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

• Decision Date: 01 September 1986
• Docket Number: Nos. 1217,1218,s. 1217
• Citation: 71 Md.App. 445,526 A.2d 87
• Parties: Danielle CASPER, an infant, etc. et al. v. CHAS. F. SMITH & SON, INC. et al. Rachel KIRTSCHER, an infant, etc. et al. v. CHAS. F. SMITH & SON, INC. et al. ,
• Court: Court of Special Appeals of Maryland

Page 445

71 Md.App. 445

526 A.2d 87

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

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

Nos. 1217, 1218, Sept. Term, 1986.

Court of Special Appeals of Maryland.

June 5, 1987.

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

William R. Phelan, Asst. City Solicitor (Benjamin L. Brown, City Solicitor on the brief), Baltimore, for appellee, Mayor and City Council of Baltimore.

Michael P. Chervenak (Francis J. Ford and Ford & O'Neill on the brief), Rockville, for appellee, Gabion Const., Inc.

Donald J. McCartney (Connie E. Williams and Smith, Somerville & Case on the brief), Baltimore, for appellee, Rummel, Klepper & Kahl.

Argued before ALPERT and ROSALYN B. BELL, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

ROSALYN B. BELL, Judge.

The wisdom contained in Demuth v. Old Town Bank of Baltimore, 85 Md. 315, 319-20, 37 A. 266 (1897), is worth repeating once again:

"This is a case of exceedingly great hardship, and we have diligently, but in vain, sought for some tenable ground upon which the appellants could be relieved from the loss that an affirmance of the decree appealed from will necessarily subject them to. But hard cases, it has often been said, almost always make bad law; and hence it is, in the end, far better that the established rules of law should be strictly applied, even though in particular instances serious loss may be thereby inflicted on some individuals, than that by subtle distinctions invented and resorted to solely to escape such consequences, long settled and firmly fixed doctrines should be shaken, questioned, confused or doubted. It is often difficult to resist the influence which a palpable hardship is calculated to exert; but a rigid adherence to fundamental principles at all times and a stern insensibility to the results which an unvarying enforcement of those principles may occasionally entail, are the surest, if not the only, means by which stability and certainty in the administration of the law may be secured." (Citation omitted.)

Danielle Casper, aged seven, and Rachel Kirtscher, aged eight, were severely and permanently injured in 1984 when they fell into Moore's Run, a stream located in Baltimore City, and were submerged in icy water. As a result, both children are profoundly brain damaged and suffer from, among other conditions, spastic quadriplegia. The parents of the girls filed negligence suits individually and on behalf of the children against the City and several contractors and engineers who had done some excavation of the stream nine years earlier. The Circuit Court for Baltimore City granted judgment in favor of all but one of the defendants. ¹ The parents appeal the court's rulings.

Since the cases were decided on motions to dismiss or for summary judgment, the facts are taken from the parents' complaints and are presumed to be true. The events of this tragedy began nine years earlier when in August, 1974 the City of Baltimore awarded a contract to Chas. F. Smith & Son, Inc. to perform, as the plaintiffs alleged, "sewer construction and repair" around Moore's Run. This work included the installation of a 21-inch sewer line to run parallel to Moore's Run.

The contract also required the construction of gabions for 200 feet along the west bank of Moore's Run. Gabions are wire mesh baskets filled with rocks and are used to prevent erosion. The design for the gabions required a ten-foot-wide-by-one-foot-deep "mattress" to be erected on top of the streambed, with two layers of cubical wire baskets to be placed on top of the mattress along the western bank. The baskets were to be filled with igneous rock of a specific gravity not found locally. The parents asserted the main purpose for installing the gabions "was to prevent erosion of the west bank of Moore's Run so as to protect the 21"' sewer pipe and [a nearby road] from collapse and destruction." In March and April, 1975, Smith and Gabion Construction, Inc. (GCI) constructed the gabions under the supervision of the City and Rummel, Klepper & Kahl (RKK), the engineering consultant and project manager.

Prior to construction, the streambed of Moore's Run at the accident site was approximately six inches to one foot deep. The parents alleged that Smith and GCI altered the depth by improperly excavating rock from the streambed to fill the gabion baskets. In so doing, they created a five-foot-deep pocket of water running the length of the gabion construction. The plaintiffs also stated that Smith and GCI altered the natural channel and water course resulting in an increase in the current velocity of the stream by straightening its path and narrowing its banks, which over time accelerated erosion of the streambed, further increasing the depth. The parents in addition asserted that Smith and GCI constructed and repaired some storm water and sewer lines which emptied into Moore's Run, increasing the water volume and current velocity and further exacerbating erosion of the streambed. They concluded that Smith's and GCI's negligent actions, all under the supervision and control of the City and RKK,

"directly contributed to the creation of an artificial and unreasonably dangerous pocket of deep water in Moore's Run. Defendant[s] knew or should have known that by altering and changing the depth of the streambed [they] had created an artificial and unreasonably dangerous condition that could cause injury to unsuspecting children and other citizens who might attempt to cross or walk through Moore's Run in the vicinity of the gabions."

On February 8, 1984, Casper and Kirtscher left Kirtscher's home at 5:20 p.m. to walk Kirtscher's dog along Moore's Run near their homes. Children frequently play in and around Moore's Run and as the parents assert "[f]or years children and their families have used this public property as park land." On the evening of February 8, because of winter weather conditions, the area where the gabion construction had been completed nine years earlier was six to eight feet deep and covered with ice. Sometime after 6:00 p.m., the children were found in the area of the deep freezing water and it was estimated each child had remained submerged for at least 15 minutes until rescued by the Baltimore City Police Department. In addition to the injuries previously mentioned, each child is unable to speak and has an intelligence level comparable to a three-month-old infant. Consequently, neither child can explain how the accident occurred. The parents surmised that the accident occurred when the dog went onto the ice and fell through and the children fell through while attempting to rescue the dog.

The parents filed suits asserting that Smith, GCI, RKK and the City breached their respective duties proximately causing injury to the children. The defendants filed pretrial motions ² in which each argued:

1) It did not owe a duty of care to either child because (1) there was no contractual duty; (2) the children were trespassers or bare licensees at the time of the accident; and (3) water is an open and obvious danger;

2) Its conduct was not the proximate cause of the accident;

3) As a matter of law, the children were contributorily negligent and assumed the risk of their injuries.

The City also argued that it was immune from liability by virtue of municipal immunity. The court adopted the reasoning of the defendants and granted the respective motions. The court then dismissed the complaints without leave to amend, precipitating these two appeals.

Appellants present a number of issues for our consideration. Specifically, they assert:

I. "The trial court erred in ruling that the City was immune from suit, because it was not engaged in a proprietary function at the time its negligence caused the injuries to Casper and Kirtscher."

II. "The trial court erred in ruling that appellees did not owe a duty to Casper and Kirtscher, residents and citizens of Baltimore City, because they were trespassers or, at best, bare licensees while properly upon unmarked and unposted City property naturally used as park land by Casper and Kirtscher and their neighbors."

III. "The trial court erred in ruling that the conduct of RKK and GCI was not the proximate cause of Casper's and Kirtscher's injuries.

A. "RKK and GCI's negligence was active and the proximate cause of the children's injuries.

B. "Natural erosion was not an intervening cause.

C. "RKK's and GCI's negligence was not too remote in time to be the proximate cause of the accident."

IV. "The trial court committed reversible error:

A. "Because it failed to apply the presumption that Casper and Kirtscher acted with due care and, therefore, erroneously concluded that their conduct barred them from recovery.

B. "In failing to assess Casper's and Kirtscher's conduct by the standard of due care applicable to reasonably prudent seven and eight year old children.

C. "By discarding the complaints' description of the hidden danger awaiting the infant plaintiffs and thereby failing to take as true the allegations of the complaints and all reasonable inferences drawn therefrom.

D. "Because, accepting the children's allegations as true and presuming that they exercised such care as would a reasonably prudent child of like age and intelligence, the trial [court] could not conclude that Casper and Kirtscher were contributorily negligent as a matter of law when they confronted the concealed danger created by appellees at Moore's Run."

V. "The trial court erred in ruling that Casper and Kirtscher assumed the risk of their injuries."

I. MUNICIPAL IMMUNITY

The motions to dismiss filed by the City were based on the conclusion that when the City contracted for work to be performed at Moore's Run in 1974, the City...