Howard County Bd. of Educ. v. Cheyne

• Decision Date: 01 September 1993
• Docket Number: No. 522,522
• Citation: 636 A.2d 22,99 Md.App. 150
• Parties: , 88 Ed. Law Rep. 1110 HOWARD COUNTY BOARD OF EDUCATION v. Leland R. CHEYNE, et al. ,
• Court: Court of Special Appeals of Maryland

Page 150

99 Md.App. 150

636 A.2d 22, 88 Ed. Law Rep. 1110

HOWARD COUNTY BOARD OF EDUCATION v. Leland R. CHEYNE, et al.

No. 522, Sept. Term, 1993.

Court of Special Appeals of Maryland.

Jan. 27, 1994.

J. Michael Sloneker, argued (M. Bradley Hallwig, Jill R. Leiner and Anderson, Coe & King, on the brief), Baltimore, for appellant.

Robert B. Williams, argued (Williams and Hanson, on the brief), Ellicott City, for appellees.

Argued before BLOOM, DAVIS and MOTZ, JJ.

DAVIS, Judge.

Appellees, Leland Cheyne and Cathy Cheyne, initiated suit in the Circuit Court for Howard County against the Howard County Board of Education (Board) (appellant herein), Howard County, the Howard County Department of Parks and Recreation (Department of Recreation), and the Nissan Corporation. The dispute arose from injuries suffered by Tiffany Cheyne, appellees' four-year-old daughter, while on the premises of the West Friendship Elementary School. Howard County, the Department of Recreation, and Nissan were each dismissed from the case. At the close of all evidence, the trial judge ruled as a matter of law that Tiffany Cheyne was an invitee of the Board throughout the entire time she was on the school premises. On September 11, 1992 a verdict was rendered against the Board. Final judgment was entered January 8, 1993. The Board filed a timely notice of appeal and raised the following questions for our review:

I. Whether the trial court erred in denying [appellant's] motion for judgment at the conclusion of all the evidence and finding as a matter of law that Tiffany Cheyne was an invitee and instructing the jury based on this finding where there was no legally sufficient evidence to support a finding that Tiffany Cheyne was an invitee.

II. Whether the trial court erred in ruling that Tiffany Cheyne was an invitee at all times while at the school and failing to instruct the jury on the law with respect to exceeding the scope of an invitation and trespass to chattels when the evidence supported such instructions.

FACTS

The Education Article of the Maryland Annotated Code (ED), § 7-108 (1992), provides that "[e]ach county board shall encourage the use of public school facilities for community purposes." Consistent with this legislation, the Board adopted a policy to encourage the use of its facilities, including the West Friendship gymnasium, by community organizations. The Howard County Public School Sys. Policy, Use of School Facilities by Nonschool Groups (hereinafter Facilities Policy), no. 11111.1. The public school policy contained detailed procedures for gaining permission to use school facilities, a schedule of charges, and a list of standards that users must follow. The Department of Recreation is not charged a fee for use of school facilities, pursuant to an agreement with the Board. On November 23, 1987 the Board granted permission for the Department of Recreation to use the West Friendship school gymnasium to conduct a basketball league on Saturdays from January 9, 1988 through March 26, 1988.

On February 6, 1988 Tiffany Cheyne went to the West Friendship gymnasium with her mother and father to watch her brother participate in a basketball league organized by the Department of Recreation. The program was designed for children between the ages of six and seven years old. Mr. Cheyne was a volunteer coach for the basketball league. Arriving at approximately 10:00 a.m., the family watched a scrimmage that ended at approximately 11:30 a.m. The Cheynes stayed after the scrimmage, and Mrs. Cheyne shot baskets with Tiffany, who would apparently retrieve the ball for her. According to the testimony of Mr. and Mrs. Cheyne, by this time all of the participants and spectators had left with the exception of the Cheynes and one other family. While retrieving a ball, Tiffany allegedly rolled over the ball and her face struck a piece of exercise equipment known as the "phys-educator," which was in its folded position and resembled a ladder leaning against a wall. The evidence revealed that two lower hinges were broken, resulting in the projection of two metal bars that should properly be flush with the outer edges of the phys-educator. There was contradictory evidence at trial, from a treating physician, that possibly Tiffany was injured when she fell from a ladder. Tiffany's severe injury resulted in removal of her right eye.

The Board moved for judgment in its favor at the close of appellees' case and, at the conclusion of all the evidence, argued that Tiffany was at most a licensee and therefore the Board had not breached a duty owed. Ultimately, the court ruled as a matter of law that Tiffany was an invitee and that she remained so throughout the time she was at the school.

LEGAL ANALYSIS

General Principles

We are asked to determine the legal status of a four-year-old child on the premises of a public school to attend a sports function sponsored, not by the individual school or the Board of Education, but by the Department of Recreation. This precise issue is one of first impression in this State. Nonetheless, we have found sufficient guidance in our case law to conclude that Tiffany was an invitee of the Board when she entered the school gymnasium and that the determination of whether she maintained this status was a question of fact for the jury.

Maryland law maintains the common law classifications of invitee, licensee, and trespasser. Rowley v. Mayor of Baltimore, 305 Md. 456, 464, 505 A.2d 494 (1986); Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265 (1972). See also Casper v. Charles F. Smith & Son, Inc., 316 Md. 573, 584 n. 8, 560 A.2d 1130 (1989) (questioning the usefulness of distinct standards of care for a licensee and invitee). An invitee is, in general, a person invited or permitted to enter or remain on one's property for purposes connected with or related to the possessor's business. A licensee is one who enters property with the possessor's knowledge and consent but for his own purpose or interest. Bramble, 264 Md. at 521, 287 A.2d 265.

Invitee status can be established under two doctrines: (1) mutual benefit or (2) implied invitation. The mutual benefit theory is typified by the person who enters a business establishment to purchase goods or services. This theory places great weight on the subjective intent of the plaintiff. The court must inquire: Did plaintiff intend to benefit the landowner in some manner? We do not find that Tiffany was an invitee under the mutual benefit doctrine because there is no evidence of a mutual benefit. ¹

The theory of implied invitation, in comparison, is objective and does not rely on any mutual benefit; it gains its vitality from such circumstances as custom, the habitual acquiescence of an owner, the apparent holding out of premises for a particular use by the public, or the general arrangement or design of the premises. Crown Cork and Seal Co. v. Kane, 213 Md. 152, 159, 131 A.2d 470 (1957). The crux of the implied invitation theory is the distinction between mere acquiescence and direct or implied inducement. Id.

Kane is the seminal Maryland case on implied invitation. In that case, Kane, a truck driver, while waiting for his truck to be loaded, left the docking area and proceeded to a smoking room in Crown's basement. Since no smoking was permitted in the docking area, Kane, like numerous other truckers, habitually accessed the smoking room during their wait. As he was returning from the basement, Kane was struck and injured by a forklift. In reaching its holding--that there was legally sufficient evidence to take the issue of implied invitation to the jury--the Court explicated and relied upon the growing doctrine of implied invitation. The Court stated that

[t]he gist of [implied invitation] liability consists in the fact that the person injured did not act merely on motives of his own, to which no act or sign of the owner or occupier contributed, but that he entered the premises because he was led by the acts or conduct of the owner or occupier to believe that the premises were intended to be used in the manner in which he used them, and that such use was not only acquiesced in, but was in accordance with the intention or design for which the way or place was adapted and prepared or allowed to be used. [Citations omitted.]

Id. at 160, 131 A.2d 470 quoting Kalus v. Bass, 122 Md. 467, 473, 89 A. 731 (1914).

Based on this rationale, the Court found that the facts that the room was set aside for smoking, that its location was made known to the plaintiff by Crown employees on two prior occasions, that the room was habitually used by truckers, that this use was known by the foreman, and the absence of any notice to plaintiff that the room was solely for employees led to the conclusion that there was legally sufficient evidence to instruct the jury on implied invitation. Kane, 213 Md. at 162, 131 A.2d 470.

More recently, in Doehring v. Wagner, 80 Md.App. 237, 244, 562 A.2d 762 (1989), and Woodward v. Newstein, 37 Md.App. 285, 293, 377 A.2d 535 (1977), we have discussed Kane 's explication in view of the Restatement (Second) of Torts § 332 comment c (1965), (hereinafter Restatement ), "Factors important in determining invitation," which states 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."

Tiffany's status vis-a-vis the Department of Recreation is not raised in this appeal, but we may reasonably assume, arguendo, that she was an invitee of the Department of Recreation. Tiffany's relationship to the Board can follow two lineages: (1) through the Department of Recreation or (2) directly to the Board. Whichever lineage is followed, Tiffany was an invitee.

I.

A. Tiffany was an invitee of the Department of Recreation,

which was an invitee of the Board of Education

The Education Article mandates that the Board shall encourage the use...