Doehring v. Wagner
| Decision Date | 30 August 1989 |
| Citation | 80 Md.App. 237,562 A.2d 762 |
| Parties | William E. DOEHRING, Personal Representative of the Estate of William E. Doehring, Jr., et al. v. George O'Neill WAGNER, et al. 395 Sept. Term 1987. |
| Court | Court of Special Appeals of Maryland |
Charles N. Ketterman (Susan A. Polis and Donahue, Ehrmantraut & Montedonico, Chartered, on the brief), Baltimore, for appellees.
Argued before BISHOP, ALPERT, and ROSALYN B. BELL, JJ.
ON REMAND
This case is before us on remand as a result of Wagner v. Doehring, 315 Md. 97, 553 A.2d 684 (1989), which reversed our judgment in Doehring v. Wagner, 75 Md.App. 67, 540 A.2d 499 (1988).
Appellants are William E. Doehring, father and personal representative of the estate of decedent, William E. Doehring, Jr., and Elizabeth M. Doehring, the decedent's mother (the Doehrings). Appellants filed an action in the Circuit Court for Harford County against appellees, George O'Neill and Beverly L. Wagner (the Wagners) for the wrongful death of the decedent, who died as the result of a motorcycle accident on the Wagners' property. The circuit court granted the Wagners' motion for summary judgment, after finding that the decedent was a trespasser upon the Wagners' right-of-way at the time of his death, and that the Wagners owed him only a duty to refrain from willful and wanton conduct. We reversed on the ground that the Wagners' interest in the right-of-way was nonpossessory The Court of Appeals upheld the circuit court's finding that, as a matter of law, the Wagners owed a general duty to trespassers only to refrain from willful and wanton conduct and directed that, on remand, we determine whether, as a matter of law, the Wagners' conduct was wanton or willful and any other issues properly before this Court.
and consequently they owed the decedent the duty of exercising reasonable care in maintaining the property.
Based on the mandate of the Court of Appeals, we address the following issues:
I. Whether the trial court erred in granting appellees' motion for summary judgment to the extent that there was a genuine dispute of material fact concerning decedent's status with respect to appellees' right-of-way. 1
II. Whether the appellees' conduct with respect to the decedent was willful and wanton.
For purposes of this opinion, the important facts are the following. The Wagners own residential property, as well as a kennel business, both of which are located off Singer Road in Harford County. They also possess a right-of-way over a driveway next to their property that is owned by their neighbors, Reuben Shiling and W. Dale Hess. Although they had not given anyone permission to traverse the driveway, the Wagners were aware that motorcyclists frequently did so at all hours of the day and night, in order to gain access to a dirt path on the Shiling and Hess property. The driveway was paved with a macadam surface.
Sometime before the accident which is the basis of this action, the Wagners hung a chain between two posts which they erected on each side of the driveway. 2 The purpose of the chain was to impede the use of the driveway by motorcyclists, who had in the past frightened the Wagners' grandchildren and their show dogs.
Just before midnight on the night of the tragic accident, Doehring was driving his motorcycle along Singer Road. A passenger was riding with him. Doehring was not wearing a helmet and his motorcycle had no headlights. Traveling at a fast speed, Doehring drove his motorcycle onto the driveway next to the Wagners' property, and hit the chain. He was thrown from the motorcycle by the impact, and sustained fatal injuries.
Upon a triangular patch of land to the side of the driveway was a tree on which the Wagners had posted signs saying "Bowag Kennels" and "No trespassing between 7 p.m. and 9 a.m." Mr. Wagner stated in a deposition that the no trespassing signs had been posted there for years before the accident, but that strangers intermittently stole them or tore them down. He did not know whether the signs were up on the night in question. A private detective who investigated the accident scene a month after the accident, stated in an affidavit that no "No Trespassing" signs were posted anywhere near the chain. Another affiant, and neighbor of the Wagners, swore that on the night of the accident there were no such signs either on or near the chain, and no other warning signs or indicia that the driveway was private.
; DeGroft v. Lancaster Silo Company, 72 Md.App. 154, 159, 527 A.2d 1316 (1987). Even where one shows a material dispute as to a fact, however, Lynx v. Ordnance Products, 273 Md. 1, 8, 327 A.2d 502 (1974); King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985). "In ruling on a motion for summary judgment, all disputed facts and inferences therefrom should be viewed in the light most favorable to the party against whom the motion is made." Berkey v. Delia, 287 Md. 302, 306, 413 A.2d 170 (1980); DeGroft, 72 Md.App. at 160, 527 A.2d 1316.
The Doehrings argue that a material dispute exists concerning the status of the decedent at the time of his death with respect to the driveway given that, according to them, the road was held out as a public road. If in accordance with Berkey and DeGroft we resolve all inferences in the Doehrings' favor, we still must find that the resolution of this dispute will affect the outcome of the case.
The Doehrings bolster their argument with Restatement (Second) of Torts § 367 (1965) which provides:
Dangerous Conditions of Land Appearing to be a Highway
A possessor of land who so maintains a part thereof that he knows or should know that others will reasonably believe it to be a public highway is subject to liability for physical harm caused to them, while using such part as a highway, by his failure to exercise reasonable care to maintain it in a reasonably safe condition for travel.
The Doehrings maintain that under § 367, the Wagners, as possessors of the right-of-way 3 should have known that motorcyclists would reasonably have believed it to be a public road since they frequently used it without reprimand, and since it was paved. Under this theory, the Wagners are therefore subject to liability for the decedent's death which occurred during his use of the right-of-way.
As the Doehrings recognize, § 367 is intended for application only to situations where either a private road branching off a public highway is so constructed that persons traveling on the highway would reasonably regard it as a continuance of the highway, or where a possessor of land has paved a strip of his land adjoining a public highway so that it appears to be a part of the highway. Restatement (Second) of Torts at § 367 comment c. For reasons we shall explain, we do not adopt this authority in this case.
The Court of Appeals has said on many occasions that the standard of care owed by an owner or occupier of land to an individual depends upon the status of that individual with respect to the land. Rowley v. Mayor and City Council of Baltimore, 305 Md. 456, 464, 505 A.2d 494 (1986); Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265 (1972). Maryland courts have consistently rejected entreaties that we alter the common law classifications of invitee, licensee and trespasser. See Murphy v. Gas & Electric Company, 290 Md. 186, 195, 428 A.2d 459 (1981); Sherman v. Suburban Trust Company, 282 Md. 238, 247-49, 384 A.2d 76 (1978); Mech v. Hearst Corporation, 64 Md.App. 422, 430, 496 A.2d 1099 (1985). That decision lies properly within the discretion of the legislature. See Casper & Kirtscher v. Smith, 316 Md. 573, 584, fn. 8, 560 A.2d 1130 (1989); Murphy, 290 Md. at 195, 428 A.2d 459.
Turning to those common law classifications, invitees are, generally speaking, those who enter an owner's property in connection with his business. Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157, 131 A.2d 470 (1957). An invitation may be implied, however, from such circumstances as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of the premises. 4 Id. at 159, 131 A.2d 470. We said in Woodward v. Newstein, 37 Md.App. 285, 293, 377 A.2d 535 (1977):
[B]efore the status of invitee may be established by implication, there must be, in the conduct or words of the possessor, some inducement or encouragement to enter, and mere permission or acquiescence is not sufficient. As the Restatement points out in comment a. to § 332, supra, In determining the existence or not of an invitation in the legal sense, the Restatement goes on to point out that "the important thing is the desire or willingness to receive that person which a reasonable man would understand as expressed by the words or other conduct of the possessor." Restatement § 332, comment c.
"A licensee is one privileged by virtue of proper consent to enter another's property for his own purpose or convenience." Kight v. Bowman, 25 Md.App. 225, 229, 333 A.2d 346 (1975).
"A trespasser is one who intentionally and without consent or privilege...
To continue reading
Request your trial
-
State v. Cottman Transmissions Systems, Inc.
...Arnold Developer v. Collins, 318 Md. 259, 567 A.2d 949 (1990); King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Doehring v. Wagner, 80 Md.App. 237, 242, 562 A.2d 762, rev'd on other grounds, 315 Md. 97, 553 A.2d 684 (1989); Bennett v. Baskin & Sears, 77 Md.App. 56, 95-96, 549 A.2d 393......
- Macias v. Summit Mgmt., Inc.
-
Wells v. Polland
... ... to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right.' " Wagner v. Doehring, 315 Md. 97, 102-03, 553 A.2d 684 (1989) (quoting W. PROSSER, THE LAW OF TORTS § 58 at 395 (W. KEETON 5th ed. 1984) (footnote omitted)) ... ...
-
Richardson v. Nwadiuko
... ... Westfield Am., 153 Md.App. 586, 592, 837 A.2d 981 (2003); Wells v. Polland, 120 Md.App. 699, 709, 708 A.2d 34 (1998); and Doehring v. Wagner, 80 Md.App. 237, 243, 562 A.2d 762 (1989)). In Deboy v. City of Crisfield, this Court explained: ... The highest duty ... ...