University of Maryland Eastern Shore v. Rhaney

MURPHY, Chief Judge. This appeal from the Circuit Court for Somerset County arises out of an assault that occurred at approximately 7:00 p.m. on October 29, 1998 in a dormitory room on the campus of the University of Maryland Eastern Shore (UMES). Both the perpetrator (one Ennis J. Clark) and the victim of the assault, Anthony F. Rhaney, Jr., appellee, were UMES students and shared the dormitory room where the assault took place. This was not the first assault that Mr. Clark committed on the UMES campus.

He had been suspended during the spring semester of 1998 because of his involvement in a series of fights that began on March 13th and continued until the 14th. At the time of his suspension, he was told that he would be permitted to return “on probation” for the fall semester, provided that he furnished “documentation of having completed professional counseling on conflict resolution.” Before returning, Mr. Clark successfully completed a “conflict resolution” program, but he did not receive “professional” counseling. 1 Pretrial Proceedings On October 27, 2000, appellee filed a four count complaint against Mr. Clark and the State of Maryland, University of Maryland Eastern Shore, appellant. The two counts against appellant (Count III and Count IV) asserted that appellant was negligent for the following reasons: ⁴⁷ 29. [Appellant] was negligent in that it failed to disclose to [appellee] that his roommate, [Clark], had dangerous and violent propensities, which were known to [appellant] or its agents, servants, and employees. The likelihood of an assault by Clark on [appellee], or others, was foreseeable. 30. [Appellant] was further negligent in that it assigned [Clark] to be a roommate of [appellee], under circumstances when it knew or should have known that [Clark] had dangerous propensities including a history of assault. 31. [Appellant] breached its duty of reasonable care by permitting [Clark] to be in proximity to [appellee], and as a result of the negligence of [appellant], [appellee] was injured and sustained damages. 35. [Appellant] is an institution of higher learning maintaining a campus at Princess Anne, Somerset County, Maryland, for the purpose of educating and housing students, among its other functions. 36. [Appellee] was properly enrolled as a full-time student and residing in a dormitory provided by [appellant]. 37.

While lawfully on the portion of the premises to which he was invited and expected to be by [appellant], [appellee] was assaulted and battered by [Clark] as set forth above. 38. [Appellee] was an invitee of [appellant’s] property, and [appellant] breached its duty of reasonable and ordinary care to maintain the premises safely for [appellee], and to protect [appellee] against injury caused by unreasonable risk which [appellee], exercising due care, could not discover. 39. [Appellant] breached its duty of care by permitting [Clark] to be in proximity with [appellee]; by failing to protect [appellee] from [Clark’s] dangerous propensity; and by failing to warn [appellee] of Clark’s dangerous propensities. The allegations in the complaint frame the issues before the court. Bourexis v. Carroll County Narcotics, 96 Md.App. 459, ⁴⁸ 473 , 625 A.2d 391 (1993). Appellee’s claim was based upon his standing as a tenant, and as a business invitee. 2 Appellant filed a motion for summary judgment.

During the hearing on that motion, appellant’s counsel presented the following argument: Under Maryland law, ... there is no duty to control a third person’s conduct so as to prevent personal harm to another unless a special relationship exists between the actor and the third person or between the actor and the person injured.... The University[-]student relationship by itself ... does not constitute a special relationship. * * * The relationship between the University and Mr. Clark and Mr. Rhaney is best viewed in the context of [a] landlord[-]tenant relationship and ... there is no special duty owed by a landlord to protect [a tenant] from criminal acts of third parties committed in the common areas within the landlord’s control. The duty owed is to exercise reasonable care. If a landlord knows or should know of the criminal activity he then has to take reasonable measures. [Appellee] alleges that the University had prior knowledge about that fight in March, but that’s the only knowledge it had of this one fight.

I think that this single fight incident is not enough to give rise to a jury question.... There is no authority' in the law to support Mr. Rhaney’s ⁴⁹ contention that Mr. Clark should not have been allowed to return to the school or campus housing or [that] the University [had a duty] to keep Mr. Clark from Mr. Rhaney. Another thing I would like you to consider is [that] the position [oí] the plaintiff is against the public policy the [sic] poor judgment in a fight would be that you are forever barred from University housing. I think it’s an untenable thing that the University [must,] just because of one fight[,] follow Mr. Clark to protect people that he comes in contact with both in his classes or otherwise.

This could create a huge burden on the State and the University. Appellant’s motion for summary judgment was denied and a jury trial followed. 3 The Evidence The jury learned that appellee and Mr. Clark lived together without incident for the first two months of the fall 1998 semester. At that time, appellee was an eighteen-year-old first semester freshman, and Mr. Clark was a twenty-year-old second semester freshman. On October 29, 1998, Mr. Clark moved from the room he shared with appellee into another dormitory room, where friends of his lived.

After Mr. Clark had removed most of his belongings, appellee and a friend began to rearrange the furniture in the room. They moved Mr. Clark’s fish tank, which sat on top of a desk, and then noticed that the tank was leaking. As appellee set out to wipe up the leaking water, Mr. Clark returned to the room. Appellee testified that Mr. Clark “began yelling irately with vigorous hand gestures,” and asked him repeatedly what he had done to the fish tank.

Appellee denied breaking it. He believed Mr. Clark was walking away from the scene, when Mr. Clark turned back and punched appellee in the jaw. Appellee underwent surgery and had his mouth wired shut for ⁵⁰ a period of time. He finished the fall semester, but later withdrew from UMES.

Mr. Clark withdrew soon after the assault. The jury also heard evidence regarding Mr. Clark’s disciplinary history at UMES. He matriculated in the fall of 1997, and, over two days in the following semester, March 13 and 14, 1998, he was involved in fights with other students. Apparently, one altercation began at a party on the 13th and continued on the 14th in front of a campus dining hall.

Eight other people were involved in the second fight, but it caused the immediate suspension of only one other student and Mr. Clark, who pled guilty to “fighting or physically assaulting another” and “disorderly conduct” at a Campus Judicial Council hearing. UMES advised Mr. Clark that he could return for the fall 1998 semester, “with documentation of having completed professional counseling on conflict resolution.” He would also be placed on probation for one year, if he returned. In June of 1998, UMES received a letter that documented Mr. Clark’s participation in the “Save Our Streets” program (“S.O.S.”), the goals of which were to “resolve conflict verbally, without resorting to the use of violence, to develop more favorable attitudes toward law-abiding behavior, and to make positive choices in response to conflict.” Mr. Clark testified that the program was geared toward street and gang violence. It appears to have been designed for people thirteen to seventeen years old.

The program required Mr. Clark to attend classes that lasted about two hours a day, for two weeks. UMES allowed Mr. Clark to return to school, based upon his successful completion of the program. It also allowed him to live in a dormitory, where he was randomly assigned to be appellee’s roommate. The dormitory contained single and double occupancy rooms.

Appellee elected to abandon his “duty to warn” theory, 4 and proceeded on his “duty to protect” theory, by (1) conceding ⁵¹ that it was not unreasonable for appellant to allow Mr. Clark to “come to classes, [go] to the library, [and] attend lectures,” but (2) arguing that it was unreasonable for appellant to assign Mr. Clark and appellee to the same dormitory room. At the conclusion of the plaintiffs case-in-chief, appellant’s counsel moved for judgment, arguing that (1) “the same reasons” that entitled appellant to summary judgment “are still valid today,” and (2) “just because a young man is involved in one fight doesn’t mean he can’t ever come back to the school.” These arguments were incorporated by reference in appellant’s motion for judgment at the conclusion of all the evidence. The summation delivered by appellee’s counsel included the following arguments: Let’s start with one thing the University, and they’re correct, the federal law says ... the University cannot disclose disciplinary records of students because it’s a privacy thing that the people in Washington think [is] important. So they have exclusive control over the knowledge of Mr. Clark’s disciplinary records.

Now, when you have exclusive knowledge of something, confidential knowledge that you can’t make known to other people, you have a special duty there because you have to make arrangements to make sure that what you know [but] what someone else can’t know doesn’t adversely affect another person. ⁵² The University can’t tell Mr. Rhaney or his parents about Mr. [Clark’s] conduct, so they have to do something else ... to make sure that Mr. Clark’s behavior pattern does not hurt Mr. Rhaney or anybody else. And ... they had reasonable options. They could say, Mr. Clark, yeah, you can come to classes, you can go to the library, you can attend lectures, but you can’t live on on-eampus housing until you’ve shown that you can behave yourself over a period time[,] or they can make him pay for a single room. You want to come back, you want to live in University housing[,] you pay for a single room, you live by yourself.

We don’t quite trust you yet because we know what your behavior pattern is. They have to act reasonably based on what they know. And they alone know about his behavior. The judge’s instructions are that the University stands in the position of a landlord and these two folks stand as tenants.

There is a landlord tenant relationship there. There is also the [business-invitee] relationship. You heard the judge use the word invitee. Take it out of the University context[;] if you invite somebody to your store, ... somebody comes [into] the store [when] you forget to put the watch dog away [and] the watch dog bites somebody, well, you haven’t exercised reasonable care.

You have to be reasonable when you let somebody come [into] the store for—your store property for your business. So the University is a business. They are selling room space. They are selling lectures.

They are selling degrees. They are selling courses. In essence it’s a commercial transaction even though it’s not the normal commercial transaction. They have to exercise reasonable care to the people they invite on their premises and to their tenants.

And the instructions are very clear on this. Here’s one under Maryland law. The landlord or business owner has knowledge of or should have known of criminal activity against persons who are on its property. The landlord or business owner has a duty to take reasonable measures in view of existing circumstances to eliminate the conditions ⁵³ contributing to the criminal activity.

Okay. They have to act reasonably. Prior to closing arguments, the circuit court delivered instructions that included the following propositions: The responsibility of those who own or possess property to people injured on their property depends upon the standard of care owed to the injured person. The standard of care depends upon the injured person’s status on the property.

An invitee is a person who is invited or permitted to be on another’s property for purposes related to the owner’s or occupier’s business. The duty owed to any invitee is to use reasonable care to see that those portions of the property that the invitee may be expected to use are safe. Under Maryland law if a landlord or business owner has knowledge of or should have know [sic] of criminal activity against persons on its property the landlord or business owner has a duty to take reasonable measures in view of the existing circumstance!s] to eliminate the conditions contributing to the criminal activity. Evidence that the landlord had knowledge or prior criminal activity on the premises and had taken various safety precautions to guard against criminal activity is relevant to determining the reasonable measures which a landlord is under a duty to take to keep the premises safe.

In Maryland there is no duty to control a third person’s conduct so as to prevent personal harm to another unless a special relationship exists between the actor and the third person or between the actor and the person injured. In determining whether the University had a special relationship with either Mr. Rhaney or Mr. Clark you should consider whether the University specifically undertook to protect Mr. Rhaney or to control Mr. Clark’s conduct. You are instructed that federal law bars the University from disclosing student disciplinary records to third parties except in very limited circumstances none of which applies ⁵⁴ to this case. You are instructed that the University had no duty to separate [younger students] from ... older students.

The jury was not asked to return a separate verdict on each count, but was instead presented with a verdict sheet that included the following questions: 1. Do you find from the evidence presented that the University of Maryland Eastern Shore breached a duty to exercise reasonable care toward Anthony Rhaney, Jr.? _YES _NO * * * 2. Do you find that the University of Maryland Eastern Shore’s breach was a proximate cause of the injuries claimed by Mr. Rhaney? _YES _NO The jury answered “Yes” to both questions and proceeded to award appellee $74,385.00 in compensatory damages. 5 This appeal followed, in which appellant presents three issues for our review: 1. Did the University owe a duty to warn Rhaney about Clark before assigning them to share a dormitory room when federal law barred the University from disclosing that Clark had been involved in a fight on campus during the prior semester, for which he was disciplined in accordance with the University’s student code of conduct? 2.

Did the University owe a duty to protect Rhaney from Clark when the University had not taken charge or custody of Rhaney or Clark and when the University undertook no affirmative act to protect Rhaney upon which Rhaney could reasonably rely? 3. Was there sufficient evidence for the jury to conclude that the University failed to exercise reasonable care ⁵⁵ when it assigned Rhaney and Clark to share a dormitory room? Discussion The Court of Appeals recently stated: The elements of a cause of action in negligence are well-established. To state a claim, the plaintiff must allege facts demonstrating “(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 the duty.” Remsburg v. Montgomery, 376 Md. 568, 582 , 831 A.2d 18, 26 (2003), quoting from Muthukumarana v. Montgomery Co., supra, 370 Md. at 486, 805 A.2d at 395.

As noted in Remsburg, 376 Md. at 582 , 831 A.2d at 26 , we have adopted Prosser and Keeton’s characterization of “duty” as “an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another,” and, in determining whether a duty exists, have considered such things as, “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.” Id. at 583 , 831 A.2d at 26 , quoting from Ashburn v. Anne Arundel Co., 306 Md. 617, 627 , 510 A.2d 1078, 1083 (1986), quoting, in turn, from Tarasoff v. Regents of Univ. of California, 17 Cal.3d 425 , 131 Cal.Rptr. 14 , 551 P.2d 334, 342 (1976). In Jacques v. First Nat’l Bank, 307 Md. 527, 534 , 515 A.2d 756, 759 (1986), we consolidated some of that into two considerations: “the nature of the harm likely to result from a failure to exercise due care, and the relation ⁵⁶ ship that exists between the parties.” See also Bobo v. State, 346 Md. 706, 714-15 , 697 A.2d 1371, 1375-76 (1997). As a general proposition, “a private person is under no special duty to protect another from criminal acts by a third person, in the absence of statutes, or of a special relationship.” Scott v. Watson, 278 Md. 160, 166 , 359 A.2d 548, 552 (1976); Valentine v. On Target, 353 Md. 544, 551-52 , 727 A.2d 947, 950 (1999). Horridge, et al. v. St. Mary’s County Department of Social Services, et al., 382 Md. 170, 182-83 , 854 A.2d 1232 (2004).

In the case at bar, appellee was (1) a business invitee with respect to the UMES campus, and (2) a tenant with respect to the dormitory room in which he was assaulted. In its capacity as a landlord, appellant is not immune from liability on the ground that the tenant’s injury occurred within the leased premises, rather than within a common area. In Hemmings v. Pelham Wood, 375 Md. 522 , 826 A.2d 443 (2003), the Court of Appeals reaffirmed the proposition that a landlord’s duty to maintain safe