Edwards v. Chadwick

Orth, C. J., delivered the opinion of the Court. This appeal concerns the liability of a lessor of land with respect to persons outside the land who suffer physical harm by reason of a condition of the land or by reason of activities of lessees of the land. At issue is the applicability of §§ 379 and 379A, Torts 2d, Restatement of the Law. Section 379 reads: “A lessor of land who transfers its possession in a condition which he realizes or should realize will involve unreasonable risk of physical harm to ¹⁴² others outside of the land, is subject to the same liability for physical harm subsequently caused to them by the condition as though he had remained in possession.” Section 379A reads: “A lessor of land is subject to liability for physical harm to persons outside of the land caused by activities of the lessee or others on the land after the lessor transfers possession if, but only if, (a) the lessor at the time of the lease consented to such activity or knew that it would be carried on,and (b) the lessor knew or had reason to know that it would unavoidably involve such an unreasonable risk, or that special precautions necessary to safety would not be taken.” The question on appeal is presented in the context of the charge to the jury.

Appellant claims that the refusal of the court to instruct under § 379 was prejudicial error. Statement of the Case BRENDA LEE STOWERS (Brenda) and CHARLES W. STOWERS, JR. (Charles), her husband, 1 filed an action on 23 October 1970 in the Circuit Court for Frederick County against FRANCIS E. SCHUSTER and GEORGE A. CHADWICK, JR. In Case 1 of the Declaration Brenda sued Schuster and Chadwick, alleging that on 8 March 1970 while she was operating her auto south on State Route 28, a public highway in Frederick County, at night in open country, she received personal injuries and her auto was damaged “when it collided with a dark colored horse standing in, crossing, or wandering along the southbound lane and went out of control and into a pole across the highway.” Count I averred: “because of the negligence of the Defendant Schuster, who ¹⁴³ owned or controlled this horse which had wandered onto the road from the adjoining field (part of an entire farm known as ‘Rock Hall’) owned by the Defendant Chadwick and leased and used by the Defendant Schuster for keeping livestock, including horses, in failing to maintain proper fencing around the fields where his livestock grazed, and especially along this highway and in allowing his animals or those under his control to wander from his land onto and across the highway, even after repeated warnings and requests to repair the fence or otherwise keep his animals on his land, and because of the negligence of the Defendant Chadwick, as owner of this farm, in leasing it to the Defendant Schuster, knowing that it was going to be used for the keeping of animals and that there were numerous places where the fence was down or so in disrepair that animals could get out on the adjacent highway causing a dangerous situation and nuisance for drivers on the highway”.

Count II averred: “and because the Defendants, as owner and lessee of this farm, created and allowed a public nuisance on this highway by not repairing this fencing before or during the entire period of the lease, so that the animals owned or controlled by the Defendant Schuster could wander from this farm onto the highway into the path of traffic”. Alleging that her injuries, losses and expenses were caused directly by the negligence and nuisance of Schuster and Chadwick, without any negligence on her part contributing, Brenda claimed $150,000. In Case 2 Charles alleged that while riding in the auto operated by his wife, he received personal injuries and suffered expenses as a direct result of the negligence and nuisance of Schuster and Chadwick as set out in Case 1. He claimed $25,000.

In Case 3 Brenda and Charles sued Schuster and Chadwick “because their marriage lost and will lose the services each would have provided, had they not been injured as a direct result of the negligence and nuisance of the Defendants, as more particularly stated in the allegations of the Declaration in Case 1, . . . .” They claimed $25,000. Schuster’s plea, in essence, denied his alleged negligence, responsibility and liability while Chadwick pleaded the general issue to “each and every count of the declaration”. ¹⁴⁴ After a flurry of discovery procedures, during which the court denied Brenda’s motion to amend the declaration to increase the amount of her alleged damages to $350,000, trial before a jury commenced on 16 May 1973 and testimony was heard for two consecutive days. At the conclusion of all the testimony, and after the submission of written prayers on behalf of plaintiffs and Chadwick, the court held a conference in chambers at which both Schuster and Chadwick moved for directed verdicts. The court reserved decision on the motions and entertained discussion on the prayers submitted.

On 18 May 1973, prior to the court’s rendering its instructions, another conference in chambers resulted in the determination that the case be submitted to the jury on issues for the return of a special verdict. Maryland Rule 560. Trial reconvened, the jury was instructed by the court, the issues for their consideration were read, exceptions to the instructions were noted out of the jury’s presence, further instructions were given, counsel presented their closing arguments, and the case went to the jury. The jury found on the issues submitted: 1) the horse which was struck by Brenda’s auto was owned or under the control of Schuster. 2) Schuster knew or had reason to know on the date of the accident that the use he was making of the farm would involve an unreasonable risk of harm to persons lawfully using the adjoining highway, Route 28. 3) the unreasonable risk was a proximate cause of the accident. 4) Chadwick did not know nor did he have reason to know at the time he leased the farm to Schuster in March, 1968, that the use of the farm by Schuster would unavoidably involve an unreasonable risk of harm to persons lawfully using the adjoining highway, Route 28, and that the tenant would not cure such unreasonable risk. 5) Brenda was not guilty of any negligence which directly contributed to the happening of the accident. ¹⁴⁵ The jury assessed damages in favor of Brenda in the amount of $75,000, and in favor of Charles in the amount of $5,000.

On 18 May 1973 judgments nisi were entered in favor of Brenda against Schuster for $75,000, in favor of Charles against Schuster for $5,000 and in favor of Chadwick. On 21 May judgments absolute were entered as to Brenda and Charles against Schuster. On 31 August, upon hearing, a motion for a new trial filed on 21 May by Brenda and Charles as to Chadwick was denied, and judgment absolute entered in favor of Chadwick. On 27 September Brenda and Charles filed an appeal from the judgment in favor of Chadwick. 2 The Evidence Adduced We give a compendium of the evidence adduced.

The Chadwick farm of approximately 300 acres was leased by Schuster. It is generally located on the east side of Route 28 in Frederick County, north of Dickerson, Maryland and the Montgomery County line and just south of the Monocacy River. The farm is variously known locally as the Belt Farm, Rock Hall Farm or the Shiloh Dude Ranch and contains a main house, barn and yard, tenant house and various outbuildings. Apparently five fields of the approximately 300 acre farm were enclosed by fencing at various times and were used by successive tenants.

The three fields contiguous to Route 28 (running north-south) were apparently used in recent years more for the cultivation of grain crops than the pasturing of animals. The property had been vacant for several months before Schuster leased it on 15 March 1968. Chadwick said that Schuster leased the farm for the purpose of keeping horses and that Schuster stated that he wanted “to run a dude ranch 3 like was run there before”. The terms of the lease, in addition to the payment of rent and the making of certain structural repairs to the ¹⁴⁶ buildings, provided inter alia that Schuster as lessee would make “. . . any minor repairs, improvements or alterations . . . without the prior approval of . .

Chadwick and that he, Schuster, could “. . . cut specified trees to provide the necessary posts for fencing”. Chadwick testified that at the time he leased the property he knew that not every field had a “tight” fence but that “there were five fenced fields”. He believed that the “southernmost of the three front fields” bordering Route 28 (south field) was “in the poorer condition” in terms of fencing but that the northernmost field had an excellent woven wire fence with a strand of barbed wire on the top and that the middle field had a fence “not really as strong” made of 30 inch hog wire with two strands of barbed wire on top. The two back fields were, in Chadwick’s view, adequately fenced to contain horses.

Apparently recognizing .that the fencing would require periodic repair, realizing that some fencing was damaged during the winter and knowing that it was Schuster’s responsibility under the lease to make repairs, Chadwick provided Schuster with two rolls of barbed wire for fence maintenance soon after he took possession. Chadwick related he told Schuster “. . . that if he needed additional material or more barbed wire that [he] would be glad to furnish it.” Schuster testified that he knew the fencing of the south field along Route 28 was in poor condition when he took possession. He described the fence and his efforts at repair: “There was wire there and it was covered with honeysuckle and stuff and I pulled that up and renailed it to the post and I put a strand of barbed wire down the top of it.” He also closed up three gaps 4 in the fence and put in “some” new posts. Despite Schuster’s efforts, his repairs were seemingly to no avail.

Shortly after he introduced horses to the farm — a few months after taking possession — according to the ¹⁴⁷ testimony of various neighbors, Schuster’s horses were frequently on adjoining properties or wandering free. Robert J. Pryor, who lived on the farm just opposite Schuster, on the west side of Route 28, across from the deteriorated fencing of the south field, testified that Schuster used the field for grazing and that horses wandered through a hole in the fence just opposite his land and through an opened gap, crossed Route 28 and into his field. Pryor testified that sometimes there were as many as “3 to 13 or 14 horses” in his alfalfa fields bordering the highway “quite a few times every week”. In his view, the fence was in such “very poor” condition that “the horse would rub against it, it would break and they would have a hole that they could get through”.

Perry Pryor generally corroborated his father’s testimony concerning the poor condition of the fence, its inadequacy to hold horses and the fact that Schuster’s horses were frequently without the confines of his fields. That testimony was confirmed either in whole or in part by other witnesses. 5 On the evening that the accident giving rise to this case occurred, Brenda was driving south on Route 28 with Charles as a passenger in the right front seat when, without warning, a horse appeared in their lane from the side of the highway. Charles testified that he “hollered, watch that horse”, “the horse hit the car”, and “the car kept going until it finally stopped”. The investigating officer, Trooper Fred Yeager, testified that when he arrived on the scene “there was a horse lying in the southbound right-hand lane of traffic and on the left shoulder which would be westbound ¹⁴⁸ [sic] of the road was a 1962 Chevrolet which had run into a utility pole.” Trooper Yeager testified that the horse was a “dark bay” and that he “contacted people within a reasonable distance from the scene . . . and every person . . . advised [him] that it was probably Mr. Schuster’s.” Trooper Yeager stated that Schuster denied ownership of the horse.

The Charge to the Jury In the instructions to the jury the trial court explained that Chadwick was not to be found guilty of negligence or otherwise liable to Brenda and Charles merely because Schuster may be found to be negligent. It said: “So even though you find negligence under issue #2 6 as to Mr. Schuster, that doesn’t mean you necessarily have to make the same finding as to Mr. Chadwick because as I say, his liability is different. The law governing his liability is different than that governing Mr. Schuster, who was the operator of the farm and in control of the farm at the time of the accident. I further want to advise you in connection with Mr. Chadwick in connection with your answer to issue #3 7 that under the law an owner of land is subject to liability for physical harm to persons outside the land caused by the activities of the tenant after the owner transfers ¹⁴⁹ possession to the tenant if, but only if, A, the owner at the time of the lease consented to such activity and knew that it would be carried on and B, the owner knew or had reason to know that the use by the tenant would unavoidably involve such an unreasonable risk or that special precautions necessary to safety would not be taken by the tenant.

If the unreasonable risk is not a necessary consequence of the contemplated activities of the tenant and such activities could normally be conducted without creating the unreasonable danger to those outside the land by taking precautions, the owner of the land, in this case Mr. Chadwick, is not liable unless he knows or has reason to know that the tenant intends to carry on these activities without taking precautions. Accordingly, you are instructed that unless you find after considering all of the evidence that Mr. Chadwick knew or had reason to know that his tenant, Francis Schuster, intended to carry on the activity of keeping horses on the farm without taking precautions to avoid the creation of an unreasonable risk of harm to users of the highway, then Mr. Chadwick would not be liable in the case and your answer to the issue involving him, No. 3a, should be no.” The court explained further: “Now, this deals a little bit with what I said to you earlier about Mr. Schuster not being a tenant or an agent or servant of Mr. Chadwick, and that is, ........I think I explained it, but maybe I should explain again. The mere fact that Mr. Schuster may have been negligent at the time of the accident in the keeping or maintenance of his farm fences wouldn’t necessarily mean that Mr. Chadwick was equally negligent because as I say, any charge against him must be based upon what he knew or had reason to know in 1968 as to what the defendant would or would not do or what the ¹⁵⁰ tenant would or would not do on the farm at a later date. He can’t be held responsible merely because without this prior knowledge merely because Mr. Schuster may have been negligent in 1970.

In other words, Mr. Chadwick is not to be found responsible under issue #3a merely because his farm may have been used in 1970 in an improper manner unless you find that this farm could not under any circumstances have been used in a reasonable and proper manner. Also, he cannot be held responsible under issue 3a unless you find that he knew or had reason to know that Mr. Schuster might fail to exercise reasonable care in maintaining the fences around the farm in a proper and safe condition bearing in mind the safety of persons lawfully on Route 28. If you should find that Mr. Chadwick neither knew nor had reason to know that Mr. Schuster would fail to maintain the fences or might fail to maintain the fences on the farm in proper repair, or if you believe that he neither knew nor in the exercise of reasonable care should have known that Mr. Schuster would permit horses to remain on portions of the farm which may not be surrounded by proper fences, then your verdict again should be no on that issue relating to Mr. Chadwick:” The charge was discussed out of the presence of the jury. Maryland Rule 554d.

Counsel for Brenda and Charles excepted to the instructions with regard to issues 2 and 3. Rule 554e. At first he excepted “to the concept of submission of the case to the jury” based on § 379A of Restatement of the Law, Torts 2d. He excepted “especially to the concept that that apparently according to