Read Drug & Chemical Co. v. Colwill Construction Co.

Barnes, J., delivered the opinion of the Court. This appeal principally involves the sufficiency of the allegations of a declaration in tort filed by Nora M. Brooks and Melvin J. Brooks, Jr., her husband, two of the appellants, against The Read Drug and Chemical Company of Baltimore City (Read) and Colwill Construction Company, Inc. (Colwill) to recover for damages allegedly resulting from the falling of Mrs. Brooks at the rear entrance to Read’s place of business in the Dundalk Shopping Center in Baltimore County. Also involved is whether the Circuit Court for Baltimore County (Turnbull, J;) erred in granting Col will’s motion ne recipiatur and to strike the cross-claim of Read against Colwill. On March 5, 1964, Mr. and Mrs. Brooks filed their declaration which contained two counts.

The first count presented Mrs. ⁴⁰⁹ Brooks’ claim against Read and Colwill; the second count alleged the claim of Mr. Brooks for loss of the services of his wife and for her medical expenses. The first count is the important one, and contains, in relevant part, the following allegations : “For that on or about March 5, 1961, the Defendant, The Read Drug and Chemical Company of Baltimore City, operated a drug store business at 29 Shipping Place, Baltimore 22, Maryland, located in the Dundalk Shopping Center, Baltimore County, Maryland, to which the public was invited to shop for drugs and merchandise, and on or about said date, the said Defendant, The Read Drug and Chemical Company of Baltimore City and the Defendant, Colwill Construction Company, Inc., caused, had in progress and undertook to make certain improvements, repairs or remodeling in and upon the said premises. The Plaintiff, Nora M. Brooks, on said date, was on the said premises and entering the said Defendants’ store as a customer or invitee, in response to Defendants’ invitation and the said Defendants negligently and carelessly permitted a loose board to be placed at the rear door or entrance of the said store for customers and invitees to walk upon to enter the said premises; that the said condition and walkway thus created was hazardous for persons using the said premises and store entrance, and no warning was given to the Plaintiff, Nora M. Brooks, of the existence of the said hazardous condition or the danger created thereby. While exercising due care, the said Plaintiff tripped and fell as she was walking on the said wooden walkway and was seriously, painfully and permanently hurt, injured and wounded in and about her head, neck, body, and limbs and was rendered unconscious, and she suffered and will continue to suffer great pain and severe and permanent injury and shock to her body and to her nerves and nervous system, and great pain and mental anguish, all of which was proximately caused by the ⁴¹⁰ negligence and carelessness of the said Defendants that the Plaintiff, Nora M. Brooks, came under treatment for her injuries by physicians and surgeons and is precluded from performing her customary duties, employment and engaging in her usual activities and pursuits, and she will, in the future, be prevented by her injuries and resulting infirmities, from performing any duty and engagement in any activity or pursuit requiring full and normal use of her body, neck and limbs, and she was, is, and will be otherwise hurt, injured, wounded and damaged, and that the said Plaintiff avers that all of her injuries, wounds, damages, pain, suffering and losses, past, present and future, were, are and will be due solely to and by reason of the negligence and carelessness of the Defendants, and without any negligence or want of due care on the part of the said Plaintiff directly contributing thereto, and the Defendants are jointly or severally liable to the said Plaintiff therefor.” The ad damnum clause claimed $100,000.

The second count incorporated by reference the allegations of the first count, and alleges that Mrs. Brooks, wife of the plaintiff husband: “* * * as a result of the Defendants’ negligently and carelessly permitting a loose board to be placed at the rear door or entrance of the said drug store for customers and invitees to walk upon and to enter the said premises; and that as a result of the hazardous and dangerous condition created thereby, and the ensuing fall and injuries to the Plaintiff’s Wife, Nora M. Brooks, all of which was proximately caused by the negligence and carelessness of the said Defendants, her Husband, the Plaintiff, suffered loss and damage and was and is and will be deprived of the services of his Wife and has incurred and will incur expenses for her medical treatment and care and for the services of physicians required to treat and administer to her in ⁴¹¹ juries and resulting infirmities, and has suffered and will suffer other loss and damage.” The ad damnum clause for the second count claims $50,000. On April 5, 1964, Colwill filed a demurrer to the declaration alleging the following grounds : “1. That the alleged cause of action did not accrue within three years before this suit. “2. That the Plaintiffs’ action is barred by the statute of limitations. “3.

That it is apparent from the face of the Declaration that the within cause of action did not accrue within three years before this suit. “4. That said Declaration does not set forth any cause of action for which this said Defendant is liable to the Plaintiffs in damages in each and every count. “5. That said Declaration does not set forth airy legal liability on the part of this Defendant to the Plaintiffs. “6. That it is apparent from the face of the Declaration that the Plaintiff was not an invitee or customer of this Defendant and therefore, the allegations in the Declaration as to duty owed to the Plaintiffs by this Defendant and as to breach of any such duty does not set forth any legal liability on the part of this Defendant to these Plaintiffs. “7.

That said Declaration is bad in substance and insufficient at law. “8. And for such other and further reasons to be shown at the hearing hereon.” On May 11, 1964, Read filed a special plea of limitations and the general issue plea that it did not commit the wrongs alleged, so that the action was at issue as between the plaintiffs and Read. On the following day, May 12, 1964, Read filed a third-party claim against its landlord, the Dunleer Company, for all damages that may be adjudged against it in favor of the original plaintiffs. Although there have been several attempts to obtain ⁴¹² service of the third party claim on the landlord, service had not been effected prior to the appeal in this case.

Judge Turnbull, on June 4, 1964, sustained Colwill’s demurrer without leave to amend as to Colwill, with leave, however, to file a motion within 30 days to strike out the ruling. Such a motion was duly filed. Thereafter, on July 11, 1966, Colwill’s demurrer was sustained with leave to amend in 30 days. On November 9, 1966, the trial court extended Colwill’s time to plead and granted the plaintiffs leave to file an amended declaration.

The plaintiffs, Mr. and Mrs. Brooks, elected not to amend, and on June 14, 1967, the lower court entered judgment for Colwill for costs. The appeal was seasonably taken to this Court from that judgment. (1) We are of the opinion that the lower court properly sustained Colwill’s demurrer to the declaration, and, upon the election of Mr. and Mrs. Brooks not to amend, properly entered a judgment in favor of Colwill for costs. The basic requirement for allegations in a declaration appears in Maryland Rule 301 c which states that it contain “a clear statement of facts necessary to constitute a cause of action * * (Emphasis supplied.) Our predecessors have held that a declaration in order to state a cause of action for negligence must allege, with certainty and definiteness, facts and circumstances sufficient to set forth (a) a duty owed by the defendant to the plaintiff, (b) a breach of that duty and (c) injury proximately resulting from that breach.

As Judge Parke, for the Court, stated in Jackson v. Pennsylvania R. R. Co., 176 Md. 1, 5 , 3 A. 2d 719, 721 (1939): “In order for a plaintiff to have a right of action in negligence against a defendant there must exist a duty which is owed by the defendant to the plaintiff to observe that care which the law prescribes in the given circumstances, a breach by the defendant of that duty, damages and injury suffered .by the plaintiff as the demonstrable effect of the breach of duty. Negligence is, therefore, the absence of care according to the circumstances. So, an action for negligence involves the ⁴¹³ certain and definite allegation of the circumstances, and the failure of the defendant to exercise the care which the law required according to these circumstances. If the allegations should be insufficient to show a duty-breached which was the efficient cause of the injury, the declaration is bad on demurrer.” See 1 Poe, Pleading and Practice (5th Ed.), §§ 56-60.

It is obvious that the necessary allegations of fact sufficient to state a cause of action for negligence in a simple factual situation vary from those in more complex factual situations and a form of declaration useful in the former situation may not be sufficient as a guide in preparing a declaration for the more complex case. This aspect of Maryland pleading is aptly summarized in a careful review of the Maryland cases by Joseph O. Kaiser, of the Baltimore bar and formerly lecturer on pleading at the Law School of the University of Maryland, in his article, Pleading Negligence in Maryland—Res Ipsa Loquitur as a Rule of Pleading, 11 Md. L. Rev. 102 , at pages 103-104 (1950): “Thus, a rather flexible standard is presented to the Maryland practitioner for his use in stating a cause of action for negligence. A survey of the Maryland statutory forms and the Maryland cases will demonstrate that where the plaintiff’s right and the defendant’s corresponding duty are simple and easily perceived, a simple factual statement of the defendant’s act or omission in breach thereof, coupled with the general characterization of the defendant’s act or omission as negligent, will suffice. On the other hand, the less apparent the plaintiff’s right and the defendant’s duty, the more likely the pleader will be required to specify the acts or omissions relied upon to constitute the negligent conduct.

Otherwise stated, in simple situations involving an easily recognized breach of duty, a general averment of negligence following a simple statement of the defendant’s act or omission will be regarded as an ultimate fact; while in more complex situations where the breach of duty is not readily ap ⁴¹⁴ parent, such an averment will be regarded as a mere legal conclusion.” Cases which illustrate the sufficiency of general statements of the act or omission and a general allegation of negligence are Philadelphia, Baltimore & Washington R. R. Co. v. Allen, 102 Md. 110 , 62 A. 245 (1905), involving an action by a passenger against a common carrier and American Express Company v. Denowitch, 132 Md. 72 , 103 A. 96 (1918), involving an action to recover for injuries resulting from a motor vehicle collision. In Allen our predecessors held that in view of the high duty owed by a common carrier to its passenger and the statutory form of declaration directly applicable to that situation, the declaration was sufficient which contained allegations that the carrier negligently managed the car and train in which the plaintiff passenger was riding and that the passenger was thereby thrown down and wounded and injured. In Denowitch a declaration in a motor vehicle collision case was held sufficient if it alleged that the defendant negligently drove his vehicle into the plaintiff as a consequence of which the plaintiff, without fault on the plaintiff’s part, was injured. Except in cases involving such simple and specialized situations as the motor vehicle and carrier-passenger cases, this Court has consistently held that a declaration must, as stated by Judge Alvey, for the Court, in Gent v. Cole, 38 Md. 110, 113 (1873) (quoting in part 6f6rights conferred upon the trustee in bankruptcy by § 70(c), Collier, Bankrupcty, (14th Ed, 1967) § 70.65, at 734.

From an opinion by Mr. Justice Butler in Rex v. Lynne Regis, Doug. 159), have sufficient specificity in its allegations to provide "facts * * *, ‘for the purpose of informing the court, whose duty it is to declare the law arising upon these facts, and to apprise the opposite party of what is meant to be proved, in order to give him an opportunity to answer or traverse it.’ ” (Emphasis in original.) This principle of pleading has been applied in many types of cases. In the landmark case of State, use of Jeter v. Schwind Quarry Co., 97 Md. 696, 55 A. 366 (1903), 1 a declaration was ⁴¹⁵ held to be insufficient on demurrer which alleged that the defendant operator of a stone quarry negligently directed the decedent of the plaintiff to extract a charge of blasting powder which had been placed in a hole drilled in a rock'; that the plaintiff’s decedent was not sufficiently skilled for this type of work, rvas ignorant of the danger involved and was not warned of the danger by the defendant; that in the execution of the work assigned to him, the plaintiff’s decedent was killed due to the negligence of the defendant. The trial court sustained a demurrer to the declaration and the judgment for the defendant for costs was affirmed. This Court held that the declaration was insufficient because it failed to allege specifically enough in what way the defendant violated any duty to the plaintiff’s decedent, that is, in what respect the place supplied by the defendant for the plaintiff’s decedent to work was not safe; wdiat was the particular danger which was created by the negligence of the defendant; and how the allegedly unsafe condition was connected with and caused the accident.

In Livingston v. Stewart & Co., Inc., 194 Md. 155 , 69 A. 2d 900 (1949), the declaration alleged that while the plaintiff was a business invitee in the defendant’s department store, a two-wheel bicycle fell on the plaintiff as a result of which the plaintiff was injured through the negligence of the defendant and without any fault of the plaintiff. In the bill of particulars filed by the plaintiff, it was stated that the exact facts of the negligence of the defendant were particularly within the knowledge of the defendant which had sole control of the bicycle. This Court held that the lower court properly sustained the demurrer to the declaration because it “contains only the argumentative conclusion that plaintiff’s injuries were caused by defendant’s negligence, but states no acts done or left undone by defendant which constitute negligence or a negligent manner of doing anything.” ( 194 Md. at 159 , 69 A. 2d at 901 .) Judge Markell, for the Court, in Livingston quoted with approval from Phelps v. Howard County, 117 Md. 175, 177 , 82 A. 1058, 1059 , that “ ‘the general characterization of an act or omission as negligent, or of a condition as unsafe is not usually a sufficient statement of the supposed ground of liability.’ ” ( 194 Md. at 159 , 69 A. 2d at 901 .) ⁴¹⁶ The distinction between the simple and more sophisticated factual situations is carried over into the official forms adopted under the Maryland Rules. Compare, for example, Official Form 5 a, Automobile, which sets out a declaration in negligence for automobile cases containing allegations merely that the “* * * Defendant negligently drove * * * against Plaintiff who was * * * exercising due care; as a result, Plaintiff suffered great pain and injury.” with Official Form 5 b, Other than Automobile, in which more specific allegations are set out.

In applying the principles of pleading established by the authorities mentioned, we have concluded that the lower court properly sustained the demurrer to the declaration in the present case, for at least two reasons: (a) the declaration does not sufficiently allege negligence and (b) it fails to allege sufficiently a causal connection between the negligence sought to be charged and the injuries allegedly sustained and that such negligence was the proximate cause of the injury sustained. (a) In considering the allegations of the declaration, it is well established that any ambiguity or want of certainty in those allegations must be construed against the pleader. As Judge (now Chief Judge) Hammond stated, for the Court, in Carder v. Steiner, 225 Md. 271, 276 , 170 A. 2d 220, 222 (1961): “* * * whenever a pleading is so doubtful and ambiguous as to be fairly capable of two interpretations, it will be construed most strongly against the party filing it.” (Citing 1 Poe, Pleading and Practice, Tiff. Ed., Sec. 557 and prior Maryland cases.) The act of the defendant alleged in the declaration is that the defendants “permitted a loose board to be placed at the rear door or entrance of the said store for customers and invitees to walk upon to enter said premises.”