Bethesda Armature Co., Inc. v. Sullivan

• Decision Date: 08 January 1981
• Docket Number: No. 510,510
• Citation: 47 Md.App. 498,424 A.2d 397
• Parties: BETHESDA ARMATURE COMPANY, INC. et al. v. Patricia Anne Gormley SULLIVAN et al.
• Court: Court of Special Appeals of Maryland

Page 498

47 Md.App. 498

424 A.2d 397

BETHESDA ARMATURE COMPANY, INC. et al. v. Patricia Anne Gormley SULLIVAN et al.

No. 510.

Court of Special Appeals of Maryland.

Jan. 8, 1981.

Don F. Ryder, Jr., Rockville, with whom were Andrew E. Bederman and Schroeder & Ryder, Rockville, on the brief for appellants.

William T. Wood, Rockville, with whom were Wood & Rohrbaugh, Rockville, on the brief for appellee, Sullivan.

Hugh E. Donovan, Silver Spring, with whom were Donovan & Nash, Silver Spring, on the brief for appellee, Montgomery Co., Md.

Argued before LOWE, MASON and WILNER, JJ.

WILNER, Judge.

The accident giving rise to this litigation occurred on June 21, 1977. Patricia Anne Sullivan, appellee, had brought an electric motor to appellant Bethesda Armature Company (Bethesda) to have it repaired, and was returning on the 21st to retrieve it. She parked her station wagon directly in front of Bethesda's place of business at 6811 Reed Street, and, having transacted her business, carried the motor back to her car and placed it inside through the rear tailgate. The driver's side of the car was next to the curb, and it was in the course of rounding the left rear of car on her way to enter vehicle that she slipped and fell.

The accident occurred, she said, when she stepped up on a curb and it crumbled and gave way, causing her to lose her balance. She attempted to steady herself with her other foot, but it too slipped because of the deteriorated condition of the concrete. It is clear that the area in which Ms. Sullivan fell was part of the public walkway that separated Bethesda's building from Reed Street, but that it was a part of that walkway initially constructed by Bethesda's lessor as a driveway/apron; and therein lies the legal issue forming the basis of this appeal.

Ms. Sullivan and two of her adult children sued Montgomery County, the local body politic responsible for maintaining the public walkways, as well as the owners, lessee, and sublessee (Bethesda) of the abutting property, alleging, alternatively, that each had a duty to maintain the area in which she fell. Various cross-claims were filed among the codefendants.

At the conclusion of the evidence, all defendants moved for directed verdict, the county and the property owners/lessees each disclaiming any responsibility to maintain the area in question. All motions were denied, and the entire claim by Ms. Sullivan against all defendants was submitted to the jury. ¹ The jury returned a plaintiff's verdict for $27,000 but only against the property owners and lessees, who are the appellants here. That verdict served, of course, to exonerate the county. When the court overruled appellants' motion for judgment N.O.V., they appealed, claiming error in the denial of their motions for directed verdict and judgment N.O.V.

In considering such motions, of course, both the trial court (and on review this Court) must consider the evidence in a light most favorable to the party against whom the motion is made, in this case Ms. Sullivan. See Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 328, 389 A.2d 887 (1978). Here, although some of the evidence was in conflict, the truly relevant part of it was not. We are dealing essentially with a question of law, one that involves the interplay among three basic propositions and a determination of which of them will control.

The first proposition, well settled in the law, is that a storekeeper or property owner owes a duty to his business invitees to maintain his premises in a reasonably safe condition and to give warning of latent or concealed perils. See Lloyd v. Bowles, 260 Md. 568, 572, 273 A.2d 193 (1971). This duty extends not only to the store itself, but as well to such area abutting it as is under the storekeeper's control and likely to be used by his customers. See Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.App. 659, 407 A.2d 339, cert. den. 286 Md. 745 (1979).

The second proposition is equally well settled that where the area in question is part of a public walkway, the duty of care and maintenance (and the concomitant liability arising from the negligent performance of that duty) generally rests with the local body politic and not with the abutting property owner. See, for example, Matyas v. Suburban Trust Co., 257 Md. 339, 263 A.2d 16 (1970); Weisner v. Mayor of Rockville, 245 Md. 225, 225 A.2d 648 (1967); Citizens Savings Bank v. Covington, 174 Md. 633, 199 A. 849 (1938). This a basic common law principle that has frequently been confirmed by statute or local ordinance.

The third proposition is in the nature of an exception to the second and a reaffirmation of the first. Occasionally referred to as the "special use" doctrine, it holds that if an abutting owner, by virtue of some extraordinary use that he makes of the walkway, creates a special hazard on it, he and not the body politic is answerable for any damage caused by that special hazard. See Citizens Savings Bank v. Covington, supra, 174 Md. 633, 199 A. 849; Restatement of Torts 2d, § 350.

The precise question is whether the nature and use of the area in which Ms. Sullivan fell, as disclosed by the evidence most favorable to her, was such as to invoke the application of this "special use" doctrine. ² Some background is in order.

The premises in question 6811 Reed Street was first occupied by Bethesda in 1949. At the time, Reed Street was unpaved, and there were no sidewalks or curbs. The building, which was situate only about six feet from the street, had an overhead garage-type door allowing vehicular entry. In or about 1952 or 1953, Bethesda's lessor, Mr. Perry, constructed a short driveway apron connecting the dirt street to the garage door. This apron, wider than it is long, is made of cement and slopes gently from the building to the street. As part of the construction of the apron, Perry installed curbs on the sides of it, running essentially perpendicular to the street but curving away at the mouth where the apron joins the street.

At some later time, but before any improvements were made to the street, the overhead garage-type door was removed and replaced with a wooden front with normal pedestrian doors. From that point somewhere between 1953 and 1956 the concrete apron ceased to be used as a driveway, but served instead as a pedestrian walkway from the street to the entrance to the building. After construction of the apron, someone put in curbing along Reed Street, although it is not entirely clear who installed that curbing.

In 1956 or 1957, Bethesda put in a sidewalk in front of the building. Both the curbing parallel to Reed Street and the curbing that framed the apron were, of course, in place at the time. Finally, in 1969, Reed Street, and an adjacent right-of-way extending seven feet on either side of it (and thus including the sidewalk built by Bethesda), were dedicated to and accepted by Montgomery County as part of the county road system. The record shows that this acceptance was made after an on-site inspection of the entire right-of-way by the county road maintenance department, and was in accord with the then-applicable ordinance governing the acceptance of such roads and thoroughfares. ³

The situation as Ms. Sullivan found it in June, 1977, was essentially as follows. A sidewalk ran the length of Reed Street, as did a curb and gutter. Directly in front of the entrance to Bethesda's office, however, it was interrupted by the sloping apron built by Mr. Perry. At the building line, and for about two or three feet toward the street, the apron was essentially level with the sidewalk; but, because of the slope, the three- or four-foot section of the apron closest to the street was lower than the adjoining sidewalk and was separated from it by the lateral curbs installed when the apron was built. Neither the sidewalk, the lateral curbs, nor the apron were in very good condition, all showing signs of deterioration. As noted, it was on the lateral curb built as part of the apron, and upon the apron itself, that Ms. Sullivan fell.

It is with this background the undisputed fact that the locus of appellee's fall was within the public walkway dedicated to and accepted by the county, attenuated by the circumstances of its construction and use that we consider the relevance of the "special use" doctrine.

The "special use" doctrine covers a broad spectrum of circumstances, from obstructions or impediments (such as cellar doors, protruding pipes, valves, meter boxes, "manhole" or hatch covers, and the like) placed in the walkway, to alterations that in some way encourage the accumulation of ice and snow. ⁴ Many of the "ice and snow" cases have involved driveways or ramps of one kind or another that intersect the public walkway entranceways to service stations or other commercial establishments built for the special use of the establishment, its customers, or its suppliers; and the question has arisen as to whether such a driveway or ramp qualifies as a "special use" sufficient to charge the abutting owner with the duty to maintain it in safe condition.

The courts considering that question have reached different results, some concluding that such an entranceway does constitute a special use and some concluding that it does not. ⁵ Maryland has not yet addressed this aspect of the doctrine, and this is not the occasion for us to do so. Even if we were to align ourselves with the courts that have recognized the "special use" theory in terms of driveways, as urged by appellee, it would be inapplicable in this case.

Despite the parties' continuous reference to the apron as a "driveway," the fact is that it is not a driveway and has not been used as a driveway for more than 20 years. Notwithstanding the manner of its construction its slope to the street and consequent difference in elevation from the abutting part of the sidewalk since the early 1950's, it has served as nothing more than part of the...