Kirby v. Hylton

Decision Date08 April 1982
Docket NumberNo. 887,887
Citation443 A.2d 640,51 Md.App. 365
PartiesTimothy Patrick KIRBY, et al. v. C. D. HYLTON, et al.
CourtCourt of Special Appeals of Maryland

Albert D. Brault, Rockville, with whom were Janet S. Zigler and Brault, Graham, Scott & Brault, Rockville, on the brief, for appellants.

David A. Levin, Landover, with whom was W. Scott Sonntag, Landover, on the brief for appellee, Trenchcraft, Inc.

Robert C. Morgan, Baltimore, with whom were Roy L. Mason and Donahue, Ehrmantraut, & Montedonico Chartered, Rockville, on the brief for appellee, First Maryland Utilities, Inc.

Argued before LISS, COUCH * and BISHOP, JJ.

COUCH, Judge.

After their nine-year old son, Timothy, was fatally injured when run over by a heavy pipe, while rolling down a hill, on land owned by a water and sewer company, First Maryland Utilities (FMU), Donald and Dorothy Kirby brought suit in the Circuit Court for Prince George's County against FMU, a contractor, Trenchcraft, Inc., the developer of the housing development where the accident occurred, Hylton Enterprises, and C. D. Hylton and Irene Hylton. Following presentation of their case to a jury the trial judge (Mason, J.) ended the case by entering judgment in favor of the defendants, having granted motions for a directed verdict. Previously the Hyltons and Hylton Enterprises had been granted summary judgments. Appellants do not argue that the summary judgment motions were granted erroneously.

On appeal the Kirbys raise a host of issues concerning alternate theories under which they contend they were entitled to at least have the jury consider their case against FMU and Trenchcraft, Inc. They also contend the trial judge erred in certain of his evidentiary rulings.

The Facts

In 1967, Hylton Enterprises began developing Marlboro Meadows, a single family home community in southern Prince George's County. It appears that the general pattern of the subdivision involved clusters of homes with open space surrounding the housing areas. Water and sewer service for the community had to be provided by the developer as there was no other such system available. Appellants allege that to accomplish this, Mr. Hylton caused FMU to be incorporated, and further allege that he was the sole stockholder. Whether this is true has no bearing on the case. In an open area beyond the dead end of Village Drive North, FMU established a water plant consisting of water tanks, which were enclosed by a fence, and two buildings, one having the appearance of a two story house, the other of a garage. There was evidence that when Mr. and Mrs. Kirby visited the development in 1968, they were shown a model upon which it was indicated that the open area referred to above could be used as a play area for children. The Kirbys purchased a home on Village Drive North and, in 1969, moved in with their three children. The property of FMU was never delineated as separate from the designated open space by fencing or otherwise. There was evidence that the whole area was used by neighborhood children for the playing of tag and impromptu sports and that they built clubhouses by a nearby stream. On occasion the children would go into the water plant itself to buy soda from a dispensing machine. The two plant personnel, Taylor and Dodson, were known by and were friendly with the children. In 1973 FMU decided to build a lagoon below the water tank to handle a problem of excess lime being discharged into a stream below the plant. This involved installing drain pipes from the water tank to the lagoon; a contract was entered into with appellee Trenchcraft, Inc. for the job. Thereafter, the drain pipes were delivered to the property and placed on the ground outside the fence surrounding the water tanks. For some five weeks Trenchcraft, Inc. was occupied with other work and could not begin the lagoon project. There was evidence that during this time Mr. Taylor became aware that some of the pipes had been moved, despite being very heavy (1,850 pounds). He explained to some of the children that they could get hurt playing on the pipes. On October 23, 1973, as Mr. Taylor was leaving the plant to go pick up the mail, he observed some children below the plant building pushing a pipe. According to him, he told them to leave and waited until they had done so. There was testimony from some children to the effect that they did not see Mr. Taylor that morning. In any event, it appears that Timothy and several other children (10 or more) pushed one of the pipes up an incline toward the dead end of Village Drive North. It was the intention of the children, having reached a terrace in the slope, to get inside the pipe and ride it down the hill. Unfortunately, Timothy, who had helped push the pipe up the hill, did not get inside the pipe or out of its way when it was pushed so that it would roll down the hill. The pipe ran over him causing fatal injuries. This suit ensued.

Contentions

In the main, appellants contend:

1) there was sufficient evidence from which the jury could have found Timothy was an invitee on the FMU property;

2) there was sufficient evidence from which the jury could have found Timothy was a licensee by invitation;

3) FMU assumed a duty to act and the trial judge erred in not submitting that theory to the jury;

4) the trial judge erred in rejecting appellants' theory of strict liability;

5) the trial judge erred in not submitting to the jury their theory of liability based on violation of a statute;

6) the trial judge erred in directing a verdict in favor of Trenchcraft as there was evidence of a lack of due care on its part;

7) the trial court erred when it refused to permit the president of appellee Trenchcraft to testify as to actions involving the pipes performed by the company following the accident;

8) the trial court erred in sustaining appellees' objections to exhibits offered by appellants to illustrate representations made by Hylton Enterprises concerning the cluster open space located beyond Village Drive North.

The Law
Issues 1 and 2

Judge Digges, speaking for the Court of Appeals in Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972), set forth the guides and standards to be followed in determining liability in a matter of this kind. He stated in pertinent part:

"The liability of owners of real or personal property to an individual injured on their property is dependent on the standard of care owed to the individual and that in turn is contingent upon a determination of the individual's status while on the property, i.e., whether he is an invitee, licensee, or trespasser. An invitee is one invited or permitted to enter or remain on another's property for purposes connected with or related to the owner's business. The owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover. Morrison v. Suburban Trust Co., 213 Md. 64, 68-69, 130 A.2d 915 (1957); Peregoy v. Western Md. R.R. Co., 202 Md. 203, 207, 95 A.2d 867 (1953). A licensee is one privileged by virtue of proper consent to enter for his own purpose or convenience onto another's property. There are two types of licensees, a bare licensee and a licensee by invitation. A bare licensee takes the property as he finds it and, like a trespasser, he 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. Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157, 131 A.2d 470 (1957); Carroll v. Spencer, 204 Md. 387, 393, 104 A.2d 628 (1954); Peregoy v. Western Md. R.R. Co., supra. A licensee by invitation is a social guest who takes the premises as his host uses them. In general, the legal duty owed him by the host is to take the same care of the guest as the host takes of himself or members of his family. He must exercise reasonable care to make the premises safe for his guest or he must warn him of known dangerous conditions that cannot reasonably be discovered and which in fact are not discovered by the guest. Telak v. Maszczenski, 248 Md. 476, 237 A.2d 434 (1968); Paquin v. McGinnis, 246 Md. 569, 229 A.2d 86 (1967). A trespasser is one who intentionally and without consent or privilege enters another's property. 1 Poe, Pleading and Practice, 326-27, § 247 (6th ed. 1970); Restatement (Second) of Torts, § 158 (1965). The only duty of care a property owner owes to a trespasser, even one of tender years, is to refrain from wilfully or wantonly injuring the intruder. Mondshour v. Moore, 256 Md. 617, 619, 261 A.2d 482 (1970) and cases cited therein." Id. 264 Md. at 521, 287 A.2d at 267.

We particularly note that these rules apply equally to personalty and realty, a matter of some import here. As Judge Digges later stated in Murphy v. Baltimore Gas & Electric Co., 290 Md. 186, 191, 428 A.2d 459, 463, n. 3: "Whether the property being used is personalty or realty is of no consequence in the present cases because it is clear that the same common law rule applies to both types of property. Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972); Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 411, 265 A.2d 897, 905 (1970) (and cases cited in each)."

The appellants urgently contend that Timothy was either an invitee or licensee by invitation when upon FMU's land. Be that as it may, we fail to see how that helps their cause since it is abundantly clear that Timothy was a trespasser as to the pipe-the very instrument which caused his death. Being a trespasser, there simply was no duty upon either Trenchcraft or FMU running to Timothy except not wilfully to injure or entrap him.

Furthermore, assuming arguendo, that Timothy was deemed to have been an invitee upon FMU's land, when he and other children took the pipe from where it had been stored and rolled it up the slope, clearly he exceeded the...

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