Molock v. Dorchester County Family YMCA, Inc.

⁶⁶⁷ SALMON, Judge. On April 3, 1998, between 6 and 9 p.m., the Dorchester County Family YMCA (“YMCA”) held a Friday night roller skating event, which was billed: “Skate with the Easter Bunny Healthy Kids Night.” The event combined “Family Night” events with the normal skating that usually occurred on Friday nights at the YMCA. The skating was supervised by a skate monitor, a YMCA program director, and others, including a volunteer who, dressed as the Easter Bunny, skated among the children. Some parents of the children also sat in the bleachers surrounding the skating area.

In the hallway and rooms adjacent to the gymnasium, other Family Night activities took place such as crafts, face painting, and gymnastics. Information booths manned by representatives from various civic organizations were also present. Approximately three hundred people were in attendance. Around 8 p.m., the skate monitor, a YMCA volunteer named Vince Vigneri, was told by a teenager that “someone is going to bank my cousin.” Mr. Vigneri correctly understood the verb “bank” as meaning “beat up.” Mr. Vigneri did not ask who was going to beat up whom; he simply told his informant to stay inside the gymnasium where there was supervision.

Mr. Vigneri also told the program director, Frieda Dietrich, that there was a rumor that a fight was going to take place. Ms. Dietrich, in turn, told the front desk clerk, Angie Major, to ask the police to come for a “sweep through” at 8:50 p.m., so that there would be additional adult supervision when the event ended. About 8:50 p.m., fifteen-year-old Leo Molock, Jr. (“Molock”), got in a fight in the YMCA parking lot with Leroy McKnight (“McKnight”), age fourteen. The fight did not go well for McKnight.

After blows were struck, McKnight walked away from Molock, took a pocket knife from his cousin and returned to where Molock was standing. McKnight then stabbed Mol-ock, who died from his stab wounds. Appellants, who are the parents of Molock, filed a complaint in the Circuit Court for Dorchester County against the ⁶⁶⁸ YMCA, At trial, the plaintiffs produced evidence that, if believed, showed that the YMCA did not use reasonable care in supervising activities on their premises. On the other hand, the YMCA produced countervailing evidence showing that they did use reasonable care under the circumstances.

The trial judge’s jury instructions included the following: Now, this is a case brought in negligence. It is the [plaintiffs burden to prove that the [defendant was negligent and the negligence produced the injury that is complained of. Now, negligence is doing something that a person using ordinary care would not do or failing to do something that a person using ordinary care would do. So, the measure and the thing you must look for is ordinary care.

That’s the burden. If a person fails to do it then the burden [sic] is negligent. So, you’re looking at ordinary care, and you’ll hear counsel argue to you about ordinary care and what they believe constitutes ordinary care in this ease. And ordinary care simply means that amount of caution, attention or skill that a reasonable person would use under similar circumstances.

That is the important measure you’re talking about, the duty, a reasonable person, not the smartest person in the world or the least intelligent but a reasonable person. And we’re held and the [defendant in this case is held to that kind of care, which a reasonable person would use under similar circumstances. * * * Now, we’re talking here, the [defendant was at the YMCA, and the YMCA operated this business, if I may call it that. And by operating that enterprise assumed certain responsibilities to people who are there. And the liability of YMCA depends on the nature of the people who were there.

And I would instruct you, under the law in this case, those who were there at the invitation of YMCA are what we call invitees. And an invitee is a person who is invited or permitted to be on another’s property for the purposes related to the owner’s or occupant’s business. In this case ⁶⁶⁹ [t]he [c]ourt instructs you that Molock, young Molock, and the others there were invitees of YMCA. And the duty that is owed to an invitee is to use reasonable care to see that those portions of the property which the invitee may be expected to use are safe.

I’ll repeat that. The duty owed to an invitee is to use reasonable care to see that those portions of the property which the invitee may be expected to use[ ] are safe. And that’s the basis — the duty that you must consider in determining whether there was a breach of that duty. (Emphasis added.) Once the trial judge concluded his instructions, counsel for the plaintiffs put on the record his exceptions to the instructions.

The only exception that is here relevant was: [W]e sought an instruction on [loco] parentis involving special relationship, the special relationship between the child and an organization like the YMCA which we believe the analogous [sic] to that of a school and a pupil, which requires a special instruction pursuant to the special instruction filed in this ease. That’s all, Your Honor. The instruction to which plaintiffs’ counsel referred was the following: The relation of the YMCA to its members who are children is analogous to one who stands in loco parentis, with the result that the YMCA is under a special duty to exercise reasonable care to protect its members who are children from harm. (Footnote omitted) (emphasis added).

Henceforth, we shall refer to this instruction as the “in loco parentis” instruction. The trial judge declined to give the requested instruction. After being given a special verdict form, the jury retired to deliberate. The first question on the verdict form was, “Do you find that the [defendant was negligent and that its negligence was a proximate cause of the death of Leo Molock, Jr.?” The jury answered “no” to the first question and concluded their delib ⁶⁷⁰ erations.

After judgment was entered in favor of the YMCA, the Molocks filed this timely appeal. In the question presented portion of their brief, they raise one question, viz: Whether the [circuit court] erred in instructing the jury that the YMCA’s duty to nearly 300 teenagers attending its Friday night skating event was only to see that those portions of the premises to which the invitees may be expected to use were safe and not to prevent foreseeable harm? Appellants ask us to consider whether the instruction actually given by the trial judge — as opposed to the in loco parentis instruction that was rejected — was erroneous. This is made clear by appellants’ argument, viz: The [circuit] [c]ourt erred in instructing the jury that the duty of the YMCA was limited to seeing that those portions of the premises which the invitee may be expected to use were safe; the YMCA had a special duty to protect the teenagers from foreseeable harm. 1 According to appellants, This instruction is inapposite to the evidence in the case[,] which demonstrated that the YMCA, an organization nearly identical in social features to a school, invited nearly three hundred teenagers to a Friday evening social event and assumed the responsibilities for their safety beyond simply keeping safe those portions of the premises that the children might be expected to use.

The foregoing argument was not preserved for appellate review because appellants made no objection to the instructions actually given in the trial court. Maryland Rule 2-520(e) reads: ⁶⁷¹ Objections. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury.

Although not listed as a question presented, appellants do raise a second question, viz: Did the trial court err in rejecting their in loco parentis instruction? That question was properly raised below. In Farley v. Allstate Ins. Co., 355 Md. 34 , 733 A.2d 1014 (1999), the Court of Appeals said: In reviewing the propriety of a trial court’s denial of a requested jury instruction, we must examine “whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given.” Id. at 47 , 733 A.2d 1014 (quoting Wegad v. Howard St. Jewelers, Inc., 326 Md. 409, 414 , 605 A.2d 123 (1992)); see Jacobs v. Flynn, 131 Md.App. 342, 383 , 749 A.2d 174 , cert. denied sub nom.

Kishel v. Jacobs, 359 Md. 669 , 755 A.2d 1140 (2000); Green v. State, 119 Md.App. 547, 563 , 705 A.2d 133 (1998); Md. Rule 2-520(c). But, even if an instruction is applicable in light of the evidence before the jury, “a court need not give a requested instruction, even if it may be a correct exposition of the law, ‘if the matter is fairly covered by instructions actually given.’ ” Kennelly v. Burgess, 337 Md. 562, 577 , 654 A.2d 1335 (1995) (quoting Md. Rule 2-520); see Dover Elevator Co.