Willow Tree Learning Center, Inc. v. Prince George's County

CATHELL, Judge. Willow Tree Learning Center, Inc. (“Willow Tree”) is a private day-care center located in Landover, Maryland. On July 20, 1987, 5-year-old Brian Vincent Sanders was fatally injured while using playground equipment on Willow Tree’s premises. 1 Brian’s parents filed a negligence action against Willow Tree in the Circuit Court for Prince George’s County, Maryland. Willow Tree sought contribution and/or indemnification from Evelyn Hoban, a County employee who had inspected the play equipment, and Prince George’s County, Hoban’s employer. 2 The Sanders settled with Willow Tree for $375,000 prior ⁵¹¹ to trial. 3 Prince George’s County refused to settle, and filed a motion to dismiss, or in the alternative, for summary judgment (which was adopted by Hoban).

Willow Tree opposed Prince George’s County’s motion and filed its own cross-motion for summary judgment. After oral argument, Judge Ahalt concluded that there were no disputes as to the material facts, granted the County’s motion for summary judgment, and denied Willow Tree’s cross-motion. The trial judge adopted the County’s memorandum as the court’s opinion. He thus included in his ruling, among other findings, that the County’s inspection of Willow Tree was a governmental function arising out of the exercise of the County’s police powers, and that the County health inspection creates no legal duty to the owner, operator, or user of the inspected premises, and there were no statutory provisions creating such a duty.

Willow Tree raises three issues on this appeal: 1. Did the court below err in granting Prince George’s County’s and Evelyn Hoban’s Motion for Summary Judgment on the issue of immunity? 2. Is Willow Tree entitled to judgment as a matter of law on the issue of immunity? 3. Did the court below err in granting Prince George’s County and Evelyn Hoban’s Motion for Summary Judgment on the issue of negligence where there are material facts in dispute?

The appellant discusses these three issues in two arguments. In Argument I, it discusses the issue of governmental immunity; in Argument II, it contends that the judge erred in granting summary judgment, as there were material facts in dispute with respect to the issues of breach of duty, foreseeability, and proximate cause. As we believe Judge Ahalt’s grant of the appellees’ Motion for Summary Judgment was proper in that no duty existed, we shall address that issue. ⁵¹² I SUMMARY JUDGMENT Maryland Rule 2-501(e) provides that: The court shall enter judgment in favor of or against the moving party if the pleadings, depositions, answers to interrogatories, admissions, and affidavits 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. In reviewing a grant of summary judgment, we must first determine whether a dispute of material fact exists.

Arnold Developer, Inc. v. Collins, 318 Md. 259, 262 , 567 A.2d 949 (1990). “A material fact is a fact the resolution of which will somehow affect the outcome of the case.” Id. at 261 , 567 A.2d 949 (quoting King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985)). The record does not reveal any dispute as to the events surrounding Brian’s death; the only difference between the parties involves the legal significance of those events. We conclude that summary judgment was appropriate under those circumstances. Our analysis, therefore, will first focus on the correctness of the judge’s ruling that the defendants had no duty to the decedent.

II NEGLIGENCE The basic elements of the tort of negligence are: (1) a duty or obligation which the defendant is under to protect the plaintiff from injury; (2) breach of that duty; and (3) actual loss or injury to the plaintiff proximately resulting from the breach. Lamb v. Hopkins, 303 Md. 236, 241 , 492 A.2d 1297 (1985); Scott v. Watson, 278 Md. 160, 165 , 359 A.2d 548 (1976); State v. Baltimore Contracting Co., 177 Md. 1, 19 , 6 A.2d 625 (1939); Jones v. Maryland-National Capital Park & Planning Commission, 82 Md.App. 314, 320 , 571 A.2d 859 (1990); Reilly v. Newman, 74 Md.App. ⁵¹³ 281, 290-91, 536 A.2d 1230 , rev’d. in part on other grounds, 314 Md. 364 , 550 A.2d 959 (1988). The appellants contend that the defendants owed both a statutory and a legal duty to Willow Tree and the decedent. The Court of Appeals, speaking through Judge McSherry in W. Va.

Central R.R. v. Fuller, 96 Md. 652, 666 , 54 A. 669 (1903), stated: [T]here can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury____ As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty. Thus, the existence of a duty is the threshold question.

A. STATUTORY DUTY The Sanders argue that the frayed rope was a violation of applicable safety regulations, 4 and that under Md. ⁵¹⁴ Regs.Code title 10, § .05.01.16 (“COMAR”) and the Prince George’s County Code, a duty was created on the part of the appellees to discover and report- it. We disagree. The public general statute in effect at the time of the accident, Md.Health-Gen.Code Ann. § 14-104 (1987 Repl. Vol.), provided that: (a) ...

The Secretary shall adopt rules and regulations for licensing and operating group day care centers. (b) ... These rules and regulations shall: (1) Ensure safe and sanitary conditions in group day care centers. (2) Ensure proper care, protection, and supervision of children in group day care centers. 5 Pursuant to the statute, the Secretary of Health promulgated COMAR 10.05.01, titled “Group Day Care Centers.” Subsection 10.05.01.16 provides, in its entirety, that: Each center shall have an outdoor playground providing ample play space that is free from hazards.

The playground shall be- appropriately equipped and readily accessible to the center. The outdoor play area shall be fenced when deemed necessary by the local health officer. The only County ordinance directly concerning the safety of the play equipment at Willow Tree, of which we are aware, states: The playground shall be sanitary, accessible to the facility and properly free from conditions likely to endanger the life or health of children. ⁵¹⁵ Prince George’s County Code, § 5-125(x) (1987). It is clear that the State and County legislation at issue here concerns the public safety and welfare.

This protection extends to the children being kept in day care centers, the adults who are employed there, and the parents who enter the premises to deposit or pick up their children. Subsection (2) focuses on children, and reiterates the goal of safety. The County ordinance merely restates subsection (2). The position of the appellants, were we to adopt it, would result in the creation of a duty to inspect for all possible risks, and would effectively make the County and its inspectors liability insurers of day care centers in regard to the safety of children, parents, the center’s adult employees, and guests, i.e., the public.

We hold that the State or the County does not owe any individual duty of care merely by the enactment of a general ordinance requiring safety inspections, nor by the fact that it undertook inspections for safety violations. The duty created by the statute and ordinance was one owed to the public generally. We agree with the Court of Appeals of Arizona, when it said: Absent statutory intention to the contrary, the duty to enforce statutory law is a duty owed to the public generally, the breach of which is not actionable on behalf of the private person suffering damage. Duran v. City of Tucson, 20 Ariz.App. 22 , 509 P.2d 1059, 1063 (1973). 6 There is a complete lack of any intention on ⁵¹⁶ the part of the Legislature which would indicate that it was creating a duty to individual members of the public, and we will not create one.

Our holding is in accord with the general reluctance of Maryland courts to infer this type of duty. For example, in Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985), the Court of Appeals was presented with the issue of whether a probation officer who fails to report a probationer’s violations owes a duty to an individual injured by the probationer. The' Court concluded, inter alia, that the statutory duty on the probation officers to notify the circuit court of any probation violations did not extend to notifying the general public. See also Ashburn v. Anne Arundel County, 306 Md. 617 , 510 A.2d 1078 (1986); Jones v. Maryland-National Capital Park & Planning Commission, 82 Md.App. 314 , 571 A.2d 859 (1990).

LEGAL DUTY The appellants assert that the County and its inspector owed a tort duty to the decedent. Two of the relevant ⁵¹⁷ factors to consider in determining whether such a duty should be recognized are: [T]he nature of the harm likely to result from a failure to exercise due care, and the relationship that exists between the parties. Where the failure to exercise due care creates a risk of economic loss only, courts have generally required an intimate nexus between the parties as a condition to the imposition of tort liability. This intimate nexus is satisfied by contractual privity or its equivalent.

By contrast, where the risk created is one of personal injury, no such direct relationship need be shown, and the principal determinant of duty becomes foreseeability. Jacques v. First National Bank of Maryland, 307 Md. 527, 534-35 , 515 A.2d 756 (1986). (Footnote omitted, emphasis added.) See also Village of Cross Keys Inc. v. U.S. Gypsum Co., 315 Md. 741 , 556 A.2d 1126 (1989). Judge Cole, in Ashburn , discussed foreseeability and other relevant factors: [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 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.

Perhaps among these the factor deemed most important is foreseeability. However, “foreseeability” must not be confused with “duty.” The fact that a result may be foreseeable does not itself impose a duty in negligence terms. This principle is apparent in the acceptance by most jurisdictions and by this Court of the general rule that there is no duty to control a third person’s conduct so as to prevent personal harm to another, unless a “special ⁵¹⁸ relationship” exists either between the actor and the third person or between the actor and the person injured. Ashburn , [306 Md.] at 627-28, 510 A.2d 1078 (quoting Tarasoff v. Regents of University of California, 17 Cal.3d 425, 434 , 131 Cal.Rptr. 14, 22 , 551 P.2d 334, 342 (1976)).

(Citations omitted.) It is thus evident that no tort duty will exist between a county and a citizen absent a special relationship. The appellants argue that a special relationship was created between them and the County in three ways. The first way, they contend, was by the County’s action in licensing, regulating, and inspecting the day care center to ensure the safety of the attending children, who relied on this act by using the playground. The standard explicated in Ashburn is that: In order for a special relationship between police officer and victim to be found, it must be shown that the local government or the police officer affirmatively acted to protect the specific victim or a specific group of individuals like the victim, thereby inducing the victim’s specific reliance upon the police protection.

Id. [306 Md.] at 631, 510 A.2d 1078 . We do not believe that the County was affirmatively and specifically acting to protect Brian individually or the other Willow Tree children. 7 The statute and the inspection program conducted pursuant to it were intended to protect children generally, as well as others, throughout day care centers in the County. The second way that the appellants allege that a special relationship was formed is by the enactment of the statute, mandating inspections intended to protect children in the day care center. Ashburn, at 635, 510 A.2d 1078 , held that a statute aimed at protecting the safety of the public “must ‘set forth mandatory acts clearly for the protection of a particular class of persons rather than the public as a ⁵¹⁹ whole.’ ” (Quoting Cracraft v. City of St. Louis Park, 279 N.W.2d 801, 807 (1979)).

(Emphasis in original.) The statute at issue here does not contain requirements for mandatory acts for the specific protection of a particular class of person, i.e., the Willow Tree children. 8 The appellant’s third argument