Nigido v. First Nat. Bank of Baltimore

• Decision Date: 09 March 1972
• Docket Number: No. 241,241
• Citation: 264 Md. 702,288 A.2d 127
• Parties: , 51 A.L.R.3d 704 Salvatore NIGIDO and Josephine Nigido v. FIRST NATIONAL BANK OF BALTIMORE.
• Court: Maryland Court of Appeals

Page 702

264 Md. 702

288 A.2d 127, 51 A.L.R.3d 704

Salvatore NIGIDO and Josephine Nigido v. FIRST NATIONAL BANK OF BALTIMORE.

No. 241.

Court of Appeals of Maryland.

March 9, 1972.

Harry S. Shapiro, Towson (Shapiro, Peltz & Aversa, Towson, on the brief), for appellants.

Alva P. Weaver, III, Baltimore (Lord, Whip, Coughlan & Green, Baltimore, on the brief), for appellee.

Argued before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN, SINGLEY, SMITH and DIGGES, JJ.

McWILLIAMS, Judge.

In the Circuit Court for Baltimore County appellants alleged that on a day in March, 1968, Salvatore went to the appellee's branch at 25th Street and Kirk Avenue in Baltimore to make a deposit and to transact some 'other bank business,' that while he was there armed robbers entered and, in the course of accomplishing their nefarious purpose, they shot him 'about his body and limbs,' and 'without any fault or stimulation' on his part. Appellants averred that the appellee (bank) was guilty of negligence because 'its cameras and other protective devices were not functioning,' because the bank's building was not 'properly guarded,' because the bank 'failed to take proper precautions to guard' its building, and because, 'in view of the history of bank robberies' at that location, the robbery was 'foreseeable.' They alleged also that because the bank 'was in a fiduciary capacity' with its customer it had a 'special duty' to protect him 'against harm caused by robberies, particularly in view of the fact that * * * (it) was aware of this history of robberies.' Salvatore claimed $2,000,000 in damages; together the appellants claimed $200,000 for their loss of consortium. Following a hearing Judge Maguire, on 8 July 1971, sustained the bank's demurrer with leave to the appellants to amend within 30 days. For want of an amendment to their declaration a judgment for costs in favor of the bank was entered on 27 August. This appeal followed.

Appellants have not cited, nor have we found, any authority for the notion that the bank owed Salvatore 'a special duty' to protect him against robbers. We think he was an invitee to whom was owed the same duty a shopkeeper owes his customer, i. e., to use reasonable care for his protection. Noll v. Marian, 347 Pa. 213, 32 A.2d 18 (1943). For fuller and later expositions of the status of business invitees see Bender v. Nalee, Inc., 261 Md. 82, 274 A.2d 85 (1971), Leannarda v. Lansburgh's Department Store, 260 Md. 701, 273 A.2d 149 (1971), and Western Maryland Ry. Co. v. Griffis, 253 Md. 643 (1969), and the cases therein cited. We see in the declaration not an allegation that the bank's premises, per se, were unsafe for the purpose for which they were being used, but rather that the bank was negligent in failing to have its premises 'properly guarded' against 'foreseeable' robberies. The allegation that this robbery was 'foreseeable' is supported only by the further allegation that there is a 'history of bank robberies at the said location.' But even if it could be said that the robbery was foreseeable it does not follow that the shooting of a customer was foreseeable.

While the averment that the 'cameras * * * were not functioning' might be said to insinuate some sort of a negligent act or omission, it might as readily be consistent with the exercise of reasonable care. In some banks the cameras contain film which is exposed only when an employee closes a hidden switch; in others the cameras take pictures automatically at regular intervals during banking hours. In larger establishments there may also be found television cameras which enable security officers to monitor activities in unsupervised areas. That the cameras 'were not functioning' while the robbers were in the bank does not mean, necessarily, that they were inoperative because of some negligent act or omission. Indeed, in some banks, so we were told, there are cameras that are nothing but dummies, set up like scarecrows 'to fear the birds of prey.' ¹ As we see it, however, the fact that cameras may not have been 'functioning' can hardly have significance in the absence of a further allegation that the robbers knew that was the case. But even if the cameras had been running full tilt it is not likely the robbers would have been deterred even though the pictures taken might have led to their apprehension. The expression 'other protective devices' seems to us to be simply a grace note.

The allegation that the bank's premises were not 'properly guarded,' and that the bank 'failed to take proper precautions to guard' them are clearly conclusions of the pleader, utterly unsupported by an averment of facts. The very nature of the banking business requires the maintenance of an area to which the bank's customers can come to transact their business. It would be difficult, perhaps impossible, for guards to filter the robbers from the hundreds of daily visitors to the premises. After all, robbers usually are reluctant to disclose the purpose of their visit until after they have entered the premises; until then they look like customers. If the words 'properly guarded' are intended to connote measures designed to bar the entry of robbers such measures could well turn out to be counter-productive, in that they might keep out most of the customers as well. It will be observed that appellants do not allege a total absence of guards or a complete lack of any precautions. It is the failure to 'properly' guard, the failure to take 'proper precautions' to guard upon which they rely. But, in appellants' declaration, 'properly' is but an adverb and 'proper' but an adjective and, as we have said many times, naked adjectival or adverbial words, phrases or expressions can never take the place of facts. This is not to say however, that alleging a total absence of guards would have saved the day. Indeed, it has occurred to us that not providing armed guards might very well reflect the exercise of sound judgment rather than negligence. If it is the rationale of the bank that armed guards might provoke gun-play and that it is better to loss cash than lives, then the total absence of guards would seem to be justified.

The allegation that there is a 'history of bank robberies at the said location' seems to us to be adroitly contrived. The insinuation is that for some time the frequent visitation of this branch by robbers has been a way of life but the connotation of 'location' is clearly imprecise and 'history' might as appropriately refer to two robberies in a period of ten years as to one every month for the same period. Again we have only a conclusion of the pleader.

Appellants rely on cases dealing with injuries sustained in railroad depots, motion picture theatres, skating rinks, a ball park, and a school. Garbis v. Apatoff, 192 Md. 12, 63 A.2d 307 (1949); Lillie v. Thompson, Trustee, 332 U.S. 459, 68 S.Ct. 140, 92 L.Ed. 73 (1947); Neering v. Illinois Cent. R. Co., 383 Ill. 366, 50 N.E.2d 497 (1943); Crammer v. Willston Operating Co., 19 N.J.Super. 489, 88 A.2d 630 (1952); Williams v. Essex Amusement Corp., 133 N.J.L. 218, 43 A.2d 828 (1945); Exton v. Central R. Co. of New Jersey 62 N.J.L. 7, 42 A. 486 (1899); McLeod v. Grant County School Dist. No. 128, 42 Wash.2d 316, 255 P.2d 360 (1953); Lee v. National League Baseball Club of Milwaukee, Inc., 4 Wis.2d 168, 89 N.W.2d 811 (1958). None of them concerns a shooting, much less a shooting during the armed robbery of a bank, nor are they otherwise apposite. The bank cites in support of its position Helms v. Harris, 281 S.W.2d 770 (Tex.Civ.App.1955), where a patron of a market was shot during a holdup; Murray v. Osenton, 126 So.2d 603 (Fla.App.1961), a suit brought by a service station attendant for injuries sustained during an armed robbery; Genovay v. Fox, 29 N.J. 436, 149 A.2d 212 (1959), bowling alley patron shot during an armed robbery; Schubowsky v. Hearn Food Store, Inc., 247 So.2d 484 (Fla.App.1971), customer of a grocery store injured by armed robbers; and Brodie v. Miller, 24 Tenn.aPp. 316, 143 S.W.2d 1042 (1940), customer of amusement hall shot by another Tenn.App. 316, 143 S.W.2d 1042 (1940), to the same effect are Madden v. Clouser, 262 Md. 144, 277 A.2d 60 (1971), and Segerman v. Jones, 256 Md. 109, 259 A.2d 794 (1969).

The bank relies also upon Noll v. Marian, supra, where a depositor, standing in line before a paying teller's window, was shot by an armed robber. Justice Drew, for the court, described the incident in these words:

'* * * (W)hile he stood before the teller's window with...