Arshack v. Carl M. Freeman Associates, Inc.

• Citation: 272 A.2d 30,260 Md. 269
• Decision Date: 05 January 1971
• Docket Number: No. 218,218
• Parties: Alice ARSHACK etc. v. CARL M. FREEMAN ASSOCIATES, INC.
• Court: Court of Appeals of Maryland

Page 269

260 Md. 269

272 A.2d 30

Alice ARSHACK etc. v. CARL M. FREEMAN ASSOCIATES, INC.

No. 218.

Court of Appeals of Maryland.

Jan. 5, 1971.

Joseph Forer, Washington, D. C., for appellants.

John F. Ward, Bethesda (Shapiro, Weil & Jacobs, Bethesda, on the brief), for appellee.

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

McWILLIAMS, Judge.

Danny Arshack cut his foot on a piece of glass. The appellant (Mrs. Arshack), for herself and as Danny's mother and next friend, sued the appellee (Freeman). The trial judge, Jos. Mathias, J., at the close of the whole case, directed a verdict in favor of Freeman and in so doing, says Mrs. Arshack, he fell into reversible error. He may have teetered but we do not think he fell.

Americana Park is a cluster of 20 sevenstory apartment buildings erected by Freeman on a 54 acre tract in Prince George's County. In July 1967 Mrs. Arshack, her daughter and 11 year old son, Danny, occupied apartment A10 in the building known as 1824 Metzerott Road and as tenants they were entitled to the free use of the grassed areas around the buildings. At dusk on Friday, 21 July, Danny, barefooted, walked across the grass to the rear of a neighboring building, 1820, to converse with a friend. As he paced about on the grass he stepped on a piece of green glass 'embedded * * * in the dirt and part of it * * * sticking out of the dirt.' He thought it was 'from a broken bottle.' 'And that is what * * * (he) suppose(d) * * * (he) cut (him)self on.' The grass, he continued, was 'about four inches high' and the glass 'was down at the bottom * * * as if the grass had grown up around it, * * * it was (not) clearly visible from any distance' and that he saw it at all was due to the fact that 'the grass was pressed down after * * * (he) stepped on it.'

Danny agreed he 'went barefooted often that summer' and that 'a lot of other people went barefooted.' Hardy Alston, Freeman's grounds superintendent, estimated that 'about ninety percent' of the tenants went around barefooted. Mrs. Arshack admitted that at times she herself 'went barefooted.' Asked if she objected to Danny's going barefooted, she replied 'I think like most parents I registered a symbolic objection from time to time, without great success. I don't think I had objected to it around that time, no. (Emphasis added.)

'Yes. I had, as a matter of fact. I'm sorry. About a week or so before that, in fact, I remember it was prior to a baseball game, I got rather disturbed about it and said I did not approve in principle about his going barefooted because there was a lot of stuff around and I was concerned about it and I preferred he'd wear something on his feet.

'Q. Did you tell him that he had to wear something? A. We don't live that way.'

Mrs. Arshack moved into Americana Park in August 1966. She was asked to testify in respect of 'the general nature of the upkeep of the grounds in Americana Park in July of 1967 prior to July 21.' She spoke vaguely of complaints by her and 'many other tenants,' none of whom were identified. She said there 'was not only trash and broken glass outside on the grounds but even in the downstairs hall' of the building (1824) in which she lived. She said she complained to 'the maintenance people' more than once but she could not say how many times. She telephoned to the office once and spoke to 'the lady.' She could not remember how soon before 21 July she telephoned the office but later on, when pressed by Judge Mathias, she put it 'within a few weeks prior to the time of Danny's accident.' She 'supposed' the 'disposal people' spilled some of the trash when they emptied the incinerator. Again responding to Judge Mathias's question, 'did * * * (she) ever see any trash or glass' behind 1820, she said she 'didn't spend very much time over there.' But she insisted there were 'bits of trash and glass in the area in general' and 'there was some there (at 1820) too.' Whenever she saw glass she 'would pick it up and throw it away.' On 22 July, the day following the accident, she said she looked 'at the rear of 1820' and that 'there was still glass there * * * it was in the grass * * * (she) thought it was a broken Coke bottle.' The record leaves in doubt the question whether she picked up this specific piece of glass; later she said she did not have it.

Hardy Alston, 35 at the time, testified that seven of his eleven years with Freeman had been spent at Americana Park. In the summer of 1967 he supervised the work of nine men who were quite enough to keep 'Americana Park spic and span.' Every morning, Saturdays and Sundays excepted, beginning at 8:00 a. m., they policed the entire development 'picking up * * * anything * * * on the ground regardless (of) whatever it * * * (was); beer cans, paper, rags, clothing, coat hanger(s), anything (junk) that they * * * (saw) on the ground.' In addition to his nine men there was a 'building custodian' for each two buildings. Alston said it was the 'duty (of the building custodians) in the morning to police the area around their buildings and in between the two buildings'; in the afternoon they were required 'to double check to make sure' the area had been policed. He said any report or complaint about trash or glass would be 'taken care of immediately' even if he had to do it himself. He said also that the area around 1820 and 1824 got a 'little more attention' than other areas because prospective tenants came there for information, advice and to inspect model apartments. All of the grass was cut once a week but around 1820, 1822 and 1824 it was cut again on Friday. They 'never cut it shorter than three inches.' He said his men did no work inside the buildings and that a contractor looked after the swimming pool. Questioned about the number of complaints in the summer of 1967 he could not think of any because as he put it 'there's very few that we really had concerning the grounds * * * maybe two a year.' Asked if he ever picked up 'any glass from the grounds' he said occasionally they found glass especially after the trash people had emptied the incinerators and, in this regard, they had 'a special duty' after the trash people left to clean up any trash they might have dropped.

In the early morning of Monday, 24 July, Alston learned from the superintendent of janitors that 'somebody got hurt or claimed they got hurt' on Friday. Alston said he immediately checked the area around 1820 but he did not find any glass there. While Alston did not work on Saturday and Sunday he said there was a building custodian on duty during the weekend and that he would have picked up the glass if he had seen it or if he had been told about it.

Except for the hospital record, the doctor's report and his bill, all of which were admitted by agreement of counsel, the only evidence offered by the appellant was the testimony of herself and Danny. When counsel informed the court that the plaintiff had rested, Freeman moved for a directed verdict. Judge Mathias reserved his ruling on the motion but Freeman by offering evidence withdrew it. Maryland Rule 552 b. If, however, Freeman had elected not to offer evidence and to stand on his motion Judge Mathias would have been faced with a more difficult decision but, since it is not required of us, we shall not undertake to say whether the direction of a verdict in those circumstances would have been correct or incorrect. Freeman's evidence effected a marked change in the complexion of the case and his motion at the close of the evidence put before Judge Mathias a less difficult decision. In Smith v. Bernfeld, 226 Md. 400, 405, 174 A.2d 53, 55 (1961), Chief Judge Brune, for the Court, after restating the general rule for testing the sufficiency of the evidence in reviewing a motion for a directed verdict, or judgment n. o. v., said:

'A difficulty may arise in a case such as this where the defendant offers evidence to show some fact or facts by way of defense. Such evidence, where the facts are conceded or are undisputed, may be considered in reviewing a ruling on a motion for a directed verdict or in entering judgment n. o. v., but may not be so considered if the evidence is merely uncontradicted, if its truth is controverted.' (Emphasis added.)

And see Peroti v. Williams, 258 Md. 663, 669, 267 A.2d 114 (1970); Sachs v. Little, 245 Md. 343, 363, 226 A.2d 283 (1967); Lehman v. Baltimore Transit Co., 227 Md. 537, 541, 177 A.2d 855 (1962).

It is quite well settled, of course, that where a landlord leases separate parts of his property to different tenants and reserves other parts of the property for the common use of all tenants his duty to them rises no higher than the exercise of ordinary care and diligence to maintain the retained parts in a reasonably safe condition. Windsor v. Goldscheider, 248 Md. 220, 222, 236 A.2d 16 (1967); Langley Park Apts., etc. v. Lund, Adm'r, 234 Md. 402, 199 A.2d 620 (1964); Landay v. Cohn, 220 Md. 24, 27, 150 A.2d 739 (1959). We think Alston's testimony puts Freeman well within the bounds of the required ordinary care and diligence. It was neither contradicted nor controverted and its presence requires a reappraisal of the inferences which might otherwise be drawn properly and legitmately from the testimony of the appellant which, it may be observed, is more remarkable for what it does not prove than for what it does prove. Danny's testimony contains the sum total of available information about the piece of glass. It was green; it was partially embedded in the dirt; to the casual observer it was invisible; the grass had grown up...