Fitzgerald v. Montgomery County Bd. of Ed.

• Decision Date: 01 May 1975
• Docket Number: No. 954,954
• Citation: 336 A.2d 795,25 Md.App. 709
• Parties: Allyn M. FITZGERALD et al. v. MONTGOMERY COUNTY BOARD OF EDUCATION.
• Court: Court of Special Appeals of Maryland

Page 709

25 Md.App. 709

336 A.2d 795

Allyn M. FITZGERALD et al. v. MONTGOMERY COUNTY BOARD OF EDUCATION.

No. 954.

Court of Special Appeals of Maryland.

May 1, 1975.

Certiorari Denied July 3, 1975.

D. Warren Donohue, Rockville, with whom were Edith M. Gelfand, Trimm, Donohue, McDanald, Willis & McGuckian, Rockville, on the brief, for appellants

Craig S. Rice, Rockville, with whom were McInerney, Layne, McCormick, Sullivan & Rice, Rockville, on the brief, for appellee.

Argued before ORTH, C. J., and THOMPSON and MOYLAN, JJ.

ORTH, Chief Judge.

STATEMENT OF THE CASE

An action in tort was instituted in the Circuit Court for Montgomery County by Allyn M. Fitzgerald, a minor, by her father and next friend, Thomas S. Fitzgerald, and Thomas S. Fitzgerald, individually (appellants), against the Montgomery County Board of Education (appellee) claiming damages for personal injuries to the minor and expenses incurred by the father due to appellee's negligence. Appellee filed a general issue plea ¹ and answers to interrogatories propounded by appellants. Interrogatories propounded by appellee were not answered. Depositions of appellants, James H. Stubbings, a student, and Thomas S. Fitzgerald, Jr., Allyn's brother, called for examination by appellee, and the deposition of Conley Jones, maintenance supervisor of the Mongomery County Public Schools, called for examination by appellants, were filed. Appellee moved for summary judgment and submitted a memorandum of points and authorities in support thereof and an affidavit by Jones. Appellants filed a memorandum in opposition to the motion. The motion was granted upon hearing and on 22 November 1974 a judgment was entered in favor of appellee for costs. Appellants noted a timely appeal.

ISSUE FOR DECISION

The issue before us is the propriety of the grant of the motion for summary judgment. We find that the motion was properly granted and affirm the judgment.

SUMMARY JUDGMENT

In an action, a party asserting a claim or a party against whom a claim is asserted may move for a summary judgment in his favor as to all or any part of the claim on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. Maryland Rule 610, § a 1. The judgment shall be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to a judgment as a matter of law. Rule 610, § d 1. 'The function of the summary judgment procedure is not to try the case or decide the issues of fact raised; it is merely to determine whether or not an issue of fact is to be tried and if there is none, to cause judgment to be rendered accordingly.' Salisbury Beauty Schools v. State Board, 268 Md. 32, 40, 300 A.2d 367, 373. Here it is agreed that a real dispute as to material facts did not exist, so that the issue is a legal one. When there is no genuine dispute as to a material fact, the critical question for the trial court is what te ruling of law should be upon those undisputed facts. Brewer v. Mele, 267 Md. 437, 441, 298 A.2d 156, 159. 'In reviewing the granting of a summary judgment itself, we are concerned with whether the trial judge was legally correct.' Id.

THE UNDISPUTED FACTS

Allyn M. Fitzgerald was 6 years of age. On 15 June 1972, her father took her, her mother, her brother, age 15 years, and Stubbings, a friend of the brother, also 15 years of age, to the parking lot of Magruder High School, owned and maintained by appellee. They arrived between 6:15 and 6:30 p. m., long after school hours. The purpose of the trip was to enable the brother and his friend to ride a go-cart on the lot.

There was an electric light pole on the lot, mounted on a concrete pillar about two and a half feet high. Allyn stood on this pillar. The metal cover had been removed from an opening in the pole, and protruding therefrom were three wires carrying 227 volts of electrical current. Allyn's legs came in contact with these live wires and she received an electrical shock. Her father found her on the ground unconscious and applied mouth-to-mouth resuscitation until she regained consciousness. Her legs were burned and she was taken to the hospital. No warning had been given by appellee to appellants with respect to the exposed wires. Although Stubbings stated in his deposition he observed the exposed wires two weeks before, when he was riding a go-cart on the lot, appellee had no actual knowledge that they were exposed. Nor did appellee know that appellants were on the parking lot, it had not given them or those who accompanied them permission to use the lot for go-cart riding. None of those involved attended the school nor were they engaged in school activites when the accident occurred.

THE LAW

Determination of the propriety of the grant of the motion for summary judgment turns on the standard of care owed to a bare licensee by the owner of real property. Appellants concede that Allyn was a bare licensee, ² but it is immaterial in the frame of reference of our appellate review whether she was such a licensee or a trespasser, for the standard of care is the same as to each.

It was early established in this jurisdiction, consistently followed, and recently affirmed that a bare licensee or a trespasser, even one of tender years, takes the property as he finds it and is owed no duty by the owner except that he may not be wilfully or wantonly injured or entrapped by the owner once his presence is known. See, for example, Bramble v. Thompson, supra, 264 Md. at 521, 287 A.2d 265; Osterman v. Peters, 260 Md. 313, 314, 272 A.2d 21; Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 400, 265 A.2d 897; Hicks v. Hitaffer, 256 Md. 659, 666, 261 A.2d 769; Herring v. Christensen, 252 Md. 240, 241, 249 A.2d 718; Mondshour v. Moore, 256 Md. 617, 619, 261 A.2d 482; Carroll v. Spencer, 204 Md. 387, 394, 104 A.2d 628. In Hicks, Smith, J., collected and categorized prior opinions of the Court of Appeals involving the rule over a period of 75 years. Since Mergenthaler v. Kirby, 79 Md. 182, 28 A. 1065, decided in 1894, the Court has uniformly rejected any exception to it. ³

The standard of care in this jurisdiction owed by an owner of real property to a bare licensee or trespasser is essentially what is known as the Massachusetts rule, under which the owner's sole duty is to abstain from intentional injury. In Carroll v. Spencer, supra, 204 Md. at 393, 104 A.2d 628, the Court of Appeals observed that it was made clear in Jackson v. Pennsylvania R.R., 176 Md. 1, 3 A.2d 719 and Duff v. United States, 171 F.2d 846 (4th Cir. 1949) that Maryland continues to follow the substance of the Massachusetts rule. The Court said in Carroll, 204 Md. at 393-394, 104 A.2d at 631:

'In the Duff case, Judge Soper said for the Court, at page 850 of 171 F.2d: 'Generally speaking, the owner of land in Maryland owes no duty with respect to the condition of his land to a trespasser, or even to a licensee, whose presence upon the land is known to him, except to abstain from wilful or wanton misconduct. Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973, 20 L.R.A. 714, 39 Am.St.Rep. 436. The owner owes no duty to the trespasser or licensee to keep the premises safe or to anticipate his presence and warn him, and the trespasser or licensee acquires no right of recovery except in the case of wilful injury. Gordon Sleeprite Corp. v. Waters, 165 Md. 354, 168 A. 846; Pellicot v. Keene, 181 Md. 135, 28 A.2d 826; Steinwedel v. Hilbert, 149 Md. 121, 131 A. 44."

Appellants recognize the rule followed in Maryland but suggest that it has been modified. They urge that the owner 'must warn a licensee of hidden dangers which he knows of or ought reasonably to have known of.' They seek support in Restatement (Second) of Torts § 342 (1965) in Myszkiewicz v. Filling Stations, 168 Md. 642, 178 A. 856, in M. L. E., Negligence § 35, and in Hensley v. Henkels & McCoy Inc., supra.

Restatement (Second) of Torts, Title B, 'Liability of Possessors of Land to Trespassers', §§ 333-339; Title C, 'General Liability of Possessors of Land to Licensees and Invitees', §§ 340-341; and Title D, 'Special Liability of Possessors of Land to Licensees, § 342, contain the essence of what has been called the Michigan rule and includes the attractive nuisance doctrine. Generally, it requires that the owner of land owes the duty to a licensee on the premises to exercise ordinary care to avoid injury to the licensee who the owner knows or by exercise of ordinary care should know is in a position of peril; the fact that the presence of the licensee or trespasser is known, requires the owner to exercise ordinary care as to him. This was expressly repudiated in Jackson v. Pennsylvania R.R., supra, 176 Md. at 11, 3 A.2d at 724, the Court noting that the Restatement 'imposes a greater degree of care upon the owner than is enforced by the decisions of this Court.' Appellants point specifically to § 342 of the Restatement concerning dangerous conditions known to the owner. But the standard of care it imposes is simply not the law of this State with respect to bare licensees and trespassers.

Duff v. United States, supra, 171 F.2d at 850, suggests that Myszkiewicz v. Filling Stations, supra, qualified the Maryland rule to the extent that where the owner has acquiesced in the use of the premises by a licensee and has created a new and abnormal condition which increases the danger beyond that which the licensee has reason to regard as naturally attaching to his habitual user, the owner must give notice of the change, or as stated in other cases, the owner must not entrap the licensee or change the premises so as to create new dangers not apparent without giving warning. The language in Myszkiewicz apparently stemmed from a quotation in State v. Machen, 164 Md. 579, 583, 165 A. 695, from Burdick Law of...