Woodward v. Newstein

Moore, J., delivered the opinion of the Court. The appellants in this negligence action, plaintiffs below, sustained personal injuries while engaged in the interesting, and sometimes rewarding, diversion of looking at realty on a Sunday afternoon. * 1 The trial court (Rasin, J.) forestalled their effort to recover damages for their injuries when he granted appellees’ motion for summary judgment. Appellants contend here that their claim to the status of invitees was erroneously rejected and that the finding in effect of the trial court that they were trespassers; as a matter of law, should be reversed. They also argue for an abandonment of the traditional distinctions between trespassers, licensees and invitees.

We hold that the case was correctly decided on the basis of applicable Maryland law and affirm the judgment. I With one exception, 2 the injured parties, in this litigation are out-of-state residents, owning weekend and vacation homes at Chesapeake Landing in Kent County. The appellees, Herman Newstein and his spouse, E. Marjory Newstein, reside in Narberth, Pennsylvania, near ²⁸⁷ Philadelphia, where the husband is a professor in physics and meteorology at Drexel College. They purchased two lots on Mill Creek in Chesapeake Landing in 1966 and built a house which was completed in June, 1967.

In the intervening years, the house had not been leased but had been used by the couple approximately two weekends each month, with longer visits during summer vacations. Ingress and egress was principally by a series of wooden steps leading to a porch overlooking the Creek. A door opened from the porch into the living area of the house. In 1970, Mr. Newstein decided to sell the property and placed advertisements in newspapers in the Philadelphia, Baltimore and Washington areas as well as in Chestertown, Kent County.

The advertisements identified it by general .location only and sought to effect a sale by the owners. Subsequently, at a time not precisely established but prior to July 1, 1971, a limited listing of the property was given to Old Shore Realty & Co. of Chestertown. According to Mr. Newstein, this was for the purpose of protecting the commission rights of the brokerage firm with respect to one, named, prospective purchaser. Notwithstanding the limited nature of this listing, the Realty Company advertised the property, along with a number of other listings, in the Kent County News in October, 1972.

The portion of the advertisement describing the appellees’ property read as follows: “MILL CREEK — An exciting home on a secluded, wooded lot with 203' of waterfront. Living rm. w/fireplace, dining area, modern kitch., bath, & 2 bedrooms. There is a large aboveground basement w/fireplace & sliding glass doors for an ideal family rm. Private pier.

Immediate possession. $39,750.” 3 Only the appellant DiSanto had seen this advertisement. Neither he nor the others had seen any of appellees’ 1970 advertisements prior to the day of the accident. ²⁸⁸ Appellant Doris Woodward and Margaret Pelarcik, both residents of Coatesville, Pennsylvania, jointly owned a house in Chesapeake Landing not far from the Newsteins. Appellants Evelyn Sparre and her husband were residents of Wilmington, Delaware, and also owned a vacation home along the banks of Mill Creek. Appellants Joseph DiSanto and his wife had, three months earlier, purchased and occupied a home across the way from Mrs. Woodward and Mrs. Pelarcik.

Mr. DiSanto stated in his deposition that he joined the three ladies at the Woodward-Pelarcik residence some time between 4:30 and 5:00 p.m. on Sunday, March 10, 1974. At the suggestion of one of the group, they decided to go for a ride. As they drove within sight of the Newstein property, DiSanto told the others that it was for sale. (He later testified in his deposition that he had seen the advertisement of Old Shore Realty 18 months previously and also had heard it discussed in the community that the property was for sale.) They parked in the driveway and looked around.

There were no signs of any kind. The house was unoccupied at the time by the Newsteins but they stated they had been there within the month and that the house was completely furnished. One of the group, Mrs. Sparre, ascended the outside steps to obtain a view of the Creek from the porch. The other three followed her, Mrs. Pelarcik being last.

As Mrs. Pelarcik was about to step onto the deck, the structure collapsed and her three companions — Mrs. Sparre, Mrs. Woodward and Mr. DiSanto — fell to the concrete below and sustained serious injuries. The builder who constructed the home and who was also engaged to rebuild the porch, testified that dampness had caused the timbers to rot and that this was the cause of the collapse. In their declaration, the appellants alleged that “in response to the open, public and notorious offers to sell [they] did venture onto the aforesaid described real estate, having an interest to view said property for the purpose of determining if one or any of them would be interested in ²⁸⁹ purchasing the same from the defendants and, as a result thereof, the said plaintiffs were business invitees.. ..” The appellees’ motion for summary judgment came after extensive discovery proceedings. Some eleven depositions were taken, including those of the injured appellants and Mrs. Pelarcik, both of the appellees, and three residents of the area, who testified that they knew the property was for sale in 1971 or 1972 and in 1973.

Also deposed was William Oakes, a partner in the Old Shore Realty firm, who testified that from May 1971 to October 1973, he showed the property on 21 separate occasions. On only three, was the interior of the house inspected and on those occasions the Newsteins were present. He was unsure whether Professor Newstein was aware of the other 18 visits, when he escorted various clients around the exterior of the house only. He did not have a key to the property.

Mr. Oakes said he learned from Mr. Newstein in December, 1975 that the property was off the market. The Newsteins confirmed in their testimony that on the three occasions mentioned they were present when the house and grounds were shown to three prospects but denied any knowledge of the 18 other visitations. 4 The date as of which they decided to discontinue the sale of the house is unclear. II The basic thrust of this appeal is that the appellants were business invitees, express or implied, that at all events their status was a question for the jury to determine and, under all the facts and circumstances, the issue should not have been resolved on a motion for summary judgment. It is, of course, elementary that the function of summary judgment is not to try the case or to decide issues of fact; but ²⁹⁰ to determine whether or not there is an issue of fact to be tried and, if there is none, to cause judgment to be rendered accordingly.

Maryland Rule 610; Lynx, Inc. v. Ordnance Products, Inc., 273 Md. 1, 7 , 327 A. 2d 502 (1974); Salisbury Beauty Schools v. State Board of Cosmetologists, 268 Md. 32, 40 , 300 A. 2d 367 (1973); Rosenthal v. Al Packer Ford, Inc., 36 Md. App. 349 , 374 A. 2d 377 (1977). In determining the propriety of granting a motion for summary judgment, we are concerned with whether the trial judge was correct in his determination that there was no genuine dispute as to material facts. Broadwater v. Arch, 267 Md. 329, 335 , 297 A. 2d 671 (1972); Fitzgerald v. Montgomery County, 25 Md. App. 709, 711 , 336 A. 2d 795 (1975). Even if, however, the facts are undisputed but are susceptible of more than one reasonable inference, the party against whom the inference is sought to be made is entitled to the inference most favorable to his position.

Hill v. Lewis, 21 Md. App. 121, 133 , 318 A. 2d 850 (1974), and cases cited therein. • In the case sub judice, it is our view that there were no disputes as to material facts, and there is no support, in fact or in law, for the position of the appellants that they were business invitees, “express or implied.” Maryland law with respect to the liability of owners or occupiers of land is, of course, well-settled. The Court of Appeals reiterated in Bramble v. Thompson, 264 Md. 518, 521 , 286 A. 2d 265 (1972), one of its most recent pronouncements on the subject, that the liability of a property owner to an individual injured on his property is dependent upon the standard of care owed to that individual; and that standard is, in turn, contingent upon the individual’s status while on the property, i.e., whether he is a trespasser, 5 licensee or invitee. Accord, Carroll v. Spencer, 204 Md. 387 , 104 A. 2d 628 (1954); Right v. Bowman, 25 Md. App. 225 , 333 A. 2d 346 (1975); Fitzgerald v. Montgomery County, supra. ²⁹¹ The definitions of these categories and the standards of care applicable to each are succinctly stated by Judge Digges in Bramble v. Thompson, supra, 264 Md. at 521-22 . In the instant appeal, we are primarily concerned with the status of an invitee, 6 to whom is owed the duty to use reasonable and ordinary care to keep the premises safe and to protect from injury caused by an unreasonable risk which the invitee himself, in the exercise of ordinary care for his own safety, will not discover.

Id. at 521 . While the standard of care is thus free of difficulty, there is, as Dean Prosser points out, an “important conflict of opinion as to the definition of an invitee, as well as to whether certain visitors are to be included in this category.” (Emphasis added.) W. Prosser, Law of Torts § 61, at 386 (4th ed. 1971). An invitation may be express or implied and the conflict to which the learned author refers is largely concerned with the definition of an implied invitee. In the case at hand, it is beyond doubt that there was no express invitation.

See Gray v. Sentinel Auto Parts Co., supra, 265 Md. at 66. The injured appellants admitted that they never requested the permission of either the appellees or any representative of Old Shore Realty to enter upon the property; and the appellees emphatically stated that they never extended such an invitation. The newspaper advertisements, the most recent of which preceded the accident by one year and a half, omitted the address of the advertised property and, far from requesting an inspection of the premises, deliberately withheld such invitation. 7 ²⁹² In our judgment, the court below correctly analyzed appellants’ claim when it stated in the memorandum opinion granting the motion that if the plaintiffs were to prevail, it had to be found that there was an “implied invitation.” Neither the uncontradicted facts nor the law permits such a finding, as the lower court correctly held. Appellants seem to rely here upon either one or both of the theories recognized and applied by the Court of Appeals in the determination of implied invitee status.

We refer to the so-called mutual benefit doctrine, characterized by the Court of Appeals as the “older theory,” Gray v. Sentinel Auto Parts Co., supra, 265 Md. at 66, and what is called the “more recent theory,” namely, the implied invitation doctrine. Id. Judge Finan pointed out in Gray that Judge Henderson (later Chief Judge) first analyzed these concepts under the Maryland cases in Crown Cork & Seal Co. v. Kane, 213 Md. 152 , 131 A. 2d 470 (1957), in which the Court held that there was sufficient evidence to support an implied invitation and that the submission of that issue to the jury was without error. Judge Henderson explained that the mutual benefit theory predicates liability upon a finding that 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. 8 The later theory, as Judge Henderson pointed out, does not depend on mutual benefit at all.

He went on to explain: “But there is another theory of liability for negligence that does not depend on mutual benefit ²⁹³ at all. The cases all recognize that an invitation may be express or implied, and there are many cases in which an invitation has been implied from circumstances, such as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of the premises.” 213 Md. at 159 . Application of the mutual benefit theory generally involves the conduct of a business by the possessor of land. (When that business is a retail store, the open door is truly an invitation during regular business hours.) Under the alternative theory, before the status of invitee may be established by implication, there must be, in the conduct or Words of the possessor, some inducement or encouragement to enter, and mere permission or acquiescence is not sufficient.

As the Restatement points out in comment a. to § 332, supra, “ ‘Invitee 5 is a word of art, with a special meaning in the law. This meaning is more limited than that of ‘invitation 5 in the popular sense, and not all of those who are invited to enter upon land are invitees.” In determining the existence or not of an invitation in the legal sense, the Restatement goes on to point oat 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.” Restatement § 332, comment c. In this case, no invitation could reasonably be construed under either theory from the words and conduct of the Newsteins or of Old Shore Realty, even assuming that the latter was agent for the owners. The following facts compel this conclusion: (a) The advertisements placed by the owners were grossly out-of-date, having been published almost four years prior to the accident; (b) Even if the date of the advertisements were not a factor, they disclosed only a post office box number and a telephone number of the owners in ²⁹⁴ Narberth, Pennsylvania.

Any reader capable of ascertaining the property’s location, clearly could not assume that the advertisement was an invitation to inspect the house without first contacting the owner; (c) Similarly, the advertisement placed by Old Shore Realty in September and October, 1972 was also of somewhat ancient vintage and “deliberately” left undisclosed the address of the described premises to assure that any prospective buyer would first contact the real estate agency; (d) The owners of the property posted no “For Sale” sign or signs, gave no key to the premises to any individual for purposes of inspection and had never discussed with appellants or any other neighbors their intentions with respect to a sale of the property; 9 (e) The fact that several neighbors of the Newsteins, Lorraine and Michael Purcell and Paul Getz, understood that the property was for sale and that the Purcells on two occasions visited the property, is immaterial. In determining whether the Newsteins impliedly invited individuals onto their property, their own conduct, and that of their agents, not that of their neighbors, is alone relevant. Neither the Purcells nor Mr. Getz testified that their entry onto the Newstein property was prompted by acts of the Newsteins or Old Shore; (f) Even if, as the trial court found, the owners had acquiesced in the showing of the premises to some 18 prospects when the owners were not present on the grounds, such escorted inspections can only reasonably be interpreted as a ²⁹⁵ requirement that prospective purchasers be accompanied by an owner’s representative. Cases in other jurisdictions arising under facts more favorable to the injured plaintiffs support our conclusion that there was no implied invitation here.

Thus, in Mortgage Commission Servicing Corp. v. Brock, 4 S.E.2d 669 (Ct. of App. Ga. 1939), the plaintiff responded to a Sunday newspaper advertisement of an apartment for rent. The advertisement gave the address but also provided the name of the realty agent, its address and telephone number. One evening thereafter, without first contacting the realty agency, the plaintiff went to inspect the apartment. She tripped in a dark hallway and fell down a flight of stairs.

In affirming the trial court’s order dismissing the plaintiff’s complaint, the court stated: “Clearly it [the advertisement] contains no express invitation to the public to inspect any of the premises listed in the advertisement, and candor requires the view that it holds out no implied invitation. It merely calls the attention of the reader to the fact that certain unfurnished apartments are available for leasing. . . . There is not in the body of the advertisement, at its beginning or at its end, any statement from which the implication could reasonably be drawn that any interested party was at liberty to proceed on Sunday, or at any other time,