Sherman v. Suburban Trust Co., 43

Decision Date03 April 1978
Docket NumberNo. 43,43
Citation384 A.2d 76,282 Md. 238
PartiesGary SHERMAN v. SUBURBAN TRUST COMPANY.
CourtMaryland Court of Appeals

Karl G. Feissner, Hyattsville (Feissner, Garrity, Levan & Schimel, Hyattsville, on the brief), for appellant.

Francis J. Ford, Rockville, for appellee.

Argued before MURPHY, C. J., and SMITH, LEVINE, ELDRIDGE and ORTH, JJ.

Reargued before MURPHY, C. J., SMITH, LEVINE, ELDRIDGE and ORTH, JJ., and JOHN P. MOORE and ANSELM SODARO, Specially Assigned, Judges.

MURPHY, Chief Judge.

We granted certiorari in this premises liability case prior to decision by the Court of Special Appeals to consider the liability of a property owner to a police officer injured on a nonpublic portion of the owner's premises while in the course of his official police duties.

Gary Sherman, a plainclothes police officer was on routine daytime patrol when he received a radio call that an attempt was being made to negotiate a forged check at the Suburban Trust Company (the bank) in Takoma Park, Maryland. When Sherman arrived at the bank, he observed that two persons were being detained by uniformed police officers in front of the drive-in teller's window. As senior officer present at the scene, Sherman went to the door of the teller's cage, and after identifying himself, the teller, Mary Walden, permitted him and another officer to enter. The teller's cage was small, approximately 6 by 8 feet; it was not connected to the main bank building and was not open to the public. Sherman questioned the teller about the crime for approximately 3 to 5 minutes. During this time Miss Walden had her back to the drive-in window and Sherman stood facing her; in this position, he was able to speak with the teller and simultaneously watch the two detained suspects standing outside and in front of the drive-in window. Miss Walden accidentally dropped the forged check to the floor while she was speaking with Sherman. He stepped backwards about 2 or 3 feet and squatted down to retrieve the check. As he did so, he struck his left buttocks and back on the metal scoop arm of a coin changing machine which was positioned on a high stool to his immediate left; the scope arm extended outward beyond the platform of the stool. Sherman had not observed the coin changing machine prior to striking it. Because of his preoccupation with questioning the teller, and at the same time keeping his eyes on the detained suspects, Sherman had not looked either to his right or left during the entire time he was inside the teller's cage.

Sherman sued the bank in the Circuit Court for Prince George's County; he claimed that in the course of investigating the crime in the teller's cage, "he was caused to bend over to secure evidence and . . . was struck in the back by a coin machine which the Defendant knew had been placed in a precarious position on a chair" out of his view. Sherman alleged that although the bank was aware of the placement of the coin machine, it failed "to give adequate warning of its placement and further placed it in a negligent position where it could cause injury to individuals such as the Plaintiff."

In submitting the case to the jury, the court instructed it that a police officer "who comes upon the premises of another for the investigation of a crime arrives generally under conditions of an emergency nature, and frequently at unexpected times and under such conditions that the owner or occupants of the property owes him no duty to keep the premises prepared and safe for him." The court further instructed the jury:

"It is sometimes said that a police officer takes the property as he finds it, that is, an owner of property isn't liable to a police officer if there exists usual or ordinary and customary hazards. On the other hand, the owner of property must not subject a police officer to unusual or extraordinary danger, and if such exists and if it is not reasonable to perceive the police officer will discover such, then the defendant owner may be liable to the plaintiff for having created or maintained such an unusual or extraordinary hazard.

"By unusual or extraordinary hazard we mean something that is rare, uncommon and not found in common experience.

"In summary then we advise you that if you find that the placement of the coin changer on the chair constituted an unusual or extraordinary hazard, and that it was not such as could have been discovered by the plaintiff, then you may find that such was negligence. On the other hand, if you find the placement of the coin changer presented no hazard or danger, or that if a danger it was of a usual and ordinary type as might be found in a business office or premises of a similar nature, then your verdict should be for the defendant."

Sherman excepted to the court's jury instructions; he claimed that as a police officer he was either an invitee or in a class sui generis, and was not a mere licensee, as the court in effect instructed the jury. Sherman sought an instruction that the bank had an affirmative duty to exercise ordinary care to keep the premises reasonably safe for him and to refrain from negligence. The court refused the requested instruction, the jury returned a verdict for the bank, and this appeal followed.

Under existing Maryland law, the liability of a property owner to an individual injured on his property is dependent on the standard of care owed to the individual and that, in turn, is contingent upon a determination of the individual's status while on the property, i. e., whether he is an invitee, licensee, or trespasser. Macke Laundry Serv. Co. v. Weber,267 Md. 426, 298 A.2d 27 (1972); Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972). An invitee is in general a person invited or permitted to enter or remain on another's property for purposes connected with or related to the owner's business; the owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect him from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover. Gray v. Sentinel Auto Parks Co., 265 Md. 61, 288 A.2d 121 (1972); Lloyd v. Bowles, 260 Md. 568, 273 A.2d 193 (1971); Gast, Inc. v. Kitchner, 247 Md. 677, 234 A.2d 127 (1967). A licensee is generally defined as one who enters the property with the knowledge and consent of the owner but for his own purposes or interest; the owner owes no duty to a licensee under the traditional common law view except to abstain from wilful or wanton misconduct or entrapment. Hicks v. Hitaffer, 256 Md. 659, 261 A.2d 769 (1970); Levine v. Miller, 218 Md. 74, 145 A.2d 418 (1958); Carroll v. Spencer, 204 Md. 387, 104 A.2d 628 (1954). It has been said that a licensee "must take the property as he finds it, the owner or occupant undertaking no duty . . . (to him) except that, if he becomes aware of the licensee's presence, the licensor must not injure him wilfully or entrap him." Peregoy v. Western Md. R. R. Co., 202 Md. 203, 207, 95 A.2d 867, 869 (1953). The limited duty owed to a licensee requires, however, that the landowner not create new and undisclosed sources of danger without warning the licensee. Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 265 A.2d 897 (1970); Brinkmeyer v. Iron & Metal Co., 168 Md. 149, 177 A. 171 (1935); State v. Machen, 164 Md. 579, 165 A. 695 (1933).

Firemen and policemen traditionally have been held in most jurisdictions to be mere licensees. W. Prosser, Handbook of the Law of Torts § 61 (4th ed. 1971); 2 F. Harper and F. James, The Law of Torts § 27.14 (1956); 1 J. Dooley, Modern Tort Law § 19.07 (1977); Annot., 86 A.L.R.2d 1205 (1962). One explanation given by each of the cited authorities for classifying firemen and policemen as licensees upon premises, rather than invitees, is because they are likely to enter at unforeseeable times, upon unusual parts of the premises, and under circumstances of emergency, where care in preparing for the visit cannot be expected and a duty to make the premises reasonably safe for them at all times would constitute a severe burden.

Our predecessors adhered to this traditional view in Steinwedel v. Hilbert, 149 Md. 121, 123-24, 131 A. 44, 45 (1925), holding that "a fireman entering premises to put out fire is a licensee only, and not an invitee, and that the owner or occupant of the premises is not under any duty of care to keep his premises prepared and safe for a fireman." Forty years later, in Aravanis v. Eisenberg, 237 Md. 242, 206 A.2d 148 (1965), the Court reaffirmed its basic holding in Steinwedel that a fireman is a licensee and not an invitee. While again expressing the view that owners and occupants of property owe licensees only the duty of abstaining from wilful or wanton misconduct or entrapment, the Court stated that under Maryland law this encompassed a duty to warn of any hidden dangers, where there was knowledge of such danger and an opportunity to give warning. It also held that a fireman's status as a licensee could in some circumstances undergo a change, after the initial period of anticipated occupational risk in fighting a fire, to that of an invitee, thus entitling him to the greater care due an invitee.

Sherman contends on appeal that, if originally he was a licensee when entering upon the bank's premises, the collision with the scoop arm of the coin changing machine occurred after the initial period of his anticipated occupational risk had passed, namely, after he came to the bank to apprehend the suspects; and he thereafter became an invitee under the rationale of Aravanis and as such entitled to an instruction that the bank owed an affirmative duty to him to exercise ordinary care to keep the premises in a reasonably safe condition.

In Aravanis, the plaintiff fireman responded to a fire in the defendant's home. The fire had begun in the basement when the defendant knocked a tool off his work bench which fell into a jug containing acetone; the jug...

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