Rhaney v. University of Maryland Eastern Shore

HARRELL, J. A damaged fishtank, a sucker punch from its owner, and the resultant broken jaw prompted this litigation initiated by ⁵⁸⁹ Anthony F. Rhaney, Jr., a .student at the time at the University of Maryland Eastern Shore (“UMES” or “University”). On 29 October 1998, Ennis Clark, another student enrolled at UMES, began moving his personal items from the randomly-assigned dormitory room that he shared with Rhaney into a different dormitory room. When Clark left the room, Rhaney moved Clark’s fish tank (which yet awaited transport to the new dormitory room) and noticed it began leaking. Clark returned as Rhaney was attempting to stop the leak.

He demanded that Rhaney explain what happened to the fish tank. Clark punched Rhaney in the jaw after Rhaney denied repeatedly that he had cracked the fish tank as he moved it. Clark had been disciplined once by UMES for fighting before the 29 October 1998 incident with Rhaney. He was involved in two altercations with other students, first at an on-campus party on 13 March 1998 and at a subsequent, related, fight at a campus dining hall on 14 March 1998. 1 UMES suspended Clark after he pled guilty before the Judicial Council of UMES to fighting and disorderly conduct regarding the 14 March incident.

The University instructed Clark that the suspension could be lifted if he participated in “professional counseling related to conflict resolutions.” Thereafter, Clark attended a Save Our Streets (“S.O.S.”) program in Washington, D.C. and offered that experience in satisfaction of the school’s requirement for his re-admission. UMES, for better or worse, permitted Clark to return after receiving documentation of his participation in that program. After the 29 October 1998 battery, Rhaney filed a complaint in the Circuit Court for Somerset County, alleging, among other things, two counts against UMES. 2 Count III pled that UMES either negligently failed to disclose to Rhaney Clark’s ⁵⁹⁰ dangerous tendencies or negligently assigned Clark to be Rhaney’s roommate. Count IV stated that UMES breached its duty to Rhaney under premises liability principles, alleging that Rhaney was a business invitee.

UMES moved for summary judgment, arguing that UMES, as a landlord, did not violate a known duty to Rhaney as a business invitee or tenant and asserting that a special relationship (a pre-requisite to UMES owing a duty to control the conduct of a third party (Clark)) did not exist between UMES and Rhaney. The judge denied the motion. At the end of a trial, the jury returned a verdict against UMES. UMES appealed to the Court of Special Appeals.

Univ. of Md. E. Shore v. Rhaney, 159 Md.App. 44 , 858 A.2d 497 (2004) (en banc) (hereinafter “UMES”). The Court of Special Appeals’s majority reversed the judgment of the Circuit Court, observing that there could be no breach of duty owed to Rhaney as a business invitee or tenant where the “evidence of Mr. Clark’s prior misconduct was insufficient to establish the foreseeability that he would assault the other person assigned to his dormitory room.” UMES, 159 Md.App. at 60 , 858 A.2d at 506 . The intermediate appellate court refused to address the special relationship theory interjected by UMES because it had not been alleged by Rhaney in his complaint as a theory of recovery. Id. at 47-48 n. 2, 858 A.2d at 499 n. 2 (citing Bourexis v. Carroll County Narcotics Task Force, 96 Md.App. 459, 478 , 625 A.2d 391, 398 (1993)).

We granted Rhaney’s petition and issued a writ of certiorari, Rhaney v. University of Maryland Eastern Shore, 384 Md. 448 , 863 A.2d 997 (2004), to consider the following questions: I. Did the Court of Special Appeals err by imposing an incorrect standard of foreseeability of harm which unduly restricts causes of action against business hosts and landlords for their failure to protect invitees or tenants from criminal activity?

II

Did the Court of Special Appeals improperly inject into the case law of premises liability applicable to this case ⁵⁹¹ its views of proper public policy regarding proper college admission, re-admission, and disciplinary procedures? We also granted the conditional cross-petition of UMES possibly to consider the following: III. Did the University owe a duty to protect Rhaney from the student who punched him when the University had not taken charge or custody of either student and when the University undertook no affirmative act to protect Rhaney upon which Rhaney could reasonably rely? We are persuaded to affirm the Court of Special Appeals’s judgment, but upon different grounds.

Because Rhaney shall not prevail as to any of his questions properly raised in his petition for writ of certiorari, the question presented in UMES’s cross-petition shall not be reached or decided. I. A. Clark matriculated initially at UMES in the fall of 1997 as a first semester freshman. After completing his first semester, he was involved in an on-campus altercation at the Student Development Center on the night of 13 March 1998. The fight re-erupted on the fourteenth of March in front of a campus dining hall.

Clark and several others were detained by campus police; Clark and one other student were suspended as a result. The remaining students involved in the fracas received on-campus punishment. Clark’s suspension was not necessarily infinite. UMES prescribed in a letter, dated 24 March 1998, that Clark could apply for readmission for the fall 1998 semester if he completed “professional counseling sessions related to conflict resolutions.” If he did so, Clark could be re-admitted under a one academic year probationary period — subject to immediate and indefinite suspension for any future disciplinary violations.

According to a letter, dated 11 June 1998, from the UMES Vice President for Student Affairs, Clark’s participation in the ⁵⁹² S.O.S. program 3 satisfied the counseling requirement attached to the March 1998 suspension, although the “one academic year” probationary period would remain in effect should Clark apply for re-admission. Clark applied for re-admission the same day; he was re-admitted on 29 June 1998. After being randomly assigned as roommates, Clark and Rhaney co-existed peacefully until the October 1998 fishtank incident. 4 UMES did not inform Rhaney of Clark’s prior disciplinary decision, although Rhaney testified that he knew of the March 1998 incident within a few weeks of the start of the fall semester. 5 On 29 October 1998, while Clark moved his personal belongings from the room he shared with Rhaney to another dormitory room, Rhaney and a friend began to rearrange the remaining furniture in the room. They moved Clark’s fish tank from the top of a desk.

The tank cracked and began leaking. As Rhaney attempted to stop the leak and clean-up the spilled water, Clark returned to the room. A heated argument arose. Rhaney denied continuously that he had broken the fishtank.

During a pause in the purely vocal altercation to that point, Clark punched Rhaney in the jaw. ⁵⁹³ In the resultant surgery, Rhaney’s mouth was wired shut. He incurred significant medical expenses. 6 Rhaney eventually completed his first semester at UMES, but withdrew before receiving his degree. Clark withdrew from UMES after his battery of Rhaney. B. Rhaney’s complaint alleged against UMES essentially the following theories of recovery in negligence: 29. [UMES] was negligent in that it failed to disclose to [Rhaney] that his roommate, [Clark], had dangerous and violent propensities, which were known to [UMES] or its agents, servants, and employees.

The likelihood of an assault by Clark on [Rhaney], or others, was foreseeable. 30. [UMES] was further negligent in that it assigned [Clark] to be a roommate of [Rhaney], under circumstances wdien it knew or should have known that [Clark] had dangerous propensities including a history of assault. 31. [UMES] breached its duty of reasonable care by permitting [Clark] to be in proximity to [Rhaney], and as a result of the negligence of [UMES], [Rhaney] was injured and sustained damages. * * * 35. [UMES] is an institution of higher learning maintaining a campus at Princess Anne, Somerset County, Maryland, for the purpose of educating and housing students, among its other functions. 36. [Rhaney] was properly enrolled as a full-time student and residing in a dormitory provided by [UMES]. 37. While lawfully on the portion of the premises to which he was invited and expected to be by [UMES], [Rhaney] was assaulted and battered by [Clark] as set forth above. ⁵⁹⁴ 38. [Rhaney] was an invitee of [UMES’s] property, and [UMES] breached its duty of reasonable and ordinary care to maintain the premises safely for [Rhaney], and to protect [Rhaney] against injury caused by unreasonable risk which [Rhaney], exercising due care, could not discover. 39. [UMES] breached its duty of care by permitting [Clark] to be in proximity with [Rhaney]; by failing to protect [Rhaney] from [Clark’s] dangerous propensity; and by failing to warn [Rhaney] of Clark’s dangerous propensities. In UMES’s memorandum supporting its motion for summary judgment, it argued that “there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a ‘special relationship’ exists between the actor and the third person or between the actor and the person injured.” Ashburn v. Anne Arundel County, 306 Md. 617, 628 , 510 A.2d 1078, 1083 (1986) (citations omitted). It explained that the university/student relationship by itself did not constitute a special relationship at law.

UMES further contended that, for purposes of the motion, neither a business owner/invitee nor a landlord/tenant status (assuming one or the other existed between UMES and Rhaney) created a legally cognizable duty in this case. Even if a duty were recognized, UMES alternatively asserted that that duty was one of reasonable care and was not breached by UMES based on the undisputed material facts of this case. As noted earlier, the trial court denied UMES’s motion. At trial at the close of Rhaney’s case-in-chief and again at the close of all of the evidence, UMES moved for judgment, repeating its summary judgment arguments.

Rhaney’s counsel retorted only that UMES owed a legal duty to Rhaney as a landlord would a tenant or a business owner to a business invitee. The trial court denied UMES’s motions and submitted the case to the jury. The jury was instructed on the duty of a landlord to a tenant, a business owner to an invitee, and the duty arising in a special relationship, if one is found to exist, to control a third ⁵⁹⁵ person’s conduct. Rhaney’s counsel objected to the special relationship jury instruction, which had been proposed by UMES, but did not offer one of his own regarding a special relationship theory of recovery.

Following jury instructions, Rhaney’s counsel argued in closing that a duty existed between UMES and Rhaney as a business owner to an invitee or as a landlord to a tenant and that UMES breached that duty. UMES’s counsel argued once again that UMES owed no duty to Rhaney for Clark’s intentional torts, absent a special relationship, which did not exist. In rebuttal, Rhaney’s counsel explained that UMES owed a duty both to control Clark and protect Rhaney (and all other UMES students) through administration of its judicial discipline system. The jury ultimately found that UMES breached a duty of reasonable care owed to Rhaney and that the breach was the proximate cause of Rhaney’s injuries.

On UMES’s appeal, the intermediate appellate court held that there was insufficient evidence to establish that Clark’s battery of Rhaney in the dormitory room was foreseeable by UMES and overturned the judgment in favor of Rhaney. UMES, 159 Md.App. at 60 , 858 A.2d at 506 . The intermediate appellate court determined that, based on the single prior disciplinary action regarding the March 1998 dining hall fracas, there could be no breach of a legal duty because UMES could not have foreseen that Clark later would attack his roommate. The Court of Special Appeals explained that UMES’s duty to Rhaney as Clark’s dormitory roommate, under either a business owner/invitee or landlord/tenant relationship theory, was no greater than UMES’s duty owed to any UMES student on campus or any dormitory-housed student.

Id. at 59 , 858 A.2d at 506 . Rhaney’s legal premise, allowing that it was not unreasonable for UMES to permit Clark to re-attend classes and enter other on-campus buildings, but that it was unreasonable to allow Clark to share a dormitory room with Rhaney, was rejected. Id. at 60 , 858 A.2d at 506 . The intermediate appellate court also refused to consider whether a special relationship existed because that theory of recovery was not plead by Rhaney.

It also noted ⁵⁹⁶ that other jurisdictions considered similar situations under landlord/tenant and/or business owner/invitee models for analysis. Id. at 47-48 n. 2, 858 A.2d at 499 n. 2.

II

Rhaney’s main thesis advanced before us is that the Court of Special Appeals applied inappropriately a foreseeability standard to determine whether a breach of a known duty existed here under either a business owner/invitee or landlord/tenant analysis. UMES counters that the known duty of reasonable care, under either theory, does not apply in the first instance because UMES lacked sufficient knowledge to enable it to foresee Clark’s battery of Rhaney predicated on the incident that occurred earlier in 1998 in other than a dormitory setting. Furthermore, UMES asserts that a duty did not exist under any legal theory offered by Rhaney. 7 Before examining the contentions, it is appropriate to reiterate briefly the principles applied in Maryland in tort cases regarding whether a duty exists. A cause of action in negligence must demonstrate “(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.” E.g., Muthukumarana v. Montgomery County, 370 Md. 447, 486 , 805 A.2d 372, 395 (2002).

It is the burden of the plaintiff, in ⁵⁹⁷ the first instance, to adduce evidence of a duty that was breached and proximately caused the injuries sustained. In this regard, we embrace Judge Cardozo’s iteration of the social policy to narrow “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.” Henley v. Prince George’s County, 805 Md. 820 , 333-34, 503 A.2d 1333, 1340 (1986) (citing Palsgraf v. Long Island R. Co., 248 N.Y. 339 , 162 N.E. 99 (1928)); see Doe v. Pharmacia & Upjohn Co., 388 Md. 407 , 879 A.2d 1088 (2005). Absent a duty owed to the plaintiff, as established by the plaintiff, there can be no liability in negligence and the defendant is entitled to judgment as a matter of law. Remsburg v. Montgomery, 376 Md. 568, 581 , 831 A.2d 18, 25 (2003); Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84, 88 (1993); West Va.

Cent. & Pittsburgh Ry. Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669, 671-72 (1903) (“before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury.”). Only after establishing that a duty does indeed exist must we consider what that duty is and whether sufficient evidence exists to prove that a defendant, by action or inaction, breached that duty. There is no duty generally to control the conduct of a third person so as to prevent him or her from causing physical harm by criminal acts or intentional torts, absent a special relationship.

Horridge v. St. Mary’s County Dept. of Social Svcs., 382 Md. 170, 183 , 854 A.2d 1232, 1239 (2004); Lamb v. Hopkins, 303 Md. 236, 242 , 492 A.2d 1297, 1300 (1985) (quoting Restatement Second (Torts) § 315 (1965)). In contrast to, and distinct from, the general rule regarding liability for the acts of third parties, there are distinct affirmative duties 8 assoeiat ⁵⁹⁸ ed with being an owner or occupier of real property. Our review of the relevant case law leads us to conclude that UMES, if a landlord, had no cognizable duty to Rhaney as a tenant on the leased premises under the circumstances of this case and that