Wells v. Polland

DAVIS, Judge. This is a premises liability case. Julie V. Wells and Sandra N. Pannenton appeal from a decision of the Circuit Court for Montgomery County (Rupp, J.) granting summary judgment in favor of appellees David M. Polland and Long & Foster Real Estate, Incorporated (Long & Foster). Appellants were injured when an exterior wooden staircase on which they were standing collapsed.

The staircase was attached to a beach home owned by Polland. Long & Foster had posted a “sale” sign outside of the house. Appellants filed suit against appel-lees. Appellee Polland filed a cross-claim against Long & Foster.

Long & Foster made a motion for summary judgment against appellants and Polland. Polland joined in Long & Foster’s motion for summary judgment against appellants. Appellants filed a cross-motion for partial summary judgment. On March 24, 1997, the lower court made an oral ruling granting Long & Foster’s and Polland’s motion for summary judgment against appellants, finding that appellants were trespassers rather than invitees and that appellees did not engage in willful or wanton misconduct or entrapment.

The court determined appellants’ cross-motion for partial summary judgment to be moot. The order granting summary judgment in favor of appellees was filed on March 26, 1997. On April 1, 1997, appellants filed a Motion to Alter or Amend the court’s judgment. In a Memorandum Opinion, dated June 24, 1997, the court denied the Motion to Alter or Amend.

Appellants filed this timely appeal raising two issues for our review, which we reframe below as one question with two sub-issues: Did the circuit court err in granting appellees’ motion for summary judgment by 1) ruling that appellants were trespassers rather than invitees on the property being adver ⁷⁰⁴ tised for sale, and then 2) ruling that appellees did not engage in wanton or willful misconduct or entrapment? We answer all parts of the question in the negative and affirm the judgment of the circuit court. FACTS On July 13, 1995, during their summer vacation in Ocean City, Maryland, appellants were injured when the exterior wooden staircase they were descending from the front door of a beach home collapsed. At that time, and for the preceding four months, Long & Foster had an exclusive listing to sell the property.

Polland was title holder of the property. Long & Foster posted a “sale” sign in front of the premises that read: “Sale” “Long & Foster, Realtor” “524-7100” — the telephone number being that of the local Long & Foster office. Long & Foster had Polland sign a Maryland Residential Property Disclosure Statement (disclosure statement) on March 18, 1995. The disclosure statement indicated to Long & Foster that Polland was offering the property for sale “as is” and without representations and warranties by the owner as to the condition of the property or improvements thereon.

Polland had received several notices about the dangerous condition of the beach house from the Town of Ocean City’s Building Code Enforcement Office. The first written notice came in July, 1991, four years before the collapse of the staircase. The notice advised Polland that the property in question violated several provisions of the housing code. It specifically advised Polland that the “STAIR NEEDS TO BE REPLACED.” An Ocean City Building Code Enforcement Officer had inspected the staircase and found it structurally unsound.

On August 26, 1992, Polland spoke with Building Code Enforcement Officer Kevin Brown by telephone. At that time, Polland indicated that he had not been in or seen his building for five years. In his discussion with Polland, Officer Brown specifically alluded to the unsound condition of the stairs. ⁷⁰⁵ In March 1993, Michael B. Richardson, an Ocean City Building Inspector, personally visited the property and subsequently spoke to Polland or his agent(s) about concerns with the house, including vagrants entering and exiting the property. Although this prompted Polland to have some of the windows boarded up and door locks replaced, he never repaired or removed the stairs.

Long & Foster’s listing agent first visited the property in March 1995. He walked up the outside staircase to the front door of the property. He testified that the staircase had yellow “caution” tape draped across the lower portion. He stepped over it when he climbed the stairs.

He also testified that there was a sign nailed to the front of a step of the exterior staircase that indicated that the property was uninhabitable. Notwithstanding this knowledge, Long & Foster posted a “sale” sign on the property with Polland’s permission and consent. It was this sign that drew appellants’ attention to the property. At the time of the incident, an Exclusive Listing Agreement (agreement) was in effect between Long & Foster and Pol-land.

It was pursuant to that agreement that Long & Foster placed the “sale” sign in front of the house. In that agreement, Polland contractually agreed that he, not Long & Foster, was responsible for the care, physical condition, management, maintenance, and repair of the property. In the proceedings below, Long & Foster asserted that it was only selling the land and not Polland’s home on the land. Nevertheless, Long & Foster did not use signs that advertised “acreage” only or “lot for sale” only.

The sign Long & Foster used did not explicitly indicate that viewing of the premises was “by appointment only.” After the incident, Long & Foster posted a “No Trespassing” sign on the property. The incident occurred on Thursday, July 13, 1995, shortly after 8:00 p.m. Appellants had been vacationing since the previous Saturday at an adjacent rental condominium known as the Lazy Whale. Appellants had become interested in the possibility of buying a place at the beach and they had seen ⁷⁰⁶ the Long & Foster “sale” sign displayed in front of Polland’s beach house.

On the day in question, the door to the lower level of the beach house was open and had been open all week. That Thursday evening, appellants discussed the possibility of buying the beach house and refurbishing it for themselves. Appellants, with appellant Pannenton’s son, Jason, decided to inspect the beach house. They did not know who owned the house.

They did not attempt to call the phone number on the “sale” sign or to make any other attempt to contact Long & Foster about the property before entering the premises. The “sale” sign and the open ground level door were just off the public sidewalk in front of the property. After observing that the house was obviously unoccupied, appellants and Jason entered through the lower level door and looked around. Desiring to see the main floor, they left the lower level, returned to the public sidewalk, and climbed the exterior wooden staircase leading to the landing at the main entrance to the home.

They did not notice any yellow caution tape on the railing or stairs and their access was not obstructed as they ascended the stairs. The door at the top of the stairs was ajar, so they pushed it open a little in order to peak inside what appeared to be a closed-in porch. They did not go inside but were able to look at the main floor through a window inside the porch. As they turned to leave, the exterior staircase collapsed.

Photographs taken the day after the stairs collapsed reveal that there was no fence or physical barrier around the house or blocking the stairs, but there was yellow plastic caution tape tied on the handrail of the staircase. Appellants testified that they did not notice any yellow tape when they climbed the stairs. Building Inspector Brown testified that he had wrapped the yellow caution ribbon around the guardrail and posted an “occupancy prohibited” sign on the house prior to the date of the incident. The photographs taken after the occurrence also reveal an “occupancy prohibited” sign attached to the house, which was issued by the Town of Ocean City.

The investigating officer who responded to the scene on the day after the incident filed a police report stating that he ⁷⁰⁷ found a “yellow piece of caution tape wrapped around the right hand side of the railing” and an “8” X 11” yellow condemnation sign that had been stapled to the footing of the top step at approximately eye level.” There were not any “no trespassing” signs on the property. Appellants’ suit against appellees followed. After the close of discovery, appellee Long & Foster filed a Motion for Summary Judgment on appellants’ claims. Appellee Polland subsequently joined in that Motion for Summary Judgment.

After a hearing on the motion, the lower court held that appellants were not invitees, but were trespassers on the property when the incident occurred. The lower court held further that, since appellees’ actions did not constitute willful or wanton misconduct or entrapment, they did not breach the standard of care they owed to the trespassing appellants. Accordingly, the court entered judgment in favor of appellees. Appellants filed a Motion to Alter or Amend Judgment— Court Decision, which the court subsequently denied.

This appeal followed. LEGAL ANALYSIS Motions for summary judgment are governed by Maryland Rule 2-501, which provides that, “[t]he [trial] court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Maryland Rule 2-501(e) (1998). See also Bagwell v. Peninsula Regional Medical Ctr., 106 Md.App. 470, 488 , 665 A.2d 297 (1995), cert. denied, 341 Md. 172 , 669 A.2d 1360 (1996) (holding the trial court to the same requirements as Maryland Rule 2-501). To defeat a motion for summary judgment, the party opposing the motion must present admissible evidence to show ■the existence of a dispute of material fact.

Bagwell, 106 Md.App. at 488 , 665 A.2d 297 . In making its determination, the circuit court must view the facts and all inferences from those facts in the light most favorable to the non-moving ⁷⁰⁸ party. Brown v. Wheeler, 109 Md.App. 710, 717 , 675 A.2d 1032 (1996). In Laws v. Thompson, 78 Md.App. 665, 674 , 554 A.2d 1264 , cert. denied, Thompson v. Laws, 316 Md. 428 , 559 A.2d 791 (1989), this Court noted: The purpose of the summary judgment procedure is to dispose of cases where there is no genuine factual controversy.

Summary judgment is not, however, designed as a substitute for trial, but a hearing to determine whether a trial is necessary. “The critical question for the trial court on the motion for summary judgment is whether there exists a genuine dispute as to a material fact and, if not, ■ what the ruling of law should be upon those undisputed facts.” (Citations omitted.) In Clea v. Mayor and City Council of Baltimore, 312 Md. 662 , 541 A.2d 1303 (1988), the Court of Appeals wrote that “disposition by summary judgment is generally inappropriate in cases involving motive or intent.” Id. at 677 , 541 A.2d 1303 (quoting DiGrazia v. County Exec. for Mont. Co., 288 Md. 437, 445 , 418 A.2d 1191 (1980)). The Court further explained that, “even where the facts are undisputed, if those facts are susceptible to reasonable inferences supporting the position of the party opposing summary judgment, then a grant of summary judgment is improper.” Id. (citing DiGrazia, 288 Md. at 445 , 418 A.2d 1191 ) (other citations omitted).

The standard for appellate review of a trial court’s denial of a motion for summary judgment requires us to determine whether the trial court was legally correct. Heat & Power Corp. v. Air Prods. & Chems., Inc., 320 Md. 584, 590-91 , 578 A.2d 1202 (1990); Barnett v. Sara Lee Corp., 97 Md.App. 140, 146 , 627 A.2d 86 , cert. denied, 332 Md. 702 , 632 A.2d 1207 (1993). In so doing, we review the same material from the record and decide the same legal issues as the circuit court. Nationwide Mut.

Ins. Co. v. Scherr, 101 Md.App. 690, 695 , 647 A.2d 1297 (1994), cert. denied, Scherr v. Nationwide, 337 Md. 214 , 652 A.2d 670 (1995). ⁷⁰⁹ Recovery in an action for negligence requires proof of some duty, a breach of that duty, proximate causation, and damages. Flood v. Attsgood Realty Co., 92 Md.App. 520, 524 , 608 A2d 1297 (1992). In the present case, for us to disturb the trial court’s ruling on appeal, appellants must show that there was either a genuine dispute as to a material fact involving at least one of the above elements or that appellees were not entitled to judgment as a matter of law.

Id. As we shall explain, we perceive no legally cognizable dispute as to material fact from the record before us. The facts also did not give rise to a reasonable inference that Polland engaged in willful or wanton misconduct. It is a venerable principle of Maryland law that in negligence actions the duty or standard of care owed to a person by an owner or occupier of land is determined by that person’s purpose for being on the property.

Tennant v. Shoppers Food Warehouse Md. Corp., 115 Md.App. 381, 387 , 693 A.2d 370 (1997); Meek v. Hearst Corp., 64 Md.App. 422, 426 , 496 A.2d 1099 (1985), cert. denied, 305 Md. 175 , 501 A.2d 1323 (1986) (citing Bramble v. Thompson, 264 Md. 518, 521 , 287 A.2d 265 (1972)). Maryland maintains the common law classifications of invitee (i.e. business invitee), licensee by invitation (i.e. a social guest), bare licensee, and trespasser. Tennant, 115 Md.App. at 387-88 , 693 A.2d 370 (citing, inter alia, Baltimore Gas & Elec. Co. v. Lane, 338 Md. 34, 44 , 656 A.2d 307 (1995)). 1 The highest duty is owed to invitees which, in general, are persons invited or permitted to enter or remain on one’s property for purposes connected with or related to business. 2 Tennant, 115 Md.App. at 388 , 693 A.2d 370 .

The owner or occupier must use reasonable and ordinary care to keep his premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk, about which the owner knows or could have discovered, and that the ⁷¹⁰ invitee, by exercising ordinary care for his or her own safety, is unlikely to discover. Tennant, 115 Md.App. at 388 , 693 A.2d 370 . A licensee is one who enters property with the possessor’s knowledge and consent but for his or her own purpose or interest. Mech, 64 Md.App. at 426 , 496 A.2d 1099 .

The owner owes no duty to a licensee under the traditional common law view except to abstain from willful or wanton misconduct or entrapment. 3 Id. (citing Bramble, 264 Md. at 521 , 287 A.2d 265 ). The same standard applies to trespassers, defined as those who intentionally enter without privilege or consent of the land owner. Id.

(citing Bramble, 264 Md. at 522 , 287 A.2d 265 ). “This rule of limited liability to trespassers permits ‘a person to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right.’ ” Wagner v. Doehr-ing, 315 Md. 97, 102-03 , 553 A.2d 684 (1989) (quoting W. Prosser, The Law of Torts § 58 at 395 (W. Keeton 5th ed. 1984) (footnote omitted)). As appellants assert in support of their contention that they were invitees, invitee status can be established under two doctrines: (1) mutual benefit or (2) implied invitation. Howard County Bd. of Educ. v. Cheyne, 99 Md.App. 150, 155 , 636 A.2d 22 , cert. denied, Cheyne v. Howard County, 335 Md. 81 , 642 A.2d 192 (1994). The mutual benefit theory is typified by the person who enters a business establishment to purchase goods or services.

Id. This theory places great weight on the subjective intent of appellants. Id. The court must inquire: Did appellants intend to benefit the land owner in some manner?

As we explain infra, we do not find that appellants were invitees under the mutual benefit doctrine because the relevant facts and case law do not support such a finding. In comparison to the mutual benefit doctrine, the theory of implied invitation is objective and does not rely on ⁷¹¹ any mutual benefit. Id. at 156, 686 A.2d 22 . Rather, it gains its vitality from such circumstances as custom, the habitual acquiescence of an owner, the apparent holding out of premises for a particular use by the public, or the general arrangement or design of the premises.

Id. (citing Crown Cork and Seal Co. v. Kane, 213 Md. 152, 159 , 131 A.2d 470 (1957)). The crux of the implied invitation theory is the distinction between mere acquiescence and direct or implied inducement. Kane, 213 Md. at 159 , 131 A.2d 470 .

Kane is the seminal Maryland ease on implied invitation. In that case, Kane, a truck driver, while waiting for his truck to be loaded, left the docking area and proceeded to a smoking room in Crown’s basement. Since no smoking was permitted in the docking area, Kane, like numerous other truckers, habitually accessed the smoking room during their wait. As he was returning from the basement, Kane was struck and injured by a forklift.

In reaching its holding that there was legally sufficient evidence to take the issue of implied invitation to the jury, the Court explicated: The gist of [implied invitation] liability consists in the fact that the person injured did not act merely on motives of his own, to which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used. Id. at 160 , 131 A.2d 470 (quoting Kalus v. Bass, 122 Md. 467, 473 , 89 A. 731 (1914) (citation omitted)). Based on this rationale, the Court found that, because the room was set aside for smoking, its location was made known to the plaintiff by Crown employees on two prior occasions, the room was habitually used by truckers, this use was known by the foreman, and the absence of any notice to plaintiff that the room was solely for employees led to the conclusion that ⁷¹² there was legally sufficient evidence to instruct the jury on implied invitation. More recently, in Doehring v. Wagner, 80 Md.App. 237, 244 , 562 A.2d 762 (1989), and Woodward v. Newstein, 37 Md.App. 285, 293 , 377 A.2d 535 (1977), we have discussed the view of the Kane Court in light of the Restatement (Second) of Torts § 332 comment c (1965), “Factors important in determining invitation,” which states that “the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor.” I As noted supra, appellants in the instant case contend that they were invitees on the property.

Although they concede that they did not seek permission to enter and that they were not expressly invited to enter the property, they assert that they were invitees under both the mutual benefit and implied invitation doctrines. Appellees, of course, disagree with appellants’ position, as do we. As we noted above, an individual may be considered an invitee by operation of the mutual benefit doctrine if “the individual on the premises was present for the mutual benefit of owner and visitor and not acting solely for his own personal pleasure or benefit.” Woodward, 37 Md.App. at 292 , 377 A.2d 535 (footnote omitted). In that case, this Court went on to say, however, that “[application of the mutual benefit theory generally involves the conduct of a business by the possessor of land.” Id. at 293 , 377 A.2d 535 .

Appellants have cited no Maryland cases that have applied the mutual benefit doctrine to a situation in which the possessor of land was not conducting some sort of retail or commercial business thereon at the time of the accident. Instead, appellants cite both Woodward and Cheyne in support of their contention that the mutual benefit doctrine applies beyond the retail and commercial business settings. In both of those cases, however, this Court found that the ⁷¹³ mutual benefit doctrine did not apply. Nevertheless, appellants argue that the mutual benefit doctrine applies because they were interested in “inspecting [the house] with a view toward determining whether this was a beach house which they would be interested in purchasing as a summer home.” Similarly, in Woodward , individuals were standing on the exterior staircase of a home when it collapsed.

Two of the injured individuals stated in their depositions that “they had no specific interest in purchasing the property but that they would have considered it if they liked what they saw.” Woodward, 37 Md.App. at 292 n. 8, 377 A.2d 535 . Nonetheless, this Court found that the mutual benefit doctrine did not apply in Woodward . Cases in which the mutual benefit doctrine has either been found to apply or found to be a question for the jury, involve situations in which a clear benefit to the land owner was involved. See generally, Austin v. Buettner, 211 Md. 61, 66-68 , 124 A.2d 793 (1956) (plaintiff fell when entering a tavern for the purpose of soliciting business of his employer); Pere-goy, Use of Himself & Globe Indem.

Co. v. Western Maryland R. Co., 202 Md. 203, 207-09 , 95 A.2d 867 (1953) (employee of building materials dealer, a patron of the railway, was injured while loading some materials from the storage space on the railway that it had allowed the employer to use for twenty-five years); Kane, 213 Md. at 156-59 , 131 A.2d 470 (an employee of a trucking company who was at the warehouse to pick up a load was injured at the warehouse while returning from the smoking room). In this case, appellants entered Polland’s property after observing that it was uninhabited and without any express permission. Just as in Woodward , it seems that appellants had no specific interest in purchasing Polland’s particular property, but would have considered it if they liked what they saw. In other words, they were not specifically intending to benefit Polland by their conduct.

Next, appellants analogize between the open ground level door of the beach house and a retail store’s open door, which is ⁷¹⁴ “truly and invitation during regular business hours.” Woodward, 37 Md.App. at 293 , 377 A.2d 535 . We find the analogy illogical. Appellants testified that Polland’s premises had appeared to be unoccupied all week and was apparently unoccupied on the day of the incident. Consequently, unlike a retail store with open doors, there was no one present to consent to appellants’ entry on the property, or to assist them inside.

An unoccupied house with an open basement door and a “sale” sign out front, and nothing more, is simply not analogous to a retail store with a staff present to welcome and assist potential customers. Rather, appellants’