Laser v. Wilson

• Decision Date: 10 April 1984
• Docket Number: No. 862,862
• Citation: 473 A.2d 523,58 Md.App. 434
• Parties: Adam Frederick LASER, et al. v. Cindy Lee WILSON, et vir. Sept. Term 1983.
• Court: Court of Special Appeals of Maryland

Page 434

58 Md.App. 434

473 A.2d 523

Adam Frederick LASER, et al. v. Cindy Lee WILSON, et vir.

No. 862 Sept. Term 1983.

Court of Special Appeals of Maryland.

April 10, 1984.

Alexander R. Martick, Baltimore, for appellants.

James P. Nolan, Annapolis, with whom were Kevin M. Schaeffer and Hartman & Crain, P.A., Annapolis, on brief, for appellees.

Argued before LOWE, WEANT and BISHOP, JJ.

LOWE, Judge.

The anticipated exuberance of a 1979 Christmas Laser family gathering abruptly ended when two-and-a-half-year-old Adam fell ten to twelve feet from an unguarded stair and landing, breaking his leg upon impact with the floor below. Adam is the son of Frederick Laser ¹ who, with his wife and two children, had been invited by Fred's sister Cindy Lee Wilson, and her husband Howard. The younger Lasers had been invited to join Fred and Cindy's father and stepmother and Howard Wilson's parents for Christmas at Cindy Wilson's home. Fred, Jr.'s family was the last to arrive and his never-too-cautious father, Fred, Sr., promptly warned his namesake son that the guard rail or banister had been removed from the stairs in his sister's split level home.

"The essence of the conversation was that I was warned of the missing guardrail and missing handrail. I said that I had noted that they were gone and that uh ... he asked me to watch my son closely. Which I said I would do."

Notwithstanding the grandfatherly concern expressed by this parental admonition, Fred, Jr. went to the kitchen and as he "reached into the refrigerator for a drink of beer", heard the commotion and a scream heralding the anticipated accident that ensued.

Upon arriving at the Wilson home Adam's mother Judith had tended the child's needs following a two hour drive. Thereafter she took him "in to sit with his grandparents and the other guests." Judith then went to the kitchen and helped her sisters by carrying food to the basement den where a buffet-dinner was to be served. As she reached the bottom of the steps she heard a thump and Fred, Sr. scream "Oh my God, the baby." Adam was lying at the bottom of the steps.

His injury was severe, but its extent is not an issue on this appeal. Adam's father and mother, individually and in a representative capacity, have appealed the judgment entered upon a verdict directed for defendants-appellees by the trial judge at the conclusion of the case the Lasers brought against the Wilsons, alleging a negligent breach of a duty that appellants claim was owed by the Wilsons to Adam.

The Lasers' primary preoccupation seems to be with the judge's explanation to the jury and his colloquy with counsel in which he acknowledged that the thirty-month-old child had not been warned that the railing was missing, although the child's father had been warned. Secondly they contend (without legal authority for support) that the parents should not have been directed out, presumably because neither was negligent as a matter of law. And thirdly (again without citation to support them) they complain that a building inspector's testimony should not have been stricken as irrelevant because he discussed an Anne Arundel County code violation which appellants contend was the proximate cause of the accident. Since the validity of the latter argument bears upon whether appellants proved sufficient evidence of negligence to warrant submission to a factfinder we will address the evidentiary complaint first.

The building inspector testified that the Anne Arundel County building code (which was never identified or offered here or at trial) ² required railings or banisters to be in place when homes were finally inspected after construction. Inspections were not made of residences after occupancy and the inspector initially stated that he knew of no requirement that handrails could not be removed after approval. He then contradicted himself in that regard, and expressed an opinion that the code did preclude subsequent removal. The judge found his testimony confusing and to the extent discernable, irrelevant. He struck it from the record.

Without knowing what code or statute is in question, neither the judge nor this Court can determine its relevance as a matter of law. Because appellants failed to apprise us or the judge, such failure alone justifies the judge's conduct.

To the extent the inspector's testimony suggests the content of the ordinance, statute or whatever, as described it addressed only compliance with construction code requisites. Even stretched interpretatively it applied only to initial occupancy permits. There is no evidence that this issue related at all to whether such railings or banisters were required as a condition of continued occupancy. To the extent that the inspector changed his mind regarding the interpretation of the illusory code, he was not offered or qualified as an expert in anything, let alone legal interpretation of county laws. Such interpretative responsibilities are primarily for a judge and if ambiguous may be a mixed question of law and fact; however, a building inspector, whose qualifications for such a duty are not before the court, may not express an opinion thereon. The judge did not err in holding the testimony to have been irrelevant and inadmissible.

With or without such testimony we are hard-pressed to find evidence of a breach of a duty owed to a social guest even if we assume the absent railing created a dangerous condition. Despite a vociferous dissent in Sherman v. Suburban Trust Co., 282 Md. 238, 250-254, 384 A.2d 76 (1978), the Court of Appeals has refused to abandon the common law distinctions between invitees, licensees and trespassers for purposes of the law of premises' liability. That distinction is at the root of appellants' problem.

A social guest is nothing more than a licensee to whom the possessor owes no duty of inspection and affirmative care to make the premises safe for his visit. Prosser, Torts, 378 (4th ed. 1971). Although some writers have suggested that social guests be treated as invitees, id. at 379, and some states which have abolished the distinction have done so, Maryland is not among them. In Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265 (1972), the Court of Appeals through Judge Digges addressed the varying duties and standards of care due invitees, licensees and trespassers. He pointed out that there are two types of licensees, a bare licensee whom he compared to a trespasser, and significantly for our purposes a licensee by invitation.

"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." Id. at 521-522, 287 A.2d 265.

That summary of the law arose from Paquin v. McGinnis, 246 Md. 569, 229 A.2d 86 (1967), where the duty owed by a host to a social guest in his home was first addressed. Judge Marbury explained for the Court that:

"A social guest who enters a premises at the express or implied invitation of the host is not an invitee in a legal sense even though he enters the premises upon the basis of the invitation. A social guest enters the premises of his host for his own benefit and convenience, and the hospitality the guest receives is bestowed gratuitously. The use of the premises is extended to him merely as a personal favor to him. As a sign of hospitality the host often treats the guest as 'one of the family' to whom is offered the first serving or the most comfortable chair. The legal duty owed to a social guest by a host is to take the same care of the guest that the host takes of himself and other members of his family." Id. at 572, 229 A.2d 86.

He went on to point out when, and only when, liability would fall upon a host, relying on the Restatement, Torts § 342 which the Court adopted.

"The Restatement (Second), Torts, Section 342, imposes liability upon a host for physical harm caused to guests by a condition on the premises if, but only if, (1) the host knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such guests, and should expect that they will not discover or realize the danger, and (2) the host fails to exercise reasonable care to make the condition safe, or to warn the guests of the condition and the risk involved, and (3) the guests do not know or have reason to know of the condition and the risk involved." 246 Md. at 572, 229 A.2d 86.

Emphasizing the very limited duty even to warn of dangers or defects, Judge Marbury pointed out that there is not even that duty where the host had no knowledge or means of knowledge of the danger or defect. Furthermore, if the condition "should be obvious" to the guest, the host need not warn him. Maryland has clearly turned a deaf ear to the social siren song sung by some law review writers (Prosser, supra ) that social guests be treated as invitees rather than licensees.

Despite that seeming set back, appellants contend that Maryland should not be so rigid when the social guest is a child. The Paquin adoption of § 342 of the Restatement of Torts permits a host, knowing of a dangerous condition (such as the removal of a guardrail), an alternative: either he may do something to make the condition safe or he must warn his guests of the condition and its risks. But to warn a child of such tender years is futile due to its inability to exercise judgment or discretion, or even negligently to contribute to its own injury. Miller v. Graff, 196 Md. 609, 78 A.2d 220 (1951). Here the judge himself commented upon the futility of such a warning to one so immature.

Appellants would extend Paquin 's adoption of § 342 of the Restatement of Torts by...