligence in creating a potential for a cauldron that proximately caused the injuries and deaths, take aim at the Chapmans.

Mindful that, for purposes of the motion to dismiss, the Lis, like the other defendants, must reference the allegations in the Re-Filed Omnibus Amended Complaint that they contend negate that their negligence was the proximate cause of the deaths and injuries, they assert: Upon review of the Re-Filed Omnibus Amended Complaint, there is no allegation that the Lis were present when the subject fire occurred or that they had anything to do with the decision to use candles for lighting in the basement of the residence----As referenced in the Opinion and Order that was issued by the Court in granting the “Manufacturer Defendants” Motion to Dismiss, Page 4, Paragraph 2, citing allegations in the Re-Filed Omnibus Amended Complaint, “Mr. and Mrs. Michael Chapman rented the house since 1991. In June of 1998, as a result of a storm, there was a power outage. Notwithstanding that there was insufficient emergency egress in that area, Mr. and Mrs. Chapman permitted their children, Kyle, Brandon, Keith and their guests, Stephon Collins and Samuel Juster, to use candles for lighting in the basement where they were sleeping.” Additionally, “The Defendants, Mr. and Mrs. Chapman, went to bed without making sure that all candles had been extinguished.” Further, “They told their son, Keith, to ⁵⁶¹ make sure he extinguished the candles before he went to sleep.” Finally, “Upon going to sleep, Keith Chapman left one of the candles lit. It was this candle that caused the fire which in turn caused the injuries to the Plaintiffs.” In support of their contention that the circuit court properly granted the motion to dismiss on the basis that the Re-Filed Omnibus Amended Complaint alleged intervening negligent acts of others which constituted superseding causes, the Lis premise their theory that their negligence was not a legally cognizable cause of the harm on three general grounds.

First, they reassert their incorporation by reference in their motion to dismiss of the legal authority submitted to the court by the manufacturer defendants. In that regard, they specifically refer to the court’s memorandum opinion and its analysis based principally on the Restatement §§ 435(2) and 442(2). In their reliance on § 435(2), they argue that the actual