Macias v. Summit Management

Damien A. Macias v. Summit Management, No. 1130, Sept. Term, 2018 Opinion by Leahy, J. Motion for Summary Judgment > Scope of Review Maryland premises-liability law allows disposition on summary judgment when the pertinent historical facts are not in dispute. See Hansberger v. Smith, 229 Md. App. 1, 13, 21-24 (2016); see also Richardson v. Nwadiuko, 184 Md. App. 481, 483-84 (2009). Negligence > Premises Liability >Foreseeability Foreseeability—the principal consideration in actionable negligence—is not confined to the proximate cause analysis. See Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607, 633-34 (2018); Valentine v. On Target, Inc., 112 Md. App. 679, 683-84 (1996), aff'd, 353 Md. 544 (1999).

Negligence > Premises Liability >Duty The status of an entrant, and the legal duty owed thereto, are questions of law informed by the historical facts of the case. See Troxel v. Iguana Cantina, LLC, 201 Md. App. 476, 495 (2011). Negligence > Duty to Invitees > Condominium Associations Condominium unit owners and their guests occupy the legal status of invitee when they are in the common areas of the complex over which the condominium association maintains control. Barring any agreements or waivers to the contrary, the condominium association is bound to exercise “reasonable and ordinary care” to keep the premises safe for the invitee and to “protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his [or her] own safety, will not discover.” See Bramble v. Thompson, 264 Md. 518, 521 (1972).

Negligence > Premises Liability >Legal Status An entrant’s legal status is not static and may change through the passage of time or through a change in location. See Levine v. Miller, 218 Md. 74, 78-79 (1958). In other words, an entrant can lose invitee status if he or she remains on the premises beyond a specified time or enters an area that is off limits to guests and the general public. Negligence > Legal Status The mere act of climbing a climbable object, located in an area of a condominium complex in which child was allowed to be, did not suddenly change child’s legal status from invitee to trespasser—such a transposition is not favored by contemporary decisional law.

Negligence > Premises Liability >Duty Property owners do not owe social guests a duty to “inspect the land to discover possible or even probable dangers,” Restatement (Second) of Torts § 342, cmt. d. (1965); whereas, property owners must use reasonable care to inspect and make the premises safe for invitees. Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md. App. 381, 388 (1997). Negligence > Premises Liability >Notice An invitee plaintiff must show that the landowner had actual knowledge of a defect or “by the exercise of reasonable care would discover the condition.” Restatement (Second) of Torts §, 343 (1965); Deering Woods Condo.

Ass’n v. Spoon, 377 Md. 250 , 264–65 (2003). Negligence > Premises Liability> Notice To generate a triable issue, under even the most demanding standard of care, some evidence that the premises owner knew or should have known of the dangerous condition is required. Deering Woods Condo. Ass’n v. Spoon, 377 Md. 250, 273 (2003).

Negligence > Premises Liability> Notice The duty to inspect is a function of the landowner’s knowledge, actual or constructive, of the unreasonable risk. Deering Woods Condo. Ass’n v. Spoon, 377 Md. 250 , 264–65 (2003). Circuit Court for Montgomery County Case No. 434536-V REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1130 September Term, 2018 DAMIEN A. MACIAS v. SUMMIT MANAGEMENT, INC.

Meredith, Leahy, Beachley, JJ. Opinion by Leahy, J. Filed: November 21, 2019 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2019-11-21 14:56-05:00 Suzanne C. Johnson, Clerk Eight-year-old Damien Macias and his two younger siblings, Gabrial and Olivia, accompanied their mother one summer day in 2013 to the Waters House Condominium complex in Germantown, Maryland to visit their grandparents. While playing outside, Damien and Gabrial climbed atop the Waters House community sign made of large stones (“community sign”). After about ten minutes the boys decided to jump down and go back inside.

When they went to dismount, they held onto the edge of a flat stone, which identifies the complex as “Waters House.” The flat stone dislodged from the larger stonework holding it, causing the boys to fall to the ground, and the flat stone to fall on top of Damien. Damien suffered serious injuries to his chest and legs as a result and was transported to Children’s Hospital for treatment. Damien, and his father as next friend, filed a negligence action in the Circuit Court for Montgomery County against the Council of Unit Owners of Waters House Condominium (“Council”) and Summit Management (“Summit” or collectively with Council as “Appellees”). The circuit court granted summary judgment in favor of Appellees.

The court ruled that Damien was a bare licensee when he climbed the community sign because he was on it without the consent of the owner. The court also held, however, that even if Appellees owed Damien a greater duty of care, summary judgment was appropriate because (after close of discovery) there was no evidence that Appellees had any notice that the children had been climbing on the sign or any reason to suspect that the sign was in any way dangerous or defective. Damien and his father (“Appellants”) noted a timely appeal and present the following question: [Did] the circuit court err[] by granting Appellees’ motion for summary judgment and determining that Damien was a bare licensee and not an invitee when he played on the welcome sign on the grounds of the residence in which his grandparents resided? We conclude, based on the material facts not in dispute in this case, that Damien was an invitee at the time he and his brother played on and around the community sign located in the common area of the condominium complex.

Even allowing that Appellees owed Damien the highest duty as an invitee, we hold that the court decided correctly that Appellants failed to establish a prima facie case of negligence because the record reflects that Appellees did not have actual or constructive knowledge of any dangerous or defective condition, or that by the exercise of reasonable care, Appellees could have discovered the condition in time to warn Damien. Restatement (Second) of Torts § 343 (1965); Hansberger v. Smith, 229 Md. App. 1, 13, 21 (2016). Accordingly, we affirm the court’s grant of summary judgment. BACKGROUND The record evidence at summary judgment consisted primarily of the depositions of Damien and his parents, as well as some photographs of the community sign and surrounding area.1 The following facts contained in the record were not disputed before the trial court. 1 Appellees noted in their Memorandum in Support of their Motion for Summary Judgment that Plaintiffs produced Answers to Interrogatories and Responses to Requests for the Production of Documents, but these were not included in the materials submitted to the court with the motion for summary judgment or in response to that motion. 2 The Macias family made frequent visits to Waters House Condominium complex where Larry and Maria Ward, Damien’s grandparents, have owned a unit in the complex since 2005.

The condominium complex was, at the time of the incident, managed by Summit. The community sign faces an intersection and the area behind it is grassy and landscaped with several trees and bushes. There is no sign or fencing indicating that the community sign or the area around it is off limits to guests. A playground is located on the grounds on the side opposite of the grandparents’ condominium from where the sign is located.

Damien’s father, Damien M. Macias, did not accompany the family to the Wards’ condominium on July 6 because he had to work. While playing outside that day, Damien and his brother Gabrial, who was age six at the time, climbed atop the community sign, a five-foot-tall stone wall in which the flat stone sign was embedded.2 Damien stated during his deposition that he wanted to sit on top of the wall so that he could watch cars passing on the street. He grabbed onto the top of the ledge and climbed up the back of the 2 References in this case to the stone “wall” and the stone “sign” are to the same five-foot-tall stone structure. During Damien’s deposition defense counsel solicited the following agreement: Q. [Defendants’ Counsel].

It’s black lettering with a gray background. I’m going to call that the “sign.” Okay? And do you see the stone around it, for example, in Exhibit No, 5— A. [Damien] Yeah. *** Q. [Defendants’ Counsel] I am going to call that the “wall.” Okay. So I’m going to call the sign one thing and the wall as something else.

All right? A. Okay. In this opinion, when referring to the whole sign (in other words, the stone wall and the flat stone sign mounted into the wall), we have adopted Appellants’ designation of “community sign,” found in their briefing on appeal. 3 community sign. Gabrial followed and the two sat on top looking at cars for about 10 minutes before deciding that they wanted to go back inside.

Gabrial was scared to jump off the wall, so Damien suggested that they climb down the front where there were more handholds and footholds available. When Damien went to dismount, he grabbed onto the top of the flat stone sign that was attached to the stone wall. Gabrial followed almost immediately after. Damien was able to push Gabrial out of the way to prevent him from being injured before the sign fell on top of Damien.

No adult was outside with the boys directly supervising them at the time of the accident. Their mother, Mrs. Leticia Macias, stated in her deposition that she was inside cooking, but that her mother was outside with Olivia gardening and her father could see the boys playing from inside the condominium by looking out of the bay window. Mrs. Macias testified during her deposition that this was not the first time the boys had climbed on top of the community sign. She explained that their father had “frequently” sat the boys atop the wall to watch firetrucks pass by.

She further testified that it was the habit of the boys to play outside in the area around the community sign because it was visible from the bay window inside the Ward’s condominium. When prompted, Mrs. Macias admitted that she had never seen any children other than her own climbing the sign. She also agreed that, prior to the accident, she did not know of any defect in the construction of the community sign and there was no visible indication that it could present a danger. Damien also admitted, during his deposition, that his first indication that the community sign was dangerous occurred as he was climbing down the front of it and the flat stone began falling on top of him.

He acknowledged that 4 on previous ventures on and around the community sign, he had never heard any suspicious sounds or felt any movement that would suggest a problem. He also agreed that the community sign was in good shape visibly on the day of the accident. Damien’s father explained during his deposition that the community sign “looked secure and safe” and that is why he allowed his children to play on it. He admitted that no one from the Council or Summit had given the children permission to climb on the community sign.

He stated that, to his knowledge, no one else had ever been injured by coming into contact with the community sign, and he had no knowledge of the flat stone sign falling out of its stone framework on any prior occasion. The Complaint On July 18, 2017, Appellants filed a two-count complaint in the Circuit Court for Montgomery County asserting negligence claims against the Council and Summit.3 They charged that Appellees breached their duty owed to Damien, as an invitee on the premises of Waters House, by failing to inspect the community sign and failing to warn of any foreseeable dangers. They also alleged that the law imposed a “more stringent duty of care” on Appellees under the doctrine of attractive nuisance.4 3 The complaint itself does not include a jury demand, though the civil cover sheet filed with the complaint shows the box checked for a jury trial. 4 The circuit court observed correctly that Maryland does not recognize the attractive nuisance doctrine in cases involving children who are licensees or trespassers. See Macke Laundry Service Co. v. Weber, 267 Md. 426, 428 (1972).

It appears, however, that Appellants abandoned their attractive nuisance argument at the summary judgment stage. We note that, although Maryland does not formally recognize the attractive nuisance doctrine, this does not relieve a landowner from the duty to consider, “in exercising 5 Appellees filed an answer generally denying liability and asserting that the complaint failed to state a claim upon which relief could be granted. They also asserted nine affirmative defenses, including assumption of the risk and contributory negligence. Motion for Summary Judgment After the close of discovery, on April 6, 2018, Appellees filed a motion for summary judgment.

Appellants filed an opposition, and the parties appeared in the circuit court for a hearing on June 19. In support of their motion, Appellees argued that Damien was a trespasser at the time he was injured because there was no invitation, express or implied, for Damien to climb the community sign. Appellees pointed out that neither Damien nor Mr. Macias testified that Appellees had in any way given Damien permission to play, or induced him to play, on the community sign. Relying on Osterman v. Peters, 260 Md. 313 (1971), Barnes v. Housing Authority of Balt.

City, 231 Md. 147 (1963), and Levine v. Miller, 218 Md. 74 (1958), among other cases, Appellees averred they owed him no duty reasonable care to make premises safe from any unreasonable risk of harm to his invitees, the capacity of children to understand dangers.” Pratt v. Maryland Farms Condo. Phase 1, Inc., 42 Md. App. 632, 639 (1979). More recently, in Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 126-28 (2014), the Court of Appeals affirmed this Court’s reversal of summary judgment in favor of the apartment complex owner, manager, and pool operator after a minor child nearly drowned in the complex swimming pool after gaining access through a gate that was faulty and failed to comply with a county ordinance and a State regulation. Judge Adkins, writing for a unanimous Court, recognized that under Maryland law “property owners owe no affirmative duty of care to trespassers[,]” yet “settled Maryland precedent acknowledges that, in some instances, the duty of care in a negligence action may arise from statute or regulation.” Id. at 103 .

The Court held that if the Petitioners’ alleged violation of the statute were proven, then it “would demonstrate the breach of a duty from Petitioners to [the child]” and that “[s]uch a duty, derived from statute, would apply irrespective of [the child’s] legal status on the property when the incident occurred.” Id. at 128 . 6 except to refrain from “willful or wanton misconduct and entrapment.” Furthermore, they contended that, even if Damien was an invitee, thereby imposing a higher duty of care on Appellees, there was no evidence produced during discovery that Appellees had notice of any dangerous condition. They asserted: “it is undisputed that no one else had ever been injured climbing [the] wall[,] . . . that the wall was not in poor or bad disrepair[,] . . . and that [Appellees] did not know that any children or any individuals had ever climbed on [the] wall before.” Appellees highlighted that the record lacked any evidence that they had knowledge of a defect in the construction of the community sign or that they had knowledge that the Macias children sometimes climbed on it. Appellees noted that all three deponents testified that they, also, did not have any notice of any danger or risk associated with the sign. Finally, Appellees asserted that Damien was contributorily negligent, or, in the alternative, that he assumed the risk of injury when he climbed down the front wall holding onto the flat stone in the sign.

To the contrary, Appellants maintained that the community sign was located in the common area within the condominium complex and, therefore, Appellees had a duty to use reasonable care to ensure the sign was safe. Appellants analogized the duty of Appellees to that of a landlord, who has a duty to keep common areas safe, both for tenants and their guests. They argued that, because there were no warning signs or barriers to prevent climbing, there was an implied invitation for Damien to climb the community sign. They stressed that because Damien did not know of any risks associated with the community sign, he could not have been contributorily negligent, nor could he have assumed a risk 7 that was not known.

Considering these “many areas of dispute,” Appellants asserted that the case should be resolved by the trier of fact rather than on summary judgment. The judge commenced his ruling from the bench in favor of Appellees, by observing that an 8-year-old-boy is going to explore and he’s going to climb on things . . . [i]t would be hard for me to find that there’s a duty on the part of the landlord to say, put up a sign. Children if you want to play, don’t play here. You got to . . . expect 8-year-olds and 6-year-olds to read it, comprehend it and understand it.

And that’s why the parents are responsible. But the judge also recognized, in commenting on the father’s “passive approval” of the children climbing the sign, that it probably does appear harmless if there is only about a five foot [sic] and it’s a wall … [i]t doesn’t have barbed wire, doesn’t seem to have any electrical wires coming out of it. There’s no road going right by it. So, to a dad, you’re not saying, oh, no, don’t go near that sign because you could jump on it, it could fall and can hit you, kind of thing that’s a very freak thing.

The judge then noted that the community sign was “not a designated climbing area. [] [N]o one’s inviting children to play there. It’s basically just advertising the complex.” Accordingly, the judge announced that he would treat Damien as a bare licensee because he was on the community sign without the owner’s consent. He steered away from calling Damien a “trespasser, which is a little harsh for a little guy[,]” but noted that he understood the legal distinction “when you go from an authorized area to one that you’re not authorized [sic].” Given that the only duty owed to a licensee or trespasser is to “refrain from willful injury or entrapment,” the court found that there was “no indication that [] there was any willful injury or entrapment.” 8 The judge continued, however, by ruling that, even if Damien were “a social guest or licensee by invitation,” there was no evidence in the record to support a finding that Appellees had knowledge or reason to know of “an unsafe condition or [that] anybody might get hurt there.” With no evidence that Appellees knew or should have known of any potential danger, the court ruled that Appellees did not breach the duty to exercise reasonable care to make the premises safe or warn guests of a known danger. The judge reasoned: There was no reported history of anybody else getting hurt.

There was nothing visible, [no] nail sticking out, or anything like that that would put the owner on notice that it was a situation where someone could fall or get hurt or that the sign might give way if you jump on it. There was no indication that children traditionally jumped and played on that sign and swung on it. There was no indication [in] the record that there was any reason to believe that it was a dangerous situation. The judge observed that “It was a freak thing that happened and nobody, maybe even if you were a little older, would you think, you would appreciate that risk.” He stated that he was not prepared to find that Damien, as an eight-year-old child, assumed the risk or that he was contributorily negligent as there was nothing in the record to show the community sign might pose a danger to anyone.

The judge observed, “[y]ou know you get to those areas if, in fact, there’s negligence.” In conclusion, the court ruled: “I find that there was no genuine dispute of any material[] facts. And I find as a matter of law, there was no duty on the part of the landlord to do any more than what was done there.” This appeal timely followed. 9 DISCUSSION I. A. Standard of Review We review the circuit court’s grant of summary judgment without deference. Koste v. Town of Oxford, 431 Md. 14, 25 (2013) (quoting D’Aoust v. Diamond, 424 Md. 549, 574 (2012)). Maryland Rule 2-501(f) provides that a circuit court shall enter summary judgment in favor of the moving party “if the motion and response show that there is no genuine dispute as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Thus, we must first ascertain, independently, whether a dispute of material fact exists in the record on appeal.

Hill v. Knapp, 396 Md. 700, 711 (2007); Richardson v. Nwadiuko, 184 Md. App. 481, 488 (2009). “[O]nly where such dispute is absent will we proceed to review determinations of law[,]” and then we will “construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party.” Remsburg v. Montgomery, 376 Md. 568 , 579– 80 (2003) (citations omitted). When analyzing the decision of the circuit court, we consider only the grounds for granting summary judgment relied upon by the court. Landaverde v. Navarro, 238 Md. App. 224, 241 , cert. denied sub nom., Parrish Servs. v. Landaverde, 461 Md. 502 (2018); Deboy v. City of Crisfield, 167 Md. App. 548, 554 (2006). Maryland premises-liability law allows disposition on summary judgment when the pertinent historical facts are not in dispute.

See, e.g., Hansberger, 229 Md. App. at 13 , 21- 24 (affirming a grant of summary judgment in favor of possessor of farm based on lack of any knowledge of late-night field party on the farm); Richardson, 184 Md. App. at 483 -84 10 (affirming a grant of summary judgment in favor of defendants where, although the lower court erred in concluding that patient was a bare licensee, the court determined correctly that plaintiffs failed to establish a prima facie showing of negligence); see also Barnes, 231 Md. at 152-53 (affirming a directed verdict in favor of defendant on the issue of whether plaintiff was a trespasser or an invitee and instructing that when it is manifest that, “on the plaintiff’s own showing and the uncontradicted evidence in the case, there is no rational ground on which a verdict for the plaintiff can be based, the court has the duty, on a proper motion by the defendant, to direct a verdict for him” (citing Landay v. Cohn, 220 Md. 24 (1959); Levine, 218 Md. 74 )); but see Sutton-Witherspoon v. S.A.F.E. Management, Inc., 240 Md. App. 214 , 218 (2019) (holding that circuit court erred in granting summary judgments in premises-liability case by failing to address plaintiffs’ alternative theory of negligence set out in complaint).5 5 For other premises-liability cases decided on summary judgment, see, e.g., Joseph v. Bozzuto Mgmt., Co., 173 Md. App. 305, 319 (2007) (affirming grant of summary judgment in slip-and-fall case in which plaintiff proffered no evidence to show that apartment building owner and Housing Opportunities Commission had actual or constructive knowledge of a dangerous condition); Deboy, 167 Md. App. at 553 (affirming grant of summary judgment in favor of defendants based on court’s determination that plaintiff was a bare licensee, rather than an invitee, and defendants did not owe her a duty to make the premises reasonably safe); Wells v. Polland, 120 Md. App. 699, 703 (1998) (holding that circuit court found correctly that plaintiffs were trespassers rather than invitees and affirming grant of summary judgment for defendants); Doehring v. Wagner, 80 Md. App. 237, 244-46 (1989) (affirming a grant of summary judgment in favor of defendants because the decedent was a trespasser, not an invitee, when he “intentionally and without consent” entered the property of another); Kirby v. Hylton, 51 Md. App. 365, 371, 377-78 (1982) (affirming a directed verdict for defendants in part because it was “abundantly clear that” the decedent was a trespasser and appellees simply had no duty “except [to] not [] entrap him or willfully injure him”). 11 Before we can set aside the trial court’s ruling granting summary judgment in favor of Appellees, Appellants must show either that there was a material fact in dispute involving one of the elements of negligence, or that Appellees were not entitled to judgment as a matter of law. Wells v. Polland, 120 Md. App. 699, 709 (1997).

II

Negligence A. No Material Facts in Dispute Appellants contend that “there exists . . . a genuine issue of material fact—as to whether or not Damien was an invitee while playing on the community welcome sign of his grandparents’ condominium complex.” This generalized contention, without more, does not meet the requirements of Maryland Rule 2-501(f) and Maryland decisional law. A material fact is one that, “depending on how it is decided by the trier of fact, will affect the outcome of the case.” Warsham v. James Muscatello, Inc., 189 Md. App. 620, 634 (2009) (citations omitted). The burden is on the party opposing a motion for summary judgment to “show disputed material facts with precision in order to prevent the entry of summary judgment.” Id. (citation omitted).

The status of an entrant, and the legal duty owed thereto, are questions of law informed by the historical facts of the case. See Troxel v. Iguana Cantina, LLC, 201 Md. App. 476, 495 (2011) (citing Corinaldi v. Columbia Courtyard, Inc., 162 Md. App. 207, 218 (2005)); see also Restatement (Third) of Torts: Liab. for Phys. & Emot. Harm § 50, cmt. e (2012) (“If there is no dispute about the relevant historical facts, the status of an entrant as a trespasser is decided by the court.”). The material facts in this case, set out 12 above, are not in dispute.

Indeed, Appellants have not pointed us to a single disputed material fact but, rather, state generally that Damien’s legal status is in dispute. Cf. Bagwell v. Peninsula Reg’l Med. Ctr., 106 Md. App. 470, 488 (1995) (“Mere formal denials or general allegations of a dispute are not sufficient to establish the dispute.”).

Appellants cannot set material facts into dispute simply by raising a question of law. We hold that the circuit court found correctly that there were no material facts in contention as to whether plaintiffs/Appellants had established a prima facie case of negligence by offering “proof of some duty, a breach of that duty, proximate causation, and damages.” Wells, 120 Md. App. at 709 . We turn, therefore, to the question of whether the court was legally correct. B. General Principles of Premises Liability A brief overview of Maryland premises-liability law is necessary to place our analysis in proper context.

Premises liability is based on common-law principles of negligence, see Troxel, 201 Md. App. at 493 , so a plaintiff must establish the four elements required in any negligence action: (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. Joseph v. Bozzuto Mgmt., Co., 173 Md. App. 305, 314 (2007) (emphasis in original) (internal quotations and citations omitted). The burden is on the plaintiff to prove each of these elements. Pratt v. Maryland Farms Condo.

Phase 1, Inc., 42 Md. App. 632, 640 (1979) (“[I]f the plaintiff does not, in the first instance, introduce evidence on each element 13 which is sufficient to warrant a finding in his favor, he will lose his case at the hands of the court (by nonsuit, directed verdict, or the like).”). Although grounded in common-law principles, the analysis we must undertake in premises-liability cases is distinct from other classes of negligence at the outset because the duty owed by the possessor or owner of property to a person injured on the property is determined by the entrant’s legal status at the time of the incident.6 See Sutton- Witherspoon, 240 Md. App. at 234 (citing Richardson, 184 Md. App. at 489 ); see also Bozzuto Mgmt., 173 Md. App. at 309 (discussing the distinction between lead-paint and slip-and-fall negligence cases, noting “[t]he respective types of cases are of the same genus, perhaps, but they are very different species.”). We apply the general common-law classifications of invitee, social guest (or licensee by invitation), and trespasser (or bare licensee). See Howard Cty.

Bd. of Educ. v. Cheyne, 99 Md. App. 150, 155 (1994). As we discuss in greater detail below, these classifications have their own subclasses but, in general, the highest duty is owed to invitees; namely, the duty to “use reasonable and ordinary care to keep the premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for the invitee’s own safety will not discover.” Deboy, 167 Md. App. at 555 (citation and brackets 6 As reflected in the Maryland Civil Pattern Jury Instructions, there are four categories of entrant: 1) invitee, 2) licensee, 3) bare licensee, and 4) trespasser. Maryland Pattern Jury Instructions—Civil (“MPJI-Cv”) 24:2 DEFINITIONS (2019). However, because landowners owe the same duty to bare licensees that they owe to trespassers, Macke Laundry Serv.

Co. v. Weber, 267 Md. 426, 428-29 (1972) (citing Crown Cork & Seal Co. v. Kane, 213 Md. 152, 157 (1957)), property owners are only held accountable under three levels of duty. 14 omitted). At the bottom rung are trespassers and bare licensees, to whom is owed no more than to “abstain from willful or wanton misconduct or entrapment.” Id. A breach occurs when a party fails to discharge the duty owed. Hartford Ins.

Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 147-48 (1994). A property owner will be liable to an invitee in negligence if (1) the owner “controlled the dangerous or defective condition;” (2) the owner knew or should have known of the dangerous or defective condition; and (3) “the harm suffered was a foreseeable result of that condition.” Hansberger, 229 Md. App. at 21 (citation omitted). To establish a breach of duty, the plaintiff carries the burden to show that the defendant had actual or constructive knowledge of the dangerous condition and “that th[e] knowledge was gained in sufficient time to give [the defendant] the opportunity to remove it or to warn the invitee.” Rehn v. Westfield America, 153 Md. App. 586, 593 (2003) (citation omitted). The legally cognizable relationship between the breach of duty and the harm is also referred to as proximate cause.

Manor Inn of Bethesda, 335 Md. at 156 . “[T]o be a proximate cause of an injury, ‘the negligence must be 1) a cause in fact, and 2) a legally cognizable cause.’” Id. at 156 (citation omitted). “Causation-in-fact concerns the threshold inquiry of whether a defendant’s conduct actually produced an injury.” Troxel, 201 Md. App. at 504 (citation omitted). “Once causation-in-fact is established, ‘the proximate cause inquiry turns to whether the defendant’s negligent actions constitute a legally cognizable cause of the complainant’s injuries.’” Id. at 505 (citation omitted). This determination requires an analysis of whether the harm that occurred was a foreseeable result of any 15 negligent conduct, if established. See id. Proximate cause is ordinarily a question for the trier of fact, unless only one possible inference may be drawn from the facts of a case.

Id. It is important to underscore that foreseeability—the principal consideration in actionable negligence—is not confined to the proximate cause analysis. See Kennedy Krieger Institute, Inc. v. Partlow, 460 Md. 607, 633-34 (2018) (explaining that foreseeability is the principal determinant of common-law duty in personal injury cases). The role that foreseeability plays as a limitation on duty was explained by Judge McAuliffe writing for the Court of Appeals in Henley v. Prince George’s County: And at least since 1928 when [Chief] Judge Cardozo wrote Palsgraf v. Long Island R. Co., 248 N.Y. 339 , 162 N.E. 99 (1928), courts have given further effect to the social policy of limitation of liability for remote consequences by narrowing the concept of duty to embrace only those persons or classes of persons to whom harm of some type might reasonably have been foreseen as a result of the particular tortious conduct.

In Prosser and Keeton on The Law of Torts § 53 (W. Keeton 5th ed. 1984) the authors conclude that the limitation of causation by the use of the modifier “proximate” and the limitation of duty by the requirement of foreseeability are fundamentally similar. 305 Md. 320, 333-34 (1986). We also discussed the superimposing function of foreseeability in Valentine v. On Target, Inc.: Although in many cases there is little or no overlap between the four elements, in some instances the same considerations that relate to or define the element of duty may also relate to or define the element of causation. The element common to both duty and causation is that of foreseeability. Prosser and Keeton speak to the problem at 274–75. 112 Md. App. 679, 683-84 (1996), aff'd, 353 Md. 544 (1999) (citing W. PAGE KEETON ET AL., PROSSER AND KEETON ON TORTS, § 42, at 274-75 (5th ed. 1984)).

The Court of Appeals has cautioned, on the other hand, that ‘“foreseeability’ must not be confused with 16 ‘duty’. The fact that a result may be foreseeable does not itself impose a duty in negligence terms.” Ashburn v. Anne Arundel Cty., 306 Md. 617, 628 (1986). Appellants’ sole contention on appeal is that the circuit court erred when it determined that eight-year-old Damien was a bare licensee, and not an invitee. Appellants aver, “[t]his case turns on a determination of Damien’s legal status when he played on the community sign located on the grounds of the condominium complex in which his grandparents resided.” Appellees counter that regardless of the duty owed, Appellants failed to introduce any evidence of negligence on the part of the Council or Summit.

They contend that the court’s decision rested on its determination that there was no evidence that Appellees had actual or constructive knowledge of a dangerous condition, or that they had any opportunity to correct the danger or to warn Damien.7 Accordingly, we confine our analysis to only two issues—legal status and notice. 7 Appellees submit that if we find error in the circuit court’s determinations, then we should still affirm the order granting summary judgment based on Damien’s contributory negligence. The circuit court determined that it was not necessary to reach the issues of contributory negligence and assumption of risk because the court found that there was no negligence. The court was correct in its determination. See e.g.

Morris v. Williams, 258 Md. 625, 628 (1970) (“We need not consider the suggestion of the trial court that the eight year old plaintiff may well be guilty of contributory negligence in light of our conclusion that no primary negligence has been shown to exist.”) In their brief, Appellees also assert that “[i]t was error [for the circuit court] not to rule on the superseding/intervening negligence of [Mrs. Macias].” We will not address this issue either, not only because there was no evidence of negligence, but also because we are generally “confined to the bases relied on by the court, and will not affirm the grant of summary judgment for a reason not relied on by the circuit court.” Deboy, 167 Md. App. at 554 (citation omitted). 17 C. Legal Status 1. Parties’ Contentions Appellants contend that Damien was an invitee when he was playing on the common grounds of the condominium complex, and that that status was conferred on him as a guest of his grandparents, who had the status of business invitees. They assert there was no basis to find that Damien’s status changed to that of a bare licensee while playing in the area around the community sign. They note that “[i]nvitee status can be established by implied invitation[,]” and that an implied invitation existed because Damien frequently played on the grounds, the community sign blended in with the grounds, and there was no indication that the community sign was not to be climbed or sat upon.

They contend that it would be reasonable for Appellees to anticipate that children would play “in, around, and on the sign.” Conversely, Appellees claim that Damien’s grandparents were not business invitees, and, thus Damien cannot “borrow” business invitee status from them. When Damien first arrived, Appellees say, his status at his grandparents’ condominium was that of social guest because his primary reason for being on the property was to visit and eat dinner with his grandparents. Appellees submit that they were only required to warn Damien of known dangers, of which there were none. Further, Appellees contend that although Damien was a social guest, or licensee by invitation, he lost that status and became a trespasser or bare licensee when he climbed the community sign.

Consequently, Appellees request that this Court affirm the circuit court’s finding that Damien was a bare licensee at the time that he climbed the community sign. 18 2. Three Tiers of Duty A trespasser is one who intentionally enters the property of another without “privilege or consent[.]” Wells, 120 Md. App. at 710 . And a bare licensee, “like a trespasser, takes the property as he finds it and is owed no duty greater than that owed the trespasser.” Macke Laundry Serv. Co. v. Weber, 267 Md. 426, 428-29 (1972) (citing Crown Cork & Seal Co. v. Kane, 213 Md. 152, 157 (1957)).

As we have already explained, a landowner generally owes no duty to a trespasser under Maryland law, even a young child, “except to abstain from willful or wanton misconduct or entrapment.” Wells, 120 Md. App. at 710 ; Levine, 218 Md. at 79 (citation omitted). The anachronistic characteristics of this rule have been tempered by statute and recent cases. See e.g. Baltimore Gas & Elec.

Co. v. Flippo, 348 Md. 680 (1998); note 4, supra (discussing the holding in Blackburn Ltd. P’ship, 438 Md. at 128 , that regardless of a child’s legal status, a duty of care in a negligence action may arise from statute or regulation). A tier above trespasser is a social guest, sometimes referred to as a licensee by invitation. Laser v. Wilson, 58 Md. App. 434, 441 (1984). The social guest “takes the premises as his host uses them[,]” and the host must “exercise reasonable care to make the premises safe for his guest or he must warn him of known dangerous conditions that cannot reasonably be discovered . . . by the guest.” Bramble v. Thompson, 264 Md. 518, 521-22 (1972).

Maryland’s seminal case on social host liability is Paquin v. McGinnis, in which Mrs. Paquin slipped on a “scatter rug” and fell while she was a houseguest of the