Rivas v. Oxon Hill Joint Venture

BYRNES, Judge. The Circuit Court for Prince George’s County granted summary judgment in favor of Oxon Hill Joint Venture (“Oxon Hill”) and Southern Management Corporation (“Southern”), appellees, in a slip and fall tort action brought against them by Jaime Rivas, appellant. On review, Rivas poses the following question, which we have rephrased: Did the circuit court err as a matter of law in ruling that the duty of care owed to him was that owed to a licensee, not that owed to an invitee? FACTS AND PROCEEDINGS On the evening of February 15, 1995, Jaime Rivas, a deputy sheriff for Prince George’s County, was going to an apartment in the Oxon Hill Village Apartments to serve a witness in a district court landlord-tenant case with a subpoena.

Rivas parked his car on the apartment complex parking lot, near the unit in which the witness lived. He got out of his car and started to walk across a stretch of asphalt ten to fifteen feet from the sidewalk of the apartment complex. As he did so, he slipped and fell on a patch of ice, sustaining serious personal injuries. Rivas filed a negligence action in the Circuit Court for Prince George’s County against Oxon Hill, the owner of the apartment complex, and Southern, Oxon Hill’s managing agent.

He alleged that he had been an invitee on the premis ¹⁰⁵ es, that Oxon Hill and Southern had breached their duty to keep the premises reasonably safe, and that their breach of duty had been the proximate cause of his injuries. After Oxon Hill and Southern filed a joint answer denying liability and raising certain affirmative defenses, discovery ensued. Upon the completion of discovery, Oxon Hill and Southern filed a joint motion for summary judgment. They argued that, as a law enforcement officer, Rivas had assumed the risk of his injury as a matter of law, under the common law Fireman’s Rule, and that his claim thus was barred as a matter of public policy.

They also argued that Rivas had been a bare licensee on the premises, that he therefore had been owed the limited duty to refrain from willful injury or entrapment, and that the undisputed facts could not support a finding that they had breached such a duty. Rivas responded that the Fireman’s Rule was inapplicable, that his status on the property was that of an invitee, and that the evidence adduced during discovery was sufficient to create a jury question with respect to negligence. The lower court held a hearing on the motion for summary judgment and, at the conclusion of argument of counsel, granted it. The court explained: In this case, we have a plaintiff, Jaime Rivas, a deputy sheriff, who while attempting to serve a civil court summons slipped and fell on ice that accumulated on the driveway of the parking lot of the defendant’ (sic) property, Oxon Hill Village Apartments....

The issue before the court is whether the sheriff is entitled to bring this action as either a licensee or an invitee. If the sheriff is considered an invitee the standards for the landlord are stricter than if the sheriff was a mere licensee. The Court has reviewed the case of Flood v. Attsgood Realty Company, [ 92 Md.App. 520 , 608 A.2d 1297 ], a 1992 case, and indeed it has been cited several times this morning in oral argument. In that case a police officer fell through a floor of a premises while investigating a crime. ¹⁰⁶ The [C]ourt said he was a licensee and the owner was not liable for failing to warn him of any hidden dangers in his house that he didn’t know about.

And in that case the police officer was, in the words of the Court of Special Appeals, clearly within the performance of his duties when he was injured. The only reason the appellant, the police officer in that case, was on the premises was to investigate possible drug activity there and to search for a suspect. And the Court said because of that there was no legally cognizable factual disputes for any jury to determine the liability of the owner of the premises. Similarly, in this case we have a sheriff who was performing his duties.

Namely, serving civil summonses. While in the performance of that duty he was injured. The Court finds that he was a licensee, that the apartment owner is not responsible for his injury and cannot be held responsible for his injury because he was a licensee and owed him no other duty other than to willfully refrain from harming him or not correcting a danger that he knew would have harmed him. There being - no evidence of that, the Court will grant summary judgment ...

Rivas then filed a timely appeal to this Court. STANDARD OF REVIEW In ruling on a motion for summary judgment under Rule 2-501, the trial court first must determine whether there is a genuine dispute of material fact. If no such dispute exists, it next must determine whether the moving party is entitled to judgment as a matter of law. Beatty v. Trailmaster Products, Inc., 330 Md. 726, 737-38, 625 A.2d 1005 (1993); Bagwell v. Peninsula Regional Med.

Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996). In reviewing a trial court’s grant of a motion for summary judgment, we engage in much the same analysis. We first determine whether the trial court correctly determined that there was no dispute of material fact. If the trial court properly did so, we then determine whether its legal ¹⁰⁷ ruling was correct.

Lynx, Inc. v. Ordnance Prods., Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974). In this case, the parties agreed that there was no genuine dispute with respect to some material facts; they assumed, for the sake of argument, that other disputes of material facts would be resolved in favor of Rivas (i.e., that he would be able to present evidence of ordinary negligence on the part of Oxon Hill and Southern). Rivas did not contend below that there were facts from which a reasonable jury could find that Oxon Hill and Southern had engaged in conduct amounting to a breach of the duty of care owed to a bare licensee (nor has he taken that position before this Court.) Thus, the parties agreed (as they do now), and the trial court implicitly found, that there was no genuine dispute of material fact, and that the outcome of the summary judgment motion depended only upon the resolution of a question of law. DISCUSSION The legal question presented by this case can be broken down into two sub-issues: 1) Whether the “Fireman’s Rule” precluded Rivas from recovering in tort; and if not, 2) whether Rivas was owed a duty of ordinary care or a duty only to refrain from willful and wanton misconduct or entrapment.

Maryland has long recognized the common law “Fireman’s Rule,” which in some circumstances operates to preclude firefighters and police officers from tort recovery for injuries sustained in the course of their employment. 1 Until 1987, when the Court of Appeals decided Flowers v. Rock Creek Terrace, 308 Md. 432 , 520 A.2d 361 (1987), the Fireman’s Rule had been explained in terms of the firefighter or policeman being a bare licensee on the premises to whom was owed the limited duty to “abstain from willful or wanton misconduct or entrapment ... [which] encompasses a duty to ¹⁰⁸ warn of hidden dangers, where there was knowledge of such danger and an opportunity to warn.” Flowers, 308 Md. at 443 , 520 A.2d 361 . In Flowers , the Court of Appeals held that the Fireman’s Rule is best explained by public policy, and not by application of the law of premises liability. The Court took a causation oriented approach to the Fireman’s Rule, focusing upon the roles of fire fighters and police officers in society. It explained: [I]t is the nature of the firefighting occupation that limits a fireman’s ability to recover in tort for work-related injuries.

Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance. This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public. A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will not be liable to a fireman or policeman for injuries caused by this negligence. 308 Md. at 447-48 , 520 A.2d 361 .

More recently, in Tucker v. Shoemake, 354 Md. 413 , 731 A.2d 884 (1999), the Court of Appeals applied the public policy analysis adopted in Flowers to hold that the Fireman’s Rule did not preclude tort recovery by a police officer who was injured when he fell into a manhole as he was walking through the common area of a trailer park on the way to responding to a domestic dispute call from one of the trailer park residents. The Court explained that because the police officer’s injuries had not been caused by the risk that had occasioned his presence at the trailer park, the Fireman’s Rule was inapplicable. Tucker, 354 Md. at 419-20 , 731 A.2d 884 . In the case sub judice, as in Tucker , the Fireman’s Rule did not apply.

To be sure, as a deputy sheriff for Prince ¹⁰⁹ George’s County, Rivas was a law enforcement officer, see Md.Code (1957, 1996 RepLVol., 1998 Cum.Supp.), Art. 27 § 594B, and Ms duties as such required him to confront certain risks on behalf of the public. Under the