Steamfitters Local Union No. 602 v. Erie Ins. Exch.

Panel: Berger, Friedman, James R. Eyler (Senior Judge, Specially Assigned), JJ. Eyler, James R., J. ^{162 101} The litigation that resulted in these consolidated appeals commenced on December 14, 2015, when Gordon Contractors, Inc. ("Gordon") and its insurers, Erie Insurance Exchange ("Erie") and Continental Casualty Company ("Continental"), appellees, filed a complaint in the Circuit Court for Prince George's County, Case No. CAL 15-38293, against Steamfitters Local Union No. 602 ("Steamfitters"), appellant. Gordon, ¹⁰² Erie, and Continental alleged that on or about April 6, 2015, a fire that originated in a mulched strip of land on Steamfitters' property caused damage to real and personal property on Gordon's adjacent storage yard. Steamfitters filed a third party complaint against the Heating, Piping and Refrigeration Training Fund ("Training Fund"), seeking contractual indemnification pursuant to an agreement for the use of space, common law indemnification, and contribution.

A second action was commenced on March 4, 2016, when Cincinnati Insurance Company ("Cincinnati") filed a complaint in the Circuit Court for Prince George's County, Case No. CAL 16-07205, as the subrogee of Falco Industries, Inc., C & M Properties, LLC, C & M Properties Delaware, LLC, and Garage Center, LLC (referred to collectively as "Falco"). Cincinnati alleged that the April 6, 2015 fire that started in the mulched strip of land on Steamfitters' property, spread to Falco's property and caused substantial damage to real and personal property. Steamfitters filed a third party complaint against the Training Fund in that case as well. In April 2016, the two cases were consolidated.

For ease of reference, we shall refer to Gordon, Erie, Continental, and Cincinnati collectively as either the plaintiffs or appellees. Steamfitters and the Training Fund filed motions for summary judgment. After a hearing, the court denied Steamfitters' motion for summary judgment and granted summary judgment in favor of the Training Fund. The cases against Steamfitters were tried before a jury from July 17 to 20, 2017.

The jury returned verdicts in favor of the plaintiffs. Damages were awarded in favor of Erie a/s/o Gordon in the amount of $ 1,039,176.67; in favor of Gordon, individually, in the amount of $ 111,125.38; in favor of Continental a/s/o Gordon in the amount of $ 72,338.48; and in favor of Cincinnati a/s/o Falco in the amount of $ 119,909.10. 1 This timely appeal followed. ¹⁰³ QUESTIONS PRESENTED Appellant presents the following questions for our consideration: I. Do commercial landowners owe their commercial neighbors a duty of care to prevent third parties, with whom they have no special relationship or vicarious responsibility, from discarding cigarettes in mulch based solely on notice of prior smoking activities on the property as evidenced by old cigarette butts?

II

In asserting that a commercial landowner violated a duty of care to prevent third parties from discarding ¹⁶³ cigarettes in mulch does a Plaintiff need to provide the fact finder with expert testimony as to reasonable, standard and effective measures to prevent same?

III

Was Defendant prejudiced by the circuit court's charging the jury with a spoliation instruction where the only evidence of such spoliated evidence's existence is testimony that the party requesting such instruction referred to the evidence as useless and declined to copy same and where a request to hold evidence which specifically identified persons present at the time of the occurrence was later received and further, where the evidence was only "unbelievably close" to the area of interest and did not directly show same?

IV

Was it proper for the circuit court to enter summary judgment on an indemnity agreement as it did not expressly call for one party to indemnify another for its own negligence where the contention was that the negligence was that of third parties whose activities were related to the indemnitor and where there were questions of fact as to how the parties acted after a term of years specified in the contract expired? In addition, appellees request that the appeal be dismissed because Steamfitters failed to include certain agreed-upon items in the joint record extract in violation of Md. Rule 8-501. Alternatively, they request that Steamfitters be ordered to pay the costs incurred in preparing an appendix. ¹⁰⁴ For the reasons set forth below, we shall deny the motion to dismiss, affirm the circuit court's judgments, and order that the costs to be paid by appellant pursuant to our mandate include those costs incurred by appellees in preparing the appendix. FACTUAL BACKGROUND At all times relevant to the instant case, Gordon was the owner of a storage yard, located at 8722 Ashwood Drive in Capitol Heights, that it used to store materials for its construction business.

Falco occupied a commercial warehouse that was adjacent to one side of Gordon's property and Steamfitters owned property adjacent to the other side. Gordon and Steamfitters' properties were separated by a chain link fence with security slats. On Steamfitters' side of the fence, there was a strip of land covered with mulch, a parking lot abutting it, and a building used as a union hall. The Training Fund operated an apprentice school in the union hall pursuant to a written agreement with Steamfitters for the use of space.

Gordon and Falco alleged that the April 6, 2015 fire started when an unknown person discarded a lit cigarette into the mulch bed on Steamfitters' side of the fence. Gordon and Falco did not allege that Steamfitters was vicariously liable or that it had a duty to control the unknown person, but proceeded instead on the theory that Steamfitters, as the property owner, failed to use reasonable care to prevent the foreseeable risk of fire spreading to neighboring properties. Steamfitters' business manager and corporate designee, Daniel Loveless, explained that, generally, most of the apprentices went directly from their jobs to the Training Fund's apprentice school and arrived between 2:30 and 5 p.m. Over time, he observed that, prior to the start of classes, apprentices napped, gossiped, minded their own business, and/or drank beer.

Mr. Loveless was responsible for property maintenance. Although no employee was specifically assigned the task of cleaning up trash along the fence line between Steamfitters ¹⁰⁵ and Gordon's properties, Mr. Loveless had done so 2 to 3 times prior to the fire. According to Mr. Loveless, ¹⁶⁴ the mulch had not been replaced in a while, and the ground was bare in spots. Mr. Loveless was not sure if he had seen cigarette butts in the mulch prior to the fire, but after the fire, he did observe cigarette butts in the mulch.

He acknowledged that there were more butts "than there should have been," and that, "[i]n the right situation," a carelessly discarded cigarette could start a fire. He was "pretty sure" that Steamfitters did not have a smoking policy and that smoking was allowed outside of the union building. It was undisputed that Steamfitters did not issue any guidelines, communications, policies, or recommendations regarding smoking and that there were no signs prohibiting smoking on Steamfitters' property. John Mastripolito, a corporate representative of Steamfitters, walked through the mulched area 8 times between February 2015 and the date of the fire.

He testified that he did not see any cigarette butts in the mulch, but acknowledged that he had bad vision, wore glasses, and would not be concerned even if there were 100 cigarette butts in the mulch because he was "just not into cigarette butts[.]" Wayne Crosby, an acting lieutenant and fire investigator assigned to the Prince George's County Fire Marshal's Office, was the lead investigator for the fire. He testified as an expert in fire origin, cause, growth, and spread. Lieutenant Crosby concluded that the fire originated along the fence line between the Steamfitters and Gordon properties and that constant wind on the day of the fire, with gusts up to 40 miles per hour, kept the fire low and pushed it down the fence line toward a dumpster, where it grew. He opined that embers from the mulch were blown by the wind into Gordon's construction yard where they ignited combustible foam insulation and caused the fire to grow.

The foam insulation liquified and ran down the parking lot to one side of the Falco property, burning two fire trucks along the way. According to Lieutenant Crosby, the only possible ignition source was a cigarette. A very large number of cigarette butts ¹⁰⁶ were found in the mulch on Steamfitters' side of the fence, and Lieutenant Crosby opined that the fire started when someone flicked a cigarette into the mulch near the fence or when the wind blew a cigarette butt up against the fence. He acknowledged that the combustible foam insulation on Gordon's property was stored too close to the fence line, in violation of certain code provisions, but concluded that because of the strong winds, it did not matter where that material was stored.

Vehicles parked on Gordon's lot sustained damage in the fire. Lieutenant Crosby noted that the vehicles were burned from left to right and that there was no damage on one side of them. If the fire had started in one of the vehicles, it would have been totally consumed. As a result, Lieutenant Crosby ruled out the possibility that the fire started in one of those vehicles.

In reaching that conclusion, Lieutenant Crosby reviewed a videotaped interview of Richard Grasso, who had been teaching an apprentice class at the time the fire was discovered. Mr. Grasso said that a student told him there was a fire in the parking lot. Mr. Grasso went outside, saw flames and heavy black smoke, went back inside, and told everyone to move their vehicles. In both his recorded interview and a written statement, Mr. Grasso stated that he walked across the parking lot, looked over the fence, and saw a vehicle on Gordon's property that had smoke coming out from under its hood.

In a later interview, Mr. Grasso stated that he saw the fence line on fire. There were surveillance cameras on the Falco property, on the exterior of a church ¹⁶⁵ across the street from Steamfitters' property, and on the exterior of Steamfitters' building. Lieutenant Crosby obtained and reviewed video recordings from the Falco property and the church and requested, but did not receive, the video recording from Steamfitters' building. Neither of the videos showed Mr. Grasso, or any other person, walk across the parking lot and look over the fence at the vehicles parked on Gordon's property.

The video from the ¹⁰⁷ church showed "a lot of white smoke ... burning for a long time[,]" which supported Lieutenant Crosby's conclusion that the fire started at the fence line. Lieutenant Crosby collected a sample of the mulch and conducted a burn test which demonstrated that a cigarette butt could start a mulch fire under wind conditions similar to those that existed on the day of the fire. The video recording of the burn test was played for the jury. Gordon's operations manager, Dale Wauters, was familiar with Gordon's construction yard and three trucks that were burned in the fire.

Mr. Wauters was responsible for taking a monthly inventory of items on the construction lot and he inspected the lot a couple of times per week. He testified that Gordon had stacks of foam insulation, about 4 feet wide and 8 feet tall and long, stored approximately 3 to 4 feet from the fence, and that the insulation packaging included a warning that the product was combustible. He described a slope of about 4 feet from the base of the fence to the flat yard on Gordon's property and acknowledged that it was feasible for Gordon to store the insulation 15 feet away from the fence. There were pine trees on the mulched strip of land between Gordon and Steamfitters' properties.

According to Mr. Wauters, the wind blew pine needles 20 to 30 feet into Gordon's construction yard. Bruce Berlin, Gordon's Chief Financial Officer, testified that, prior to the fire, he was not familiar with any code provision requiring the foam insulation to be stored a certain distance from the property line. He stated that the insulation was closer to the fence near the parked vehicles, but as the slope between the two properties became steeper, the insulation was stacked farther away from the fence. Mr. Berlin described the damage Gordon incurred as a result of the fire including the destruction of a structure, 3 destroyed vehicles and a tow trailer, damaged containers, hazardous material clean-up, and the loss of inventory.

He also testified that Gordon's lot was not scraped or cleaned until sometime between June and October 2015, when a company provided ¹⁰⁸ hazardous waste removal. The parties stipulated that Erie paid Gordon $ 1,039,176.67 for its property damage. Erie hired fire investigator Michael Schaal, to investigate the origin and cause of the fire. At trial, he was admitted as an expert in fire origin, cause, growth, and spread.

During his investigation, Mr. Schaal observed "[h]undreds and hundreds, if not thousands of cigarettes" in the mulched area on Steamfitters' side of the fence. Although the mulch, pine needles, and cigarette butts were all combustible materials, Mr. Schaal stated that the most significant factor in the fire was the wind. On the day of the fire, the wind was blowing from the southeast across Gordon's lot and the fire burned in that direction. Mr. Schaal specifically noted that fire does not burn against the wind.

According to Mr. Schaal, burning mulch, leaves, and pine needles could have been carried by the wind and ignited combustibles "farther down the line." The location of the foam insulation on Gordon's construction lot had no effect on the cause of the fire and, because of the wind speed and direction, would have burned regardless ¹⁶⁶ of whether it was stored 4 feet or 20 feet from the fence. Mr. Schaal stated that the wind was blowing "20 or 22 knots" and the fire "spread across the parking lot very, very rapidly." By the time the fire department arrived, the fire "was well-involved." Mr. Schaal rejected the idea that the fire originated in a vehicle on Gordon's lot because if it had, the fire would have had to burn back against the wind to cause the damage that was observed at the ground level along the fence line. In the video from the church, Mr. Schaal observed white smoke drift across the parking lot for 23 minutes and then instantly turn black. He opined that the white smoke was caused by "the mulch and pine straw burning along the fence line" and that the heavy black smoke that was later observed was caused by the burning of the insulation.

He did not observe fire in the cab of any vehicle on Gordon's lot, which would be expected if the fire originated in a vehicle. Mr. Schaal rejected the idea that the burn pattern along the base of the fence was caused by burning foam insulation and not burning mulch. He concluded that the fire spread from Steamfitters' side of the fence ¹⁰⁹ to Gordon's lot because the wind picked up embers and spread them to Gordon's lot or because the fire spread through the base of the chain link fence. In either event, the origin of the fire was on Steamfitters' side of the fence.

Several photographs of the mulched area taken after the fire were introduced into evidence. The photographs depicted a large number of cigarette butts in varying condition. Appellees argued that one could infer that the butts had been deposited over a long period of time. The defense presented testimony from fire investigator Richard Thomas Long, Jr., an engineer employed by Exponent, Inc., who was accepted as an expert in fire origin, cause, and spread.

Mr. Long first visited the site of the fire on May 11, 2015, when he was invited to attend a joint-party investigation. Later, in October 2015, he inspected the vehicles that were burned in the fire. As part of his investigation, Mr. Long reviewed aerial and historic images of the property, weather data, surveillance and cell phone videos, and the Prince George's County Code. He hypothesized that the fire originated in the mulch on Steamfitters' side of the fence.

Mulch fires, however, are "very low intensity fire[s]," that would not produce six-foot-tall flames. According to Mr. Long, the burn patterns on the fence and north of the dumpster, were too tall to have been caused by a mulch fire. He opined that the burn patterns on the fence were caused by the burning foam insulation that hit the fence and discolored it. Mr. Long testified that there were no pine needles, mulch, or other "thick, porous debris" more than 5 to 6 feet into Gordon's construction lot, there was no evidence that the fire spread 15 feet into Gordon's construction lot, and if the fire had come through the fence, it would have spread only 5 to 6 feet before encountering gravel which "doesn't burn." He maintained that the foam insulation, which was "highly combustible," was too close to the fence, which made it easier for it to ignite if the wind pushed the mulch fire through the fence. ¹¹⁰ On cross-examination, Mr. Long acknowledged that initially he had developed two possible theories about the cause of the fire.

The first was, as he testified at trial, that the foam insulation boards were too close to the fence and that they ignited when the fire was pushed through the fence. His second theory was that the fire started in a Ford F-250 truck that was parked on Gordon's lot. That theory was based, in part, on the testimony of Mr. ¹⁶⁷ Grasso who, as we have already noted, claimed that when he looked over the fence, he saw fire near the parked vehicles. Mr. Long acknowledged that if Mr. Grasso's testimony was determined to be untruthful, he would have to eliminate the vehicle as a possible cause of the fire.

At Mr. Long's deposition, counsel for Gordon and its insurers pointed out that Mr. Grasso did not appear in any video looking over the fence, a fact that Mr. Long had not previously noticed. Thereafter, Mr. Long abandoned his opinion that the fire started in a vehicle parked on Gordon's construction lot. At trial, Mr. Long acknowledged that, in his deposition, he opined that the burn patterns on the base of the fence, where Lieutenant Crosby and Mr. Schaal placed the origin of the fire, were caused by melting foam insulation that pooled in that area. When asked how the melted insulation flowed up hill, Mr. Long stated that there was not really a change in elevation at that point.

The evidence relating to the storage of insulation was relevant to the defense of contributory negligence. The jury rejected that defense. We shall include additional facts as necessary in our discussion of the issues presented. MOTION TO DISMISS THE APPEAL As a preliminary matter, we address a motion to dismiss the appeal filed by Gordon, Erie, and Continental, and adopted by Cincinnati.

Those appellees argue that dismissal is warranted because, without explanation, Steamfitters failed to ¹¹¹ comply with Maryland Rule 8-501 2 , which ¹⁶⁸ requires the appellant to bear responsibility for creating a record extract. Specifically, they contend that Steamfitters failed to include in the ¹¹² joint record extract certain trial exhibits that, ultimately, were included in an appendix to the brief filed on behalf of Gordon, Erie, and Continental. Alternatively, Gordon, Erie, and Continental seek reimbursement for the cost of preparing the appendix that was attached to their brief. Maryland Rule 8-501 clearly requires the parties to cooperate in the preparation of the record extract and sets forth the procedure to be used when the parties cannot agree on what should be included.

The rules of appellate procedure " 'are "precise rubrics" established to promote the orderly and efficient administration of justice, and thus are to be strictly followed.' " Lisy Corp. v. McCormick & Co., Inc. , 445 Md. 213 , 224, 126 A.3d 55 (2015) (quoting Duckett v. Riley , 428 Md. 471 , 477, 52 A.3d 84 (2012) ). Sanctions for violations of Md. Rule 8-501(c) are discretionary. Md. Rule 8-501(m) ; Tannehill v. Tannehill , 88 Md. App. 4 , 10, 591 A.2d 888 (1991) ; In re Joshua W. , 94 Md. App. 486 , 491, 617 A.2d 1154 (1993). We have observed that dismissal of an appeal for an appellant's violation of the rules is "a 'drastic corrective' measure." Rollins v. Capital Plaza Assocs.

L.P. , 181 Md. App. 188 , 202, 955 A.2d 869 (2008) (quoting Brown v. Fraley , 222 Md. 480 , 483, 161 A.2d 128 (1960) ). Reaching a decision on the merits of a case "is always a preferred alternative," and we will not ordinarily dismiss an appeal "in the absence of prejudice to appellee or a deliberate violation of the rule." Joseph v. Bozzuto Mgmt. Co. , 173 Md. App. 305 , 348, 918 A.2d 1230 (2007). In the case at hand, appellant prepared a joint record extract, but failed to include certain exhibits requested by counsel for Erie.

There is no evidence to suggest that Steamfitters' failure to include the exhibits was purposeful. Nevertheless, appellees Gordon, Erie, and Continental, who filed a joint brief, bore the expense of preparing an appendix containing the exhibits that were excluded from the record extract. Aside from that additional expense, there is no indication that the parties were prejudiced as a result of Steamfitters' failure to include the exhibits in the record extract. For that reason, ¹¹³ we shall deny the motion to dismiss the appeal, but note that the costs to be paid by appellant pursuant to our mandate shall include those costs incurred by Gordon, Erie, and/or Continental in preparing the appendix to their brief.

DISCUSSION I. Steamfitters contends that the trial court erred in denying its motion for judgment because commercial landowners do not owe commercial neighbors a duty of care to prevent third parties, with whom they have no special relationship or vicarious responsibility, from discarding cigarettes in mulch based solely on notice of prior smoking activities on the property as evidenced by old cigarette butts. According to Steamfitters, it did not violate a rule or statute, there was nothing dangerous or illegal about the condition of its property, and it had no special relationship with its commercial neighbors that would establish a duty to protect them from the acts of a third party. Steamfitters maintains that a discarded cigarette is not a condition of real property and that there was "nothing special about the mulch at issue," as it was ¹⁶⁹ not placed or stored in an unreasonable manner and is a commonly used product. Steamfitters argues that, although foreseeability of harm is a factor in determining whether a duty of care exists, it is not, by itself, sufficient to establish a duty of care.

Specifically, with regard to the condition of its property, Steamfitters argues: There was nothing about the condition of the property that was dangerous or illegal. Prior to the fire, the subject property contained mulch next to a fence. The mulch allegedly contained cigarette butts of indeterminate age. Those cigarette butts were not dangerous or illegal.

They had been smoked and spent. For any danger to exist a third party had to commit an action and discard a cigarette. Plaintiffs, as mere neighbors with Steamfitters, were owed no duty of care by Steamfitters to protect Plaintiff from the torts of third persons. The relationship between commercial neighbors ¹¹⁴ (if any) cannot and does not create any sort of special relationship.

Appellees counter that, under Maryland law, a property owner owes a common law duty to the owners and occupants of a neighboring property to use reasonable care when conducting activities on its property so as to avoid harm to the neighboring property. Based on the evidence presented at trial, a reasonable jury could conclude that Steamfitters knew or should have known that someone or some group of people on its property was regularly discarding lit cigarettes in the mulch bed that it placed against the fence adjacent to Gordon's property. Despite its knowledge, Steamfitters took no action to prevent the foreseeable risk that a fire might start and spread to adjoining properties. Under the particular facts of this case, appellees are correct.

A. Standard of Review Regarding Duty of Care In considering a trial court's decision to deny a motion for judgment, we apply the following standard of review: We review a trial court's decision to grant or deny a motion for judgment applying the de novo standard of review. DeMuth v. Strong , 205 Md. App. 521 , 547, 45 A.3d 898 (2012). "In the trial of a civil action if, from the evidence adduced that is most favorable to the plaintiff, a reasonable finder of fact could find the essential elements of the cause of action by a preponderance standard, the issue is for the jury to decide, and a motion for judgment should not be granted." Id. (citation omitted).

Wallace & Gale Asbestos Settlement Trust v. Busch , 238 Md. App. 695 , 705, 194 A.3d 401 , cert. granted , 462 Md. 84 , 198 A.3d 219 (2018). We perform the same task as the trial court, affirming the denial of the motion for judgment "if there is 'any evidence, no matter how slight, that is legally sufficient to generate a jury question.' " C & M Builders v. Strub , 420 Md. 268 , 291, 22 A.3d 867 (2011) (citations omitted). ¹¹⁵ B. Duty of Care In a negligence action, a plaintiff bears the burden of proving: "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 duty." Rowhouses, Inc. v. Smith , 446 Md. 611 , 631, 133 A.3d 1054 (2016) (quoting Hamilton v. Kirson , 439 Md. 501 , 522, 96 A.3d 714 (2014) ). Whether a duty of care exists is a pure question of law for the circuit court to decide in the first instance, and for us to review de novo. ¹⁷⁰ Todd v. Mass Transit Admin. , 373 Md. 149 , 155, 816 A.2d 930 (2003) (citing Valentine v. On Target, Inc., 353 Md. 544 , 549, 727 A.2d 947 (1999) ). As we recently noted in Landaverde v. Navarro , Maryland has adopted the characterization of "duty" set forth in W. Page Keeton, et al. , Prosser and Keeton on the Law of Torts , § 53, at 356 (5th ed. 1984), as "an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another." Landaverde v. Navarro , 238 Md. App. 224 , 248, 189 A.3d 849 (2018).

See also Blondell v. Littlepage , 413 Md. 96 , 120, 991 A.2d 80 (2010) (quoting W. Page Keeton, et al. ). There is no universal test for determining whether a duty exists. Jacques v. First Nat. Bank of Maryland , 307 Md. 527 , 533, 515 A.2d 756 (1986) ; Ashburn v. Anne Arundel County , 306 Md. 617 , 627, 510 A.2d 1078 (1986).

The requirements of a legal duty depend on the specific facts and circumstances presented. Village of Cross Keys, Inc. v. U.S. Gypsum Co. , 315 Md. 741 , 751-52, 556 A.2d 1126 (1989) (quoting W. Va. Central R. Co. v. Fuller , 96 Md. 652 , 671-72, 54 A. 669 (1903) (" 'the duty owed varies with the circumstances and with the relation to each other of the individuals concerned[.]' ")). Whether a duty is owed "represents a policy question of whether the specific plaintiff is entitled to protection from the acts of the defendant." Blondell , 413 Md. at 120 , 991 A.2d 80 (citation omitted). ¹¹⁶ In determining the existence of a duty, we consider, among other things: "The foreseeability of harm to the plaintiff, the degree of certainty that the plaintiff suffered the 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." Ashburn , 306 Md. at 627 , 510 A.2d 1078 (1986) (quoting Tarasoff v. Regents of Univ. of California , 17 Cal.3d 425 , 131 Cal.Rptr. 14 , 551 P.2d 334 , 342 (1976) ).

No Maryland case has addressed the specific issue before us in the context of a fire caused by a condition that is not inherently dangerous but rather is considered to be normal, absent extenuating circumstances. The Court of Appeals has determined that a property owner owes a common law duty of reasonable care to the owners and occupants of neighboring property when conducting activities on his or her property so as to avoid harm to the neighboring property. In Frenkil v. Johnson , 175 Md. 592 , 3 A.2d 479 (1939), the Court of Appeals considered a case involving a plaintiff who sustained injuries while seated in his vehicle on a street when an explosion occurred in a nearby building that the defendants were demolishing. Employees of the defendant reported the smell of gas in the building being demolished and, after an investigation, the gas company removed some gas meters and plugged some service pipes that entered the building.

Frenkil , 175 Md. at 598 , 3 A.2d 479 . Thereafter, the employees continued to smell gas and reported the situation to their supervisor, but no further action was taken to locate the source of the gas or otherwise remedy the situation. Id. After the explosion, it was determined that the gas was not entering the building because of any defect in the prior work by the gas company, but rather through a stone foundation wall.

Id. ¹¹⁷ In discussing the tort liability of the defendant, who was occupying the premises ¹⁷¹ for the purpose of demolishing the building, the Court of Appeals recognized the general principle of law that, within certain limitations, "one must use his own rights and property so as to do no injury to those of others." Id. at 599 , 3 A.2d 479 . With respect to a dangerous condition, such as the escape of gas, the Court wrote: [A]fter the occupier or possessor knows or should know of the danger of the artificial condition of the premises to others outside the land, and fails to exercise reasonable care and diligence to make the condition reasonably safe either by removing the danger or by giving adequate warning or by using other effective safeguards, the occupant or possessor becomes liable to persons outside the land for injuries which are the proximate result of such artificial conditions. Id. at 600 , 3 A.2d 479 . The Court determined that the "perils of explosion and fire" from the accumulation of gas in the building being demolished "were obvious and known to the defendant for such a length of time as to make it a question for the jury whether the defendant, after he knew of the dangerous condition of the premises to others without the land, had not failed to use reasonable care and diligence to prevent injuries by explosion to travelers upon the adjoining public streets." Id. at 601 , 3 A.2d 479 .

The Court elaborated: Should injury befall the traveler because of the realization of the potential danger, it is sufficient for the traveler's recovery to establish the existence and nature of the dangerous situation and that his injury was the direct and natural consequence and development of the negligence of defendant in maintaining such a condition. Such testimony would establish that the injury had been inflicted during the period of defendant's negligence and as a consequence of its inherently dangerous existence. The breach of duty owed by the defendant to the traveler on the highway was the former's failure to use the premises of which he was then in the exclusive possession with that degree of care and diligence which an ordinarily prudent man would, under similar ¹¹⁸ conditions, have reasonably exercised so as to prevent the dangerous state of the premises to become the proximate cause of injury to a traveler in the lawful and careful use of an adjacent municipal highway. Id. at 602 , 3 A.2d 479 .

With regard to the plaintiff's burden of proof, the Court noted that it was "immaterial for the plaintiff to prove the particular manner whereby the free illuminating gas exploded." Id. The Court determined that: In any aspect of the proof, the proximate and efficient cause of the explosion was the presence of free gas. If the particular act or thing which set off the explosion was an act or condition for which either the defendant, through his servants, or a third party, was responsible, it would necessarily be an additional act or omission of the defendant or one of the third party without legal significance so far as the plaintiff's right of recovery is affected, since the injury was inflicted while the defendant's own wrongful act was continuing in force and operation. In the hypothesis made, if the ignition was by the act or nonfeasance of the defendant, the testimony would be unnecessary to establish the plaintiff's right of action; if, on the other hand, it was the act or omission of a third party, it would not affect the plaintiff's right of action against the defendant, whose negligence remained in existence to become concurrent.

As observed in Consolidated Gas Company v. Getty , 96 Md. 683 , at page 690, 54 A. 660 , at page 662, 94 Am.St.Rep. 603 : 'But it is equally true ¹⁷² that no wrongdoer ought to be allowed to apportion or qualify his own wrong; and that, as a loss has actually happened whilst his own wrongful act was in force and operation, he ought not to be permitted to set up as a defense, that there was a more immediate cause of the loss, if that cause was put into operation by his own wrongful act.' Id. at 602-03, 3 A.2d 479 (some citations omitted). More recently, in La Belle Epoque, LLC v. Old Europe Antidue Manor , 406 Md. 194 , 958 A.2d 269 (2008), the Court ¹¹⁹ of Appeals considered a negligence action involving allegations that La Belle Epoque, LLC ("La Belle Epoque"), a tenant in the upstairs unit in a commercial building, negligently created a pile of trash and debris in an alley that, after substantial snow and rain, led to the infiltration of runoff water into the downstairs unit occupied by another tenant, Old Europe Antique Manor ("Old Europe"). The trial court granted summary judgment in favor of the landlord and La Belle Epoque, but the Court of Appeals reversed, holding, in part, that La Belle Epoque "would be liable for its own negligence for injury caused to others resulting from the placement of debris in the alley, whether or not the alley is considered a common area." Id. at 218 , 958 A.2d 269 . The Court of Appeals explained that "[a] person who negligently fails to make the condition reasonably safe can be liable for harm that the condition causes to neighboring properties." Id. at 219 , 958 A.2d 269 .

According to the Court, "a reasonable trier of fact could conclude that a pile of trash and debris that La Belle Epoque allegedly allowed to accumulate in the alley constituted a dangerous condition on the premises and that La Belle Epoque failed to remove the debris or protect others from that condition." Id. The same holding was reached by the Supreme Court of Oregon in Hesse v. Century Home Components, Inc. , 267 Or. 53 , 514 P.2d 871 (1973). That case involved an action by adjoining property owners against the owner of a wood-manufacturing plant for loss of property by fire. The plaintiffs alleged that the defendant, who constructed components for pre-fabricated houses, stored sawdust and wood trimmings in an open wooden box, that the night before the fire, defendant's janitor put sawdust containing linseed oil into the box, and that a fire originated in the box.

Hesse , 267 Or. at 55 -56 , 514 P.2d 871 . It was not known what sparked the fire, and the court recognized that it could have been started by arson, by accidental act of a third person or one of defendant's employees, or by spontaneous combustion. Id. at 56 , 514 P.2d 871 . It was clear, however, that the fire spread across a timber dock to a warehouse and destroyed property of the plaintiffs that was stored therein.

Id. Plaintiffs alleged that the owner of the ¹²⁰ wood-manufacturing plant was liable for the fire because it negligently maintained its premises, it knew, or should have known, that a fire could be anticipated, and it failed to take precautions to prevent the start and spread of a fire. Id. The trial court instructed the jury, in part, as follows: Every person has the duty to maintain his premises in a reasonably safe condition to avoid the likelihood of spread of fire therefrom.

If you find that the defendant placed or stored inflammable waste in an inflammable trash box under such circumstances and conditions that the defendant knew, or in the exercise of reasonable care should have known that any fire in the trash box would be likely to spread to the building and adjacent structures, then you should find the defendant negligent in that respect. Id. The Supreme Court of Oregon held that, taken as a whole, the jury instructions ¹⁷³ adequately set forth the law. Id. at 57 , 514 P.2d 871 .

Accord: Scully v. Fitzgerald , 179 N.J. 114 , 843 A.2d 1110 (2004) (A landlord breached his duty by storing construction debris in a storage area when he knew or should have known that persons discarded cigarette butts near the storage area.). In the case at hand, Steamfitters used its property in a normal manner. Unlike the cases we cited, Steamfitters did not store unusually flammable materials on its property. The mulch on the strip of land near the fence was used in an ordinary manner.

Nevertheless, there was evidence from which the jury could determine that Steamfitters was aware that hundreds of cigarettes had been discarded in the mulch and that this practice put it on notice that a dangerous practice was occurring on its property, specifically the disposal of cigarettes in a combustible substance. The mulched area was a common area, not part of the space used by the Training Fund for classes. A duty arose because the otherwise normal condition became dangerous by virtue of the practice of persons tossing cigarette butts into the mulch. Case law addressing premises liability with respect to harm caused to ¹²¹ neighboring properties by a condition on the premises range from harm caused by an inherently dangerous artificial condition created or permitted to remain by the owner, that requires little advance notice of a certain practice, to a case such as this , i.e. , a condition that becomes dangerous because of a certain practice.

We emphasize that this conclusion rests on the evidence from which a jury could find that a large number of cigarette butts were discarded in the mulch over a long period of time prior to the fire. It was for the jury to resolve conflicts in the evidence presented and to determine whether Steamfitters breached its duty of care to neighboring property owners to avoid the likely spread of fire arising from a cigarette discarded in mulch. Accordingly, the trial court did not err in denying Steamfitters' motion for judgment and permitting the jury to resolve the negligence