Joseph v. Bozzuto Management Co.

MOYLAN, J. This appeal is from a slip-and-fall case, not from a lead-paint case. The difference is critical to the outcome. Both types of cases, to be sure, involve, in a very general sense, the responsibility of landowners or landlords to keep property owned by them reasonably free of risk to users of the property. At about that level of abstraction, however, the similarities cease.

The respective types of cases are of the same genus, perhaps, but they are very different species. Strained analogies are treacherously inappropriate, therefore, and a recent change in the lead-paint caselaw effected by Brooks v. Lewin Realty III, Inc., 378 Md. 70 , 835 A.2d 616 (2003), has no bearing whatsoever on the slip-and-fall case now before us. On October 13, 2004, the appellant, Michael Singer Joseph, brought suit against the appellees, the Housing Opportunities Commission of Montgomery County (“HOC”) and the Bozzuto Management Company, in the Circuit Court for Montgomery County, alleging that negligence on their part resulted in a knee injury he sustained following a slip-and-fall on property owned or maintained by them. Both appellees filed motions for summary judgment, contending that, based on the undisputed facts, the appellant had not shown a prima facie case of negligence.

On March 9, 2006, Judge Joseph A. Dugan, Jr., granted summary judgment in favor of both appellees. The appellant has taken this timely appeal from that grant of summary judgment. Factual Background The Metropolitan is a 13-story apartment building at 7620 Old Georgetown Road in Bethesda, Maryland, owned by the ³¹⁰ HOC. It is managed by the Bozzuto Management Company.

Joel Joseph, who is both the father of the appellant and his attorney in this case, is a resident of the Metropolitan with an apartment on the tenth floor. The appellant is a resident of Boulder, Colorado, but, in August of 2004, was visiting his family in the Washington area and was staying with his father at the Metropolitan. On the evening of August 20, 2004, at approximately 6 p.m., the appellant was scheduled to meet with his mother in the lobby and to go out to dinner. Instead of using the elevator, he decided to walk down the ten flights of stairs.

Walking just behind him was his younger brother, 17-year-old Alex Joseph. According to the complaint, as the appellant approached the eighth floor landing “he slipped on an oily substance and fell violently to the concrete floor, hitting his knee on the floor.” At the time that he slipped, the appellant was not using the hand rail. The “Oily Substance” The appellant, in his pretrial deposition, described the “oily substance” on which he slipped as translucent and colorless. Q. And what color was the substance?

A. It’s translucent. Q. So it was clear? A. It was colorless. In terms of the size of the “oily” spot, the appellant based his estimate on the one-foot square tiles that covered the floor of the eighth floor landing.

He estimated that the oily spot covered between 15% and 20% of one of the tiles. Although the lighting in the stairwell was good, the appellant stated that he did not see the oily spot before he slipped on it. The appellant was not sure whether, had he been looking straight down, he would have seen the oily patch. Q For clarification, I want to ask you a question again.

As you were descending the stairs and you were looking generally toward the forward motion that you were making, ³¹¹ if you had been looking directly at the floor, would you have been able to see this substance? A It’s possible. I don’t know. It’s possible.

I mean it depends were you looking at a given moment in time? There’s a lot of space in that stairwell so if I would have been looking directly down, would I have seen it? The chances are high. Directly down at a given moment, sure.

Q You’re saying if you had been looking directly down at this tile where this spot, the greasy spot was, if you’d been looking down on it as you were just about to step on to that tile, would you have been able to see it, knowing now what it looked like and where it was, if you went back and looked at it after you fell? A I’m not sure. I’m not sure. I couldn’t be sure of something like that.

Q Why not? A Why not? Because it didn’t happen and as you can tell from the picture, at different angles, that substances give off a different reflection as well. So, at a given angle, if I were looking down at it, I may not have seen it or at another angle, I may have seen it.

(Emphasis supplied). In his deposition, Alex Joseph also testified that, although he could see the floor and the stairs in front of his brother, he saw nothing abnormal on the floor. Q And could you see the floor and the stairs that were in front of him? A Yes.

Q What did you see on the floor, if anything, before he fell? AI couldn’t see anything. It looked normal. AI could see clearly where he was walking, yes.

Q You could see the whole landing? A Yes. ³¹² Q And how was the lighting in the stairwell? A It was good. Q Any problems seeing the stairs as you guys went down?

A No. I could see fíne. (Emphasis supplied). After the appellant slipped and fell, Alex Joseph looked to see what had caused the slip. He described it: Q What did you see?

AI saw a shiny substance on the floor? Q What color was it? A It was clear. A It wasn’t really a puddle.

It was like a smudge on the floor. Q A smudge, can you describe that a little bit better for us? A It was kind of greasy. It was like smeared on the floor.

That’s how I can describe it. (Emphasis supplied). No one else ever saw the oily substance. On the afternoon after his fall, the appellant reported the incident to Antonio Muniz, the maintenance supervisor at the Metropolitan apartment house.

In a deposition, Muniz described his actions in response to the appellant’s report of the fall. Q. Do you know what the substance was that was on the steps? THE WITNESS: I don’t know of any substance on the steps at all. When I inspected it there was nothing.

Q. When did you inspect it? A. Right after a conversation I had with Mr. Joseph. Q. You talked to Michael Joseph? A. Yes. ³¹³ Q. When did you talk to him?

A. I think it was about 2:30 that afternoon, the same day. Q. That was after he fell? A. Yes. Or the next morning.

The next afternoon actually. Q. The next afternoon? A. Yes. Q. When did you go and inspect then after you were informed?

A. Right after the conversation with him. He went upstairs and I immediately went and checked there. Q. What did you find when you inspected? A. Nothing.

I also checked all the other stair towers as well just to make sure — see if maybe he was mistaken which one it was. I went ahead and checked everything. (Emphasis supplied). The Inspection and Cleaning Routine Antonio Muniz was employed by Bozzuto as the building superintendent for the Metropolitan.

In addition to Muniz, Bozzuto directly employed a housekeeper and three maintenance technicians at the Metropolitan. In his deposition, Muniz testified that each of the maintenance technicians would generally walk and clean the common areas of the Metropolitan on a daily basis. Muniz also testified that he himself had inspected the stairwells during the week immediately preceding the appellant’s fall. Q. Did you inspect that stair tower before the accident took place?

A. Some time that week I had inspected all the stair towers. I’d walk them on a weekly basis. (Emphasis supplied). Bozzuto hired an independent contractor, Gali Services Inc., to handle the actual cleaning and maintenance of the Metropolitan’s common areas, including the stairwells.

It was Mun ³¹⁴ iz’s belief that the Gali employees checked and cleaned the stairwells three times a week. Q. How often are the stairs or the stair towers as you said cleaned at The Metropolitan? A. ... [TJhere was a foreman that oversaw all the cleaning of the stairs and the carpets in the corridors and everything, so he had his own schedule as far as the cleaning goes. I think they tried to hit everything three times a week.

Q. Three times a week? A. Yes. Along with vacuuming the corridors and cleaning the stair towers. (Emphasis supplied).

A Claim of Negligence We shall first examine this case by applying the general principles of tort law on the subject of landowner liability in slip-and-fall cases. In Valentine v. On Target, 353 Md. 544, 549 , 727 A.2d 947 (1999), Judge Karwacki listed for the Court of Appeals the required elements necessary to establish landowner liability based on negligence: To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: “(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty.” (Emphasis supplied). See also Moore v. Jimel, 147 Md.App. 336, 337-38 , 809 A.2d 10 (2002); Corinaldi v. Columbia, 162 Md.App. 207, 218 , 873 A.2d 483 (2005). There was no dispute over the facts 1) that the appellant was an invitee at the Metropolitan and 2) that both appellees accordingly owed him the duty to exercise ordinary care for his safety in maintaining the common areas of the Metropolitan. ³¹⁵ The Prerequisite of Knowledge For a Breach of Duty The critical element in this case was the second, to wit, the establishment that the appellees, owing a duty to the appellant, breached that duty.

In order to sustain a cause of action against the appellees for breaching that duty, however, the appellant must prove not only that a dangerous condition existed but also that the appellees “had actual or constructive knowledge of the dangerous condition and that the knowledge was gained in sufficient time to give [them] the opportunity to remove it or to warn the invitee.” Rehn v. Westfield America, 153 Md.App. 586, 593 , 837 A.2d 981 (2003), cert. denied, 380 Md. 619 , 846 A.2d 402 (2004). See also Giant Food, Inc. v. Mitchell, 334 Md. 633, 636 , 640 A.2d 1134 (1994); Moulden v. Greenbelt Consumer Services, Inc., 239 Md. 229, 232 , 210 A.2d 724 (1965); Tennant v. Shoppers Food Warehouse, 115 Md. App. 381, 389-90 , 693 A.2d 370 (1997) (“[t]he mere existence of a defect or danger is generally insufficient to establish liability, unless it is shown to be of such a character or of such duration that the jury may reasonably conclude that due care would have discovered it.”); Reitzick v. Ellen Realty, Inc., 30 Md.App. 273 , 352 A.2d 327 (1976) (dismissing tenant’s slip- and-fall claim against landlord for failure to demonstrate that landlord had actual or constructive knowledge of dangerous condition). An unambiguous statement of the knowledge requirement is that by Judge Henderson for the Court of Appeals in Lexington Market Authority v. Zappala, 233 Md. 444, 445-46 , 197 A.2d 147 (1964): The plaintiff was a business invitee, to whom the proprietor owed a duty to exercise ordinary care to keep the premises in a reasonably safe condition. Nalee, Inc. v. Jacobs, 228 Md. 525, 529 , 180 A.2d 677 ; Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 117 , 113 A.2d 405 ; Moore v. American Stores Co., 169 Md. 541, 546 , 182 A. 436 .

See also the cases in 62 A.L.R.2d 6 . But the burden is upon the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence. Montgomery Ward v. Hairston, 196 Md. 595 , 78 A.2d 190 ; ³¹⁶ Rawls v. Hochschild, Kohn & Co., supra. In the cases last cited the issue was withdrawn from the jury.

The plaintiff in the instant case did not observe any oil or grease on the floor when she parked her car. When she returned less than two hours later, she slipped while attempting to enter her car from the passenger side. For all we know, the oil or grease may have leaked from a car occupying the space beside her car, only a few moments before she returned. She did not see the oil or grease before she slipped.

She had a large paper bag in her arms. It may well be that a garage keeper should anticipate that oil or grease may occasionally leak from parked cars, but he is not an insurer and we think it would be unreasonable to hold that it is his duty to continuously inspect and sand down any and all leakage as soon as it occurs, even if we assume that periodic inspections are necessary. (Emphasis supplied). In Maans v. Giant, 161 Md.App. 620, 623 , 871 A.2d 627 , cert. denied, 388 Md. 98 , 879 A.2d 43 (2005), this Court affirmed the granting of judgment in favor of a storeowner because the plaintiff “had failed to prove that Giant had either constructive or actual pre-injury knowledge of the wet floor.” In terms of constructive knowledge, moreover, it is necessary for the plaintiff to show how long the dangerous condition has existed.

Appellant failed to produce any evidence that had Giant made reasonable inspections prior to the accident it would have discovered the water on the floor in time to prevent the accident. For all that was shown by appellant, the water could have been spilled by a customer seconds before her fall. This is fatal to her argument that Giant is liable because it breached its duty to make reasonable inspections. See Burkowske, 50 Md.App. at 523, 439 A.2d 40 (To prove liability, an invitee must show that if the owner/occupier had made reasonable inspections, the defect would have been discovered in time to prevent the invitee’s injury.).

See also Deering Woods, 377 Md. at 267-68, 833 A.2d 17 (to show constructive knowledge, invitee must demonstrate that de ³¹⁷ fective condition existed long enough to permit one under a duty to inspect to discover the defect and remedy it prior to the injury). 161 Md.App. at 632-33 , 871 A.2d 627 (emphasis supplied). Judge Salmon explained the merit behind the Maryland requirement. The Maryland rule has two purposes: (1) it requires a demonstration of how long the dangerous condition existed prior to the accident so that the fact-finder can decide whether the storekeeper would have discovered it if he or she had exercised ordinary care; and (2) it also shows that the interval between inspections was at least as long as the time on the floor. Thus, proof of time on the floor is relevant, not only as to notice but also as to the issue of what care was exercised. ...

Without “time on the floor” evidence, the storekeeper would be potentially liable even though there is no way of telling whether there was anything Giant could have done that would have avoided the injury. 161 Md.App. at 639-40 , 871 A.2d 627 (emphasis supplied). A similar result had been reached by the Court of Appeals in Rawls v. Hochschild, Kohn & Co., 207 Md. 113, 123 , 113 A.2d 405 (1955): In any event, even assuming that there was some water on the stairway before plaintiff fell, there was no evidence to indicate how it had been brought there or how long it had been there. Therefore, we find that the alleged dangerous condition, namely the water on the stairway, was not such as to warrant the inference that it had been there long enough to have enabled defendant to discover and correct it by the exercise of ordinary care. For these reasons we hold that there was no legally sufficient evidence that defendant was guilty of negligence.

(Emphasis supplied). The Absence of Proof of Knowledge The appellant himself testified that he had used the stairwell in question twice — once ascending and once descending— ³¹⁸ in the two-day period immediately preceding his August 20 fall. His testimony shed no light either 1) on how long the oily substance had been on the floor or 2) on any actual or constructive knowledge on the part of the appellees. Q. Do you know how long the substance was on the floor before you slipped?

A. No. Q. Do you know if anyone had reported the substance to any personnel or management in the building prior to when you slipped? A. No. Q. You have no idea how the greasy substance got there, right? A. Not one clue. Q. You have no idea how long it was there before you slipped on it?

A. No I don’t. Q. Do you know, prior to your fall, how recently ■ someone from Bozzuto or the HOC walked that stairwell? A. No. (Emphasis supplied). The appellees, perhaps redundantly, proffered affirmative evidence to establish that they had no actual knowledge of the presence of the oily substance on the stairwell.

They offered the affidavit of Bozzuto’s assistant community manager for the Metropolitan. 1. I was employed by Bozzuto Management Company as the assistant community manager for the Metropolitan apartment complex located in Bethesda, Maryland (“the Metropolitan”) from October 2003 through October 2005. I was the assistant community manager at the Metropolitan during the timeframe of the alleged incident involving Michael Joseph in August 2004. ³¹⁹ 2. Prior to Michael Joseph’s alleged slip[-]and[-]fall on August 20, 2004, management at the Metropolitan was not aware of any “oily substance” located on the floor of the eighth floor platform of any of the stairwells in the building.

Nobody ever reported anything to management regarding any unidentified substance on the floor of any of the stairwells at the Metropolitan prior to Mr. Joseph’s alleged fall, and management had not received any incident reports or complaints from anyone regarding any accidents occurring in the stairwells prior to Plaintiff’s complaint. (Emphasis supplied). The appellant not only proffered no evidence to show that the appellees had actual or constructive knowledge of a dangerous condition, he did not even allege such knowledge in his complaint. By time-honored Maryland and common law standards, the appellant failed to show a case of negligence against the appellees.

Summary judgment in their favor, by prevailing legal standards, was clearly in order, unless the appellant is able somehow to “trump” the otherwise prevailing law in slip-and-fall cases. Has Brooks v. Lewin Changed the General Law Of Landowner Liability? To the otherwise foreclosing effect of having proffered no evidence of actual or constructive knowledge of a hazardous condition in the stairwell on the part of the appellees, the appellant’s only response is to resort to wishful thinking. He looks to Brooks v. Lewin Realty III, Inc., 378 Md. 70 , 835 A.2d 616 (2003) as a deus ex machina descending on the courtroom just in the nick of time.

He pins his hopes on an illusion. The appellant’s problem is that he proffered no evidence to show that the appellees had either actual or constructive knowledge of the oily substance on the stairwell. How then does he propose to finesse the knowledge requirement? He actually intertwines two arguments.

He invokes Brooks v. Lewin directly as authority for the proposition that a showing ³²⁰ of knowledge on the part of the appellees is not required. He also invokes the evidentiary principle that in some circumstances, the violation of a statute or regulation may be evidence of negligence. He claims that the appellees violated § 29-30(a)(2) of the Montgomery County Code. He then claims, on the ostensible authority of Brooks v. Lewin, that the violation provides the evidence of the appellees’ negligence necessary for his claim to survive summary judgment.

Brooks v. Lewin, according to the appellant, stands for the sweeping proposition that “when a landlord violates a housing ordinance there is no requirement that the landlord had actual notice of a hazardous condition.” The appellant segues from Brooks v. Lewin’s elimination of an absolute knowledge requirement in lead-paint cases to the more general proposition that in “an appropriate case, the violation of a statutory regulation is evidence of negligence.” Erie Insurance Co. v. Chops, 322 Md. 79, 84 , 585 A.2d 232 (1991); Dean v. Redmiles, 280 Md. 137, 151 , 374 A.2d 329 (1977). From the combination of the two, he then distills the conclusion that, at least in terms of meeting the burden of production to survive summary judgment, the violation of a statute or regulation is per se enough to establish a prima facie case of negligence and to render the knowledge requirement superfluous. It behooves us to take a close look both at Brooks v. Lewin and at the evidentiary principle, both sequentially and in combination. Apples and Oranges We look first at Brooks v. Lewin.

As an initial overview, we make the general observation that the appellant is attempting to blend two strains of caselaw that are insoluble. To switch metaphors, he presents an imaginative effort to engraft Brooks v. Lewin onto the slip-and-fall caselaw, but the graft won’t take. The attempted graft is simply incompatible in too many ways with the host tissue. Once one gets beyond the common denominator that both the landlord of a residential property and the owner of a grocery store or apartment house are property owners responsible, in various ways, for the ³²¹ safety of users of the property, the situations are too disparate to permit of facile analogizing.

The lessor of a residential property contracts away the right of possession and, except perhaps for an occasional inspection or repair or maintenance obligation, does not maintain any presence on the premises. By contrast, the owner of a store or hotel or apartment house maintains, directly or through an agent, a regular presence and an ongoing responsibility for maintaining common areas. In the lead-paint cases, the lessor’s duty is owed essentially to the lessee or the lessee’s immediate household. In the slip- and-fall cases, the property owner’s duty is owed to random and unidentified invitees, in effect to the public at large.

In the lead-paint cases, the nature of the hazard is quasi-structural and quasi-permanent (in Baltimore City, endemic to any house built before 1953). In the slip-and-fall cases, the nature of the hazard is fleeting and unpredictable. In the lead-paint cases, the duty to inspect (if, by statute, it exists at all) may well be satisfied if performed once before the lease is signed or intermittently every several years. In the slip-and-fall cases, the battle is regularly joined, as in this case, over the reasonableness of weekly or daily or even hourly inspections.

Between the two types of cases, the circumstances and characteristics are simply too diverse to permit of any meaningful analogy. The Violation of a Statute As Evidence of Negligence We will come back to Brooks v. Lewin, but we first turn our focus on the evidentiary principle that the appellant invokes. There is, to be sure, a legal principle that the violation of a statute or regulation may sometimes be evidence of negligence. It is a principle, however, that is carefully circumscribed.

There must, first and foremost, be an actual violation of a statute or regulation, not simply a statute or regulation in existence that might be violated. The injury, moreover, must be of a type which the statute or regulation was specifically designed to prevent. Hartford Insurance Co. v. Manor Inn, 335 Md. 135, 155 , 642 A.2d 219 (1994); Garden- ³²² village Realty v. Russo, 34 Md.App. 25, 34 , 366 A.2d 101 (1976). The plaintiff must also be a member of the class that the statute or regulation was designed to protect.

Liberto v. Holfeldt, 221 Md. 62, 65-66 , 155 A.2d 698 (1959); Gosnell v. B. & O. Railroad, 189 Md. 677 , 57 A.2d 322 (1948); Slack v. Villari, 59 Md.App. 462, 471 , 476 A.2d 227 (1984). The violation of the statute must constitute a breach of a legally cognizable duty owed by the defendant to the plaintiff. Erie Insurance Co. v. Chops, 322 Md. 79, 84 , 585 A.2d 232 (1991). As we shall more thoroughly examine, the principle is, moreover, one that is logically far more efficacious for assessing certain types of negligence than for assessing others.

It is not necessarily the case that “one size fits all,” and that is why analogizing can be treacherous. Our first examination will be of the Maryland caselaw that has recognized the principle. Erie Insurance Co. v. Chops, 322 Md. at 84 , 585 A.2d 232 , spelled out both the general principle and its limitations. In an appropriate case, the violation of a statutory regulation is evidence of negligence, and that negligence will be actionable if it is a proximate cause of injury or damage to the plaintiff.

The Court of Special Appeals has noted that the breach of a statutory duty may be considered as some evidence of negligence when the plaintiff is a member of the class of persons the statute was designed to protect and the injury was of the type the statute was designed to prevent. Essential to the proof of any cause of action for negligence is the establishment of a legally cognizable duty owed by the defendant to the plaintiff, or to a class of persons to which the plaintiff is a member. (Emphasis supplied). In Erie there was an undisputed violation of § 17-106(b) of the Transportation Article, which requires an insurer to notify the Motor Vehicle Administration immediately of any termination of an insured’s policy.

Notwithstanding the violation of the statute, the plaintiff, who had been involved in an accident with the uninsured motorist, was not allowed to utilize the ³²³ violation as evidence of negligence against the insurance company. [W]e hold that the duty imposed upon Erie by the statute was not a “tort duty”; that is, the statute did not create a legally cognizable duty running from Erie to all persons who might thereafter suffer economic damage by reason of involvement in an accident with an uninsured motorist upon Erie’s failure to give immediate notice to the MVA of the termination of coverage. We further hold that the legislature did not intend to create a new cause of action imposing strict liability on an insurer who failed to give immediate notice of cancellation to the MVA. 322 Md. at 86 , 585 A.2d 232 (emphasis supplied). The case was a negative example of the principle under discussion. And see Aravanis v. Eisenberg, 237 Md. 242, 259-60 , 206 A.2d 148 (1965).

In Joyce v. Hatfield, 197 Md. 249 , 78 A.2d 754 (1951), the defendant clearly violated the law by knowingly selling liquor to an intoxicated minor, who drove away from the tavern and struck another car causing the death of the plaintiffs husband. The Court of Appeals refused to accept the illegal sale as the proximate cause of the subsequent injury. The use of the violation as evidence of negligence did not even arise for discussion. The common-law rule holds the man who drank the liquor liable, and considers the act of selling it as too remote to be a proximate cause of an injury caused by the negligent act of the purchaser of the drink. 197 Md. at 255 , 78 A.2d 754 (emphasis supplied).

Veytsman v. New York Palace, 170 Md.App. 104 , 906 A.2d 1028 (2006), was a case in which the plaintiffs sought, unsuccessfully, to interpose a statutory violation by the defendant as sufficient evidence of negligence to save them from an adverse judgment as a matter of law. The restaurant owner/defendant clearly had violated § 12 — 107(b)(2) of Article 2B by permitting patrons to drink alcoholic beverages not purchased ³²⁴ on the premises. It was those patrons who got intoxicated and assaulted the plaintiffs. The Veytsmans emphasize that the wedding guests brought their own vodka into the restaurant.

Pointing out that it is against Maryland law for “any [liquor] license holder to permit any person to drink any alcoholic beverage not purchased from the said license holder on the premises covered by the license[,]” they maintain that evidence of this violation was sufficient to get the case to the jury. 170 Md.App. at 126-27 , 906 A.2d 1028 (emphasis supplied). This Court, speaking through Judge Adkins, held that the violation of the statute, though itself clear, did not satisfy the plaintiffs’ burden of production. Violation of a statute, however, is merely evidence of negligence and is not sufficient to create a legal duty unless the statute was designed to do so. There is no evidence that the General Assembly intended the section 12-107(b)(2) restriction to impose on taverns who violate this law strict civil liability for the acts of persons who became intoxicated from drinking their own alcohol on the tavern premises. 170 Md.App. at 127 , 906 A.2d 1028 (emphasis supplied).

Every violation of a liquor license does not operate to impose general liability. Logical relevance is still required to establish the necessary cause and effect. To impose liability on the New York Palace because it violated this statute would create dram - shop liability through the back door of a liquor license violation. This we will not do. 170 Md.App. at 128 , 906 A.2d 1028 (emphasis supplied).

The case was another negative example. In Fisher v. O’Connor’s, Inc., 53 Md.App. 338 , 452 A.2d 1313 (1982), Chief Judge Gilbert recognized the general principle, but also observed that its applicability had been traditionally appropriate in cases involving motor vehicle torts. That observation about both the provenance and the utility of the principle was an epiphany in terms of our understanding of it. ³²⁵ Maryland has consistently held that a violation of a statutory regulation is evidence of negligence, and if the “violation causes or contributes to the injuries complained of, it constitutes negligence.” Each of the cited cases in which that principle of law is iterated involved a motor vehicle tort. Patently, violation of a statute concerning the “rules of the road” may be evidence of negligence, and if the violation caused or contributed to the injuries, it constitutes negligence.

Alston v. Forsythe, 226 Md. at 130, 172 A.2d 474 . The precept of law that “violation of a statute is evidence of negligence” is a rule of evidence, not the creation of a substantive cause of action. 53 Md.App. at 341-42 , 452 A.2d 1313 (emphasis supplied). As Judge Gilbert went on to point out, the violation of a statute does not ipso facto create a civil cause of action. Only an act of the Legislature can do that.

The case before the Court was not a motor vehicle tort and the evidentiary principle was held not to apply. Thus, if a cause of action may be brought against a bar or tavern owner by a patron who is injured as a result of his own intoxication, that cause must arise from an act of the Legislature. The only statute of the General Assembly concerning the sale of alcoholic beverage to intoxicated persons is codified as Md. AnmCode art. 2B, § 118. Although that act declares it to be a misdemeanor to sell alcoholic beverages to an intoxicated person, it does not create a civil cause of action against the bar or tavern owner.

Absent an act of the Legislature sanctioning, under circumstances similar to those of the matter sub judice, a civil suit against bar or tavern owners, there is no liability for injuries to intoxicated patrons. We are cognizant that there is an aberration in the law in that the bar or tavern owner may be fined or jailed or both, for serving alcoholic beverages to an intoxicated patron, but the owner may not be sued. ³²⁶ The Court of Appeals has made crystal clear in Felder and Hatfield that if a civil cause of action is to be permitted against a bar or tavern owner for injuries to third parties caused by the intoxicated patrons of those bars or taverns, it is for the Legislature, not the Courts, to create the legal remedy. 53 Md.App. at 342-43 , 452 A.2d 1313 (emphasis supplied). It was yet another negative example. Atlantic Mutual Insurance Co. v. Kenney, 323 Md. 116,124 , 591 A.2d 507 (1991), by contrast, was a motor vehicle tort case in which the evidentiary principle was appropriately utilized.

In Pahanish v. Western Trails, Inc., 69 Md.App. 342 , 517 A.2d 1122 (1986), the plaintiffs negligence case was ruled to be inadequate as a matter of law because “the evidence failed to demonstrate appellee knew or should have known of any mischievous propensity on the part of the horses involved in the incident.” 69 Md.App. at 349 , 517 A.2d 1122 . The plaintiff there, as the appellant here, sought to avoid that foreclosing effect of no notice by invoking an unquestioned violation of the licensing and inspection provisions by the defendant to establish a prima facie case of negligence. Appellant’s next contention of error is that the lower court erred in failing to find that the violation by appellee of certain statutory licensing and inspection provisions established a prima facie case of negligence on appellee’s part. In Maryland, the violation of a statute does not constitute negligence per se.

Rather, the breach of a statutory duty may be considered some evidence of negligence where three requirements are met. First, the plaintiff must be a member of the class of persons the statute was designed to protect. Second, the injury suffered must be of the type the statute was designed to prevent. Third, the plaintiff must present legally sufficient evidence to demonstrate that the statutory violation was the proximate cause of the injury sustained. ³²⁷ The testimony establishes that appellee was not licensed or inspected in the year in question, in breach of its duty under sections 2-710 and 2-713 of the Maryland Agriculture Code Annotated. 69 Md.App. at 361-62 , 517 A.2d 1122 (emphasis supplied).

For the absence of a causal link, however, the plaintiffs effort failed. Appellant, however, has provided no circumstantial or direct evidence which would establish a causal link between the breach by appellee of his statutory duty and the injury actually sustained by appellant. 69 Md.App. at 363 , 517 A.2d 1122 . It was, once again, a negative example. Except for Atlantic Mutual Ins.

Co. v. Kenney, supra, which was a motor vehicle tort case, every one of the cases we have cited and discussed has reiterated the general principle that, under some circumstances, the violation of a statute or regulation may constitute evidence of negligence. In not one of the cases, however, was the statutory violation actually accepted as evidence of negligence. Success, after invoking the general rule, is by no means automatic. The statement of this legal principle, the caselaw unmistakably tells us, is not an absolute statement, but only a contingent one.

Before a plaintiff reaches the shelter of a statutory violation as evidence of negligence, he must successfully run the gauntlet of “in some circumstances.” Many an aspiring candidate fails to do so successfully. Legislative Impact On the Standard of Conduct As we approach our examination of the Montgomery County ordinance on which the appellant relies, it is appropriate to set the stage. Helpful in that regard is Restatement, Second, Torts (1965), §§ 285, 286, 288 and 288B. Section 285 sets out the various ways in which the standard of conduct of a reasonable man may be determined.

The standard of conduct of a reasonable man may be ³²⁸ (a) established by a legislative enactment or administrative regulation which so provides, or (b) adopted by the court from a legislative enactment or an administrative regulation which does not so provide, or (c) established by judicial decision, or (d) applied to the facts of the case by the trial judge or the jury, if there is no such enactment, regulation, or decision. (Emphasis supplied). In all of our discussion in this opinion, it will be the second of those modalities that is pertinent. With respect to that modality, the Comment to the Restatement observed: Even where a legislative enactment contains no express provision that its violation shall result in tort liability, and no implication to that effect, the court may, and in certain types of cases customarily will, adopt the requirements of the enactment as the standard of conduct necessary to avoid liability for negligence.

The same is true of municipal ordinances and administrative regulations. Id. at § 285, p. 21 (emphasis supplied). Dan B. Dobbs, Law of Torts, (2001), § 133, “Effects of Statutes in Tort Law,” p. 311, also describes this sort of statute or regulation. [CJourts may usually accept the statutory rule of conduct as a judicial rule for tort cases, even though the statute itself does not require it. In other words, courts are free to accept, reject, or modify the rule as applied in tort law, so long as the statute does not state or imply to the contrary.

(Emphasis supplied). Dobbs, § 134, “General Rules for Applying Statutes as Tort Standards,” p. 315, further describes this phenomenon in which the courts adopt the requirements of a nonprescriptive statute or regulation as setting the standard for judging negligence. Although some statutes expressly create a tort claim or establish some special rule for tort cases, a very large ³²⁹ number of statutes provide only a criminal penalty or some form of administrative enforcement. These statutes prescribe nothing at all about tort law, so they can be identified here as nonprescriptive statutes.

Although such statutes prescribe no tort-law effects at all, courts are usually free nonetheless to adopt the standards or rules of conduct from such statutes and to apply them to tort cases. For instance, a statute may forbid driving at a speed in excess of a posted limit and may impose a criminal penalty only; but courts are nevertheless likely to use that speed limit as a standard for judging negligence. (Emphasis supplied). When a statute or regulation is deemed to be appropriate for setting a standard of care, there are two modalities by which a violation of the statute or regulation is applied to the trial of a tort case.

The majority of state