Howard County Board of Education v. Cheyne

¹⁵³ DAVIS, Judge. Appellees, Leland Cheyne and Cathy Cheyne, initiated suit in the Circuit Court for Howard County against the Howard County Board of Education (Board) (appellant herein), Howard County, the Howard County Department of Parks and Recreation (Department of Recreation), and the Nissan Corporation. The dispute arose from injuries suffered by Tiffany Cheyne, appellees’ four-year-old daughter, while on the premises of the West Friendship Elementary School. Howard County, the Department of Recreation, and Nissan were each dismissed from the case.

At the close of all evidence, the trial judge ruled as a matter of law that Tiffany Cheyne was an invitee of the Board throughout the entire time she was on the school premises. On September 11, 1992 a verdict was rendered against the Board. Final judgment was entered January 8, 1993. The Board filed a timely notice of appeal and raised the following questions for our review: I. Whether the trial court erred in denying [appellant’s] motion for judgment at the conclusion of all the evidence and finding as a matter of law that Tiffany Cheyne was an invitee and instructing the jury based on this finding where there was no legally sufficient evidence to support a finding that Tiffany Cheyne was an invitee.

II

Whether the trial court erred in ruling that Tiffany Cheyne was an invitee at all times while at the school and failing to instruct the jury on the law with respect to exceeding the scope of an invitation and trespass to chattels when the evidence supported such instructions. FACTS The Education Article of the Maryland Annotated Code (ED), § 7-108 (1992), provides that “[e]ach county board shall encourage the use of public school facilities for community purposes.” Consistent with this legislation, the Board adopted a policy to encourage the use of its facilities, including the West Friendship gymnasium, by community organizations. The Howard County Public School Sys. Policy, Use of School ¹⁵⁴ Facilities by Nonschool Groups (hereinafter Facilities Policy), no. 11111.1.

The public school policy contained detailed procedures for gaining permission to use school facilities, a schedule of charges, and a list of standards that users must follow. The Department of Recreation is not charged a fee for use of school facilities, pursuant to an agreement with the Board. On November 23, 1987 the Board granted permission for the Department of Recreation to use the West Friendship school gymnasium to conduct a basketball league on Saturdays from January 9, 1988 through March 26, 1988. On February 6, 1988 Tiffany Cheyne went to the West Friendship gymnasium with her mother and father to watch her brother participate in a basketball league organized by the Department of Recreation.

The program was designed for children between the ages of six and seven years old. Mr. Cheyne was a volunteer coach for the basketball league. Arriving at approximately 10:00 a.m., the family watched a scrimmage that ended at approximately 11:30 a.m. The Cheynes stayed after the scrimmage, and Mrs. Cheyne shot baskets with Tiffany, who would apparently retrieve the ball for her.

According to the testimony of Mr. and Mrs. Cheyne, by this time all of the participants and spectators had left with the exception of the Cheynes and one other family. While retrieving a ball, Tiffany allegedly rolled over the ball and her face struck a piece of exercise equipment known as the “phys-educator,” which was in its folded position and resembled a ladder leaning against a wall. The evidence revealed that two lower hinges were broken, resulting in the projection of two metal bars that should properly be flush with the outer edges of the phys-educator. There was contradictory evidence at trial, from a treating physician, that possibly Tiffany was injured when she fell from a ladder.

Tiffany’s severe injury resulted in removal of her right eye. The Board moved for judgment in its favor at the close of appellees’ case and, at the conclusion of all the evidence, argued that Tiffany was at most a licensee and therefore the Board had not breached a duty owed. Ultimately, the court ¹⁵⁵ ruled as a matter of law that Tiffany was an invitee and that she remained so throughout the time she was at the school. LEGAL ANALYSIS General Principles We are asked to determine the legal status of a four-year-old child on the premises of a public school to attend a sports function sponsored, not by the individual school or the Board of Education, but by the Department of Recreation.

This precise issue is one of first impression in this State. Nonetheless, we have found sufficient guidance in our case law to conclude that Tiffany was an invitee of the Board when she entered the school gymnasium and that the determination of whether she maintained this status was a question of fact for the jury. Maryland law maintains the common law classifications of invitee, licensee, and trespasser. Rowley v. Mayor of Baltimore, 305 Md. 456, 464 , 505 A.2d 494 (1986); Bramble v. Thompson, 264 Md. 518, 521 , 287 A.2d 265 (1972).

See also Casper v. Charles F. Smith & Son, Inc., 316 Md. 573 , 584 n. 8, 560 A.2d 1130 (1989) (questioning the usefulness of distinct standards of care for a licensee and invitee). An invitee is, in general, a person invited or permitted to enter or remain on one’s property for purposes connected with or related to the possessor’s business. A licensee is one who enters property with the possessor’s knowledge and consent but for his own purpose or interest. Bramble, 264 Md. at 521 , 287 A.2d 265 .

Invitee status can be established under two doctrines: (1) mutual benefit or (2) implied invitation. The mutual benefit theory is typified by the person who enters a business establishment to purchase goods or services. This theory places great weight on the subjective intent of the plaintiff. The court must inquire: Did plaintiff intend to benefit the landowner in some manner?

We do not find that ¹⁵⁶ Tiffany was an invitee under the mutual benefit doctrine because there is no evidence of a mutual benefit. 1 The theory of implied invitation, in comparison, is objective and does not rely on any mutual benefit; it gains its vitality from such circumstances as custom, the habitual acquiescence of an owner, the apparent holding out of premises for a particular use by the public, or the general arrangement or .design of the premises. Crown Cork and Seal Co. v. Kane, 213 Md. 152, 159 , 131 A.2d 470 (1957). The crux of the implied invitation theory is the distinction between mere acquiescence and direct or implied inducement. Id.

Kane is the seminal Maryland case on implied invitation. In that case, Kane, a truck driver, while waiting for his truck to be loaded, left the docking area and proceeded to a smoking room in Crown’s basement. Since no smoking was permitted in the docking area, Kane, like numerous other truckers, habitually accessed the smoking room during their wait. As he was returning from the basement, Kane was struck and injured by a forklift.

In reaching its holding—that there was legally sufficient evidence to take the issue of implied invitation to the jury—the Court explicated and relied upon the growing doctrine of implied invitation. The Court stated that [t]he gist of [implied invitation] liability consists in the fact that the person injured did not act merely on motives of his own, to which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not ¹⁵⁷ only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used. [Citations omitted.] Id. at 160 , 131 A.2d 470 quoting Kalus v. Bass, 122 Md. 467, 473 , 89 A. 731 (1914). Based on this rationale, the Court found that the facts that the room was set aside for smoking, that its location was made known to the plaintiff by Crown employees on two prior occasions, that the room was habitually used by truckers, that this use was known by the foreman, and the absence of any notice to plaintiff that the room was solely for employees led to the conclusion that there was legally sufficient evidence to instruct the jury on implied invitation. Kane, 213 Md. at 162 , 131 A.2d 470 .

More recently, in Doehring v. Wagner, 80 Md.App. 237, 244 , 562 A.2d 762 (1989), and Woodward v. Newstein, 37 Md.App. 285, 293 , 377 A.2d 535 (1977), we have discussed Kane’s explication in view of the Restatement (Second) of Torts § 332 comment c (1965), (hereinafter Restatement), “Factors important in determining invitation,” which states that “the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor.” Tiffany’s status vis-a-vis the Department of Recreation is not raised in this appeal, but we may reasonably assume, arguendo, that she was an invitee of the Department of Recreation. Tiffany’s relationship to the Board can follow two lineages: (1) through the Department of Recreation or (2) directly to the Board. Whichever lineage is followed, Tiffany was an invitee. I. A. Tiffany was an invitee of the Department of Recreation, which was an invitee of the Board of Education The Education Article mandates that the Board shall encourage the use' of its schools for community purposes, ¹⁵⁸ including recreational purposes, and that such meetings shall be open to the public.

ED § 7-108(a), (b). The Howard County public school facilities policies are consistent with and further the State policy. Facilities Policy number 11111.1 states, in pertinent part, that [t]he use of public school facilities for community purposes is encouraged by the Board of Education of Howard County and is in accordance with the Public School Laws of Maryland. ... All nonschool activities must be open to the public and cannot discriminate on the basis of location of residence within Howard County.

The use of these facilities shall be available by application in the prescribed manner. Organizations may be charged a user fee. [Emphasis added.] Facilities Policy number 11111.2 states as “Background” that Maryland Public School Laws state “each county board shall encourage the use of public school facilities for community purposes.” The belief that these facilities should be utilized to their optimum is held by the Board of Education of Howard County. Through this maximum and efficient use, the taxpayer will receive the greatest return. Appellant argues that the Board merely acquiesced in or permitted the use of the school facilities by the Department of Recreation without inducing or encouraging that department to use its premises.

Appellant is correct that mere acquiescence or mere permission will not create an invitee status. The facts of the case sub judice are distinguishable, however, from those cases demonstrating mere acquiescence or mere permission. In the leading Maryland example of mere acquiescence, Carroll v. Spencer, 204 Md. 387 , 104 A.2d 628 (1954), an eight-year-old boy was injured when he wandered into a partially built house and fell through a hole in the floor. Prior to entering the house, the boy called out to the foreman, who looked at the boy but did not respond.

The Court held that the foreman’s actions at most constituted an acquiescence that ¹⁵⁹ could not transform the boy’s status from trespasser to invitee. Id. at 393 , 104 A.2d 628 . Although no Maryland cases specifically address the issue of permission, Restatement § 332 comment b, “Invitation and permission,” makes the following distinctions: An invitation differs from mere permission in this: an invitation is conduct which justifies others in believing that the possessor desires them to enter the land; permission is conduct justifying others in believing that the possessor is willing that they shall enter if they desire to do so. Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation. [Emphasis added.] It is not altogether clear why comment b focuses on the distinction between desire and willingness and comment c, supra, uses the two terms as synonyms.

Nonetheless, we think that the lucid point made by the Restatement is that the possessor’s actions must be more than passive acceptance; there must be some form of inducement or encouragement. In the instant case, the record evidences a deliberate policy of encouraging the nonschool use of the facilities to fulfill the desires of the Board, ie., to maximize the use of its property and benefit the community. We do not agree with appellant’s contention that a policy of encouragement is akin to willingness and not desire. To encourage an activity is to stimulate its occurrence, and that is exactly what the policy did—it stimulated the Department of Recreation and other groups to use the school facilities. < Moreover, we do not find that the Board’s desire was vitiated by the act of granting permission.

Permission does not preclude a finding that other words or conduct implied an invitation. In Kane , there was evidence that a Crown employee had previously granted Kane permission to use the smoking room, and it was this very permission along with other conduct that resulted in an implied invitation. In the case sub judice, permission was a necessary formality to implement the policy of encouraging, without discrimination, broad-based use ¹⁶⁰ and access to school facilities by the community. In addition to the Board’s express policy, there was evidence of circumstances including the customary use of school facilities by the Department of Recreation and habitual permission granted by the Board.

We find guidance in a similar case from another jurisdiction addressing the issue of public invitation, which is essentially a subcategory of Kane’s implied invitation. 2 In McKinnon v. Washington Fed. Sav. and Loan Ass’n, 68 Wash.2d 644 , 414 P.2d 773 (1966), a bank celebrating its grand opening held an open house and displayed inside its premises a 4 by 8 feet sign that read: This room and adjoining kitchen facilities are available for the free use of local clubs and organized groups for meetings and conferences, either during regular office hours or in the evenings. Arrangements can be made in advance by contacting any one of the staff members. Courtesy of Washington Federal Savings. Id. 414 P.2d at 774 .

Among those organizations that took advantage of the offer was the local Girl Scout Troop (Scouts). It was common practice for the Scouts to enter and exit through a back door. One evening an adult leader was approaching the back door to enter when her left foot struck a sprinkler head that was alongside the sidewalk. The McKinnon court, relying on the Restatement’s Public Invitee status, held that the sign was an invitation to “a segment of the public” by the bank to use its building for group meetings, and the Scout leader was an invitee as a matter of law.

Id. 414 P.2d at 777-78 . The sign in McKinnon was an invitation to local clubs and organized groups. The Facilities Policy adopted by Howard ¹⁶¹ County was an invitation directed to any community group, including the Department of Recreation, that might want to make use of the school facilities. Although the McKinnon court did not address the issue of permission, it would be unreasonable to believe that the bank had committed its facilities to all groups for all purposes.

The Board’s invitation was no more contingent upon approval than was the bank’s. What was important in McKinnon was that the policy enunciated in the sign created a reasonable expectation that the public was invited and that the premises were made safe for the purpose for which they were held open. A fortiori, the Facilities Policy did more than enunciate that facilities were “available”—the policy encouraged and induced the Department of Recreation to use school facilities and created a reasonable expectation that the Board had adequately prepared for the safety of those participating in the Department of Recreation’s activities at the school. B. Tiffany Was a Public Invitee Even if the Department of Recreation had not been an invitee of the Board, Tiffany would nonetheless have been a public invitee of the Board because the Board encouraged community groups to use school facilities, mandated public access to nonschool events, and created an apparent holding out of the premises for public access.

The notion that members of the public can enjoy invitee status if the landowner acts in some way to encourage the public to access his land was only generally discussed in Kane, 213 Md. at 159 , 131 A.2d 470 . Eight years after Kane was decided, the Restatement (Second) of Torts § 332 was published. It enunciated a two-part classification of invitees: (1) public invitees and (2) business visitors. 3 The Restatement defines a public invitee as “a person who is invited to enter or remain on land as a member of the public for a purpose for ¹⁶² which the land is held open to the public.” Restatement § 332. This definition is consistent with Kane’s implied invitation that can arise from “the apparent holding out of premises to a particular use by the public.... ” Kane, 213 Md. at 159 , 131 A.2d 470 .

The Restatement emphasizes the “purpose” element of the invitation. It is immaterial that an admission fee is not paid, or that the landowner is not mindful of a business purpose, or that the visitor’s presence will lead to no possibility of benefit to the landowner, pecuniary or otherwise. It is essential, however, that the visitor is on the premises for the purpose for which the land is held open to the public. Thus, the Restatement illustrates that a visitor is an invitee at the free public library when she enters to read a book, but not when she enters to meet a friend or to get out of the rain.

Restatement § 332 comment d, illustration 2. In addition to purpose, the Restatement § 332 comment d emphasizes the need for inducement or encouragement as in' other instances of invitation. Thus, “the desire or willingness to receive that person which a reasonable man would understand as