Paramount Development Corp. v. Hunter

SingeEy, J., delivered the opinion of the Court. On an afternoon in March 1965, Stuart Hunter and James Cherrix, both then about Sy2 years old, entered a vacant and unlocked house at 706 Cabin John Parkway, in Rockville, Maryland, owned by Paramount Development Corporation (Paramount) . The boys turned on an electric range; some newspapers ¹⁹⁰ were ignited; and the resulting damages to the house amounted to $5,612.50. Paramount, the plaintiff below and appellant here, sued the boys and their parents; demurrers filed by the parents were sustained; the case against the boys was tried before a jury, which returned a verdict for the defendants; the plaintiff filed a motion for a judgment n.o.v.; and from the judgment entered in favor of the defendants, the present appeal was taken.

The appellant was aware of the fact that the Maryland cases appear to have imposed liability on a trespasser regardless of whether damage done by him was occasioned by his negligence. Lawson v. Price, 45 Md. 123 (1876); West Virginia Cent. & P. R. Co. v. Fuller, 96 Md. 652 , 54 A. 669 (1903). But see, Restatement (Second) of Torts, §§ 158, 166 (1965). Its declaration was so framed, at least in part, to sound in trespass against the infant defendants.

Had the case proceeded on this theory, Paramount might have been spared the necessity of proving negligence or intent, Prosser, Torts (3d Ed. 1964), ch. 3, § 13, and liability might have been imposed regardless of the defendants’ infancy or of the fault of the property owner. Cleveland Park Club v. Perry, 165 A. 2d 485 , (D.C. Mun. App. 1960); Seaburg v. Williams, 16 Ill. App. 2d 295 , 148 N. E. 2d 49 , 67 A.L.R.2d 562 (1958).

See also, Fett v. Sligo Hills Development Corp., 226 Md. 190, 197 , 172 A. 2d 511, 514 (1961); Carroll v. Spencer, 204 Md. 387 , 104 A. 2d 628 , 44 A.L.R.2d 1247 (1954). The amended declaration contained the following paragraph, however: “That the said infant defendants, Stuart Hunter and James Cherrix, each being more than five (5) years of age, knew or should have known, that they should not have been trespassing on the plaintiff’s premises, and that they should not harm and damage the said premises, and they knew or should have known that newspapers placed in or about an electric kitchen range in the plaintiff’s premises would ignite if the electric kitchen range was turned on and they therefore should have refrained from turning on the said range, but did, ¹⁹¹ nevertheless, turn on the said range, causing newspapers to ignite and as a result a severe and substantial fire was caused in and about the plaintiff’s premises.” and testimony was offered in support of these allegations: i.e.,. the lighting of the stove and the placing of the papers. Through the testimony of Daniel Karsner, of the Montgomery County Division of Fire Prevention, the defendants introduced Section 86-78 of the Montgomery County Fire Prevention Code, which required that the doors and windows within 12 feet above the ground of temporarily vacant buildings shall be closed and locked. 1 Uncontroverted evidence was offered in ¹⁹² behalf of the defendants that the house had been vacant for at least several years, that the house was unlocked, that appliances were in place, and that the electricity had not been turned off. The lower court concluded that the declaration sounded in both trespass and negligence; that the case was tried as a negligence case; and that therefore, it should go to the jury as a negligence case. 2 In its charge to the jury, the lower court said: “In the present case, therefore, there are two principal questions for you to decide in reaching your verdict.

First whether the damages to which you have heard reference made were caused by negligence on the part of these boys, and secondly, if you should find that it was, whether any negligence on the part of the Plaintiff also' contributed to cause the damages. “You have heard the provisions, or portion, of Section 86-78 of the Fire Prevention Code of Montgomery County, read to you. The Defendants contend that the Plaintiff is barred by contributory negligence by reason of the violation of that Ordinance. It is for you to determine whether the Plaintiff did violate that Section and if so, whether the alleged violation was a direct contributing cause of the damage which it sustained. ¹⁹³ “Now, negligence is the lack of ordinary care under all of the