Levine v. Miller

• Decision Date: 27 October 1958
• Docket Number: No. 17,17
• Citation: 218 Md. 74,145 A.2d 418
• Parties: Clarence A. LEVINE et al. v. Morris MILLER et al.
• Court: Maryland Court of Appeals

Page 74

218 Md. 74

145 A.2d 418

Clarence A. LEVINE et al. v. Morris MILLER et al.

No. 17.

Court of Appeals of Maryland.

Oct. 27, 1958.

Stanley B. Frosh, Silver Spring, Max Kampelman and Eugene Gressman, Washington, D. C., for appellants.

John M. McInerney, Bethesda, for appellees.

Before BRUNE, C. J., and HENDERSON, HAMMOND, PRESCOTT and HORNEY, JJ.

HAMMOND, Judge.

The infant plaintiff below, Janet Levine, an appellant here, lived with her parents in Spring Knoll Apartments, one of the buildings of a large apartment development in Silver Spring. In the basement of another building of the development, known as Spring Garden Apartments, about a block away, was a recreation room which was kept locked by the owners of the apartment development, the defendants below and appellees here, so that it could not be used except by permission. On request by a tenant, use of the room was granted for special occasions or purposes. Those seeking to use the room would sign their name and be given the key. When the permitted use was over, the key would be returned to the office. Janet, who was then about ten years old, requested permission to use the recreation room as a day camp for some twelve children, aged two to five, whom she supervised for their mothers from time to time. The appellees agreed, provided the parents of the children gave their permission and signed a statement that they would be responsible for any accidents that happened while the children were using the room. A statement was prepared by Janet and another girl about the same age, who helped with the younger children, reading: 'May the children of the summer camp use the recreation room? We will be fully responsible of [sic] any accidents that happen during the time we are using the room. We will deeply appreciate it.' This was signed by the mothers of the children, including Mrs. Levine, and delivered to the appellees upon the understanding that Janet or her supervising colleague would go to the office, sign for the room, get the key and state the name of the mother who would be present during the time the room was in use. This procedure was followed each time the room was used. On July 23, 1956, Janet signed for the room and it was occupied by the children for some two hours for a cookie and juice party. Janet returned the key to the office but deliberately left one of the two doors to the room unlocked without telling the appellees of that fact. Some six hours later, without notice to anyone and without permission, Janet returned to the recreation room for the purpose, she says, of cleaning it up. She was there about an hour and a half. As she was about to leave, she leaned against a heavy radiator which, as she moved forward, 'came with' her, fell on her, and injured her left heel. Apart from Janet, no witness testified as to the radiator except an office employee of the appellees, who said she understood that the engineer for the apartment development had placed the radiator in the recreation room temporarily while he installed a replacement in an apartment and that it was to be in the recreation room only until it could be taken out for repairs.

Suit was brought against the owners of the apartment development by Janet, through her father as next friend, for pain and suffering past and prospective, and by her father in his own right for medical expenses expended by him for Janet. At the conclusion of the entire case, the trial court directed a verdict for the defendants on the ground that by signing the paper as to the use of the room, Janet's parents released the apartment owners as to all liability.

The appellants urge that the trial court erred (a) in directing the verdict; (b) in admitting in evidence the so-called release, because it was not affirmatively pleaded by the defendants as a defense; (c) in not allowing the jury to construe the so-called release, and so, in effect and as a matter of law, construing it as covering accidents to those using the room and not merely accidents caused to the room and its contents by those using it.

We agree that a verdict for the defendants should have been directed, although our reasons for reaching that conclusion are different from those relied on by the trial court.

Several interesting questions would come to mind if the paper signed by the mothers were to be treated as a release. For example, (1) can a parent validly release the right of an infant to recover for damage caused to her by the negligence of another; (2) does the provision of Maryland Rule 342, subd. c, par. 2(g) that 'All matters of justification, excuse or discharge where the action is for trespass * * * to the person', must be specially pleaded in an action ex delicto, apply to an action for trespass on the case; and (3) assuming the rule to apply to the case at bar, would the fact that the controversial paper first was testified to by the witnesses for the plaintiffs, who were entirely familiar with it and not taken by surprise, make the paper proper evidence to be considered in deciding the case, despite the fact it was not pleaded specially. In the view we take of the case, none of these questions need be answered. Appellees frankly conceded at the argument here that the release would be ineffective to exonerate them...