Dalmo Sales of Wheaton, Inc. v. Steinberg

Wilner, J., delivered the opinion of the Court. ⁶⁶¹ On December 4, 1974, Dorothy Steinberg decided to do some Christmas shopping. She should have stayed home; for as she was walking along a sidewalk in front of an appliance store, a car operated by Peter Vida came across the sidewalk from an abutting parking lot, struck her, and pushed her through the store window. Her injuries were serious, painful, and permanent. As a result of this occurrence, in a multi-count Declaration filed in the Circuit Court for Montgomery County, Mrs. Steinberg and her husband sued Vida, Northwestern Mutual Life Insurance Co. (Northwestern), and Dalmo Sales of Wheaton, Inc., Luskin’s of D.C. & Va., Inc., and Luskin’s-Dalmo, Inc. (collectively called Luskins).

The action against Vida was based upon his alleged negligence in operating the vehicle that struck Mrs. Steinberg. The other defendants are, respectively, the owner of the real property upon which the appliance store, the sidewalk, and the adjacent parking lot are located (Northwestern) and an assignee of a sublease of said property who was, at the time of the occurrence, actually in possession of it (Luskins). The claims made against Northwestern and Luskins were that (1) the store, sidewalk, and parking lot were “occupied, maintained, and controlled” by them, (2) they negligently maintained the sidewalk and parking lot in a dangerous and defective condition by failing to maintain a curb or other barrier that would prevent the encroachment of the sidewalk by vehicles from the parking lot or otherwise retard or halt vehicular traffic across the sidewalk, (3) they knew or should have known that such deficiencies might create an unreasonable risk to people using the sidewalk, and (4) Mrs. Steinberg’s injuries were a direct result of that negligence. After trial, a jury returned a verdict of $580,000 in favor of the Steinbergs and against all defendants.

The court, in post-trial proceedings, reversed the award against Northwestern by entering judgment non obstante veredicto (N.O.V.) in its favor, but by denying similar relief to Luskins, allowed the verdict to stand against it. Vida sought no post-trial relief either in the Circuit Court or here, and we are ⁶⁶² therefore not concerned with the action or judgment against him. What we have is an appeal by Luskins from the judgment against it and a cross-appeal by the Steinbergs from the judgment N.O.V. in favor of Northwestern. A resolution of the several issues raised in these two appeals requires, of course, some understanding of the circumstances that led to this unfortunate episode; and that preliminarily, necessitates a description of the scene of the accident.

Here, a picture is truly worth a thousand words. To conserve as many of those words as possible, the Court will use the diagram below which, though not drawn precisely to scale, is based upon the testimony and exhibits in the case and, we think, fairly depicts the scene. As we hope is evident from this unprofessional diagram, Mrs. Steinberg, having parked her car around the corner, was proceeding along the sidewalk and was about to enter the Luskins store when she was struck by the Vida car. The front of the Luskins store consisted of a metal-skinned wooden base 16 inches high, on top of which was store window plate glass. ⁶⁶³ A critical fact in this case, in terms of whether Luskins or Northwestern have any liability to Mrs. Steinberg, is that there was no barrier, in the form of a curb, wheel blocks, or bollards, to inhibit automobiles parked or being driven on the parking lot from encroaching on the sidewalk.

The evidence showed that the parking lot sloped up to meet the sidewalk at grade, leaving somewhat of a rut or gully just before the two joined. If a person pulled a standard sized vehicle up to the point that the front tires settled into this gully — i.e., nearly flush with the beginning of the sidewalk, the car would overhang or encroach upon the sidewalk by some two and a half feet, leaving then only three and a half feet for pedestrian traffic. The encroachment would be even greater if the car were backed into such a position, because the trunk overhang exceeds that of the hood. The car that struck Mrs. Steinberg belonged to Mr. Vida's roommate, Paul Riggs.

It was a 1966 Oldsmobile Delta 88, that had a number of mechanical defects. The battery was weak; in cold weather, if the car did not start up right away, the battery was prone to give out, thus requiring a “jump start” to start the car. The car had an automatic transmission; however, (1) the linkage was so loose that the gear lever (and thus the gear) could slide from one position to another without substantial effort on the part of the driver — by just a touch of the finger, and (2) the gearshift indicator did not always reflect the true gear position, being off by one or one and a half positions. Thus, it was possible for the car, while parked, to be in a forward gear without the driver knowing of it.

Finally — worst of all, and apparently unknown to Mr. Vida — there was evidence of a defective “neutral lockout switch”, allowing the car to start while in a forward gear. On the morning of December 4, 1974, Mr. Vida had some business to transact at the State Employment Security Administration office located across Georgia Avenue from the Luskins store. Finding no more convenient parking space, he parked the car on the Luskins lot in the space noted on the above diagram. He did not intend to transact any business with Luskins, and thus ignored a sign in the Luskins window ⁶⁶⁴ warning that parking on that lot was reserved for Luskins customers.

Leaving the car, Mr. Vida crossed the street and attended to his business, returning an hour or so later. When his first attempt to start the car failed, Vida took off the emergency brake, put the car in neutral gear, and tried to push it from the front end. It moved, if at all, no more than a few inches. At some point, the owner of the car parked immediately to Vida’s left, one Susan Ogden, returned, and agreed to permit Vida to connect his jumper cables to her battery in an effort to start his car.

Ms. Ogden repositioned her car to approach the left fender of Vida’s car at an angle, in order to facilitate the booster operation. With the cables in place, but without resetting the emergency brake, Vida attempted once again to start his car, without sucCéss. He exited the car, adjusted the cables, and reentered the car through the front passenger door. Instead of sliding over to the driver’s seat under the steering wheel, however, where he would have been in a position to apply the brake pedal, he lay across the front seat, his legs hanging out of the right front door, and from that position turned the ignition key.

With its hood up and the cables attached, the car instantly jumped forward, its motor running, and struck Mrs. Steinberg as she was walking by. It is evident that either the engine started with the car already in gear or that the car slid simultaneously into a forward gear. Because the car had been sitting a while in forty-degree weather, the automobile choke was set so as to cause the car to run at a “high” idling speed. The impact pinned Mrs. Steinberg’s legs against the 16-inch base and threw her torso backward through the plate glass window.

Part of the window dropped on her legs in the manner of a guillotine. With this background, we may proceed to consider the questions raised in these appeals, beginning with those presented by Luskins. I. Should The Court Have Directed A Verdict Or In The Alternative Granted Judgment N.O.V. In Favor Of Luskins? Luskins does not dispute that, at the time of the accident, ⁶⁶⁵ Mrs. Steinberg was its business invitee; nor does it deny that it had a duty to exercise reasonable care to ensure that invitees such as Mrs. Steinberg could traverse the public portions of its property without unreasonable risk of injury to themselves.

The crux of the issue here is whether that duty extended to the type of risk or exposure that unfurled itself in this case. Given the existing layout of the property, was the possibility that a car might come over the sidewalk and strike a pedestrian who was lawfully thereon a reasonably foreseeable one — one that Luskins had a duty to anticipate and guard against? This is innately a question of law, but one that depends for its resolution upon the facts proved in the record. Because the issue arises in the context of whether a directed verdict (or judgment N.O.V.) should have been granted, we are dealing in essence with the question of whether the evidence in the case sufficed to establish the alleged duty and its breach, and thus to warrant submission of the case to the jury and to sustain its verdict.

In considering this issue, then, we must assume the truth of all evidence (together with all inferences that may naturally and legitimately be deduced from it) tending to support Steinberg’s factual allegations and theory of recovery. Moran v. Faberge, 273 Md. 538 (1975); Eyerly v. Baker, 168 Md. 599 (1935); Buchanan v. Galliher and Harless, 11 Md. App. 83, 87 (1971). In this regard, the record reveals that the property in question was originally developed in 1952 by People’s Drug Stores for its own use. Early in 1953, People’s sold the property — building, sidewalk, and parking lot — to Northwestern, which, in turn contemporaneously leased it back to People’s under what has been characterized as a “net net net” lease.

People’s used the property as a drug store until 1967, when it subleased it to a paint store. Luskins came into possession in February, 1974, some ten months before the accident, by virtue of an assignment of the sublease. Although neither the prime lease to People’s, the sublease, or the pertinent assignment of the sublease was offered into evidence, it was conceded, through Admissions of Fact, that Luskins “had control over the sidewalk and parking area ⁶⁶⁶ adjacent to the front entrance” of the store, and that it had exercised that control by (1) assuming the cost of illuminating the sidewalk and lot, (2) posting warning signs advising that parking was reserved for Luskins customers only and that violators would be towed away, (3) using its employees to paint yellow stripes on the blacktop lot in order to designate parking stalls, (4) assuming responsibility for removing ice and snow from the sidewalk and parking lot and using its employees to perform that work, (5) closing off part of the lot during hours when the store was closed in order to restrict public use of the lot, (6) using part of the lot for trash storage, and (7) occasionally using part of the sidewalk to display lawnmowers and other appliances. There was no evidence that, in the 21-year history of the building, anyone on the front sidewalk had ever been injured by reason of an encroaching automobile, much less a run-away one; apparently, this was the first incident of such personal injury.

However, there was evidence that the encroachment by automobiles had been a problem in the past, and that Luskins, through its supervisory employees, had been made aware of the problem. An adjacent storekeeper, Mr. Blacker, whose store faced the same parking lot, testified about three incidents, at least two of which had occurred prior to the Steinberg tragedy, in which cars had crashed into his storewindow. The second incident, he said, occurred in the summer of 1974, and he warned a Luskins salesman (whom he thought was a manager) that one day “somebody is going to get hurt bad.” On one other occasion, Blacker himself ran into one or more lawnmowers that Luskins had sitting on the front sidewalk, and advised Luskins’ cashier of what had happened. James Stehman, a former Luskins employee, confirmed much of what Blacker said.

He was the salesman Blacker warned following the second window incident, and Stehman said that he had told the Luskins sales manager about that incident as well as about the lawnmowers getting hit. Stehman testified that automobiles “frequently” parked up on the sidewalk, and that “[sjeveral times we have had to have people move their cars back to allow merchandise to get out ⁶⁶⁷ of the store....” At one point, in the summer of 1974, Stehman said that he suggested placing poles (bollards) in front of the store and was told by a Luskins official that if he wanted to install such poles he was free to do so. The company itself would not see to it. Finally, there was evidence of a number of bollards and one or more wheel blocks that were lying loose on the parking area around the corner of the building (where Mrs. Steinberg parked her car).

They, or others costing between $40 and $80 each, could have been easily installed in front of the store. George Frangos, qualified as an expert in traffic engineering, testified that for at least 25 to 30 years, it has been a “common and standard practice” to separate parking spaces from pedestrian walkways by the use of curbs, wheel blocks, or bollards. Although there may have been no “legal” requirement, in the sense of a State or municipal regulation, that this particular property contain such a barrier, 1 Frangos stated that the property (by reason of the absence of such a barrier) “was not consistent” with this quarter-century old practice. The minimum standard curb height, he said, is six inches, and the standard height of a wheel block is eight inches.

Both sides (Steinbergs and Luskins/Northwestern) conducted a variety of tests with 1965 and 1966 Oldsmobiles of the same model and with essentially the same weight, characteristics, and equipment as the vehicle “driven” by Mr. Vida. Although there was some confusion, some conflict, and a great deal of technical explanation with respect to these tests, suffice it to say that there was evidence presented tending to show that had there been a standard six-inch curb separating the lot from the sidewalk, or bollards, or either five- or eight-inch wheel blocks in place, Mrs. Steinberg may not have been hit by the Vida car, and, if hit, may have ⁶⁶⁸ escaped her most serious injuries. The evidence in this regard most favorable to Steinberg either indicated directly, or allowed a permissible inference, that the vehicle would not have mounted and overrun either a six-inch curb or standard-sized wheel blocks, and that, if it did manage to get over such obstacles, it would have been sufficiently delayed in its forward motion to have allowed Mrs. Steinberg to reach the relative safety of the entranceway. 2 The Court of Appeals has long recognized as a settled principle of law that a storekeeper “is not an insurer of the safety of persons who come there upon his invitation to do business with him, that his obligation is one for the exercise of care for their safety such as an ordinarily prudent man would exercise, and any liability on his part for injury to a patron could be based only upon a failure to exercise that care.” Hochschild Kohn & Co. v. Murdock, 154 Md. 575, 578 (1928); New Theatre v. Hartlove, 123 Md. 78, 82 (1914). In Eyerly v. Baker, 168 Md. 599 (1935), the Court acknowledged those principles, and some of the earlier cases establishing them, but went on to explain them in this way (p. 607): “So where a storekeeper invites the public to come upon his premises to buy his wares, he is held to a positive affirmative duty to protect them, not only against dangers which may arise from some defect or unsafe condition of the physical property upon which they are invited to enter, but against dangers which may be caused by negligent acts of his employees, or even of customers, where, as a reasonably prudent person, he should have ⁶⁶⁹ anticipated the possible occurrence and the probable results of such acts.” (Emphasis supplied.) 3 Both sides point to the expression “positive affirmative duty to protect” customers as being of significance.

Luskins views it as somewhat of an alarming departure from the traditional manner of expressing a storekeeper’s duty, and as suggestive that a storekeeper may indeed be an insurer of his customers’ safety. Read in context with the balance of the sentence, however, we do not share Luskins’ view or apprehension. The “positive affirmative duty” referred to is to protect customers against unsafe conditions or the negligent acts of others where the storekeeper reasonably should have anticipated the possible occurrence and the results therefrom. This is no different, in theory or effect, from the more traditional statement of the duty as exercising reasonable care for their safety.

The standard is still one of reasonableness, and critical elements of that standard are proximate cause and foreseeability. This is clear from the cases that followed Eyerly, some of which continued to use, or quote approvingly, the expression “positive affirmative duty.” See, for example, Scott v. Watson, 278 Md. 160 (1976); Litz v. Hutzler Brothers Co., 20 Md. App. 115 (1974). Compare Evans v. Hot Shoppes, 223 Md. 235 (1960), and Lloyd v. Bowles, 260 Md. 568 (1971), in which the Eyerly terminology is not used, but the language of Restatement of Torts, § 343 is held to express the “general principle” applicable in this regard. 4 ⁶⁷⁰ Some confusion, particularly with respect to the elements of proximate cause and foreseeability, arises from the fact that the cases involving a storekeeper’s liability for injuries to his invitee appear to fall into at least three categories; and, although the same general principles govern all three categories, the application of and mode of expressing those principles tends to vary somewhat. One category is where the injury arises from the negligent or deliberate act of a third party committed on the storekeeper’s property but does not involve any defect in the property itself.

In that situation, except in rather extreme circumstances, the principles of reasonableness, ordinary care, proximate cause, and foreseeability have often combined to prevent a recovery. See, for example, Scott v. Watson, supra; Nigido v. First Nat’l Bank, 264 Md. 702 (1972); Litz v. Hutzler Brothers Co., supra. Compare Restatement of Torts 2d, § 344. The second and third categories do involve some defect in the property, the distinction between them being whether the potential for harm that is latent in the defect requires activation by the act or omission of a third party.

Some types of defects have the capability of causing injury directly to whomever comes into contact with them, without the need for a concurrent act or omission by anyone else. Slipping or tripping over wet or greasy spots on the floor, cracks or holes in a pavement, or hard-to-see obstacles in a public aisle or passageway are common examples of this second category of cases. See, for example, Evans v. Hot Shoppes, supra; Chalmers v. Tea Company, 172 Md. 552 (1937); and compare Lloyd v. Bowles, supra. See also Restatement of Torts 2d, §§ 343, 343A.

The other type of property defect — or unsafe condition — is more passive; absent the independent act or omission of a third person, it would, of itself, be incapable of producing the injury complained of. Injury in these cases results not solely from the condition itself, or from the injured person’s contact with it, but rather from the combination of the condition and the independent action of another person ⁶⁷¹ or object. Eyerly and the other revolving door cases are clear examples of this category. See, in addition to Eyerly, Hamill v. Union Trust Co., 241 Md. 219 (1966); Litz v. Hutzler Bros., supra.

This case, of course, falls squarely within this third category. Mrs. Steinberg’s injuries are alleged to have resulted from the coincidence of Mr. Vida’s negligent operation of his roommate’s defective vehicle and the lack of a barrier sufficient to avert or delay the encroachment of the sidewalk. With respect to this category of case, the elements of proximate cause and foreseeability become somewhat more complex than in the normal action for negligence. As to proximate cause, the court is called upon to look at two independent causative factors and to weigh, as against the other, the relative significance of each in causing the injury; and as to foreseeability, the court must consider the reasonableness of anticipating the occurrence of harm from the combination and interaction of the two factors, rather than from either alone.

The Court of Appeals addressed such a situation in State v. Hecht Co., 165 Md. 415 (1933), 5 and concluded, at p. 422: “If the negligent acts of two or more persons, all being culpable and responsible in law for their acts, do not concur in point of time, and the negligence of one only exposes the injured person to risk of injury in case the other should also be negligent, the liability of the preson (sic) first in fault will depend upon the question whether the negligent act of the other was one which a man of ordinary experience and sagacity, acquainted with all the circumstances, could reasonably anticipate or not. If such a person could have anticipated that the intervening act of negligence might, in a natural and ordinary sequence, follow the original act of negligence, the person first in fault is not released from liability by reason of the intervening negligence of another.” ⁶⁷² The same principle was restated more recently in Little v. Woodall, 244 Md. 620 (1966). 6 At page 626, the Court noted: “It is true that, generally, a plaintiff cannot recover if it appears from his own testimony that the danger complained of could have resulted either from a breach of duty owed by the defendant to the plaintiff or from some other cause for which the defendant is not responsible.... That rule however, in the circumstances here present, must be taken in conjunction with the principle of proximate causation that if the situation wrongfully created by the defendant increased the risk of damage through the operation of another reasonably foreseeable force, the defendant is liable for the ensuing loss.... The question of reasonable foreseeability, as part of the question of proximate causation, is ordinarily a question for the jury.” (Emphasis supplied.) In part, of course, this but begs the question of whether Mr. Vida’s runaway car was “another reasonably foreseeable force.” The accident was, as Luskins claims, a “freakish” one.

It would, indeed, require a wide, loose, and vivid imagination to predict or foresee the strange combination of circumstances that actually led to this tragedy. But, in the context of actionable negligence, that is not what the element of foreseeability requires. In Segerman v. Jones, 256 Md. 109 (1969), an action for negligence in which foreseeability of the harm that occurred was the principal issue, the Court, at page 132, adopted as “well stated” the following language from McLeod v. Grant County School Dist, 255 P.2d 360 (Wash. 1953): “Whether foreseeability is being considered from the standpoint of negligence or proximate cause, the pertinent inquiry is not whether the actual harm was of a particular kind which was expectable. Rather, ⁶⁷³ the question is whether the actual harm fell within a general fieW of danger which should have been anticipated." (Emphasis supplied.) 7 In Moran v. Faberge, supra, 273 Md. 538 , the Court readopted this statement and held it to be consistent with the test as expressed by Harper (A Treatise on the Law of Torts, § 7 (1933)), which the Court also quoted with approval, 273 Md. at 551 : “... ‘the courts are perfectly accurate in declaring that there can be no liability where the harm is unforeseeable, if “foreseeability” refers to the general type of harm sustained.

It is literally true that there is no liability for damage that falls entirely outside the general threat of harm which made the conduct of the actor negligent. The sequence of events, of course, need not be foreseeable. The manner in which the risk culminates in harm maybe unusual, improbable and highly unexpectable, from the point of view of the actor at the time of his conduct. And yet, if the harm suffered falls within the general danger area, there may be liability, provided other requisites of legal causation are present.’ ” (Emphasis added by the Moran Court.) It would seem clear from these expressions that, in terms of establishing both general negligence (i.e., the duty owed and its breach) and proximate causation, foreseeability is not to be viewed in the narrow context suggested by Luskins.

Under these precepts, it is not the “freakish” chain of circumstances that actually occurred here that must be reasonably foreseeable, but rather the more general class of harm that might occur to invitees walking upon the sidewalk from the movement of encroaching vehicles. See Capital Raceway Prom. v. Smith, 22 Md. App. 224, 232 (1974). Such harm could result from a variety of forms of negligent driving ⁶⁷⁴ — from failing to stop in time while attempting to park, to placing the car in the wrong gear while attempting to leave, and much in between. The risk is the result of encroachment, whatever the circumstances that may lead to it.

The courts in other States have taken differing approaches to a storekeeper’s liability for injuries occasioned by encroaching vehicles. Some courts have followed the lead of Texas in Watkins v. Davis, 308 S.W.2d 906 (Tex.Civ.App. 1958), and concluded that, where the immediate cause of the injury is the encroaching motion of a vehicle, there is no liability based upon an unsafe condition of the property — the lack of a barrier — unless that condition itself contributed to the initial movement of the vehicle. The theory in support of that proposition is that where the injury results from the loss of control of a vehicle, “the occurrence falls within the domain of the unusual and extraordinary, and therefore, in contemplation of law, of the unforeseeable.” 308 S.W.2d at 909 . See also Schatz v. 7-Eleven, Inc., 128 So.2d 901 (Fla.App. 1961); Mack v. McGrath, 150 N.W.2d 681 (Minn. 1967); Nicholson v. MGM Corporation, 555 P.2d 39 (Alaska 1976), each denying liability.

Other courts have declined to deny liability as a matter of law, but have concluded that the issues of negligence, foreseeability, and proximate cause are more properly for a jury to determine. See, for example, Ray v. Cock Robin, Inc., 293 N.E.2d 483 (Ill.App. 1973), aff’d 310 N.E.2d 9 (Ill. 1974); Denisewich v. Pappas, 198 A.2d 144 (R.I. 1964); Barker v. Wah Low, 19 C.A.3d 710 (Cal.App. 1971); Beaney v. Carlson, 189 N.E.2d 880 (Ohio 1963). See also Munford, Inc. v. Grier, 221 S.E.2d 700 (Ga.App. 1975), and Chatman v. Church’s Fried Chicken, Inc., 211 S.E.2d 2 (Ga.App. 1974), and compare Feldman v. Whipkey’s Drug Shop, 174 S.E.2d 474 (Ga.App. 1970), and Eckerd-Walton, Inc. v. Adams, 190 S.E.2d 490 (Ga.App. 1972). All of these cases, of course, proceeded upon somewhat differing fact situations, and distinctions of one sort or another can therefore be found in each of them.

In Watkins v. Davis, for example, a runaway truck pushed aside a four-foot by eight-foot ice chest weighing 1500 pounds and came ⁶⁷⁵ crashing into a store, where it injured the plaintiff. The court first concluded that the plaintiff “was in no position to complain of lack of concrete curb as protection” since “a much more formidible barrier” — i.e., the ice chest — had proved unavailing. Thus, said the court, “the undisputed facts demonstrate] conclusively, we think, that the same damages would have been inflicted, despite the curbing____” 308 S.W.2d at 909 . Somewhat the same situation pertained in Mack v. McGrath, supra, where there was in fact a curb separating the sidewalk from the lot, but the car was driven with such force as to jump the curb and crash into the store.

The court reasoned, 150 N.W.2d at 686 : “Not only would a higher curb have been ineffective to stop a vehicle driven with the speed of the McGrath car, but it would have increased the inconvenience and hazard to pedestrians who were obliged to use it.” In Schatz , the vehicle in question jumped a 5% -inch curb, and in Nicholson , it ran up and over a 10-inch curb. 8 By way of comparison, there is, of course, in this case