Hicks v. Hitaffer

Smith, J., delivered the opinion of the Court. Here we have an attempt to recover on behalf of a nine-year-old boy who lost the sight of one eye as a result of the explosion of a .22 caliber blank cartridge. The brief filed on his behalf says that he and other boys threw rocks at the cartridges and when this “child’s explosive would not go off he took it near his home and hit it with a hammer. It then went off * * Suit was brought on behalf of the boy, Herbert D. Hicks (Herbert), by his parents.

The father also sued in his own right. They appear here as appellants. Defendants and appellees here are the landowner, The Baltimore and Ohio Railroad Company (B ⁶⁶¹ & O) ; the alleged occupant of the land, Frank M. Hitaffer (Hitaffer) ; the former owner of an automobile junked and sold to Hitaffer, S. B. Pruitt (Pruitt) ; and Pruitt’s employer, Jerry Wolman Construction Company (Wolman). Judge Powers in the Circuit Court for Prince George’s County sustained demurrers on behalf of all defendants to the amended declaration without leave to further amend, saying: “The indispensable element of duty is lacking in the minor plaintiff’s case.

The defendants owed no duty to him, as a trespasser or licensee, ‘. . . . except to abstain from wilful or wanton misconduct and entrapment.’ See Herring v. Christensen, 252 Md. 240 , and cases cited therein. I cannot read wilful or wanton misconduct or entrapment into any of the acts of the defendants as alleged in the Amended Declaration.” We shall sustain the ruling of Judge Powers. The declaration states that young Hicks on April 3, 1967, was nine years of age, that on that day he sustained an injury to his eye “as the result of the negligence and carelessness of the Defendants and each of them” and, as a result, the right eye was removed on August 3, 1967, and a plastic eye inserted. It alleges, of course, that Herbert was in no way negligent.

It further alleges in pertinent part: “The Defendant Pruitt, prior to the injury to the minor Plaintiff, was involved in an automobile accident and his automobile was damaged to the extent that it was a total loss, which damage included damage to the trunk thereon leaving it open and the contents therein accessible to any person; that he sold his damaged automobile to the Defendant Hitaffer for junk and he knew that the automobile was to be stored on an open field in the back of Defendant Hitaffer’s ⁶⁶² place of business and that said automobile would be readily available to children; that in the trunk of his automobile were hundreds of detonator caps which he used in the course of his employment as a carpenter foreman for the Defendant Jerry Wolman Construction Company; that he stored the detonator caps in the trunk of his car in violation of Article 38 (a) [sic] of the Maryland Code, which required the Defendant Pruitt to store explosives in a safe and secure place for the purpose of making them inaccessible to children and to account for the explosives to his employer in order to prevent them from becoming available to children and further it required him to obtain a license prior to the handling and storage of said explosives; that the Defendant Pruitt, in handling and possessing an inherently dangerous substance, to-wit, explosives, had the common law duty and statutory duty to be extremely careful in safeguarding such explosives and not make them available to or accessible to any person, particularly children, outside of the scope of his employment activities; that he had the duty to remove the explosives from his automobile prior to the sale thereof to the Defendant Hitaffer and further, the duty to warn the Defendant Hitaffer of the presence in the damaged automobile of explosives; that notwithstanding such duties owed to the minor Plaintiff and to the public in violation of Section 38 (a) [sic] of the Maryland Code, Defendant Pruitt who was also unlicensed in violation of Section 38 (a) [sic] did negligently and carelessly sell his damaged automobile to the Defendant Hitaffer, and cause the minor Plaintiff and other children to pick up detonator caps which were strewn on the ground outside of the car and in the open trunk which in turn caused the minor Plaintiff to lose ⁶⁶³ his right eye when one of the caps exploded, which negligence was a proximate cause of the injuries suffered by the minor Plaintiff herein. “The Defendant Hitaffer purchased Defendant Pruitt’s damaged automobile and at the time of purchase the trunk thereon was damaged and open; that the Defendant Hitaffer and the Defendant Pruitt did place and store the automobile outside of the fenced property belonging to the Defendant Hitaffer in an open field which was indistinguishable to children of tender age as being private property or public property or parkland; that the Defendant Hitaffer knew that minor children did play in the open field to the rear of his property, which field was very close to a public grammar school, and the Defendant Hitaffer placed the Defendant Pruitt’s damaged automobile on said field along with other automobiles which field belonged to the Defendant The B & 0 Railroad Company; that the Defendant Hitaffer permitted and invited children of tender age to play upon the property belonging to the Defendant B & 0 Railroad; that the Defendant Hitaffer knowing that children would be playing upon and in said automobiles by virtue of his permitting and inviting them to do so, had the duty to inspect said automobiles prior to placing them upon B & 0 Railroad property to make certain that they were in a safe condition and did not contain therein dangerous substances or explosives which would injure a young child; that he had the further duty not to unlawfully invite and entice young children to play upon property he did not own, particularly since said property was an open area and was not apparent to young children that it was private property; that notwithstanding said duties he negligently and carelessly failed to inspect the Defendant Pru ⁶⁶⁴ itt’s automobile for dangerous substances; he unlawfully authorized minor children, including the minor Plaintiff, to play on and in the car purchased from Defendant Pruitt and other automobiles stored in said field; that he negligently and carelessly put the automobile on the field causing the trunk of the ear to open and the detonator caps to be strewn about the field and to be left in plain sight in the open trunk of the car; that notwithstanding said duties as aforesaid, he negligently stored his automobile in an unfenced area on private property belonging to another and he failed to have a license to possess explosives as required by Article 38(a) [sic] of the Maryland Code; that as a result of the violation of said duties as aforesaid his actions proximately contributed to the injuries of the minor Plaintiff. “The Defendant B & 0 Railroad Company was the owner of the property on which the Defendant Hitaffer stored the automobile which he purchased from the Defendant Pruitt, and B & 0 Railroad Company allowed Hitaffer to store the wrecked automobiles in the open and as the landowner, it had the duty to inspect such automobiles to make sure there were no traps or dangerous instrumentalities or conditions present on its land since its land was unfenced and was indistinguishable to young children to be either private or public property; that it allowed the storage of dangerous instrumentalities thereon and it knew or should have known that children were playing in the area, and being charged with notice, failed to inspect its land and the old stored automobiles thereon that it permitted and allowed to be stored thereon by the Defendant Hitaffer. “The Defendant Jerry Wolman Construction Company had the duty pursuant to Section 38 (a) ⁶⁶⁵ [sic] of the Maryland Code and by common law to store and safeguard explosives used in construction work and to require its employees to account to it for any supply of explosives used by its employees in its business in order to prevent such explosives from coming into the possession of unauthorized persons, particularly very young children, that notwithstanding such duties the Defendant Construction Company was negligent in that it failed to obtain a permit for the use of explosives as required by Article 38(a) [sic] of the Maryland Code as amended, and it failed to account for the detonator caps which caused the injury to the minor Plaintiff, as required by Section 38(a) [sic], Sections 27, 28 and 29 of the Maryland Code as amended, and it failed to properly inform or instruct its employee, Pruitt, not to take the explosives not necessary in the carrying out of his duties and because of these negligent acts, the Defendant Pruitt was allowed to store dynamite caps or detonator caps in the trunk of his car. Pruitt was then the agent, servant or employee of the Construction Company and was acting within the scope of his employment, and that said negligence on the part of the Defendant Construction Company was a proximate cause of the damages and injuries to the minor Plaintiff.” Two points of clarification become immediately necessary. The “explosive” in question, referred to as “detonator caps” and “dynamite caps” in the declaration, was stipulated at argument before us to be a .22 caliber short blank cartridge such as is used by contractors in nail guns and such as is used in starting guns for athletic events. We were shown an “explosive” of this type.

The statute in question, despite conflicting references to it, is Code (1965 Repl. Vol.) Art. 38A, §§ 26-36. It is not here applicable since § 26 states the term “explosives” does ⁶⁶⁶ “not include fixed ammunition for small arms * * The reason for this exclusion is speedily noted when one realizes that if this exception did not exist it would be unlawful without a license first obtained from the sheriff or police chief for any hunter to possess ammunition for his own enjoyment or for any homeowner to possess ammunition for his own protection. Moreover, a careful reading of the statute does not reveal standards there imposed relative to the use and possession of explosives as one might infer from reading Herbert’s declaration.

The plaintiffs in this case recognize our holding, as indeed they must, in Herring v. Christensen, 252 Md. 240 , 249 A. 2d 718 (1969), in which we said : “It is well established law in Maryland that ‘the owner of land owes no duty to a trespasser or licensee, even one of tender years, except to abstain from