E.G. Rock, Inc. v. Danly

ALPERT, Judge. Laura Danly (“Appellee”) was a tenant in the premises located at 115 West Monument Street, Baltimore City, Maryland (“premises”). On December 12, 1987, she was assaulted .by an unidentified man. Action was brought in the Circuit Court for Baltimore City against Baltimore Historic Properties Limited Partnership (“BHP”) and E.G. Rock, Inc. (“Rock”), among others, 1 alleging negligence on part of BHP and Rock.

From a jury verdict for appellee, (David Ross, J., presiding), BHP and Rock appeal and ask us the following: I. Did the trial court commit reversible error in its instructions to the jury on the legal duty owed by the Defendants to the Plaintiff?

II

Did the trial court commit reversible error with respect to E.G. Rock’s claim for indemnity against Baltimore Historic Properties? 2 ⁴¹⁵ We hold that, on both issues, the trial court did not commit reversible error, and, therefore, affirm the judgment. Facts Laura Danly wanted to live in the Mount Vernon section of Baltimore City. Around the first week of November 1987, she was walking in the Mount Vernon area when she realized she was passing E.G. Rock’s office. Having previously noticed that Rock managed a lot of properties, she decided to walk in and get some information.

She was introduced to Bill Fink 3 (“Fink”) who subsequently took her to see the premises at issue; she immediately fell in love with it. About a week later, she returned to Rock’s office and, by appointment, met with Fink and Ms. Ethel S. Braun (a.k.a. Ethel Carter) (“Carter”), Rock’s owner. Appellee, along with Fink, revisited the premises the same day.

Even though the building was substantially complete, she had some reservations about entering into a lease. She wanted to make sure that the apartment would be “finished and ready to be moved in” and “that there would be no more workmen in [her] apartment after [she] moved in.” Appellee consented, upon verbal assurances by Fink, to an oral agreement and deposited earnest money for the apartment by a check payable to Rock. On November 24, 1987, appellee returned to Rock’s office and did an “on-site inspection” of the premises. Since “substantial work had been done, and a lot of the apartment had been finished”, she made out a check payable to E.G. Rock for “the first month’s rent and the security deposit minus the $100.00 earnest money” and signed the lease.

This is where, for the first time, she met John McCarthy 4 (“McCarthy”) and discussed with him and Fink the security system for the ⁴¹⁶ building. She moved into the apartment on or about the first Monday in December 1987. Appellee was aware of the fact that the building was not totally finished when she moved in. She observed, however, that I took the top floor apartment.

That was the third floor, and the third floor and second floor apartments were all completed and ready to be moved in and, in fact, there was another tenant who had already moved into the second floor. The first floor there was painting going on, and things like that, but all the walls were up and it looked fairly complete, and I know they were working on the basement, working on, trying to look at the laundry room and stuff like that. But from all of the residence floors, which were the third and the second floors, that was all completed. There were, however, other problems with her apartment which she listed and reported to Fink because, she stated, “He told me to.

He told me if there were any problems with the apartment to talk to him, and when I did call to complain, he responded to my complaint, and he also acted on them. I mean, I got some things done.” For his part, Fink stated that once he received a complaint, he would forward it to McCarthy or Bill Warren 5 since Rock had no authority to solve the problem. In fact, Carter noted that her home phone number was given to all tenants with respect to property either leased or managed by Rock as an emergency number. There seems to be considerable debate as to the relationship between the appellants, as evidenced by the cross appeal from the lower court’s judgment (i.e., Issue II).

BHP maintains that there was no management contract between the two parties and that Rock is liable for its own independent acts of negligence. In support, BHP refers to the testimony of the two principals (i.e. Carter for Rock and James Clare for BHP) wherein both parties testified that there was no management agreement between Rock and BHP. BHP also asserts that allowing ⁴¹⁷ Rock to amend its complaint after all the evidence had been presented would be prejudicial.

They claim that had BHP known about Rock’s indemnity claim, it would have modified its approach to the whole case. BHP, therefore, argues that the jury instructions given were appropriate as Rock had not pleaded the existence of a contract which would have required the judge to give instructions on the indemnity issue. Rock maintains that there was a management contract between it and BHP. Specifically, Rock asserts that McCarthy acknowledged the existence of a contract when he stated that the contract for 809 Cathedral Street was extended to 115 West Monument Street.

Rock, therefore, argues that since the 809 Cathedral Street management contract contained an indemnity clause, the same indemnity clause is applicable to the “contract” for 115 West Monument Street. Rock also contends that the trial court should have given instructions as to the law of principal and agent. In any event, appellee started noticing that workmen had gained access to her apartment without her permission. Specifically, she testified that On one of the first few days that I was there, I came home at night and saw where there had been a, a ceiling panel taken out of the ceiling, and they had obviously done something up there.

I don’t know. It wasn’t one of the things I needed, and there was a pile of mess on the floor where they had taken it out and hadn’t cleaned it up, and so I was upset as I knew that someone had come in and I hadn’t been notified. Additionally, the day before the assault, appellee was awakened by “two men standing on the fire escape looking in [her] bedroom window.” She immediately called Mr. Fink and reported that “having people on the fire escape looking into [her] bedroom window was very upsetting to [her], and was there to be any work having to do with my apartment or access or around my apartment, that [she] needed to be notified.” All of this brings us to the events at issue. ⁴¹⁸ On December 12, 1987, appellee was sleeping in her apartment when she was awakened by the sound of someone entering through the front door. She was quite startled and proceeded to jump out of her bed and go out into the foyer.

There, she discovered a young man (who still remains unidentified) dressed in work clothes. She questioned him as to why he was in her apartment, and he explained that he was on the premises to do clean up work. Appellee, who had never seen the intruder before, told him “this is my apartment. I live here.

This is not for you to be cleaning up, you know, I’ll clean up myself.” The intruder apologized and left the apartment, whereupon she immediately called Rock in order to lodge a complaint with Fink. The phone was answered by Carter, whom appellee informed that [she] was very upset and [Carter] said, well, is there something I can help you with. So, I told her what had happened, and I told her, because I didn’t know whether she knew about the day before, you know, the incident with the fire escape and so forth, and I, I was very upset. And I told her, I was very explicit — I said I wanted two things from her.

One was that she find out if this guy is who he says he is and secondly, that this was the last time I was going through this and if it happened again, I would consider the lease terminated and I would move out. . Carter was sympathetic towards appellee’s concern and “volunteered that we would see what it was all about.” About the same time, McCarthy arrived at Rock’s offices and was apprised of what had transpired. Together with Carter, he returned to the premises. Upon arriving at the apartment building, they realized that neither of them had keys to the building.

They noticed an individual in the building with a broom in his hand, who subsequently let them in. Carter and McCarthy introduced themselves and McCarthy asked this individual who he was and what he was doing there. The individual stated that he was working for the contractor and that he was cleaning up. Both, Carter and McCarthy, failed to ask this individual for identification demonstrating his employment by the construction company. ⁴¹⁹ Thereafter, Carter, McCarthy and this individual went up to see appellee.

There, according to the testimony of appellee and Carter, McCarthy introduced the individual (whom the appellee recognized as being the earlier intruder) as being a construction worker. McCarthy chastised the intruder for entering appellee’s apartment, and both he and Carter apologized to appellee. McCarthy also stated that he would verify who the intruder was and further warned the intruder that he better be the person he was claiming to be. Carter, while not actively participating in the oral dialogue, agreed with McCarthy’s statements.

Appellee was satisfied by the representations put forth by Carter and McCarthy because, she testified, They didn’t say to me, you know, we’ll have to check into this and get back to you or we’ll get back to you later today or anything that indicated that there was anything further to be done. They, they [sic] simply said just the opposite, in fact. They were so sorry, and if anything like this ever happens again, you know, please call us. Appellee specifically testified that, had she been advised that the intruder’s identity was not verified, she would have called the police and would not have returned to her apartment that night.

McCarthy went on to make at least two, and maybe three, calls to B.W. Construction the same day; however, he was not successful in verifying the employment status of the intruder. McCarthy also testified that Carter had also called the construction company to determine the identity of the intruder. Neither McCarthy nor Carter informed appellee of their inability to determine the intruder’s identity. Later that same day, appellee returned to the premises after running some errands.

She then encountered the intruder walking out of her apartment -with what appeared to be two suitcases full of her belongings. When asked by appellee to relinquish the suitcases, he refused and stated that he would kill her if she tried to stop him. Appellee descended the stairs and tried to escape but was grabbed by the intruder and dragged into the sub-basement. The intruder tied appel ⁴²⁰ lee to the bannister at the bottom of the stairs and then left.

As a result, appellee suffered serious physical and mental injuries. An action was brought in the Circuit Court for Baltimore City by appellee against BHP and Rock. The jury awarded damages against BHP and Rock on a finding of negligence of both. Rock asserts that the trial court erred in its instructions to the jury on the legal duty owed to appellee by Rock and BHP and that the court failed to instruct the jury properly on the applicable law of principal and agent.

Further error is assigned by Rock to the court’s failure to instruct the jury on Rock’s claim for indemnity against BHP and Susquehanna. BHP, for its part, adopts Rock’s position on the first issue. It does, however, on the second issue, maintain that the trial court was correct in not giving instructions on Rock’s indemnity argument. From the^^ouit court’s judgment, appellants filed a timely appeal, and whereby ask us to address the two questions put forth above.

Discussion We must consider two issues. First, we must determine whether the trial court was correct in refusing to give the requested instructions on the negligence issue. Second, we must ascertain whether the trial court should have given jury instructions regarding the indemnity issue. Since “[a] litigant is entitled to have his theory of the case presented to the jury,” a trial court is required to give the requested jury instructions (1) if it correctly states the law, and (2) if the law is applicable.

Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651 (1979) (quoting Levine v. Rendler, 272 Md. 1 , 320 A.2d 258 (1974)). Additionally, Md. Rule 2-520(c) provides: How Given — The court may instruct the jury, orally or in writing or both, by granting requested instructions, by giving instructions of its own, or by combining any of these methods. The court need not grant a requested instruction if the matter is fairly covered by instructions actually given. ⁴²¹ McLRule 2-520(c) (1993 & Supp. Aug. 1993). Therefore, in reviewing the propriety of a trial court’s decision, we must “determine whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given.” Wegad v. Howard Street Jewelers, 326 Md. 409, 414 , 605 A.2d 123 (1992) (emphasis added).

A. The Negligence Issue Negligence can be established by demonstrating the following four elements: (1) a duty owed to the plaintiff by the defendant; (2) a breach of that duty by the defendant; (3) a legally cognizable causal relationship between the breach of duty and the harm suffered; and (4) damages suffered by the plaintiff. Yousef v. Trustbank Savings, F.S.B., 81 Md.App. 527, 535-36 , 568 A.2d 1134 (1990) (citations omitted); see also Jacques v. First Nat’l Bank, 307 Md. 527, 531 , 515 A.2d 756 (1986). Appellants argue that the court erred in refusing to grant their requested jury instructions. 6 They state that by ⁴²² instructing the jury to determine whether appellants had “exercised reasonable care” the court “failed to enunciate the concurrent standard for a landlord that the acts be ‘measured’ by ‘the criminal activities occurring on his property’ and ‘of which he knew or should have known.’ ” Accordingly, the instructions were not in accordance with Scott v. Watson, 278 Md. 160 , 359 A.2d 548 (1976). Appellee asserts that the trial judge gave the correct instructions.

Her case is predicated on appellants’ voluntarily undertaking a duty to provide for her safety on the premises. In support of this argument she states This duty was assumed by E.G. Rock when its agent, Ethel Carter, responded to Ms. Danly’s complaint of a strange man in her apartment and by telling Ms. Danly that she would look into the matter. Indeed, Ms. Carter went further when she came to Ms. Danly’s apartment and engaged in conduct that created the impression with Ms. Danly that Appellant E.G. Rock had verified the identity of the intruder. A similar argument is made regarding BHP’s assumption of a duty through its agent McCarthy.

The issue, therefore, as phrased by appellee, is “having assumed this duty it was up to the jury to decide whether appellants exercised reasonable care.” Appellee states that the trial court did not commit reversible error since it gave the proper instructions. She points out that the instructions requested by appellants are premised on the occurrence of prior criminal activity on the premises. She contends that the Scott case and ultimately the instructions requested by appellants were not an issue in the case below. Alternatively, appellee maintains that even if Scott were applicable, appellant’s instructions did not correctly reflect the landlord’s duty to its tenant.

We agree. ⁴²³ The court issued the following instructions regarding the duties that apply to appellants: Now, we have spoken of negligence. Negligence is doing something that a person using ordinary care would not do or not doing something a person using ordinary care would do. Ordinary care is that caution, attention or skill a reasonable person would use under similar circumstances. A person who volunteers or agrees to do something to protect another even though there was no pre-existing duty to protect, must exercise reasonable care in doing what was volunteered or agreed to be done.

Reasonable people change their conduct according to the circumstances, and the danger they know or should know exists. Thus as danger increases, a reasonable person acts more carefully. Appellee’s case is predicated on the Good Samaritan doctrine as defined in the Restatement (Second) of Torts § 324A (1965). In pertinent part, the doctrine states: One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if (a) his failure to exercise such care increases the risk of such harm, or (b) he has undertaken to perform a duty owed by the other to the third person, or (c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

The Court of Appeals of Maryland has not, unlike other courts, 7 specifically endorsed this section. It has, however, been recognized as a part of Maryland law. See In re Sabin ⁴²⁴ Oral Polio Vaccine Products Liab. Litig., 774 F.Supp. 952, 954-55 (D.Md.1991) (“It is undisputed that the [Good