Apper v. Eastgate Associates

• Decision Date: 05 November 1975
• Docket Number: No. 160,160
• Citation: 347 A.2d 389,28 Md.App. 581
• Parties: Leonard APPER et ux. v. EASTGATE ASSOCIATES et al.
• Court: Court of Special Appeals of Maryland

Page 581

28 Md.App. 581

347 A.2d 389

Leonard APPER et ux. v. EASTGATE ASSOCIATES et al.

No. 160.

Court of Special Appeals of Maryland.

Nov. 5, 1975.

Darrow Glaser, Hagerstown, for appellant

John P. Corderman, Hagerstown, for appellee Eastgate Associates.

Submitted on brief by William P. Nairn and Bryon, Moylan & Urner, Hagerstown, for other appellee.

Argued before ORTH, C. J., and MENCHINE and MOORE, JJ.

ORTH, Chief Judge.

On 11 February 1969 Leonard Apper, a wholesale camera salesman, checked into the Towne Motel in Hagerstown, Maryland, owned by Eastgate Associates and others ¹, as an overnight guest. He dined at a nearby restaurant and returned to his motel room. He watched television for a time, telephoned his wife and, around 10:00 p. m., took a bath. Upon completion of his bath, he drained the water and started to get out of the tub. 'I went to raise myself to get out of the tub. I put my right elbow on the right side of the tub and I grabbed this handhold with my left hand and attempted to assist myself in getting up and the handhold broke away from the wall and it was a massive handhold . . . and it broke away from the wall and hit me across . . .the On 13 January 1972 Apper and his wife instituted an action in tort in the Circuit Court for Washington County against Eastgate. He sought damages for the injuries he suffered which he alleged were caused by Eastgate's negligence. He and his wife sought damages for loss of consortium. On 17 February 1972 Eastgate filed a third party claim against Harold L. Jones, trading as Jones' Wallpaper, Linoleum and Tile Service (Jones), who installed the soap dish and handhold. ³

bridge of my nose.' He fell back and hit his head, back and neck. He blacked out. 'The next thing that I remembered was I opened my eyes and there was blood streaming down my face and my chest and that is the next thing that I recollect.' He called for help and was taken to the hospital. The cut on the bridge of his nose was sutured. He suffered injuries to his back and neck. The 'handhold' was a ceramie fixture set in the wall above the tub. It was known in the ceramic tile trade as a 'soap and grab' and was intended to be used by bathers to help themselves in and out of the [347 A.2d 391] bathtub. It was installed with the expectation that bathers would so use it. Apper was alone in the room at all times, made no prior examination of the fixture, and noticed nothing unusual about it. It appeared to be securely fastened and was not loose to the touch. There were no warning signs or notices in regard to the fixture or its use. He used it as he had previously used similar fixtures on many other occasions in many other motels. ²

The action was tried before a jury on 26 November 1974.

At the close of evidence offered by the Appers, the court directed a verdict against them and discharged the jury.

THE STATUS OF THE APPEAL

The transcript of the proceedings with respect to the motion for a directed verdict reads:

'MOTION FOR DIRECTED VERDICT MADE AT END OF PLAINTIFF'S CASE BY DEFENDANTS.

BY THE COURT: At this stage, it is customary for the Defendants to make certain Motions in a civil case for a Directed Verdict which has been made and in this case, has been granted. I have ruled that these Plaintiffs are not entitled to recover under the laws of Maryland and therefore there is nothing to send to the Jury and the trial is at an end and you are excused.

END OF CASE' ⁴

There is in the record transmitted to us a document entitled 'Defendant's Motion for a Directed Verdict.' It reads:

'Now comes Eastgate Associates, Defendant, herein, at the close of the Plaintiff's evidence and moves the Court to direct a verdict in its favor for the following reasons:

1. That the Plaintiff has offered no evidence of primary negligence on the part of the Defendant.

2. That the uncontradicted evidence in this case shows the Plaintiff is guilty of contributory negligence.'

On it is endorsed, over the signature of the trial judge, 'granted, Nov. 26, 1974.' It is stamped as filed 26 November 1974 in open court. The docket entry under date of 26 November 1974 reads in relevant part:

'Plaintiff rests; Counsel for Defendant moves for a Directed Verdict in favor of the Defendant; Clerk enters objection to Motion on behalf of the Plaintiff in accordance with Md.Rule 552 a; Court grants Motion for Directed Verdict in favor of Defendants, Eastgate Associates, et al and against the Plaintiffs, Leonard Apper and Beverly Apper;'

The next entry on the docket is under date of 23 December 1974: 'Order for Appeal by Plaintiffs Leonard Apper and Beverly Apper, His wife, filed;' The 'ORDER FOR APPEAL BY PLAINTIFFS, LEONARD APPER AND BEVERLY APPER, HIS WIFE', is included in the record, stamped as filed 23 December 1974, at 10:49 A.M. It reads, over the signature of one of the appellants' attorneys:

DEAR MR. CLERK:

Enter an Appeal to the Court of Special Appeals from the Judgment entered in this action on November 26, 1974.'

No judgment had been entered. The verdict directed by the court was no more a judgment than would be a verdict of the jury. ⁵ There being no final judgment, there was nothing from which to appeal. Courts Art. § 12-301.

Despite that the appeal was premature, we shall, as we did in Stitzel v. Kurz, 18 Md.App. 525, 308 A.2d 430 (1973), cert. den. September 18, 1973 and October 9, 1973, discuss the facts and the applicable law in the light of the substantial merits of the case, Maryland Rule 1071, and we shall then fashion a

result which will give due recognition to those substantial merits. We do so to save judicial time and unnecessary expense and in the belief that our action is in the best interest of the administration of justice.

THE LAW

In an action for negligence the plaintiff has the burden of proving: (a) facts which give rise to a legal duty on the part of the defendant to conform to the standard of conduct established by law for the protection of the plaintiff; (b) failure of the defendant to conform to the standard of conduct; (c) that such failure is a legal cause of the harm suffered by the plaintiff; and (d) that the plaintiff has in fact suffered harm of a kind legally compensable by damages. ⁶ C. & P. Tel. Co. v. Hicks, 25 Md.App. 503, 525, 337 A.2d 744 (1975), cert. den. July 3, 1975, citing Restatement (Second) of Torts, § 328A (1965). The standard of conduct established by law arose from Apper's status as an invitee of Eastgate. 'An invitee is one invited or permitted to enter or remain in 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 the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover.' Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972). See Kight v. Bowman, 25 Md.App. 225, 229 and 230-231, n. 3, 333 A.2d 346 (1975). ⁷ It is manifest that in the case sub judice that because there was no direct evidence on the question, it was necessary that the doctrine of res ipsa loquitur be invoked in order to permit an inference that Eastgate failed to conform to the standard of conduct We found in Hicks that, in this jurisdiction, there are three elements which a plaintiff must show to invoke the doctrine of res ipsa loquitur. 25 Md.App. at 513, 337 A.2d 744. We thought that the Court of Appeals had settled on this language to express those elements,id., at 516; 337 A.2d at 752:

required with respect to Apper. It is only through the circumstantial evidence of negligence supplied by that doctrine that the case could properly be submitted to the jury. Thus, although the issue for decision is the propriety of the direction of the verdict, ⁸ the determination of the issue depends upon whether the doctrine of res ipsa loquitur arose upon the facts and circumstances. Appellants claim that the doctrine did arise. Appellees urge that it did not because appellants failed to establish the elements necessary to invoke it. ⁹

'1. A casualty of a sort which usually does not occur in the absence of negligence.

2. Caused by an instrumentality within the defendant's exclusive control.

3. Under circumstances indicating that the casualty did not result from the act or omission of the plaintiff.'

APPLICATION OF THE FACTS TO THE LAW

We consider the elements necessary to invoke the doctrine of res ipsa loquitur in the light of the evidence adduced to prove them, but we do so in the order inverse to the listing of them.

The Act of the Person Injured

A person injured must eliminate his own conduct as a cause of the injury. He may do so by showing that he has done nothing abnormal with the instrumentality causing the injury and has used it in the manner and for the purpose for which it was intended. Sweet v. Swangel, Iowa, 166 N.W.2d 776, 778 (1969), quoting W. Prosser, Res Ipsa Loquitur in California, 37 Calif.L.Rev. 183, 202 (1949):

"The plaintiff need only tell enough of what he The evidence is clear that Apper did nothing abnormal with the fixture. He used it in the manner and for the purpose for which it was intended. It was designed and installed to assist a bather to get in and out of the tub and that is precisely the use he made of it. It is true that he was an actor in the event which caused the injury, but to bring himself within the doctrine, it is not necessary that he be the completely inert object of the negligent act. The act of the injured person which sets in motion the instrument of the injury must not be confused with an act of the injured party by which, sharing responsibility in some way with the defendant for the creation or maintenance of the dangerous condition, he is deemed also to share the negligence. Kane v. Ten Eyck Co., Inc., 10 Misc.2d 398, 175 N.Y.S.2d 88, 92 (1943). ¹⁰ On the evidence Apper could be found to be exonerated from any...