Fagerhus v. Host Marriott Corp.

ADKINS, J. While running on a fitness trail early on a January morning, Geir Fagerhus, appellant, fell on “black ice,” injuring his shoulder. Alleging various acts of negligence, Fagerhus sued ⁵³⁰ appellees Eleventh Springhill Lake Associates, L.P. (“Eleventh”), the owner of the portion of the fitness trail where he fell (the “property”); Community Realty, Inc. (“Community”), Eleventh’s property manager; and Marriott’s Greenbelt Hotel Services, Inc. (“Marriott”), manager of the hotel where Fager-hus was staying at the time of his fall. In this appeal, Fagerhus challenges the grant of summary judgment in favor of all three appellees.

In particular, he asserts that the trial court erred in holding, as a matter of law, that Eleventh and Community enjoyed the statutory protection of Maryland’s recreational use statute (the “MRUS”), which protects private property owners who allow others to use their land for recreational purposes from liability for injuries arising out of such use. See Md.Code (1973, 2000 Repl.Vol.), § 5-1101 et seq. of the Natural Resources Article (“NR”). This statute has been “on the books” since 1966, enacted and expanded as part of a national trend toward increasing the amount of land available for recreation. Surprisingly, there is no reported Maryland precedent interpreting it.

Applying the language of the MRUS in light of its purpose, we shall hold that the trial court correctly ruled that neither the property owner nor the property manager had a duty to make the trail safe for Fagerhus. In addition, we shall hold that the trial court correctly granted judgment on Fagerhus’ claims against Marriott. FACTS AND LEGAL PROCEEDINGS Fagerhus checked into the Greenbelt Marriott Hotel (the “hotel”) on the windy, stormy evening of January 28, 1998. Traveling from his home in Mahno, Sweden, he was in town to visit his software engineering company’s offices in College Park.

He had stayed at the hotel five or six times previously; on those occasions, he had used the fitness trail three or four times. He accessed the asphalt trail by going left outside the reception area. ⁵³¹ The one-and-a-half mile trail, which is marked by signs saying “Fitness Trail” posted throughout the course, encircles a commercial area known as the “Capital Office Park.” 1 The trail passes through several different parcels of property, including the hotel property, privately-owned commercial property, state-owned property, and city streets. Community, as part of its property management services to Eleventh, inspected the property “[a]bout once a year,” usually at the beginning of summer, “when ... doing [its] asphalt concrete work for the rest of the park.” It made asphalt repairs in order to fill in holes and keep the trail intact. In managing snow and ice removal for parking lots and walkways, Community never cleared or warned of hazardous conditions on the fitness trail, which its on-site manager did not consider to be a walkway within the meaning of Community’s contractual obligations.

Fagerhus, a marathoner, usually went around the trail multiple times in the early morning, trying to run for “more than 45 minutest.]” Because the trail was not lit, he never ran on it in the dark. As he was checking in on January 28, Fagerhus considered going for a run, because he was preparing for his second or third marathon that year. It was dark and “pretty late,” so he “was wondering should [he] be running or shouldn’t [he].” He talked it over with a female Marriott employee in the reception area. I asked them [sic] ... if [the fitness trail] was open.

And I asked them if — I can’t recall exactly the wording — but I asked them if it was safe. And the reason I asked them that was because ... if I could get mugged or something. You know, I have been ⁵³² warned, as [a] European, that ... you shouldn’t go anywhere running during nighttime. So I asked them about that, and they said it was safe, but hot lit, was the answer at that time there.

So I decided to go running in the morning instead. When he woke on January 29, Fagerhus saw that there was a “clear weather change from the day before, even going from miserable to great.” The day was clear, dry, and “very sunny.” At approximately 7 a.m., as the sun was just about to rise, Fagerhus dressed in his running clothes, then “just went down[stairs] and asked the [same] receptionist if the fitness trail was open and safe.” “[I]t was sort of a joke from my part, more or less, you know, or casual, because it was sort of a great day out. And that was sort of the last conversation I had with them before I went up [to the hotel room] the day before.” Fagerhus set out on his run. He testified at his deposition that although he cannot recall how many times he had run around the trail, he “was on his final lap,” “running quickly” down a “minimal downhill” toward a bend in the path, when “suddenly [his] feet went just straight up in the air[.]” He landed on his right side, severely injuring his right hand, shoulder, hip, and leg.

He “checked the surface, and it was absolutely polished with ice .... what [he] would call black ice.” The black ice extended over the whole width of the path. During his run, Fagerhus had not seen anything to suggest this slippery condition, so that “[i]t was a complete surprise to [him].” He returned to the hotel in “extreme pain.” He did not report his fall to anyone at the hotel, but instead summoned help from his local office. They went to the emergency room of a local hospital, where Fagerhus was treated and released. Fagerhus changed his plans and flew home the same day.

He had surgery on his shoulder on February 9, followed by physical therapy. ⁵³³ Fagerhus and his wife 2 filed suit against (1) Eleventh, which owns the portion of the fitness trail where Fagerhus fell; (2) Community, which manages Eleventh’s property as well as other properties making up the Capital Office Park; and (3) Marriott, which manages, but does not own, the hotel, and which employed the person to whom Fagerhus spoke. In Count I, Fagerhus alleged that Eleventh and Marriott negligently failed to close the trail, make it safe, or warn Fagerhus, even though they “knew or should have known that the fitness trail was not safe and was in a dangerous condition that . .. was not and would not be apparent[.]” In Count II, Fagerhus claimed that Eleventh and Marriott negligently misrepresented the condition of the trail, by failing to advise him, as a business invitee, that the trail was not maintained or inspected, and leading him to believe that “they had done all things necessary, expedient and prudent to determine that the fitness trail was both open and safe for his use[.]” In addition, “by the posting of signs, by oral and written representations and otherwise,” Eleventh and Marriott falsely represented “that the fitness trail was operated by and under the jurisdiction of the Greenbelt Marriott!,]” leading Fagerhus “to reasonably believe that [the hotel manager Marriott] ... and/or [Eleventh] had responsibility to maintain and render safe the fitness trail when in fact they did not” do so. In Count III, Fagerhus complained that Community “had a duty to manage, maintain, inspect, ... [and] apply abrasives or other materials during periods of ice and/or snow accumulation,” to make the fitness trail safe, or alternatively, to warn “business invitees and guests of the condition of the fitness trail.” He alleged that he was “a third-party beneficiary of’ Community’s management contract with Eleventh, and that Community directly owed him a duty to make the trail safe or warn him of its condition. ⁵³⁴ In Count IV, Fagerhus asserted that Eleventh, as the property owner, “owed a duty to ... business invitees” such as Fagerhus to inspect the trail, and “to render [it] ... safe and fit to use,” or to “warn potential users ... of the potential dangers[.]” Eleventh and Community jointly moved for summary judgment, arguing, inter alia, that they had no duty to inspect or make the trail safe for Fagerhus’ recreational use, or to warn him of icy conditions. Marriott also moved for summary judgment on the grounds that it did not own or maintain the portion of the trail where Fagerhus fell, and that, as a matter of law, the alleged statements of its employee did not constitute an actionable misrepresentation.

Fagerhus opposed the motions. He offered, inter alia, an affidavit indicating that the patch of black ice formed as a result of a natural and predictable drainage pattern flowing downward from an adjacent grassy slope onto the fitness trail. At the end of the hearing on both motions, the trial court entered summary judgment in favor of Eleventh, Community, and Marriott. It held that “the fitness trail does fit into” Maryland’s recreational use statute.

The court reasoned that, as owner of the property, Eleventh had no duty to make it safe for Fagerhus’ recreational use, and, as the owner’s property management agent, Community could claim the same statutory protection. As to Marriott, the court concluded that it' “had no duty because there was a lack of relationship” in that it “had no ownership interest whatsoever” in the property where Fagerhus fell. In addition, the court determined that Marriott did not misrepresent that the trail was “safe” in the sense that it did not have ice. Fagerhus appeals the judgments, raising two issues, which we have reordered and rephrased: I. Did the trial court err in holding that, under Maryland’s recreational use statute, Eleventh and Community had no duty to Fagerhus?

II

Did the trial court err in holding that Marriott had no duty to Fagerhus because there was a dispute of fact ⁵³⁵ as to whether Marriott had assumed responsibility for its guests’ use of the fitness trail and/or negligently misrepresented its conditions to Fagerhus? DISCUSSION Standard For Review Of Summary Judgment “An appellate court’s review of the grant of summary judgment involves the determination whether a dispute of material fact exists, and ‘whether the trial court was legally correct.’ ” Taylor v. NationsBank, N.A., 365 Md. 166, 174 , 776 A.2d 645 (2001) (citations omitted). If the case presents a clear legal issue, which does not require the trial court to resolve motive, intent, credibility, or disputed facts and inferences, then the court may determine liability as a matter of law on a motion for summary judgment. See Nicholson Air Svcs. v. Bd. of County Comm’rs, 120 Md.App. 47, 62 , 706 A.2d 124 (1998).

We review de novo the trial court’s legal conclusion that a defendant is entitled to summary judgment. See Matthews v. Howell, 359 Md. 152, 162 , 753 A.2d 69 (2000). I. The Trial Court Correctly Applied Maryland’s Recreational Land Use Statute Fagerhus argues that the trial court erred in applying Maryland’s recreational use statute to “completely absolve” Eleventh and Community from liability. In support, he contends that construing the MRUS in this manner improperly “abrogate[s] traditional premises liability law,” under which a property owner must take reasonable care to make his premises safe or to warn of dangerous conditions.

Although we agree that applying the MRUS to Eleventh and Community effectively exempts them from traditional premises liability standards of care, we do not agree that the trial court’s decision to do so was error. To the contrary, the language of this subtitle and its legislative history make it clear that the legislature intended to carve out an exception ⁵³⁶ for precisely the circumstances presented by this case. 3 We explain. When we construe a statute, we ask what the legislature intended. See City of Baltimore v. Ross, 365 Md. 351, 361-62 , 779 A.2d 380 (2001).

The words of the statute are the primary source of information for that inquiry. See id. at 362 , 779 A.2d 380 . We also refer to “external manifestations of intent of general purpose available through other evidence,” including “a bill’s title and function[,] paragraphs, amendments that occurred as it passed through the legislature, its relationship to earlier and subsequent legislation, and other material that fairly bears on the fundamental issue of legislative purpose or goal, which becomes the context within which we read the particular language before us in a given case.” Williams v. City of Baltimore, 359 Md. 101, 116 , 753 A.2d 41 (2000)(in-ternal quotation marks and citation omitted). The MRUS subtitle was enacted in 1966.

Section 5-1103 of the MRUS plainly states: Except as specifically ... provided in § 5-1106 4 ..., an owner of land owes no duty of care to keep the premises safe for entry or use by others for any recreational or educational purpose, or to give any warning of a dangerous condition ... on the premises to any person who enters on the land for these purposes. NR § 5-1103; see former Md.Code (1957, 1966), Art. 66 § 410L; 1966 Md. Laws, Chap. 292. Even if a land owner “invites” the use of its property for recreational purposes, as ⁵³⁷ long as it does so without charge, its actions are not measured by traditional premises liability standards. [A]n owner of land who either directly or indirectly invites or permits without charge persons to use the property for any recreational or educational purpose . .. does not by this action: (1) Extend any assurance that the premises are safe for any purpose; (2) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or (3) Assume responsibility for or incur liability as a result of any injury to the person ... caused by an act or omission of the person. NR § 5-1104.

We need not speculate whether the legislature intended the MRUS to limit traditional premises liability standards, because it codified an intent to do so. The purpose of this subtitle is to encourage any owner of land to make land, water, and airspace above the land and water areas available to the public for any recreational and educational purpose by limiting the owner’s liability toward any person who enters on land, water, and airspace above the land and water areas for these purposes. NR § 5-1102(a)(emphasis added). The question, then, is whether Eleventh and Community were entitled to judgment as a matter of law on the basis of this statutory limitation on premises liability.

The MRUS covers “land,” which, as defined, explicitly includes “paths [and] trails,” when the land is used for “recreational purpose[s].” See NR § 5-1101(d). There is no dispute that such purposes include the recreational jogging at issue here. 5 The ⁵³⁸ crux of the issue in this case is whether Eleventh and Community are the type of property “owners” that the legislature intended to insulate .under this subtitle. A. The Landowner With respect to Eleventh, the answer is clear. The MRUS defines “owner” broadly, as “the owner of any estate or other interest in real property, whether possessory or nonpossessory, including the grantee of an easement.” NR § 5 — 1101(e).

The statute protects Eleventh, because it is undisputedly the fee simple “owner” of the property where Fagerhus fell. We reject Fagerhus’ contention that the benefits of the MRUS extend only to landowners who are “public entities.” There is nothing in the language of the definition of “owner” or of any other provision in the subtitle to support such a substantial restriction. To the contrary, the legislative history of the subtitle reveals that, from its inception, the MRUS has been targeted specifically to private property owners. Maryland’s statute was enacted in response to a 1965 recommendation by the Council of State Governments (the “Council”), and modeled on its “suggested state legislation.” The Council explained the public benefits of exempting private property owners from traditional premises liability duties.

Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available. Where the owners of private land suitable for recreational use make it available on a ⁵³⁹ business basis, there may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises.

However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them. In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return. Th[is] suggested act ... is designed to encourage availability of private lands by limiting the liability of owners to situations in which they are compensated for the use of their property and to those in which injury results from malicious or willful acts of the owner.

In 1966, Maryland’s legislature adopted the MRUS, joining a nationwide trend toward increasing recreational and educational opportunities. 6 See 1966 Md. Laws, Chap. 292. The subtitle was entitled “Public Recreation On Private Land” until 2000, when the legislature amended the MRUS to extend its protection to land owned by local governments. See NR § 5-1105.1 (sections