New Summit Associates Ltd. Partnership v. Nistle

KARWACKI, Judge. Sylvia Nistle, the appellee, brought suit in the Circuit Court for Montgomery County for compensatory and punitive damages against her former landlord, appellant New Summit Associates Limited Partnership, and its agent, appellant Dreyfuss Brothers, Inc. In counts one and two of her complaint, appellee alleged that New Summit breached express and implied covenants of quiet enjoyment contained in her lease by permitting an invasion of her privacy in the course of a renovation of an apartment adjacent to the apartment she had leased. Counts three, four, and five of her complaint alleged that the same omission constituted negligence, invasion of privacy, and intentional infliction of emotional distress on the part of both New Summit and Dreyfuss Brothers. A jury returned verdicts against the appellants on each cause of action except intentional infliction of emotional distress, awarded appellee $20,000 in compensatory damages, and assessed a $90,000 punitive damage award against New Summit and a $60,000 punitive damage award against Dreyfuss Brothers.

Judge L. Leonard Ruben denied appellants’ motion for judgment notwithstanding the verdicts, and New Summit and Dreyfuss ³⁵⁶ Brothers have appealed from the judgments entered against them on those verdicts, contending: I. The trial court erred by submitting appellee’s invasion of privacy claim to the jury because appellee neither alleged nor proved that appellants themselves committed such wrongful conduct.

II

There was insufficient evidence of negligence to warrant submission of appellee’s negligence claim to the jury. 1 III. The trial court erred by permitting appellee to read Article 27, § 580 of the Maryland Code to the jury because appellee never contended, nor did she prove, that appellants violated that criminal statute.

IV

The trial court erred by submitting appellee’s claim for punitive damages to the jury. Viewing the evidence below in a light most favorable to the appellee, as we must in reviewing the denial of a motion for judgment notwithstanding the verdict pursuant to Rule 2-532, Impala Platinum v. Impala Sales, 283 Md. 296, 327 , 389 A.2d 887 (1978); Hamilton v. Ford Motor Credit Co., 66 Md.App. 46, 59 , 502 A.2d 1057 (1986), we conclude that the following facts were proven at trial. On October 12, 1984, appellee, a 25 year old divorcee, moved into an apartment in the New Summit Apartment complex located in Rockville. The apartment complex was owned by New Summit Associates Limited Partnership and managed by Dreyfuss Brothers, Inc. Throughout 1984, various apartments within the complex were renovated after tenants vacated them.

The general contractor for the rehabilitation project was the Artery Organization, Inc., an entity affiliated with New Summit. In the course of the renovation process, a rash of thefts and vandalism had occurred in the ³⁵⁷ vacant apartments undergoing renovation. Despite these incidents, lock cylinders on the front doors of apartments undergoing renovation were often removed in the first week of work and not replaced, and the apartments were not otherwise secured from unauthorized entry. Each floor of an apartment building in the New Summit complex contained four individual apartments.

The bathroom in appellee’s apartment shared a common partition wall with the bathroom of an adjacent apartment on her floor. A large space existed in that partition wall, but bathroom mirrors in each apartment covered the space. Shortly after appellee moved in, renovation commenced in the apartment contiguous with appellee’s apartment. In the first week of the renovation, workers removed the mirror from that apartment’s bathroom wall, thereby exposing the rear of appellee’s bathroom mirror.

Construction work in the apartment commenced each morning between 6:00 and 6:30 a.m., approximately the time at which appellee utilized her bathroom in preparation for work. On November 13, 1984, appellee discovered two circular marks scratched on her bathroom mirror. She attempted to clean the marks from the mirror, but was unsuccessful. One week later, she reported the existence of the scratches to the management office and was told that someone would look into the matter.

At the time, appellee was unaware that the back of her bathroom mirror was exposed to anyone within the adjacent apartment which was undergoing renovation. On Sunday, December 2, 1984, Mr. Bowman, her upstairs neighbor, told Ms. Nistle that he had recently been inside the vacant apartment which adjoined hers, where he discovered that it was possible to see most of the interior of her bathroom through two holes that had been scratched in the rear of her bathroom mirror. The holes were approximately four and one-half feet above the floor and had been scratched to accommodate a pair of human eyes. Ms. Nistle immediately entered the unlocked, vacant apartment, ³⁵⁸ and observed the interior of her bathroom through the scratches.

The realization that her bathroom was thus exposed caused the appellee great anxiety. She reported the matter to the police later that evening. Officer Troiano of the Montgomery County Police Department investigated but took no further action. Still upset the next morning, appellee telephoned the resident manager, Ms. Karen Geier-Smith, and asked her to look into an invasion of the privacy of her bathroom.

She did not mention the scratches on her mirror. Ms. GeierSmith responded to the call by examining the adjacent apartment. As she apologized to the appellee, Ms. GeierSmith explained that the management office knew of similar incidents which had taken place in other apartments in the course of the restoration project. She stated, however, that the renovation construction workers were not warned to refrain from scratching mirrors because the management was afraid that such a warning would exacerbate the problem.

Instead, Dreyfuss assigned to an employee the task of checking for scratched mirrors and painting the backs of any that he might find. On November 20, 1984, the date on which appellee complained of the scratches on her mirror, the management office knew of at least two instances in which bathroom mirrors in the complex had been similarly damaged. A groundsman employed by Dreyfuss had discovered scratches on the back of a mirror in an occupied apartment when he inspected the bathroom of an adjacent vacant apartment on October 31, 1984. At that time he reported to Ms. Geier-Smith that he could observe the bathroom in the occupied apartment through the scratches.

On November 2, 1984, Joyce Ruzich, another tenant at the complex, had reported on a “new resident correction list” that her bathroom mirror needed to be replaced after she discovered two holes scratched in the back of her mirror. Ms. Ruzich placed masking tape over the scratches on her mirror immediately after she discovered them. These incidents ³⁵⁹ were discussed at a meeting between management personnel and senior representatives from New Summit, Artery, and Dreyfuss. The appellee vacated her apartment and moved into her parents’ house on December 8, 1984.

She experienced nausea, diarrhea, and an inability to sleep for several weeks following her discovery of the probable invasion of the privacy of her bathroom. She eventually was required to undergo psychiatric counseling. I. INVASION OF PRIVACY The appellants maintain that they cannot be found liable for an invasion of appellee’s privacy because 1) appellee did not establish that her privacy was, in fact, invaded by anyone; and 2) even if appellee’s privacy was invaded, the invasion was produced by acts of unknown third parties. The appellee responds that the identity of the actual “Peeping Tom” is not an essential element of her invasion of privacy claim because appellants condoned and thereby created a situation in which her right to privacy in her bathroom “could be, would be, and was unreasonably and seriously invaded.” As Judge Wilner, speaking for this Court, noted in Pemberton v. Bethlehem Steel Corp., 66 Md.App. 133, 161 , 502 A.2d 1101 (1986): The Court of Appeals held in Carr v. Watkins, 227 Md. 578 , 177 A.2d 841 (1962), that, in a proper case, Maryland would recognize an action for unwarranted invasion of privacy.

In subsequent cases—most recently Lawrence v. A.S. Abell Co., 299 Md. 697 , 475 A.2d 448 (1984), and Hollander v. Lubow, 277 Md. 47 , 351 A.2d 421 , cert. denied, 426 U.S. 936 , 96 S.Ct. 2651 , 49 L.Ed.2d 388 (1976)—the Court has looked primarily to Restatement of Torts 2d, §§ 652A-652E, and to W. Prosser, The Law of Torts (3d and 4th eds,), in defining the kind of conduct that it would regard as actionable. ³⁶⁰ The branch of the tort of invasion of privacy which concerns an intrusion upon an individual’s seclusion is defined by the Restatement (Second) of Torts § 652B. One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. The gravamen of the tort is the intrusion into a private place or the invasion of a private seclusion that the plaintiff has thrown about his person or affairs. Pemberton v. Bethlehem Steel Corp., supra, 66 Md.App. at 163, 502 A.2d 1101 .

One court has stated that: This tort ... is directed to protecting the integrity and sanctity of physical areas a person would naturally consider private and off limits to uninvited, unwelcome, prying persons. Cummings v. Walsh Construction Co., 561 F.Supp. 872, 884 (S.D.Ga.1983). Appellee’s privacy was undoubtedly invaded by the individual who scratched the peepholes in the back of her mirror. An individual’s bathroom is certainly a private place that is carefully concealed from uninvited eyes.

To establish an invasion of her privacy, appellee was not required to prove that a particular individual actually observed her while she used the facilities in her bathroom. The intentional act that exposed that private place intruded upon appellee’s seclusion. The appellants cannot, however, be held liable for an invasion of appellee’s privacy under the evidence in the instant case because Restatement § 652B requires an intentional intrusion upon the seclusion of another. There was no proof that the invasion of appellee’s privacy was committed by any agent, servant, or employee of either of the appellants.

Absent evidence of such intentional participation in the invasion, there is no basis upon which appellants can be held liable on this theory. ³⁶¹ II. NEGLIGENCE The appellants next assert that there was insufficient evidence to support a submission of appellee’s negligence claim to the jury because there is no special duty imposed upon a landlord to protect his tenants against crimes perpetrated by third parties on the landlord’s premises. Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548 (1976). Moreover, appellants maintain that the record fails to reflect that their conduct was unreasonable.

One duty which adheres to the landlord/tenant relationship is the landlord’s duty, in certain instances, to warn the tenant of latent defects which exist in the rented premises. The Restatement (Second) of Torts § 358(1) codifies the applicable rule: Undisclosed Dangerous Conditions Known to Lessor (1) A lessor of land who conceals or fails to disclose to his lessee any condition, whether natural or artificial, which involves unreasonable risk of physical harm to persons on the land, is subject to liability to the lessee and others upon the land with the consent of the lessee or his sublessee for physical harm caused by the condition after the lessee has taken possession, if (a) the lessee does not know or have reason to know of the condition or the risk involved,