Casper v. Charles F. Smith & Son, Inc.

• Citation: 316 Md. 573,560 A.2d 1130
• Decision Date: 01 September 1987
• Docket Number: Nos. 127,128,s. 127
• Parties: Danielle CASPER, an infant, etc. et al. v. CHARLES F. SMITH & SON, INC., et al. Rachel KIRTSCHER, an infant, etc. et al. v. CHARLES F. SMITH & SON, INC., et al. ,
• Court: Court of Appeals of Maryland

Page 573

316 Md. 573

560 A.2d 1130

Danielle CASPER, an infant, etc. et al. v. CHARLES F. SMITH & SON, INC., et al.

Rachel KIRTSCHER, an infant, etc. et al. v. CHARLES F. SMITH & SON, INC., et al.

Nos. 127, 128, Sept. Term, 1987.

Court of Appeals of Maryland.

July 25, 1989.

Phillips P. O'Shaughnessy (James M. Gabler and Sandbower, Gabler & O'Shaughnessy, P.A. and C. James Sfekas, on brief), Baltimore, for appellants.

Donald J. McCartney (Connie E. Williams and Smith, Somerville & Case, on brief), Baltimore, William R. Phelan, Jr., Asst. City Sol. (Neal M. Janey, City Sol., on brief), Baltimore (Francis J. Ford, Michael P. Chervenak and Ford & O'Neill, on brief, Rockville), for appellees.

Argued before MURPHY, C.J., and ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS and BLACKWELL, JJ.

McAULIFFE, Judge.

Tragedy struck the Casper and Kirtscher families on February 8, 1984, when Danielle Casper, age seven, and Rachel Kirtscher, age eight, fell through ice into the freezing waters of Moore's Run in Baltimore City. Both children survived, but as a result of being submerged for twenty minutes or more, they are permanently and profoundly brain damaged. Each child and her parents brought a negligence action in the Circuit Court for Baltimore City, claiming damages against the Mayor and Council of Baltimore City as the owner of the property and against individual contractors of the city who performed work on Moore's Run nine years before the accident. The defendants filed motions to dismiss and motions for summary judgment, challenging the sufficiency of the allegations of each complaint. ¹ The motions were granted and that action was affirmed on appeal. Casper v. Chas. F. Smith & Son, 71 Md.App. 445, 526 A.2d 87 (1987). We granted certiorari, and we now affirm.

The facts we consider are those alleged in the complaint. ² The area of Moore's Run with which we are concerned is south of the Cedonia Avenue bridge in east Baltimore. At this point, the stream runs north and south through land that is bordered by Denview Way to the west and Cedgate Road to the east. The city owns the land and the stream. Prior to 1974, the stream bed in this area was relatively level, and at normal water levels was six to twelve inches deep. In 1974, the city entered into a contract with Charles F. Smith & Son, Inc. (Smith), ³ for storm water drainage and sewer work in the area, including the construction of a 21 inch sewer to the west of Moore's Run between the stream and Denview Way. To protect the sewer line and Denview Way, the contract required the placement of large igneous rocks in wire mesh baskets, known as gabions, along 200 feet of the west bank of the stream. These large gabions were to be placed over a gabion "mattress," which was to be placed over existing bedrock. Smith contracted with Gabion Construction, Inc. (GCI), an additional defendant, for the construction and installation of the gabions. The final defendant in this case is Rummel, Klepper & Kahl (RKK), the engineering consultants who were hired by the city to design the project and supervise its construction.

The plaintiffs alleged that contrary to the terms of the contract, ⁴ Smith and GCI, with the knowledge of RKK, excavated the stream bed along the 200 foot length of the gabion construction, and did not install a gabion mattress. Additionally, plaintiffs allege that Smith and GCI repaired certain storm water and sewer lines in the area so as to increase the volume of water flowing into Moore's Run, and narrowed the banks at the point of the gabions, thereby increasing the velocity of the water. As a result, plaintiffs allege, the stream was artificially deepened through excavation and then further deepened by erosion caused by the increased volume and velocity of the water, so that what had formerly been an innocent stream having a depth of six to twelve inches became an "artificial death trap" with a depth of about five feet through the length of the gabions.

Danielle and Rachel lived within several blocks of the deepened area of Moore's Run. At 5:20 p.m. on February 8, 1984, the two girls left Rachel's home to walk Rachel's dog along Moore's Run. At a point approximately 40 feet upstream from the southern terminus of the gabions, Danielle and Rachel fell through the ice that covered the deepened area of Moore's Run. They were apparently in the water and beneath the ice for 20 to 25 minutes before being rescued. At the time, the water level in Moore's Run was higher than usual and was about six to eight feet deep at that point. Rachel's dog also went through the ice, near where the girls broke through. Although it cannot be known precisely what occurred, ⁵ plaintiffs have suggested in their complaint that the dog fell through the ice first and that the children were injured when they attempted to rescue her.

Plaintiffs' basic argument is simple. If the defendants had followed the original contract, Moore's Run would have remained shallow at this point, and the worst consequence that the children could have suffered from going onto the ice would have been wet feet. But, because Smith and GCI breached the contract, and the city and RKK did nothing about it, the stream was deepened and tragedy resulted. That argument is little more than an application of the "but for" test: but for the actions of the defendants, would the harm have ensued? That test, occasionally of limited value in ruling out the existence of causation-in-fact, has no litmus value in determining whether the other elements of a cause of action exist.

A cause of action in negligence is made out when the plaintiff proves that the defendant breached a duty owed to the plaintiff, and that the breach of that duty was a proximate cause of damage to the plaintiff. Focusing first on the claim against the city, we note that plaintiffs contend the city's duty to them arose from two separate sources. First, they argue, the city had a duty to ensure that its 1974 contract with Smith was not breached. And second, the city owed the plaintiffs a duty because of its status as owner and occupier of the land.

Turning first to the argument that a duty flowed from the contract, we find no merit in that contention. A landowner may incur liability to a third party injured by reason of a dangerous condition created because a contractor has breached its contract with the owner, but that liability will flow from the landowner's responsibility as a landowner, and not as a result of his failure to ensure that the contract was properly performed. If Smith had breached its contract with the city by using rocks of the wrong density in the gabion baskets, that breach would be of no consequence to the plaintiffs. Similarly, if in making Moore's Run five feet deep along the length of the gabions Smith breached its contract with the city, that breach is of no consequence to the plaintiffs unless the condition thereby created on the land is inconsistent with the duty otherwise owed by the city to the plaintiffs. If the deepening of Moore's Run breached a duty owed by the city to the plaintiffs, it matters not whether the deepening occurred in strict compliance with the city's contract or because of a breach thereof. Similarly, if the deepening of Moore's Run breached no duty owed by the city to the plaintiffs, it is not made actionable simply because it occurred as a result of a breach of a contract. See Council of Co-Owners v. Whiting-Turner, 308 Md. 18, 32, 517 A.2d 336 (1986); Matyas v. Suburban Trust Co., 257 Md. 339, 263 A.2d 16 (1970).

Turning to the city's duty as owner of the land, under current Maryland law the extent of the duty depends upon the status of the plaintiffs at the time of the accident. Wagner v. Doehring, 315 Md. 97, 101, 553 A.2d 684 (1989); Rowley v. City of Baltimore, 305 Md. 456, 464-65, 505 A.2d 494 (1986). The status of the children at the time of the accident is not readily determined, due at least in part to the absence of evidence concerning the precise nature and use of the land. The complaint tells us that the city was the owner of Moore's Run "and the adjacent land and streets;" that Moore's Run in the area in question is located in a heavily residential area of Baltimore City; and that "children frequently play in and around Moore's Run and the adjacent land [and] frequently cross over Moore's Run at various points where the water level is low" as indicated by "well worn paths" into the stream. At oral argument we were informed that the city maintains "Moore's Run Park" in the immediate area, and that the residents of the area have long treated this portion of Moore's Run as a part of the park. ⁶ It is unclear whether the land in question is in fact a part of the city's inventory of park land, and if so whether the physical circumstances are such that the stream and its abutting land are reasonably perceived as a part of a designated city park, through which persons are at least implicitly invited to walk.

It seems clear that at least as to those portions of designated parks to which entry is not prohibited, the ordinary user will be entitled to the status of an invitee. See, e.g., Ashley v. United States, 326 F.2d 499, 500 (8th Cir.1964) (person bitten by a bear in Yellowstone National Park was invitee); Caldwell v. Village of Island Park, 304 N.Y. 268, 107 N.E.2d 441, 444 (1952) (discussing duty owed by municipality in the operation of various aspects of a park); Adams v. United States, 239 F.Supp. 503, 506 (D.C.Okla.1965) (applying Oklahoma law to reject any distinction based upon whether a fee is charged for admission to the park); Smith v. United States, 117 F.Supp. 525, 527 (D.C.Cal.1953) (applying California law to find implied invitation to use campsites in national forest). See also Crown Cork and Seal Co. v. Kane, 213 Md. 152, 159, 131 A.2d 470 (1957) (discussing implied invitations). Whether the same result obtains in favor of users of "raw" park land, carried by the...