Southland Corp. v. Griffith

MURPHY, Chief Judge. Our grant of certiorari in this case focuses upon the legal duty, if any, of a convenience store clerk to phone the police for emergency assistance when requested to do so on behalf of a business visitor who was being assaulted on the store-owned parking lot adjoining its store. I On May 15, 1988, David Griffith, an out of uniform off-duty police officer, his son, and several friends drove in a pickup truck to a 7-Eleven store in Ferndale, which was owned by the Southland Corporation. After purchasing some carryout food, Griffith returned to his vehicle which was parked in Southland’s parking lot adjoining its store.

As the occupants of the Griffith vehicle were eating the food, another vehicle carrying three teenagers entered the parking lot. These individuals, subsequently identified as Takovich, Palmer, and Haynie, began acting in a rowdy manner; they yelled obscenities at a young female in Griffith’s vehicle and thereafter threw a beer can that struck Griffith’s son on the shoulder. Officer Griffith left the truck to speak with the teenagers at which time Takovich threw a beer can at him, striking him in the face. Griffith then accosted and struggled with Takovich, identifying himself as a police officer, and informing Takovich ⁷⁰⁸ that he was under arrest.

Palmer and Haynie then came to Takovich’s aid, and Griffith was hit with a tire iron in the face and collar bone. Griffith directed his son to enter the store and have the clerk call for police assistance; Griffith then fled to a nearby gas station to seek help. The station attendant called the police but was also attacked by one of the teenagers. Thereafter, Griffith was punched and kicked in the gas station by the three teenagers.

As a consequence of the altercation, Griffith was seriously injured. 1 Griffith filed a civil suit for money damages in the Circuit Court for Anne Arundel County against his three assailants for assault and battery and against Southland Corporation for negligence. 2 In his complaint, after reciting the events that resulted in his injuries, Griffith averred that Southland, through its employee, had a legal duty to aid or attempt to aid him while he was being assaulted by the teenagers and also had a duty to exercise reasonable care in protecting him from the assault. Griffith alleged that Southland breached these legal duties, and in particular by refusing to call for police assistance after being requested to do so. Answering Griffith’s complaint, Southland generally denied liability. In answer to interrogatories, propounded upon Griffith, the officer stated that his son had asked the clerk in the store to call the police for assistance on three separate occasions in the course of the melee, but that the clerk refused to take such action.

Southland moved for summary judgment; it claimed that it was entitled to judgment as a matter of law because the so-called “fireman’s rule,” applicable as well to police officers, 3 ⁷⁰⁹ precluded recovery in a negligence action against it by a police officer injured by a negligently created risk that was the very reason for the officer’s presence on the scene. Southland’s summary judgment motion also claimed that, as a matter of law, it had no legal duty to protect Griffith against injury which he sustained in attempting to effectuate the arrest on its parking lot. Southland’s motion was supported by an affidavit of the store clerk who stated that she was completely unaware of any fighting on the store parking lot until a boy, on one occasion only, told her to call the police and say, “Code 13.” In her affidavit, the store clerk said that she immediately called the police, as directed. In opposition to Southland’s motion, Griffith maintained that the fireman’s rule was inapplicable as it did not apply to an off-duty police officer whose status was that of a volunteer.

Accompanying his opposition to the summary judgment motion was Griffith’s own affidavit which recited that standard police procedure, which he followed, was to call for police assistance to quell the disorderly conduct of the teenagers; that it took the police ten minutes to arrive after they were called; but had they been contacted when first requested, the response would have been immediate and Griffith’s injuries would not have been as severe. Griffith’s fifteen-year-old son, also by affidavit, recounted that following Takovich’s arrest, his father faced the 7-Eleven store and yelled, “call the police.” The son stated in his affidavit that he then stuck his head through the doorway of the store and told the clerk to contact the police because a police officer needed help. He said that he returned to the store thirty seconds later and again told the clerk to call the police and notify them that it was a Code 13 for ID # A-436 which was his father’s ID number. 4 He also stated that the ⁷¹⁰ clerk ignored this request and laughed at him. He said that he returned to the 7-Eleven store a third time, pulled the clerk over to the telephone, dialed 911, and told the clerk to give the operator the address of the store.

The son said that approximately two minutes after the 911 call was made, an Anne Arundel County Police Officer arrived on the scene. He concluded his affidavit, stating: “My initial request to contact the police was made simultaneously with the beginning of the struggle. My second request to contact the police came about thirty seconds after the first request. The third time I entered the store was approximately two or three minutes after the second request to contact the police was made.” Upon this state of the pleadings, the court (Wolff, J.) concluded that Griffith ceased to be “off duty” when he undertook to make the arrest.

It determined that the fireman’s rule came into play as soon as Griffith announced that he was a police officer and consequently, as a matter of law, there was no liability on 'the part of Southland for any of the ensuing actions that contributed to Griffith’s injuries. The court thus granted summary judgment in Southland’s favor. Griffith appealed. The Court of Special Appeals, by a divided panel, reversed the summary judgment in Southland’s favor and remanded the case for further proceedings.

Griffith v. Southland Corp., 94 Md.App. 242 , 617 A.2d 598 (1992). In its opinion, the court discussed the rationale behind the fireman’s rule, namely, that fire fighters and police officers generally cannot recover tort damages against a property owner if injured in the performance of duty by a risk negligently created upon the property. It explained, however, that a police officer or fire fighter is not barred from recovery under the fireman’s rule if the negligent actor has an opportunity to but fails to warn the safety officer of a known preexisting hidden danger. Under the circumstances of this case, the court concluded (accepting as true the allegations in Griffith’s complaint) that the clerk’s refusal to call 911 was “an event in the nature of a hidden danger.” Id. at 253 , 617 A.2d 598 .

Reasoning that the clerk’s refusal to call the police could ⁷¹¹ not have been anticipated by the officer and was thus an unforeseeable hidden danger, the court found that the fireman’s rule did not protect Southland. It held that “when a police officer is in danger during the performance of his or her duties protecting patrons on the premises of a business, and requests, directly or indirectly, that an employee of the business who is not in the path of the danger summon aid via the 911 system, then that employee has a legal obligation to do so promptly.” Id. at 258-59 , 617 A.2d 598 . The court further stated that its holding did not impose a change in existing law; it said that: “there is no precedent which permits a bystander to refuse to call 911 when not exposed to imminent danger.” Id. at 257 , 617 A.2d 598 (emphasis in original). Rather, the court said that its opinion merely cultivated and improved an area of Maryland law that had previously been silent. 5 Consequently, the court rejected Southland’s argument that, as a matter of law, Griffith could not recover because he was injured during the performance of his duty by a hazard which that duty required him to confront.

II Before us, Southland reasserts its view that the fireman’s rule bars Griffith from recovering tort damages from it. It also contends that imposition of liability for failure of the clerk to call 911 violates the traditional common law rule that a person has no legal duty to rescue or aid another person who is in peril. Summary judgment in its favor was therefore proper, Southland maintains, and asks that we reinstate that judgment by reversing the Court of Special Appeals. ⁷¹² A trial court may grant summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Md.Rule 2-501(e).

Under this rule, “a trial court determines issues of law; it makes rulings as a matter of law, resolving no disputed issues of fact.” Beatty v. Trailmaster, 330 Md. 726, 737 , 625 A.2d 1005 (1993). In reviewing a disposition by summary judgment, an appellate court resolves all inferences against the party making the motion. Rosenberg v. Helinski, 328 Md. 664, 674 , 616 A.2d 866 (1992). Because a trial court decides issues of law when granting a summary judgment, the standard of appellate review is whether the trial court was legally correct.

Beatty, 330 Md. at 737 , 625 A.2d 1005 ; Rosenberg, 328 Md. at 674 , 616 A.2d 866 ; Heat & Power v. Air Products, 320 Md. 584, 592 , 578 A.2d 1202 (1990). To recover for negligence, a plaintiff must prove the existence of four elements: a duty owed to him, a breach of that duty, a causal connection between the breach and the injury, and damages. Lamb v. Hopkins, 303 Md. 236, 241 , 492 A.2d 1297 (1985); Scott v. Watson, 278 Md. 160, 165 , 359 A.2d 548 (1976); Peroti v. Williams, 258 Md. 663, 669 , 267 A.2d 114 (1970). Unless the plaintiff can establish that the defendant owes a tort duty to the plaintiff, there can be no liability in negligence and the defendant is entitled to judgment as a matter of law.

Faya v. Almaraz, 329 Md. 435, 448 , 620 A.2d 327 (1993); Village of Cross Keys v. U.S. Gypsum, 315 Md. 741, 751 , 556 A.2d 1126 (1989); Jacques v. First Nat’l Bank, 307 Md. 527, 532 , 515 A.2d 756 (1986); Ashburn v. Anne Arundel County, 306 Md. 617, 627 , 510 A.2d 1078 (1986); W. Va. Central R. Co. v. Fuller, 96 Md. 652, 666 , 54 A. 669 (1903). In Village of Cross Keys, supra, we said that “a tort duty ‘is ... an expression of the sum total of those considerations of policy which lead the law to say that the plaintiff is entitled to protection,’ and that a tort duty is not necessarily coextensive with a moral duty.” 315 Md. at 752 , 556 A.2d 1126 (quoting in part Jacques, 307 Md. at 533-34 , 515 A.2d 756 and W. Page Keeton et. al., Prosser and Keeton on the Law of Torts, §§ 53, ⁷¹³ 56, at 357, 375 (5th ed. 1984)). In addition, we explained that among the factors to be considered in determining whether a tort duty should be recognized are “ ‘[t]he foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant’s conduct and the injury suffered, the moral blame attached to the defendant’s conduct, the policy of preventing future harm, the extent of the burden to the defendant and consequences to the community of imposing a duty to exercise care with resulting liability for breach, and the availability, cost and prevalence of insurance for the risk involved.’ ” Village of Cross Keys, 315 Md. at 752 , 556 A.2d 1126 (quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425 , 131 Cal.Rptr. 14 , 551 P.2d 334, 342 (1976)).

It is with these principles in mind that we consider the question of duty in the instant case. For purposes of our analysis, we accept the allegations of Officer Griffith’s complaint as true. Thus, we will assume that the 7-Eleven clerk refused to call the police when twice requested by Griffith’s son, and did so only on the third occasion after the son dialed 911 and insisted that the clerk ask for assistance and give the store’s address. Ill A. The Fireman’s Rule Our cases hold that the doctrine known as the fireman’s rule generally prevents fire fighters and police officers injured in the course of their duties from recovering tort damages from those whose negligence exposed them to the risk of injury.

See Flowers v. Rock Creek Terrace, 308 Md. 432 , 520 A.2d 361 (1987); Sherman v. Suburban Trust Co., 282 Md. 238 , 384 A.2d 76 (1978); Aravanis v. Eisenberg, 237 Md. 242 , 206 A.2d 148 (1965); Steinwedel v. Hilbert, 149 Md. 121 , 131 A. 44 (1925). Prior to 1987, the rationale behind the fireman’s rule focused on the status of the safety officer on the landowner’s premises. We generally held that fire fighters ⁷¹⁴ and police officers were licensees when they entered property in the performance of their duties; and consequently the landowner owed them no duty of reasonable care. In Flowers , a 1987 case involving the proper application of the fireman’s rule, we departed from traditional principles of landowner’s or premises liability in cases involving fire fighters or police officers, i.e., whether their status was that of a licensee or invitee.

As to these individuals, we said, 308 Md. at 447-48 , 520 A.2d 361 , that the fireman’s rule was “best explained by public policy”; that it is the nature of the safety officer’s occupation that limits the officer’s ability to recover in tort for work-related injuries. We explained in Flowers, id. at 447-48, 520 A.2d 361 : “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.” The fireman’s rule does