Wilbur v. Suter

THIEME, Judge. A fire occurred in the home of the appellees, Bruce Suter and Alma Gibson, then husband and wife, which spread to the adjoining row home owned by Beulah Wilbur, appellant. Appellant subsequently filed suit in the Circuit Court for Baltimore City against appellees, alleging negligence and intentional tort. The damages sustained by the appellant were stipulated to and the case proceeded on the issue of liability alone.

The trial court granted judgment in favor of Alma Gibson. The jury rendered a verdict in favor of Bruce Suter. Questions Presented: 1. Did the circuit court err when it refused to give the violation of statute instruction in this case? 2.

Did the circuit court err when it refused to allow cross-examination of the appellee on the issue of his intoxication? 3. Did the circuit court err when it granted a directed verdict in favor of Alma Gibson? We answer “no” to each of these questions, and affirm the rulings of the trial court. Facts An electrical fire started in the stairway of the basement at the Suter home.

The fire quickly spread to the adjoining home of the appellant, Ms. Wilbur. At trial the experts were in general agreement that the cause of the fire was electrical in nature and originated in the area of the basement stairwell. Mr. Suter admitted to the Baltimore City fire investigator that a few months prior to the fire the switch on the basement ⁵²² stairway light fixture would not turn on or off without turning the switch on and off several times. Mr. Suter undertook extensive renovations to the home that he owned with his wife, Alma Gibson.

The repairs included tearing down plasterboard and walls, hanging sheet-rock, installing a new furnace and new roof, as well as plumbing and carpentry work, among other things. At no time did appellees obtain building permits. No building inspector ever inspected the home. Appellant sought to establish that the appellees were negligent through three theories: first, that the appellees knew that the light switch was faulty, and their failure to correct the problem caused the fire; second, that appellees failed to obtain building permits for renovations and repairs that they completed on the house; third, that appellees failed to maintain the walls in good repair as required by the Baltimore City Building Code (Code) and thus allowed defective wiring to go unnoticed and created the potential for fire.

Appellant called as an expert in the field of electrical engineering George E. McDuffie, who examined several electrical components that were recovered from the fire. These components included a piece of electrical cable with a switch box from the dining room light fixture and a portion of BX cable. The expert examined each electrical component for electrical damage, to determine if it was the source of ignition, and found none. Although McDuffie admitted that he had no evidence that the light switch in question caused the fire, nevertheless, he stated that when there is a malfunctioning light switch arcing may occur, which can result in an electrical fire.

A light switch that must be “jiggled” to be turned on or off ... could indicate a number of different things. It could indicate that there is some defect inside of the switch mechanism itself. It could indicate that there was a loose wire on the switch. ⁵²³ It could indicate that the bulb was loose in the socket. It could indicate that there was a loose wire somewhere in the cable from the switch to the socket.

McDuffie explained that arcing is caused by a breakdown of the insulating material that keeps electricity from flowing from one point to another, and may ignite combustible material. McDuffie made no determination regarding the cause of the fire. Robert Donald, a building inspector for Baltimore City, reviewed the records of the department and found that no permits for renovation, maintenance, or repairs had ever been issued for the appellees’ home. These permits are required before any person may alter or repair any building.

The Code requires that walls are to be maintained free of holes and deteriorated materials. Mr. Donald testified: I know nothing about the fire. I’m merely stating that had a permit been taken out, it might have ... it might have saved from a fire, if there was a fire. Donald gave no opinion on the cause of the fire.

David Malburg, an expert in the field of fire cause and origin, testified that the origin of the fire was “within the stairway area from the basement ceiling area at the stairway up to the top of the stairway to the first floor level.” He described the interior of the stairway as heavily charred. He stated that there was a light switch just inside the opening at the left that controlled a porcelain light located part way down the stairway. Malburg testified that there was a potential of seven or eight ignition sources, seven of which were given to McDuffie for inspection and which were excluded by him as the ignition source. The malfunctioning light switch in the area of the origin of the fire that controlled the basement light was not recovered by the fire inspector.

Richard S. Clatchey, Jr., a certified electrician, testified that a problem might exist somewhere at multiple points in that circuit because even though you are assuming it’s a malfunctioning switch ... and if I heard that problem, that’s the first thing ⁵²⁴ I would check. It still could also be in the light, it could be in the connections box. In the light box, the switch box, you have electrical connections in there. Or it could be in the cable that runs between the ... the switch and the light____ His opinion was that, “if they had a malfunctioning switch or a light, they should had [sic] it looked at by a qualified electrician.” Appellee Suter testified that he was not a licensed contractor and knew nothing about electrical work.

With respect to a pre-existing hole in the wall leading to the basement stairwell, Suter admitted to making no efforts to repair it. It had been present when the appellees purchased their home. In tearing down plasterboard and laths, Mr. Suter admitted that he did expose electrical wiring; however, Suter himself did nothing to affect the wiring. A few months prior to the fire, he noticed a problem with the light switch in the basement stairwell.

To interrupt the power from the switch, he put the switch in the “off’ position and removed the bulb. He did not hire anyone to repair it. One year prior to the fire, Mr. Suter was injured and, he testified, he was unable to do any repairs to the home. During the time that the appellees lived in their home, they experienced no electrical difficulties.

Alma Gibson indicated that she left the home several months prior to the fire but she testified that she visited daily. At no time was she aware of a problem with the light switch. During the time she resided in the home, she was aware of the renovations that her husband was routinely making to the home. The appellant attempted to elicit evidence of Suter’s intoxication on the night of the fire.

This was precluded by the trial court. The appellant requested the jury be instructed that the violation of a statute may be evidence of negligence and that certain provisions of the Building Code be read to the jury as part of its charge. The trial judge refused, stating “... I am not persuaded, assuming Mr. Suter did not get permits that ⁵²⁵ he was supposed to get, that that had anything to do with the cause of the fire.”.

Because the pertinent provisions of the Code were read into evidence without objections by the appellant’s witness Donald, the trial judge allowed the appellant to argue his theory to the jury. Additionally, the trial judge directed a verdict as to the appellee Gibson, stating that there was no evidence that she was negligent since “she had not lived in the home for several months.” Discussion -Jury instruction- Although a trial judge must instruct the jury on the applicable law, even if not requested by a party to do so, Clark v. State, 80 Md.App. 405, 414 , 564 A.2d 90 (1989), it is not the function of the court to advise the jury on abstract or moot propositions of law, however. A party is entitled to an instruction that correctly states the law only if that law is applicable to some issue in the case, i.e., if there is testimony in the case which supports it, Kessler v. Equity Mgmt. Inc., 82 Md.App. 577, 593 , 572 A.2d 1144 (1990) (citing Sergeant Co. v. Pickett, 285 Md. 186, 194 , 401 A.2d 651 (1979)); see also Odenton Dev.

Co. v. Lamy, 320 Md. 33, 43 , 575 A.2d 1235 (1990). With respect to violation of a statute, the Court of Appeals held: “The violation of a statute may furnish evidence of negligence.” It may be actionable when it causes harm to a person within the class of persons the statute seeks to protect and the harm is the kind that the statute is designed to prevent. Although the violation of a statute is evidence of negligence, it “is not per se enough to make a violator thereof liable for