Steamfitters Local v. Erie Insurance

Steamfitters Local Union No. 602 v. Erie Insurance Exchange, et al.; Steamfitters Local Union No. 602 v. Cincinnati Insurance Company, et al., No. 40, September Term, 2019, Opinion by Booth, J. TORT LIABILITY – PROPERTY OWNER’S DUTY OF CARE TO NEIGHBORING PROPERTY OWNER TO MAINTAIN PROPERTY IN A MANNER TO AVOID RISK OF FIRE. For at least the past 80 years, this Court has recognized that ownership, operation, and maintenance of property comes with a common law duty to use reasonable care so as not to cause harm to the neighboring property owners. A duty may arise when, viewing the totality of the circumstances, there exists a dangerous or hazardous condition on the property and the property owner was on notice of the dangerous or hazardous condition. Under the specific facts and circumstances presented in this case, the defendant commercial property owner owed its neighbors a common law duty to maintain its property in a manner that would not cause an unreasonable risk of a fire spreading to the neighboring property.

Under the facts presented, there was evidence from which the jury could determine that the defendant had actual or constructive knowledge that hundreds of cigarettes had been discarded in the mulched common area along the property line, which created a foreseeable risk of fire spreading to the neighboring property. It was for a jury to resolve conflicts in the evidence presented to determine whether the defendant breached its duty of care to neighboring property owners to avoid the likely spread of fire arising from a cigarette discarded in mulch. EXPERT TESTIMONY – MATTERS WITHIN COMMON KNOWLEDGE. Expert testimony was not required to prove the applicable standard of care and to establish the reasonable steps a commercial landowner must take to fulfill its duty to prevent cigarettes from being regularly discarded in mulched common areas in order to avoid causing a fire.

Preventative steps that could have been taken are not outside the ken of the average layperson. Jurors were free to use their common knowledge and experience to consider reasonable steps that could have been taken to prevent a fire. Similarly, the foreseeable risk of fire being created by habitually discarding cigarettes in a combustible substance is a matter of common knowledge, well known to ordinary people. SPOLIATION INSTRUCTION.

The trial court did not abuse its discretion when it instructed the jury on spoliation of the evidence under the facts presented in this case. CONTRACTUAL INDEMNIFICATION. The trial court did not err in granting summary judgment in favor of the third-party defendant on the third-party complaint for contractual indemnification. Under the plain language of the indemnification provision, the third-party defendant did not agree to indemnify the third-party plaintiff for its own negligence.

Circuit Court for Prince George’s County Case Nos.: CAL 15-38293; CAL 16-07205 Argued: January 10, 2020 IN THE COURT OF APPEALS OF MARYLAND No. 40 September Term, 2019 STEAMFITTERS LOCAL UNION NO. 602 v. ERIE INSURANCE EXCHANGE, et al. STEAMFITTERS LOCAL UNION NO. 602 v. CINCINNATI INSURANCE COMPANY, et al. Barbera, C.J. McDonald Watts Hotten Getty Booth Biran, JJ. Opinion by Booth, J. Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. Suzanne Johnson 2020-07-27 15:20-04:00 Filed: July 27, 2020 Suzanne C. Johnson, Clerk “Only You Can Prevent Wildfires.” -Smokey Bear1 In this case, we are asked to determine whether the owner of a commercial property owes its neighbor a common law duty to use reasonable care to prevent the risk of a spread of fire, where the property owner knows, or should know, that persons are habitually discarding hundreds of cigarette butts in a mulched common area along the boundary between the properties. On April 6, 2015, a fire started on property owned by Steamfitters Local Union No. 602 (“Steamfitters”) in Capitol Heights, Maryland, in a mulched strip of common area running along the boundary line between Steamfitters’ property and a commercial construction yard owned by Gordon Contractors, Inc. (“Gordon”).

The fire spread along a chain-link fence that separated the properties, causing property damage to Gordon’s 1 Created in 1944, the Smokey Bear Wildfire Prevention campaign is the longest- running public service advertising campaign in U.S. history. See https://perma.cc/Q748- KE8Z. Beloved by children for decades, Smokey Bear’s image is protected by U.S. federal law and is administered by the United States Forest Service, the National Association of State Foresters, and the Ad Council. Id.

Although in the early years, the bulk of Smokey’s campaign was directed at forest fires, as reflected in the 1947 slogan (“Remember . . . Only YOU can Prevent Forest Fires[]”), the slogan was updated in 2001 to its current version of “Only You Can Prevent Wildfires” in “response to a massive outbreak of wildfires in natural areas other than forests and to clarify that Smokey is promoting the prevention of unwanted and unplanned outdoor fires versus prescribed fires.” Over the years, Smokey’s public service announcements have warned about the dangers of discarding cigarette butts by throwing them out car windows or discarding them in flammable materials. To this day, Smokey’s message includes advice on the disposal of cigarettes and tobacco products, warning persons not to “throw smoking materials” into combustible materials such as “brush or leaves.” https://perma.cc/EHT3-5H4D. construction yard, as well as to a property adjoining Gordon’s property. The fire was started in an area where Steamfitters’ apprentices regularly congregated for hours at a time, prior to the commencement of their training classes held in Steamfitters’ union hall.

During the investigation into the cause of the fire, hundreds of cigarette butts that had been discarded in the mulch were recovered. The litigation that resulted from the fire damage commenced on December 14, 2015, when Gordon and its insurers, Erie Insurance Exchange (“Erie”) and Continental Casualty Company (“Continental”) filed a complaint in the Circuit Court for Prince George’s County against Steamfitters alleging a single count of negligence and claiming damages of $1,276,200.24. Steamfitters filed a third-party complaint against the Heating, Piping and Refrigeration Training Fund (the “Training Fund”), alleging contractual indemnification, common law indemnification, and contribution. A second action was commenced on March 4, 2016, when Cincinnati Insurance Company (“Cincinnati”), 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”) filed a complaint against Steamfitters in the Circuit Court for Prince George’s County, alleging a single count of negligence.

Cincinnati alleged that the fire started in the mulched strip of land on Steamfitters’ property and spread to Falco’s property, causing substantial damage to Falco’s real property and personal property. Steamfitters also filed 2 a third-party complaint against the Training Fund with respect to Cincinnati’s claim, alleging contractual indemnification, common law indemnification, and contribution.2 In April 2016, the two cases were consolidated. For ease of reference, we shall refer to Gordon, Erie, Continental, and Cincinnati as either the Plaintiffs or the Respondents. Steamfitters and the Training Fund filed cross-motions for summary judgment on the issue of contractual indemnification.3 After a hearing, the circuit court denied Steamfitters’ motion and granted summary judgment in favor of the Training Fund.

The circuit court found that Steamfitters was not entitled to indemnification under the use agreement between the parties (“Agreement”) because: (1) the Training Fund did not explicitly agree to indemnify Steamfitters for Steamfitters’ own negligence; (2) the Agreement expired before the fire occurred; and (3) the claims against Steamfitters did not arise out of the Training Fund’s use of the premises. Steamfitters also moved for summary judgment against the Plaintiffs on the negligence claims. The court denied Steamfitters’ motions. The case against Steamfitters was tried before a jury from July 17–20, 2017.

Steamfitters moved for judgment at the conclusion of the Plaintiffs’ case-in-chief, at the conclusion of the defense, and at the conclusion of the Plaintiffs’ rebuttal case. In doing so, Steamfitters argued that it had no common law duty to the neighboring properties. The 2 In the case filed by Cincinnati, as a subrogee of Falco, against Steamfitters, Steamfitters also filed a third-party complaint against Gordon containing two counts: common law indemnification and contribution. 3 Steamfitters abandoned its claims for common law indemnification and contribution before judgment was entered on the parties’ cross-motions. 3 trial judge denied the motions. The jury returned verdicts in favor of the Plaintiffs.

Damages were awarded in favor of Erie, as the subrogee of 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, as Gordon’s subrogee, in the amount of $72,338.48; and in favor of Cincinnati, as subrogee of Falco, in the amount of $119,909.10. Steamfitters noted a timely appeal. The Court of Special Appeals affirmed the trial court’s judgments in a split decision. See Steamfitters Local Union No. 602 v. Erie Ins.

Exch., 241 Md. App. 94 (2019) (Friedman, J., dissenting). Steamfitters petitioned for writ of certiorari,4 which we granted to consider the following questions, which we rephrased: 1. Does an owner of commercial property owe the neighboring property owners a duty to use reasonable care to prevent the spread of fire, where the property owner knows, or should know, that persons are habitually discarding hundreds of cigarette butts in a mulched common area adjacent to the property line? 2. Was expert testimony required to establish this duty? 4 The questions presented in the petition for writ of certiorari were: 1.

Do landowners owe their neighbors a duty of care to protect against potential fires starting in normal, harmless areas of the property, such as landscape mulch, caused by third persons over whom they have no control? 2. Does a plaintiff need to provide expert testimony as to reasonable, standard and effective measures to prevent such fires? 3. Under the facts and circumstances of this case, was the spoliation instruction unfairly prejudicial to the appellants? 4. Was it proper for the trial court to enter summary judgment on an indemnification agreement 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 with regard to whether the contract had expired? 4 3.

Did the circuit court abuse its discretion in giving a spoliation instruction under the facts of this case? 4. Did the circuit court err in granting summary judgment in favor of the third-party defendant on the issue of contractual indemnification? For the reasons more fully discussed herein, we answer the first question in the affirmative, and questions two through four in the negative. We affirm the judgment of the Court of Special Appeals in its entirety.

I. Factual Background Steamfitters owns and maintains a union hall in Capitol Heights, Maryland. The union has apprentices who pay dues and receive training, among other benefits. The Training Fund operated an apprentice school in the union hall and provided training to Steamfitters’ apprentices, pursuant to a written Agreement with Steamfitters for the use of space. Gordon owns a construction material yard adjacent to Steamfitters’ union hall.

Falco occupies a commercial warehouse that is on the other side of Gordon’s property. The Gordon and Steamfitters properties were separated by a chain-link fence with security slats. Steamfitters created and maintained a ten-foot-wide mulch bed that ran approximately 200 feet along the fence between its parking lot and Gordon’s yard. The mulch bed consisted of shredded wood mixed with dead pine needles from trees planted in the bed.

Gordon and Falco alleged that the April 6, 2015, fire started on Steamfitters’ property after a lit cigarette was discarded in the mulched area on Steamfitters’ side of the fence. The 5 fire spread along the fence between the properties and ignited foam insulation that was stored against the fence on Gordon’s side that liquefied, thereby causing further spread, and ultimately engulfing multiple vehicles and the contents of a large dumpster. Before it was extinguished, the fire also spread to property belonging to Falco and its business affiliates. Gordon and Falco did not allege that Steamfitters was vicariously liable or that it had a duty to control the unknown person who allegedly discarded the cigarette.

Rather, Gordon and Falco proceeded on the theory that Steamfitters, as the property owner, failed to use reasonable care to prevent the foreseeable risk of fire spreading to nearby properties. The Court of Special Appeals summarized the trial testimony and evidence pertinent to the matters presented on appeal. See Steamfitters Local Union No. 602 (“Steamfitters”), 241 Md. App. at 104–10. We paraphrase the court’s summary below.

Steamfitters’ business manager and corporate designee, Daniel Loveless, generally explained the apprentices’ use of Steamfitters’ property. Because the apprentices work all over the Washington, D.C., metro area, and often do not have time to go home before classes, Steamfitters provided its apprentices with a parking lot on its property on which to congregate, sometimes for hours before classes. Apprentices would arrive between 2:30 p.m. and 5:00 p.m. Over time, Mr. Loveless observed that, prior to the start of classes, apprentices passed the time by napping, gossiping, minding their own business, and smoking, and that some drank beer.

Mr. Loveless was responsible for property maintenance. Although no employee was specifically assigned the task of cleaning up trash along the fence that separated Steamfitters’ and Gordon’s properties, Mr. Loveless had done so on two or three occasions prior to the fire. According to Mr. Loveless, the 6 mulch had not been replaced in a while, and the ground was bare in some areas. During his deposition, Mr. Loveless testified that he was unclear whether he had seen cigarette butts in the mulch prior to the fire.

However, he admitted that after the fire, he saw cigarette butts in the mulch. Mr. Loveless 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. Excerpts from Mr. Loveless’s deposition were read to the jury at trial, including his admission that cigarettes discarded into mulch present a risk of fire: Q. Do you agree it’s a fire hazard throwing cigarette butts in mulch? A. I think so, yes.

Mr. Loveless testified that he was “pretty sure” that Steamfitters did not have a smoking policy. He also confirmed that smoking was permitted 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, testified that he walked through the mulched area eight times between February 2015 and the date of the fire.

He stated that he did not see any cigarette butts in the mulch, but acknowledged that he had poor 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[.]” The weather on the date of the fire was dry and windy. The fire was investigated independently by the Prince George’s County Fire Marshal’s Office, and also by fire investigators for all parties. Wayne Crosby, an acting lieutenant and fire investigator 7 assigned to the Prince George’s 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 determined that the fire started in the mulch bed on Steamfitters’ side of the fence and that there was constant wind on the day of the fire, with gusts up to 40 miles per hour, which kept the fire low and pushed it down the fence line toward a dumpster, where it grew. He opined that the embers from the mulch were blown by the wind into Gordon’s construction yard where they ignited combustible foam insulation, and that the fire continued to grow. Lieutenant Crosby described how the foam insulation liquified and ran down the parking lot to one side of the Falco property, burning two fire trucks along the way. Lieutenant Crosby opined that the only possible ignition source for the fire was a cigarette.

He noted that a very large number of cigarette butts were found in the mulch on Steamfitters’ side of the fence, and he 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. Lieutenant Crosby acknowledged that the combustible foam insulation on Gordon’s property was stored too close to the fence line, in violation of certain code provisions. However, he concluded that because of the strong winds, where the material was stored was immaterial. Vehicles parked on Gordon’s property were damaged in the fire.

Lieutenant Crosby testified that he ruled out the vehicles as the cause of the fire. He stated that the vehicles were burned from left to right and that there was no fire damage on one side of them. Lieutenant Crosby explained that if the fire had started in one of the vehicles, it would have been totally consumed. 8 In concluding that the fire had not originated in one of the vehicles, Lieutenant Crosby testified that he 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.

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. As part of their investigation, the Fire Marshal’s Office canvassed the area to obtain videos from building-mounted cameras and cell phones. Three building-mounted cameras that might have captured relevant information were identified—a surveillance camera on the Falco property, a camera affixed to the exterior of a church across from Steamfitters’ property, and a camera located on the exterior of Steamfitters’ building.

Lieutenant Crosby obtained and reviewed the video recordings from the Falco property and the church. He 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 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. 9 Dale Wauters, Gordon’s operations manager, was familiar with Gordon’s construction yard, and testified to the conditions on the property, and the damages sustained as a result of 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 four feet wide and eight feet tall and long, which were stored approximately three to four feet from the fence.

He noted that the insulation packaging included a warning that the product was combustible. Mr. Wauters described a slope of approximately four feet from the base of the fence to the flat yard of 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 the Gordon and Steamfitters properties. Mr. Wauters testified that 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 aware of any code provision that required 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 summarized the property damage incurred by Gordon as the result of the fire, which included the destruction of the structure, three destroyed vehicles and a tow trailer, damaged containers, loss of inventory, and the expense of the hazardous materials clean-up. He testified that Gordon’s lot was not scraped or cleaned until sometime between June and October 2015, when a company 10 provided hazardous waste removal.

The parties stipulated that Erie paid Gordon $1,039,176.67 for its property damage. Erie’s expert witness on fire investigations, Michael Schaal, testified as to the origin of the fire, as well as its cause, growth and spread. Mr. Schaal stated that, during his investigation, he 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 involved in the fire, Mr. Schaal stated that the most significant factor 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 explained that fire does not burn against the wind. He testified that burning mulch, leaves, and pine needles could have been carried by the wind resulting in combustibles “further down the line” having been ignited. It was Mr. Schaal’s opinion that the location of foam insulation on Gordon’s property had no effect on the cause of the fire.

He explained that due to the speed and direction of the wind, the foam insulation would have burned regardless of whether it was stored four feet or twenty feet from the fence. Mr. Schaal testified 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.” Like Lieutenant Crosby, 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 occurred on the ground level along the fence line. Based upon his review of the surveillance video from the church property, Mr. Schaal observed white smoke drift across the parking lot for 23 minutes and then the smoke instantly turned black. 11 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 was caused by the burning of the insulation. Moreover, Mr. Schaal stated that he did not observe fire in the cab of any vehicle on Gordon’s property, which would have been expected if the fire originated in a vehicle.

Mr. Schaal also 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 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, he opined that the fire originated on Steamfitters’ side of the fence. Several photographs of the mulched area taken after the fire were introduced into evidence.

The photographs show hundreds of cigarette butts in the mulch bed in varying condition. Gordon and its insurers argued the inference that the butts had been deposited over a long period of time. Steamfitters presented testimony from fire investigator, Richard Thomas Long, Jr., 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. Although Mr. Long hypothesized that the fire originated in the mulch on Steamfitters’ side of the fence, he testified that mulch fires are “very low intensity fire[s],” that would not produce six-foot-tall flames. Mr. Long testified that the burn patterns along the fence and the 12 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 five to six feet into Gordon’s lot, there was no evidence that the fire spread 15 feet into Gordon’s property, and if the fire had come through the fence, it would have only spread five to six feet before encountering gravel, which “doesn’t burn.” According to Mr. Long, the “highly combustible” foam insulation was too close to the fence, which made it easier to ignite when the wind pushed the mulch fire through the fence. On cross-examination, Mr. Long acknowledged that he had initially developed two possible theories about the cause of the fire. The first was that the foam insulation boards on Gordon’s property were stored too close to the fence, and they ignited when the fire was pushed through the fence.

The second theory was that the fire started in a vehicle that was parked on Gordon’s lot. That theory was based, in part, on the testimony of Mr. Grasso, who, as previously 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 incorrect, 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 had escaped Mr. Long’s notice.

Thereafter, Mr. Long abandoned his second theory concerning a vehicle fire as a potential cause. At trial, Mr. Long acknowledged that he had given deposition testimony in which he rendered an opinion that the burn patterns on the base of the fence, where Lieutenant 13 Crosby and Mr. Schaal had placed the origin of the fire, were caused by melting foam insulation that pooled in that area. When asked how melting insulation flowed up hill, Mr. Long admitted that there was not really a change in elevation at that point. As the Court of Special Appeals stated, “[t]he evidence relating to the storage of insulation was relevant to the defense of contributory negligence.

The jury rejected that defense.” Steamfitters Local Union No. 602 v. Erie Ins. Exch., 241 Md. App. 94, 110 (2019). Additional facts are included below as necessary to our discussion of the questions presented.

II

Proceedings Before the Court of Special Appeals After the jury returned verdicts in favor of the Plaintiffs, Steamfitters noted a timely appeal. The Court of Special Appeals affirmed the circuit court’s judgment. With respect to the issue of whether Steamfitters owed a duty to its neighbors under the facts of this case, the court noted that “[n]o 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 considered to be normal, absent extenuating circumstances.” Id. at 116 . Although it had no case with similar facts upon which it could rely, the Court of Special Appeals recognized that this Court “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.” Id. 14 Applying established principles applicable to the duty of reasonable care owed by a property owner to his or her neighbor, the Court of Special Appeals concluded that Steamfitters owed its neighbors a duty under the specific facts of this case “because the otherwise normal condition became dangerous by virtue of the practice of persons tossing cigarette butts into the mulch.” Id. at 120 .

The court found that “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.” Id. The court concluded that “[i]t 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.” Id. at 121 . The Court of Special Appeals further held that expert testimony was not required to prove the existence of Steamfitters’ duty, stating that “[t]he foreseeable risk of fire created by habitually discarding cigarettes in a combustible substance is a matter of common knowledge, well known to ordinary people. Likewise, the duty to exercise reasonable care to guard against the risk of fire was not so esoteric as to require expert testimony.” Id. at 124 .

Accordingly, the intermediate appellate court affirmed the circuit court’s denial of Steamfitters’ motions for judgment based on the existence of the duty and that the evidence presented was sufficient for the jury to conclude that Steamfitters was aware that people on their property were regularly discarding cigarettes into combustible mulch. Id. 15 With respect to spoliation, the Court of Special Appeals held that the trial court did not abuse its discretion in giving the spoliation instruction. Steamfitters, 241 Md. App. at 128–33. Finally, the court affirmed the entry of summary judgment in favor of the Training Fund, holding that the terms of the Agreement did not require the Training Fund to indemnify Steamfitters for Steamfitters’ own negligence.

Id. at 136–37.5 As set forth below, we agree with the Court of Special Appeals’ well-reasoned analysis and affirm its judgment.

III

Discussion We first consider Steamfitters’ contention that it did not owe the neighboring properties a duty under the facts and circumstances of this case. A Property Owner’s Common Law Duty of Reasonable Care to Use Property in a Manner to Avoid Harm to the Neighboring Property Steamfitters contends that the circuit court erred in denying its motion for judgment because it owed no duty of care to Gordon and Falco because mulch is “not a dangerous condition” and because it had no duty to prevent third persons from smoking near its mulched common area. In its brief, Steamfitters asserts that the Court of Special Appeals 5 In his dissenting opinion, Judge Friedman set forth four reasons why he disagreed with the Majority’s holding that Steamfitters owed the neighboring property owners a duty of care, stating that: (1) the “[u]se of mulch in landscaping should not be the source of tort duty”; (2) the presence of old cigarette butts did not increase the risk of fire; (3) the Majority’s opinion extends tort liability to landowners for actions of third parties over whom they have no control; and (4) if landowners put out more ashtrays and cleaned up mulched areas in the future, it will not avoid fires. Steamfitters Local Union No. 602 v. Erie Ins.

Exch., 241 Md. App. 94 , 137–39 (2019). For the reasons set forth in this opinion, we disagree. 16 erroneously found a duty “based on foreseeability alone,” and that it “never truly even defined” the duty. From there, Steamfitters argues that the Court of Special Appeals “extends premises liability further than anywhere else in the nation, imposing a duty that is at once both undefined and unlimited[,]” and therefore, “cannot be fulfilled.” The Respondents assert that neither the circuit court nor the Court of Special Appeals created a new tort, nor did the Court of Special Appeals or the trial court impose a duty in this case based upon foreseeability alone. Rather, Respondents argue that the courts simply applied the well-recognized principle that property owners owe a duty to occupants of neighboring land to use reasonable care when conducting activities on the land so as to avoid harm to the neighboring land.

In the context of this case, Respondents contend that the Court of Special Appeals correctly determined that the common law duty of reasonable care owed by Steamfitters to its neighbors was the duty “to avoid the likely spread of fire arising from a cigarette discarded in mulch[,]” or put another way, the “duty to prevent cigarettes from being discarded in mulch and causing a fire.” Steamfitters, 241 Md. App. at 121 (internal quotations omitted). We review a trial court’s decision to grant or deny a motion for judgment de novo. Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387 , 393–94 (2011). In a civil trial, if, considering the evidence in a light “most favorable to the plaintiff, a reasonable finder of fact could find the essential elements of the cause of action by a preponderance of the evidence standard, the issue is for the jury to decide, and a motion for judgment should not be granted.” DeMuth v. Strong, 205 Md. App. 521, 547 (2012) (citations omitted).

An appellate court performs the same task as the trial court, affirming the denial of the motion 17 for judgment, “if there is ‘any evidence, no matter how slight, that is legally sufficient to generate a jury question.’” C & M Builders, LLC v. Strub, 420 Md. 268, 291 (2011) (quoting Tate v. Bd. of Educ., 155 Md. App. 536 , 544–45 (2004)). In other words, “we will reverse the trial court’s denial of a motion for judgment notwithstanding the verdict only if the facts and circumstances permit but a single inference as relates to the appellate issue presented.” Jones v. State, 425 Md. 1, 31 (2012) (citations omitted). 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 that duty.” Rowhouses, Inc. v. Smith, 446 Md. 611, 631 (2016) (quoting Hamilton v. Kirson, 439 Md. 501 , 523–24 (2014)). The determination of whether a duty exists is a legal conclusion that this Court reviews de novo.

Todd v. Mass Transit Admin., 373 Md. 149, 155 (2003) (citing Valentine v. On Target, Inc., 353 Md. 544, 549 (1999)). Here, we are focused on the first element—whether Steamfitters owed the neighboring property owners a duty to protect them from injury. In determining whether a duty exists in a particular context, this Court has often turned to W. Page Keeton, et al., Prosser and Keeton on the Law of Torts (“Keeton”) § 53 (5th ed. 1984), which characterizes “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another.” See, e.g., Blondell v. Littlepage, 413 Md. 96, 120 (2010); Gourdine v. Crews, 405 Md. 722, 745 (2008); Pendletown v. State, 398 Md. 447, 461 (2007); Doe v. Pharmacia & Upjohn Co., 388 Md. 18 407, 415 (2005); Hemmings v. Pelham Wood LLLP, 375 Md. 522, 536 (2003); Todd v. Mass Transit Admin., 373 Md. 149, 155 (2003); Ashburn v. Anne Arundel Cty., 306 Md. 617, 627 (1986). No universal test has ever been formulated for determining whether a duty exists.

Jacques v. First Nat. Bank of Md., 307 Md. 527, 533 (1986) (quoting Keeton, § 53, at 357–58). Rather, the requirements of a legal duty are dependent upon the specific facts and circumstances presented. Village of Cross Keys, Inc. v. U.S. Gypsum Co., 315 Md. 741 , 751–52 (1989) (quoting W. Va.

Central R. Co. v. Fuller, 96 Md. 652, 666 (1903)). 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.” Jacques, 307 Md. at 533 (quoting Keeton, § 53, at 358). As we have repeated on numerous occasions, when determining whether a tort duty should be recognized, we consider, among other things, the following variables: [T]he 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 the 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. Asburn, 306 Md. at 627 (quoting Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342 (Cal. 1976)).

Among these factors, foreseeability weighs the heaviest. Kennedy Krieger Inst. v. Partlow, 460 Md. 607, 634 (2018). In determining whether a duty exists, we consider foreseeability prospectively—taking into account the facts existing at the time of the negligent conduct. Henley v. Prince George’s Cty., 305 Md. 320, 336 (1986). 19 We disagree with Steamfitters’ assertion that the Court of Special Appeals created a “new duty” to be imposed upon property owners.

For at least the past 80 years, this Court has recognized that ownership, operation, and maintenance of property come with the common law duty to use reasonable care so as not to cause harm to the neighboring property owners. The duty recognized by this Court is not dependent upon the presence of a particular type of material, or the occurrence of a particular type of activity. Rather, a duty may arise when, viewing the totality of the circumstances, there exists a hazardous condition and the property owner was on notice of the hazardous condition. See, e.g., La Belle Epoque, LLC v. Old Europe Antique Manor, LLC, 406 Md. 194, 219 (2008) (“A person who negligently fails to make the condition reasonably safe can be liable for harm that the condition causes to neighboring premises.” (citation omitted)); Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58 , 76–77 (1994) (“[T]he occupier of land owes a duty to occupants of neighboring land to use care when conducting activities on the land so as to avoid causing harm to the neighboring land.”); Frenkil v. Johnson, 175 Md. 592, 599 (1939) (“[O]ne must use his own rights and property so as to do no injury to those of others.”); Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 213 (1939) (explaining that when a person elects to do or keep something on his or her property that exposes neighboring property to danger, that person has a duty to make the condition reasonably safe); see also, 1 Am.

Jur. 2d Adjoining Landowners § 11 (2019) (noting that “[a] landowner has a duty to use one’s property so as to not unnecessarily and negligently injure one’s neighbor”). We first recognized this duty in Frenkil v. Johnson, 175 Md. 592 (1939). In that case, we considered the duty owed to a plaintiff who sustained injuries while seated in his vehicle 20 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.

Id. at 598 . Thereafter, the employees continued to smell gas and reported the smell 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. In discussing the tort liability of the defendant, who was occupying the premises for the purpose of demolishing the building, we 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. 599 . With respect to the dangerous condition, such as the escape of gas, we explained that: the occupier is not liable until he knew, or in the exercise of reasonable prudence and diligence, should have known, of the altered and dangerous condition, and continues it after such knowledge is so acquired or imputed. Hence, after 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