Finzel v. Mazzarella

• Decision Date: 07 December 1967
• Docket Number: No. 694,694
• Citation: 248 Md. 227,235 A.2d 726
• Parties: Stanley William FINZEL v. Angelo MAZZARELLA, etc.
• Court: Maryland Court of Appeals

Page 227

248 Md. 227

235 A.2d 726

Stanley William FINZEL v. Angelo MAZZARELLA, etc.

No. 694.

Court of Appeals of Maryland.

Dec. 7, 1967.

Horace P. Whitworth, Jr., Westernport, for appellant.

Lewis R. Jones, Oakland, for appellee.

Before HAMMOND, C. J., and BARNES, McWILLIAMS, FINAN and SINGLEY, JJ.

McWILLIAMS, Judge.

Appellant (Finzel), in pursuit of damages for the interment of his truck, wound up instead with a judgment against himself for costs. He now complains that the verdict of the trial judge, sitting without a jury, was clearly erroneous. We do not agree.

Finzel, aged 45, lives at Grantsville in Garrett County. For the past 20 years he has been employed as a shovel operator in the strip mining business. As a sideline he does contract hauling with his '1964 Ford two-ton truck.' He also owns a 'barroom.' The appellee (Mazzarella), aged 44, lives just across the Mason-Dixon line in Pennsylvania. He has been strip mining since 1955 and for 6 years he has been working a property in the mountains near Bittinger. Finzel has been hauling coal for Mazzarella, off and on, for 'the entire six years.'

In open-pit or strip mining the coal seam is exposed by removing the overlying dirt, rock and shale with power shovels or bulldozers. In the case at bar the overburden was thrown, as is customary, to the downhill side, becoming what is called the 'spoil pile.' The uphill side of the pit is known as the 'high wall.' The spoil pile was, in this instance, about 30 feet high. When the seam of coal has been laid bare a power shovel is used to load the coal directly into trucks which must be moved into the pit close to the shovel.

On Sunday night, 30 January 1966, Mazzarella told Finzel to send out his truck the next morning as he was going to load coal. He said it was not raining at the time. When Finzel's truck, driven by Paul Wilhelm, aged 24, arrived at the pit on Monday morning, Mazzarella had already loaded two trucks. At the time it was 'raining awful,' according to Finzel. Mazzarella said 'it was very rainy and it was thawing.' Finzel said 'it had rained (for) a couple (of) days.' At the pit where Finzel was employed they 'quit hauling * * * on account of the rain.' Mazzarella testified 'it was actually too wet to work' and that 'everybody was wet and wanted to go home.' Since 'the trucks were there,' however, he didn't 'want to send them out empty' so he thought he 'would try to load them.' Wilhelm backed his truck into the pit close to the shovel, as did the drivers of the first two trucks, and stood on top of it while it was being loaded. When the truck was about three-quarters full 'the low wall (spoil pile) * * * slid in and covered it up.' Neither Wilhelm nor Mazzarella was injured.

Later in the day Finzel said he found Mazzarella and Wilhelm 'sitting in * * * (his) barrom waiting to see what * * * (he) wanted to do' about the truck. Spurred to action by Finzel they went back to the pit and 'drug the truck out.' Had they not acted promptly, Finzel said, the truck 'would have been in there for days.'

When Mazzarella's insurer refused to pay for the rehabilitation of the truck Finzel filed suit in the Garrett County circuit court. The case was tried before Hamill, J., sitting without a jury, on 15 December 1966. On 19 January 1967 Judge Hamill filed an opinion in which he set forth his reasons for entering a verdict in favor of Mazzarella. He said Finzel failed to establish primary negligence on the part of Mazzarella. He pointed out that while the rain had created a dangerous situation it 'was no more of a dangerous situation than is customary and usual in strip mining operations.' He found 'no evidence or testimony whatsoever' to show that Mazzarella 'had any knowledge or any way of obtaining knowledge that the spoil pile would slide onto' Finzel's truck, nor, he added, was there 'anything unusual or negligent in the conduct of * * * (Mazzarella's) mining operation.'

Finzel, in his declaration and in his brief in this Court, asserts that he (and his property) are entitled to the status of a business invitee and that Mazzarella was remiss in his duty to use reasonable care to see that his premises were safe for the purpose for which Finzel was invited to enter thereon. He charges 'no warning was given * * * of the existence of said condition or the danger created thereby.' The general principles governing the relationship of a possessor of land and a business invitee have been discussed in recent decisions. Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967); Honolulu, Ltd. v. Cain, 244 Md. 590, 224 A.2d 433 (1966).

Obviously inherent in the general principles set forth in the above mentioned cases is the proposition that a possessor of land is usually under no obligation to protect an invitee against dangers which are known to the invitee. See, W. Prosser, Law of Torts, sec. 61, p. 403 (3rd ed. 1964). In Yaniger v. Calvert Bldg. & Const. Co., 183 Md. 285, 289, 37 A.2d 263, 264 (1944) it was said:

"The true ground of liability is the proprietor's superior knowledge of the perilous instrumentality or the danger therefrom to persons going upon the property. It is when the perilous instrumentality is known to the owner or occupant, and not known to the person injured, that a recovery is permitted. * * * And hence there is no liability for injuries from dangers that are obvious, or as well known to the persons injured as to the owner or occupant." Quoting from 20 R.C.L., Negligence (emphasis...