Hutzler Bros. v. Taylor

McWilliams, J., delivered the opinion of the Court. Our determination of this appeal will depend, for the most part, on whether we agree with the trial judge’s holding that Mrs. Rebecca Timbres Taylor, when she fell and injured herself on the property of appellant (Hutzlers) in Towson, was an invitee rather than a licensee. The jury rendered a verdict of $7,000 in her favor and a verdict of $3,000 in favor of her husband, Richard R. Taylor. From the ensuing judgments Hutzlers has appealed.

The facts, with minor exceptions, are undisputed. An occasional glance at the plat made a part of this opinion will make our recital of the facts easier to comprehend. In 1949 Hutzlers owned the property at the southeast corner of Joppa Road and Dulaney Valley Road. It is designated “X” on the plat.

Additionally, it held under long term leases the 20 acre tract, owned by Goucher College, consituting the balance of the land shown on the plat. On 17 August 1949 Hutzlers, Goucher College, Baltimore County and the State Roads Commission entered into an elaborate agreement, the substance of which, as far as we are concerned here, is as follows : 1. Flutzlers agreed to build a department store on its property and to develop the Goucher property as a regional shopping center with a number of individual stores and a common parking lot. 2. Baltimore County and the State Roads Commission agreed to allow Hutzlers to use the space under Joppa Road as ²³⁰ a part of its store so that pedestrians could “freely move from the proposed parking lot on the Goucher property to the basement of Hutzlers’ property and vice versa, and thereby avoid crossing Joppa Road.” 3.

Hutzlers agreed to build a bridge to support Joppa Road so as to make possible the proposed use. 4. Hutzlers stated its intention to develop its property and the “Goucher property into stores and a shopping center” to be known as “Towson Plaza.” 5. Hutzlers agreed to maintain certain areas, including the place where this accident occurred. Mrs. Taylor fell at the top of the stairway (S on the plat) at the corner of Joppa and Dulaney Valley Roads.

The stairway had been installed to provide access from the parking area up to Dulaney Valley Road. Samuel Berryhill, Hutzlers’ maintenance supervisor for all suburban stores, testified that there once “was some discussion about putting a chain across that stairway and keeping pedestrians from using it.” This was discouraged by the man who was store manager at that time. His reason was that “people had to get down to the Plaza and it would be usable for them.” The present store manager, asked if he objected to the use of the stairway by persons who had been shopping at Towson Plaza, rather than Hutzlers, replied, “We exercise no restrictions [as] to that, sir.” In respect of any objection based on mercantile policy he said, “We all cater to the public, Mr. Iglehart.” Albert Hutzler, Jr., at the time of trial, had been president of the company for about 12 years. In 1949 he was secretary.

The primary reason for the stairway, he testified, was to enable people to get back to their cars on the parking lot when the store was closed. He stated that under the 1949 agreement with Goucher College “there can be nothing to impede customers from going between” Hutzlers and the shopping center. While the parking lot is for the benefit of Hutzlers’ customers he conceded that the store “cannot control the movement of every customer and [we] don’t want to, but we want to keep the parking lot as much as possible for” Hutzlers’ customers. (Emphasis supplied.) Some time after the opening of the store in 1952, Hutzlers added to the parking facilities by constructing an ele ²³¹ vated parking deck (A B C D on the plat) over a part of the original parking area.

One gains vehicular access to it from the lower level by means of a ramp. To reach Dulaney Valley Road, after parking on the elevated deck, it is necessary first to descend to the lower level and then climb the stairway (S on the plat). Hutzlers’ lower level parking area, in addition to the area under the elevated parking deck, is indicated on the plat by the letters EFGHJ C. This area is maintained by Hutzlers. The balance is leased to Towson Plaza and is maintained by it.

It will be observed that point G is but a few feet from the shopping center. There is no visible demarcation between Hutzlers’ area and the Towson Plaza area, unless “J” Road may be taken to be a dividing line. The entrance to the parking area from Dulaney Valley Road (J on the plat) is a 4 lane road (“J” Road). Mr. Berryhill agreed, as is obvious from the plat, that one entering at “J” and intending to shop at Towson Plaza would be on Plutzlers’ property whether he turned to the left or to the right to park unless, of course, all spaces were occupied, in which case the Towson Plaza area would have to be used.

On 13 August 1964 Mrs. Taylor was a 68 year old, 186 pound, twice-widowed former nurse who had been married to her present husband for about 2 years. A resident of Towson, she had been in England during July. Upon her return she went to Westminster, Maryland for a few days to attend a Quaker meeting. Around 11:00 A.M. she and her neighbor, Mrs. Wicks, set out for the shopping center in Mrs. Taylor’s car.

She let Mrs. Wicks out near the Hutzlers corner so she could go to a bank nearby. She was to meet Mrs. Taylor at an optician’s office a few blocks further down the street. Mrs. Taylor, unable to find a place to park near the optician’s office, drove to the Towson Plaza parking lot. She parked her car on the upper level, descended the steps to the lower level, and then ascended the stairway (S on the plat) leading to Dulaney Valley Road.

At the top of the stairway she stepped into a depression, turned her ankle and fell. Both Mrs. Taylor and Mrs. Wicks were regular customers of Hutzlers. Both had charge plates. Mrs. Wicks said it was “one ²³² of her favorite spots,” and that she did most of her shopping there.

She and Mrs. Taylor shopped together “quite frequently,” at least once a week, sometimes twice a week. It was their intention, after leaving the optician’s office, to “do a little grocery shopping.” Mrs. Taylor wanted to go to the Food Fair (O on the plat). Mrs. Wicks preferred to shop for her groceries at the Acme about 3 to 4 blocks distant from Towson Plaza. Mrs. Wicks said she and Mrs. Taylor often went to Hutzlers for lunch.

When they “were in the neighborhood” they would “go in Hutzlers and see what they had.” Mostly they looked at dresses. If Mrs. Taylor had not been injured "most likely [they] would have gone into the store.” (Emphasis supplied.) Mrs. Taylor said she shopped in Hutzlers about “twice a week.” She was “always looking for wedding presents” and “always looking in the art department and at dresses.” Whenever she wanted to go from the lower level to Dulaney Valley Road she usually went into the store and used the escalator. She recalled using the stairway “three or four times.” When she had done so was not made clear. There was nothing to prevent her from seeing what was in front of her, Mrs. Taylor conceded, but she “didn’t see” the depression.

She might have seen it if she had looked straight down but, she added, one doesn’t “go around the world looking down all the time.” No one denied the existence of the depression but there was some disagreement as to the extent of it. A police officer who came to the assistance of Mrs. Taylor said there was “a depression in the macadam.” Mrs. Wicks said “if you stepped on the edge of it, it would throw you.” Mr. Berryhill called it a “slight depression.” Mr. McClung, the assistant store manager, also described it as a “slight depression.” However, he said a color photograph taken 14 August by Mr. Taylor “fairly represents” the condition. Mr. Taylor found the depression to be 3 inches deep by actual measurement. The deepest part of the depression was “very small.” From the step down it was “more deeply sloped.” At the conclusion of the plaintiffs’ case Hutzlers’ motion for a directed verdict was denied.

Thereupon Hutzlers rested and renewed its motion which again was denied. Finding “no substantial conflict in the evidence which would require the sub ²³³ mission of the issue for the determination of the jury,” Judge Jenifer ruled as a matter of law that Mrs. Taylor was an invitee rather than a licensee and proceeded to instruct the jury on that basis. Motions for a new trial and for judgment N.O.V. were denied. I. In an opinion setting forth his reasons for denying the motions for a new trial and for judgment N.O.V., Judge Jenifer stated that he found our holding in Crown Cork and Seal Co. v. Kane, 213 Md. 152 , 131 A. 2d 470 (1957) to be controlling.

In that case Kane, a helper on a truck waiting for a load at Crown Cork and Seal Company’s loading dock, went to a room in the cellar of a warehouse which was the only place where the company permitted employees to smoke. He was sent there by checkers employed by the company. Other truckers were known to have used the room. This was disputed, however, by the foreman of the shipping department.

As he was returning to his truck he was struck and injured by one of the company’s fork lift trucks. It was conceded he was an invitee when he came upon the premises. The question was whether his status as an invitee changed to that of mere licensee when he went to the smoking room. Crown Cork and Seal Co. contended Kane, in going to and from the smoking room, was not acting for their mutual benefit nor was he promoting any of its business interests.

Judge Henderson (later Chief Judge), for the Court, discussed the cases that proceed upon the benefit theory but he felt that, in many instances, they relied “upon rather remote and indirect benefits.” He went on to say: “* * * But there is another theory of liability for negligence that does not depend on mutual benefit at all. The cases all recognize that an invitation may be express or implied, and there are many cases in which an invitation has been implied from circumstances, such as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of the premises. “This theory is strongly supported by the most re ²³⁴ cent commentators on the subject. For a full discussion, see Prosser, Torts (2d Ed.), § 78, and Harper & James, Laws of Torts (1956 Ed.), § 27.12. It is pointed out that the test of mutual benefit, in its extended form, makes liability depend in many instances upon the undisclosed intention of the visitor, a subjective test, whereas the other theory is objective in that it stresses custom and the appearance of things.

It is said that the pecuniary benefit stressed in the Restatement, Torts, §§ 332, 343, was a minority view advocated by Bohlen, its distinguished reporter. Prosser, supra (p. 456), says: ‘The Restatement notwithstanding, the second theory [implied invitation] is now accepted by the great majority of the courts, and many visitors from whose presence no shadow of pecuniary benefit is to be found are held to be invitees.’ In dealing with the area of invitation (p. 458), he says, in effect, that liability depends upon the evidence of encouragement to go to the unusual place.” Id. at 159. Judge Henderson observed that the theory of implied invitation had been recognized in a number of Maryland cases, although they were, in fact, rested, in whole or in part, upon circumstances indicating at least some economic benefit. After discussing a number of those cases and some of the decisions of other courts, he concluded: