Gallagher v. Pierhomes

• Decision Date: 01 October 2008
• Docket Number: No. 1516 September Term, 2007.,1516 September Term, 2007.
• Parties: Michela GALLAGHER v. H.V. PIERHOMES, LLC et al.
• Court: Court of Special Appeals of Maryland

957 A.2d 628

182 Md. App. 94

Michela GALLAGHER v. H.V. PIERHOMES, LLC et al.

No. 1516 September Term, 2007.

Court of Special Appeals of Maryland.

October 1, 2008.

William M. Huddles (Nicole L. Campbell, Huddles, Jones, Sorteburg & Dachille, P.C., on the brief), Columbia, MD, for Appellant.

Jean-Maries Sylla, Jr. and Jonathan E. Agin (Taylor, Sylla & Agin, LLP, on the brief), Washington, DC, for Appellee.

Panel: SALMON, DEBORAH S. EYLER and RONALD RUBIN, Specially Assigned, JJ.

RONALD RUBIN, Judge, Specially Assigned.

We are asked in this case to extend the doctrine of strict liability for abnormally dangerous activities, currently expressed in the Restatement (Second) of Torts §§ 519 and 520 (1977), to pile driving operations conducted at the Baltimore Inner Harbor that resulted in property damage to Gallagher's residence, located 325 feet from the construction site. We also are asked to declare that pile driving, in the factual circumstances presented in this case, constitutes both a public and a private nuisance. We shall decline all of those requests and, consequently, affirm the well-reasoned decision of the circuit court.

The plaintiff in this case, Michela Gallagher, appeals from the decision of the Circuit Court for Baltimore City, which granted the motion of the defendants, HV Pierhomes, LLC and HV Development & Contracting Co., for judgment notwithstanding the jury's verdict. The jury returned a verdict of $55,189.14 in Gallagher's favor for damage to her home which, the jury found, was caused by the defendants' pile driving activities in connection with the construction of waterfront townhomes at the Baltimore Inner Harbor. After a hearing, the circuit court granted the defendants' motion under Rule 2-532. The plaintiff timely noted an appeal and raised the following questions for review,¹ which we have slightly rephrased:

1. Did the trial court err in concluding that pile driving is not an abnormally dangerous activity?

2. Did the trial court err in concluding that the plaintiff had not proven a claim for private nuisance?

3. Did the trial court err in concluding that the plaintiff had not proven a public nuisance?

We are asked in this case to extend the doctrine of strict liability for abnormally dangerous activities, currently expressed in the Restatement (Second) of Torts §§ 519 and 520 (1977), to pile driving operations conducted at the Baltimore Inner Harbor that resulted in property damage to Gallagher's residence located 325 feet from the construction site.

The Proceedings Below

On June 14, 2005, Gallagher sued HV Pierhomes LLC and HV Development & Contracting Co. The initial complaint contained claims for negligence, strict liability, and public and private nuisance. On December 21, 2005, Gallagher filed an amended complaint, which abandoned the negligence claim. All of Gallagher's claims for relief arose out of the pile driving operations conducted by the defendants on the site of the former Key Highway Shipyard. Gallagher contended that vibrations from the pile driving damaged her home, located at 423 East Hamburg Street in Baltimore. Key Highway; a row of mixed use properties; Covington Street; a retaining wall; and a solid earthen wall, on which Gallagher's house rests, separate Gallagher's house from the pile driving site.

The Key Highway Shipyard, formerly owned by the Bethlehem Steel Corporation, was used to repair navel ships during World War II and through the Vietnam War. A shipyard of some sort has operated at this location from the beginning of the 20th century until 1982, when Bethlehem Steel closed the facility.

The defendants demolished the original shipyard piers, which were built 40 to 50 years ago and constructed new piers in the same location, by driving piles into the Baltimore Inner Harbor. The defendants built 58 townhomes on these new piers. Pile driving was the only method of constructing the new townhomes in this particular location because the U.S. Army Corps of Engineers would not allow the Inner Harbor to be "back filled."² The pile driving of which Gallagher complained occurred periodically between September 2003 and October 2004.³

The plaintiff's home was constructed shortly before the War of 1812. She testified that no pile driving was conducted in the area during the years she lived in the house, beginning in 1997, until the defendants' activities commenced in September 2003. Previously, pile driving was used to build the Seagirt Marine Terminal, the Dundalk Marine Terminal, as well as the Pratt and Light Street Pavilions, which are located across from the plaintiff's residence in the Inner Harbor.

Before the defendants began their project, permits were received from the U.S. Army Corps of Engineers, the Maryland Department of the Environment, and the City of Baltimore. The permitting process took approximately two years. Pile driving on the site began only after geotechnical studies were conducted by engineering firms. During the course of actual pile driving, two permanent seismic stations and five mobile geophones were placed in the surrounding neighborhood to ensure that vibrations were monitored and did not exceed the limits established by the engineers. During the course of the defendants' activities, there was only a single recorded vibration that exceeded the limits.

The case proceeded to trial on December 15, 2006. The plaintiff testified that she heard and felt vibrations from the pile driving in her home. She further testified that cracks began to develop in her plaster walls and in other portions of her home soon after the pile driving began and that no cracks occurred once the pile driving was completed. She was not aware of any other residents in the area who made claims or filed lawsuits for damage to their homes as a result of the vibrations caused by the defendants' pile driving. No evidence of any other claims or suits on account of pile driving vibrations was presented at trial.

Following the presentation of the plaintiff's case, the defendants moved for judgment under Rule 2-519. The circuit court reserved its decision on the motion. The defendants presented their case-in chief and, thereafter, renewed their motion for judgment. The circuit court, after receiving additional written submissions from the parties again reserved its decision on the motions for judgment and allowed the case to go to the jury.⁴ On December 21, 2006, the jury returned a verdict in Gallagher's favor. The jury found that: (1) pile driving caused damage to Gallagher's home, and HV Pierpont and HV Development were responsible for the pile driving; (2) the pile driving created a public nuisance; (3) the pile driving created a private nuisance; and (4) Gallagher suffered damages in the amount of $55,189.14.

After the jury's verdict was announced, the defendants renewed their motions for judgment. After memoranda were submitted the circuit court held a hearing. By Order entered on August 20, 2007, the circuit court granted the defendants' motion for judgment notwithstanding the verdict on all claims. Gallagher timely noted this appeal. Additional facts will be discussed, as necessary.

Standard of Review

A motion for judgment notwithstanding the verdict under Rule 2-532 "tests the legal sufficiency of the evidence." Impala Platinum, Ltd. v. Impala Sales (USA), Inc., 283 Md. 296, 326, 389 A.2d 887 (1978). "The court will deny the motion if there is any evidence, however slight, upon which a reasonable jury could have reached its verdict. The court must assume the truth of all credible evidence on the issue and all inferences fairly deducible therefrom in the light most favorable to the party against whom the motion is made." P. Niemeyer & L. Schuett, Maryland Rules Commentary 448 (3d ed. 2003).

In the words of Judge Sally Adkins (now serving on the Court of Appeals): "A party is entitled to a judgment not withstanding the verdict (JNOV) when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party's claim or defense." Jacobs v. Flynn, 131 Md.App. 342, 353, 749 A.2d 174 (2000) (emphasis added). See also Mahler v. Johns Hopkins Hospital, Inc., 170 Md.App. 293, 317-18, 907 A.2d 276 (2006); Ramsey v. Physician's Memorial Hospital, Inc., 36 Md.App. 42, 48-49, 373 A.2d 26 (1977).

Because the evidence before the circuit court was legally insufficient to support the imposition of strict liability in tort for the conduct in issue, or to establish a private or public nuisance, the granting of the motion was not error.

Strict Liability in Maryland

For more than a century, the Court of Appeals has recognized the doctrine of strict liability, derived initially from Rylands v. Fletcher, L.R. 3 H.L. at 338, Fletcher v. Rylands, 3 H. & C. 774, 159 Eng. Rep. 737 (1865), rev'd in Fletcher v. Rylands, L.R. 1 Ex. 265 (1866), aff'd in Rylands v. Fletcher, L.R. 3 H.L. 330 (1868). See Baltimore Breweries Co. v. Ranstead, 78 Md. 501, 28 A. 273 (1894); Susquehanna Fertilizer Co. v. Malone, 73 Md. 268, 20 A. 900 (1890). See also Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 212-13, 4 A.2d 757 (1939). The original "rule" of Rylands, erroneously, is said to be "that the person who, for his own purposes, brings on his land and collects and keeps there anything that likely to do mischief if it escapes, must keep it at his peril, and if he does not do so is prima facie answerable for all damage which is the natural consequence of its escape." Fletcher v. Rylands, L.R. 1 Ex. at 279-80. As Dean Prosser has explained: "In the House of Lords this broad statement was sharply limited, and placed upon a different footing. Lord Cairns said that the principle applied only to a `non-natural' use of the defendant's land, as distinguished from `any purpose for which it might in the ordinary course of the enjoyment of the land be used.'" W. Prosser & W. Keaton, Torts § 78 at 545 (5th ed. 1978), (...