Shields v. Wagman

CHASANOW, Judge. In the instant case, we are called upon to determine whether a landlord of commercial property may be held liable for ⁶⁶⁹ injuries sustained in the common area and caused by an American Pit Bull Terrier (pit bull) kept on the leased premises by one of the tenants where the landlord had knowledge of the potential danger and the ability to rid the premises of that danger by refusing to re-let the premises. We hold that, under the circumstances of this case, there was a duty by which the landlord may be held liable for the injuries sustained by the Petitioners. I. Because this case comes to us on an appeal from the granting of Respondent’s motion for judgment, we must look at the facts in the light most favorable to the non-moving party, Petitioners.

See, e.g., Martens Chevrolet v. Seney, 292 Md. 328, 331 , 439 A.2d 534, 536 (1982). This appeal arises out of two cases consolidated for trial seeking damages from the landlords of a strip mall for injuries sustained by two individuals, a business invitee and a tenant, as a result of being attacked by a pit bull owned by another tenant and kept on the leased premises. Arthur Wagman, Lynn Wagman, Ernest Young, Marian Young, and Kenneth Zawatsky were partners in HamptonEdgeworth Joint Venture (Joint Venture or Respondents, collectively). 1 Joint Venture owned a commercial strip mall, leased primarily by automobile repair shops, in Capitol Heights, Maryland. The strip mall contained eight bays, each with an office area.

At all times relevant to the instant case, Arthur Wagman (Wagman) served as the managing or leasing agent for the property and was, thus, “in charge of the property” for the partnership. ⁶⁷⁰ One of the bays was leased to David Thomas (Thomas) who operated an automobile repair shop. Thomas leased the premises pursuant to a written lease; however, that lease had expired prior to the' attacks that led to the instant case, and Thomas remained as a month-to-month tenant. Thomas owned three pit bull dogs which he kept on the leased premises. One of these pit bulls was named “Trouble.” Trouble was acquired by Thomas in 1991 or 1992 and lived on premises, i.e., did not go home at night with Thomas.

Testimony at trial suggests that Thomas generally kept Trouble in a cage that appeared to be made of chicken wire during the day except when Thomas took Trouble and the other dogs for a run twice a day or on limited occasions when Trouble was chained to Thomas’s truck. At night, Trouble was allowed to run loose in the shop. There was also testimony that at times Thomas let Trouble run loose in the office during the day when the office was open to the public. On at least two occasions Trouble was permitted to run free in the parking area of the strip mall.

Petitioner M. Bernard Johnson operated an auto repair shop a block away from Thomas’s shop from February 1987 to December 1993. At that point Johnson moved his shop to the strip mall owned by Respondents, and in February 1994, he began leasing one of the bays, thereby becoming one of Respondents’ tenants. Prior to moving his shop to Respondents’ strip mall, Johnson visited Thomas’s shop once or twice a week to borrow tools. Johnson testified that he had seen Trouble, who Johnson characterized as “very vicious,” at the strip mall as early as 1991.

There was testimony at trial that, from the time Johnson moved to the strip mall, Johnson and Wagman frequently discussed Trouble’s viciousness and the possible threat Trouble’s presence posed. Moreover, there is some evidence that, as a result of this concern, Wagman warned Thomas to get Trouble off the premises or he would have to evict him. Early in the morning of August 28,1993, Petitioner Kimberly Shields went to the strip mall to drop her car off to be ⁶⁷¹ repaired by Thomas. When she arrived, Thomas’s office was shut and locked.

Because she saw Thomas’s truck parked outside, she went over to the door and peered in the window. Thomas, who was on the phone at the time, signaled for her to wait a minute. Inside, Shields could also see two dogs, one of which was Trouble who was not caged or leashed at the time. Trouble immediately jumped up, turned around, and started barking.

Alarmed, Shields tried to return to her car, but before she could get there Trouble lunged twice at the door. With the second lunge, Trouble burst through the door and attacked Shields, locking onto her calf. Thomas came out of the store and tried to pull Trouble off Shields, eventually succeeding in prying the dog away. Shields was then taken to the hospital.

Following the attack, Shields underwent emergency surgery and remained in the hospital for a week, later returned to the hospital for additional surgical procedures including skin grafting, and missed four months of work. As a result, Shields filed suit on November 26, 1993, claiming that both Thomas and Wagman, as the landlord, were negligent and thereby caused Shields to “sustain[ ] severe and permanent personal injuries, incur[ ] medical expenses, and ... be required to expend sums for loss of wages, and [that Shields] was prevented from pursuing her ordinary activities.” Wag-man was served with the Shields complaint on December 10, 1993. 2 On January 30, 1995, Johnson was attacked by Trouble in the parking lot of the strip mall. At about 11 p.m. that night, Johnson was accompanying one of his customers to pick up her car when he heard a noise and noticed Trouble coming towards him. To escape, Johnson jumped on the hood of a ⁶⁷² van parked in the parking lot.

Trouble chased him onto the roof of the van and onto the hood of another car. At that point, Trouble locked onto Johnson’s arm. Thomas came over, and together Thomas and Johnson beat Trouble until finally Trouble released Johnson’s arm, but not before his arm had been torn open. As a result of his injuries, Johnson underwent several surgeries, lost sensation in his arm, and was impaired in his ability to do some aspects of his job.

On May 22, 1995, Johnson filed suit against Respondents, under both negligence and strict liability theories, claiming that Johnson “sustained severe and permanent personal injuries, incurred medical expenses, and will be required to expend sums for loss of wages, and was prevented from pursuing [his] ordinary activities.” Johnson’s case was later consolidated with the Shields case for trial before the Circuit Court for Prince George’s County on January 16, 1996. At the close of the Petitioners’ case, Respondents moved for judgment, and the court granted their motion, concluding that “the landlord owes no special duty to the invited public into the leased premises.” Petitioners appealed to the Court of Special Appeals which affirmed. We shall reverse.

II

As with other types of negligence, to sustain a cause of action against a landlord for injuries resulting from an attack by a tenant’s vicious dog, the plaintiff must prove: “ ‘(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached the 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.’ ” See BG & E v. Flippo, 348 Md. 680, 700 , 705 A.2d 1144, 1153-54 (1998)(quoting Rosenblatt v. Exxon, 335 Md. 58, 76 , 642 A.2d 180, 188 (1994)). At issue in the instant case is the first element, i.e., whether, under the circumstances, the landlord had a duty by which the landlord may be held liable for injuries sustained by the Petitioners. One relationship that courts have found may justify the imposition of a duty to act affirmatively is the relationship ⁶⁷³ between the possessor of property and one who comes onto the property. Whether an affirmative duty is owed generally depends upon the person’s status on the property.

See Flippo, 348 Md. at 688 , 705 A.2d at 1148 . For example, “[t]he owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which [an] invitee, by exercising ordinary care for his own safety, will not discover.” Bramble v. Thompson, 264 Md. 518, 521 , 287 A.2d 265, 267 (1972); see also Flippo, 348 Md. at 688-89 , 705 A.2d at 1148 . Whereas, with respect to a trespasser, no affirmative duty is owed except “to refrain from willfully or wantonly injuring the” trespasser. Bramble, 264 Md. at 522 , 287 A.2d at 267 ; see also Flippo, 348 Md. at 689 , 705 A.2d at 1148 . “[W]hen the owner has parted with his control,” ie., has leased the premises to a tenant, we have held that “the tenant has the burden of the proper keeping of the premises.” Marshall v. Price, 162 Md. 687, 689 , 161 A. 172, 172 (1932).

Where the owner maintains control, however, the owner may be held liable for injuries. The injuries in the case sub judice were sustained in the common area of a strip mall. This Court has long recognized that in common areas the relationship between a landlord and one who comes on the land may justify the imposition of a duty to use reasonable care and diligence, in part, because the landlord generally retains control over common areas. Landay v. Cohn, 220 Md. 24, 27 , 150 A.2d 739, 740 (1959); McKenzie v. Egge, 207 Md. 1, 7 , 113 A.2d 95, 97-98 (1955); see also Ross v. Belzer, 199 Md. 187, 190 , 85 A.2d 799, 800 (1952).

Because the injuries in the instant case occurred in the common area, we need not decide what liability might have been imposed had the injuries occurred inside the leased premises where Maryland law is less settled. MARYLAND CASES REGARDING COMMON AREAS “[W]here a landlord leases separate portions of his property to different tenants and reserves under his control ⁶⁷⁴ the passageways and stairways, and other parts of the property for the common use of all the tenants[,] he must then exercise ordinary care and diligence to maintain the retained portions in a reasonably safe condition.” 3 Langley Park Apts, v. Lund Adm’r, 234 Md. 402, 407 , 199 A.2d 620, 623 (1964). Our recognition of landlord liability in common areas is generally premised on the control a landlord maintains over the common areas. This duty stems in part “from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the. portion of the property retained by him.” Landay, 220 Md. at 27 , 150 A.2d at 741 .

This common area exception has been recognized in multi-unit residential facilities: “ ‘ “[Where ] the construction of tenement or apartment houses, intended for the habitation of many tenants, ... which situations differ[ed] entirely from any comprehended by the rural conditions of habitations at the common law, the courts have found it necessary to recognize the novel housing requisite incident to modern life, by treating hallways and stairs as common ways or appurtenances, kept and maintained by the landlord, for the purpose of affording reasonable entrances and exits to and from the demised premises; and for a failure to reasonably maintain which, in the event of damage to occupants and others lawfully using the premises, the landlord has by the general trend of authority been made liable.” ’ (Italics supplied here).” ⁶⁷⁵ Sezzin v. Stark, 187 Md. 241, 250 , 49 A.2d 742, 746 (1946)(quoting with approval Bernstein v. Karr, 22 N.J. Misc. 1 , 34 A.2d 651, 653 (Cir.Ct.1943), in turn quoting Barthelmess v. Bergamo, 103 N.J.L. 397 , 135 A. 794, 794 (1927)). This rationale is also applicable where the premises are leased for business purposes. This Court, thus, has sustained landlord liability for injuries that occur in common areas within the landlord’s control where it can be shown that the landlord knew or had reason to know the danger existed. See, e.g., Macke Laundry Serv.

Co. v. Weber, 267 Md. 426, 432-33 , 298 A.2d 27, 31 (1972) (holding landlord liable for injuries sustained by child of tenant in apartment complex’s laundry room); Langley Park Apts., 234 Md. at 410 , 199 A.2d at 624 (holding landlord liable for injuries sustained by tenant resulting from accumulation of snow on a common approach to multiple family dwellings); see also Scott v. Watson, 278 Md. 160, 169 , 359 A.2d 548, 554 (1976) (noting in a certified question case that a landlord may be liable for tenant’s death resulting from criminal activity that occurred in apartment’s underground parking garage). For example, in Langley Park Apts., supra, a tenant sued her landlord for injuries sustained when she slipped and fell on a patch of ice in the common area of a large scale multiple housing development owned by the defendant. After reviewing a variety of approaches taken in other jurisdictions, including one in which there was “no duty on the part of the landlord ... to remove from the [common area] the snow which naturally accumulated thereon,” this Court held that the “accumulation of ice or snow upon the common approaches to tenement houses or multi-family apartment buildings may result in imposing on the landlord liability for injuries due to it.” Langley Park Apts., 234 Md. at 405, 410 , 199 A.2d at 612, 624 . We specifically limited this potential liability to situations where the landlord “knew, or in the exercise of reasonable care should have known, of the existence of a dangerous condition and failed to act within a reasonable time thereafter to protect against injury by reason of it.” Langley Park Apts., 234 Md. at 410 , 199 A.2d at 624 . ⁶⁷⁶ In Windsor v. Goldscheider, 248 Md. 220, 221 , 236 A.2d 16, 17 (1967), we reversed a granting of a directed verdict in favor of the defendant/Iandlord where the tenant was cut when he grabbed the top of a fence which ran along a path between the street and the apartment complex.

In remanding the case for a new trial, we noted that “[i]t is settled in Maryland that the mere ownership of land does not render one liable for injuries sustained by persons entering thereon, but where a landlord leases separate portions of his property to different tenants and reserves other parts of the property for the common use of all tenants, he must then exercise ordinary care and diligence to maintain the retained portions in a reasonably safe condition.” Windsor, 248 Md. at 222 , 236 A.2d at 17 . Similarly, in Macke, a three-year-old boy was severely injured in the laundry room of the apartment complex where he lived when he put his hand into the drive mechanism in the back of a clothes dryer in an attempt to stop it. 267 Md. at 427-28 , 298 A.2d at 28 . The child and his mother brought suit claiming that the owner of the dryer and the manager of the complex failed to replace a guard which normally shielded the drive mechanism. Macke, 267 Md. at 427, 433-34 , 298 A.2d at 28, 31-32 .

This Court affirmed a jury verdict in favor of the plaintiffs because, inter alia, “when a landlord sets aside areas for the use of his tenants in common, he owes a duty of reasonable and ordinary care to keep the premises safe for his invitees.” Macke, 267 Md. at 429 , 298 A.2d at 29 . Likewise, in Scott , a case that came to us as a certified question from the United States District Court for the District of Maryland, the plaintiffs decedent, a tenant in the defendant/landlord’s apartment complex, was shot to death in the apartment complex’s underground parking garage. 278 Md. at 162 , 359 A2d at 550 . The plaintiff sued the landlord claiming that the landlord’s failure to provide adequate security proximately caused the decedent’s death. In answering the questions certified to us, we first held that, just as “a private ⁶⁷⁷ person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship,” a landlord has no special duty to protect tenants from the criminal acts of third parties on the landlord’s premises.

Scott, 278 Md. at 168 , 359 A.2d at 552 . We then addressed whether a duty arose where defendant had knowledge of increasing criminal activity on the premises. Scott, 278 Md. at 166 , 359 A.2d at 552 . We noted that “a landlord who has set aside areas for the use of his tenants in common owes them a duty of reasonable and ordinary care to keep the premises safe.... ‘[H]e is ... obliged to use reasonable diligence and ordinary care to keep the portion retained under his control in a reasonably safe condition.’ ” Scott, 278 Md. at 165 , 359 A.2d at 552 (quoting Elmar Gardens, Inc. v. Odell, 227 Md. 454, 457 , 177 A.2d 263, 265 (1962)).

We concluded: “The duty of a landlord to exercise reasonable care for the safety of his tenants in common areas under his control is sufficiently flexible to be applied to cases involving criminal activity without making the landlord an insurer of his tenant’s safety. If the landlord knows, or should know, of criminal activity against persons or property in the common areas, he then has a duty to take reasonable measures, in view of the existing circumstances to eliminate the conditions contributing to the criminal activity.” Scott, 278 Md. at 169 , 359 A.2d at 554 . In each of these cases, this Court required that the landlord have had some type of control, e.g., the landlord’s control over common areas, and that the landlord have knowledge or reason to know that a danger was posed to those in the common areas. In the instant case, both Petitioners Shields and Johnson were injured in the common area of the Joint Venture strip mall.

Shields was attacked as she tried to return to her car when Trouble burst through the door of Thomas’s office. Johnson was injured as he accompanied one of his customers to pick up her car. Respondents seem to concede that these attacks occurred in the parking lot of the strip mall but contend that there was no evidence presented ⁶⁷⁸ that the parking lot was a “common area.” We disagree. •First, as we noted above, we are obligated in this appeal to look at the facts in the light most favorable to the Petitioners. See, e.g., Martens Chevrolet, 292 Md. at 331 , 439 A.2d at 536 .

The evidence presented at trial in this matter included the introduction of photographs which show the parking area of the strip mall. Johnson testified that one of these photographs shows “the bay area, you know, and the common area” and that the other photograph shows “the lot, you know, with a lot of trash and junk in the parking lot.” Although we do not comment on the weight of this evidence, we are persuaded that from the photographs and the accompanying testimony that a jury could have concluded that the parking lot was a common area. 4 Respondents further argue that there was no evidence Trouble was being kept in the common area. This, however, misses the point entirely. The issue is not whether Trouble was being kept in the common area, but rather whether Trouble’s presence posed a threat to those in the common area.

OTHER JURISDICTIONS Because there are no Maryland cases specifically addressing landlord liability for injuries caused by a tenant’s dog in the common area, we now turn to cases from other jurisdictions that have addressed the issue. Other jurisdictions have generally been willing to impose liability on landlords where injuries have occurred in common areas. See, e.g., Bailey v. DeSanti 36 Conn.Supp. 156 , 414 A.2d 1187 (1980); Lidster v. Jones, 176 Ga.App. 392 , 336 S.E.2d 287 (1985), cert. dismissed sub nom. Pine Terrace Associates, Ltd. v. Lidster, 255 Ga. ⁶⁷⁹ 405, 341 S.E.2d 8 (1986); McDonald v. Talbott, 447 S.W.2d 84 (Ky.Ct.App.1969); Castillo v. Santa Fe County, 107 N.M. 204 , 755 P.2d 48, 51 (1988)(“As landlord, [the operator of county-owned public housing] was under a duty to maintain safely those areas expressly reserved for the use in common of the different tenants.”); Siegel v. 1536-46 St. John’s Place Corporation, 184 Misc. 1053 , 57 N.Y.S.2d 473 (N.Y.City Ct.1945); Baker v. Pennoak Properties, Ltd., 874 S.W.2d 274 (Tex.Ct.App.1994).

In Linebaugh v. Hyndman, 213 N.J.Super. 117 , 516 A.2d 638 (1986), aff'd, 106 N.J. 556 , 524 A.2d 1255 (1987), for example, the plaintiff sued the landlord for injuries sustained by her daughter in a common backyard shared by two individuals who rented separate units in a duplex. Plaintiffs daughter, an invitee, had been attacked by a dog owned by one of the tenants while the other tenant was babysitting the plaintiffs daughter. Linebaugh, 516 A.2d at 639 . There was evidence that the nonresident, defendant/landlords had knowledge of the dog’s presence and vicious propensities.

Id. The trial court granted summary judgment in favor of the landlord. Id. The Superior Court of New Jersey reversed, noting that “[w]here a dwelling contains two or more apartments which are rented to separate tenants and the landlord provides certain facilities for their common use or benefit, possession and control of such portions are deemed to be retained by him,” and thus, the landlord has a duty to exercise reasonable care in the maintenance of these common areas.

Linebaugh, 516 A.2d at 640 . The Court held that “a landlord’s responsibility to exercise reasonable care in the maintenance of common areas under his control encompasses a duty owed to his tenant’s invitees to prevent injury from a vicious animal kept on such premises with his knowledge.” Linebaugh, 516 A.2d at 639 . According to the court, “[w]here a landlord, either by affirmative consent or by his failure to take curative measures, permits another to harbor [a vicious] animal in those areas in which he retains control, he is liable to his tenants and others lawfully on the premises for the injuries that result.” Linebaugh, 516 A.2d at 640 . The court also ⁶⁸⁰ emphasized that its position was consistent with traditional principles of negligence and that “the fact that the risk of injury is created by another, here a tenant, cannot serve to insulate the tortfeasor from the consequences flowing from his failure to perform his obligation.” Id.

Likewise in Siegel, supra, a New York court addressed the liability of the corporate owner of a fifty-two family apartment house for injuries sustained by child in the common area of the apartment house. The child was attacked by a dog owned by the resident/superintendent while walking up a common stairway. Siegel, 57 N.Y.S.2d at 473-74 . There was sufficient evidence that the owner had notice of the dog’s presence and viciousness.

Siegel, 57 N.Y.S.2d at 475 . The court held that; “[i]n as much as this was a fifty-two family multiple dwelling, the public halls and stairs of which were open and frequented by tenants and their family members as well as others having business and social relations therewith, it became a continuing duty upon the owner of this building to keep such common ways in a reasonably safe condition resultant upon such known general usage and to exercise such care in the premises as a reasonably prudent person might under the same circumstances. Such duty extended to the exclusion of known vicious animals frequenting thereabout.” Id. Noting the owner had knowledge of the dog’s presence and viciousness, had control over the portion of the premises where the incident occurred, and had the “power to expel the dog and its owner as well,” the court granted judgment in favor of the plaintiffs.

Id. In a similar case, Baker, supra, however, the Court of Appeals of Texas refused to reverse summary judgment which had been granted in favor of the defendantylandlord because, the court concluded, the plaintiff failed to meet her burden of proof regarding the landlord’s knowledge of the dog and its dangerous propensities. Baker, 874 S.W.2d at 277 . There, the plaintiff, a tenant, was injured by another tenant’s dog in the common area of an apartment complex where she and the ⁶⁸¹ other tenant were each walking their respective dogs.

Baker, 874 S.W.2d at 275 . The plaintiff sued the landlord of the apartment complex for damages as a result of this attack. Id. The court noted that it was well-settled in Texas “that a lessor retaining control over premises used in common by different