Litz v. Hutzler Bros. Co.

• Decision Date: 13 February 1974
• Docket Number: No. 235,235
• Parties: , 93 A.L.R.3d 123 Mildred LITZ, Personal Representative of the Estate of Jennie V. Murray v. HUTZLER BROTHERS CO.
• Court: Court of Special Appeals of Maryland

Page 115

20 Md.App. 115

314 A.2d 693, 93 A.L.R.3d 123

Mildred LITZ, Personal Representative of the Estate of Jennie V. Murray v. HUTZLER BROTHERS CO.

No. 235.

Court of Special Appeals of Maryland.

Feb. 13, 1974.

Delverne A. Dressel, Baltimore, for appellant.

James D. Peacock and Charles P. Goodell, Jr., Baltimore, for appellee.

Argued before MOYLAN, MENCHINE and DAVIDSON, JJ.

MENCHINE, Judge.

On September 3, 1970 Jennie V. Murray, then aged 85 years, in the company of her niece, Mildred Litz, visited downtown Baltimore. In due course they went to Hutzler's Downtown Department Store.

Hutzler's downtown store consists of what once was two separate buildings on opposite sides of Clay Street (between Howard and Eutaw Streets). Eventually they were connected in such a way as to straddle Clay Street, a public highway of the City of Baltimore, at the basement and ground floor levels. All other levels of the buildings up to the top level of the shorter became in effect a single entity up to the seventh floor. In other words, the space above the second story, under a franchise from the City, was used for building purposes, causing Clay Street to become a covered public way under Hutlzer's store in its east-west course.

Miss Murray, able to walk without cane or assistance, at first had gone to the north building restaurant. After luncheon Miss Murray and her niece descended to the first floor, intending to go to the watch repair counter in the south building. They left the north building through a doorway entering upon Clay Street and crossed that street. This brought them to the Clay Street entrance to the south building. Access through that entrance was provided by way of a revolving door. Miss Litz saw no one in Clay Street in the vicinity of the doorway as she entered the south building. Both women had used the doorway many times before. Miss Litz entered the revolving door first.

She thus described her entry:

'I always preceded my aunt to slow down the motion of the door, just in case anyone should hit it or make it go a little faster, then I would emerge from the door in turn, and greet her as she came out of her compartment.'

Miss Murray entered the revolving door behind her niece. The latter thus detailed what then occurred:

'As I came out of the door and stood there and turned toward my aunt, who was coming, these two boys approached the door in the alley, and spun it, they hit it with great force, and she literally, she came from her compartment, flew in front of me, and landed approximately * * * 6 to 8 feet (away).'

The two boys followed behind Miss Murray and bent over her where she had fallen. They ran when Miss Litz screamed and their identity was never determined. The deposition of Miss Murray threw little or no further light on the incident. There seemed to be some loss of recollection in that at one point in her testimony she said she was thrown to the street outside the store and thereafter was taken into Hutzler's following the fall. She later indicated otherwise, and all other witnesses agreed that her course through the door was from street to store. She said that the 'only thing that caused me to fall was pushing me out that door.' Miss Murray sustained severe personal injuries.

Maryland and Massachusetts cases have distinguished claims for injuries brought about by sudden increases of the speed of revolving doors when caused by the acts of third person users on the one hand; from claims for injuries sustained as the result of a defective condition in the revolving door on the other; with liability denied in the first and sustained in the second circumstance. Compare: Norton v. Chandler, 221 Mass. 99, 108 N.E. 897 and Sterns v. Highland Hotel Co., 307 Mass. 90, 29 N.E.2d 721; with (Maryland) Eyerly v. Baker, 168 Md. 599, 178 A. 691 and Hamill v. Union Trust Co., 241 Md. 219, 216 A.2d 286.

In the subject case it is conceded that the store premises generally and the revolving door in particular were wholly without physical defects.

In Hamill, supra, the facts were thus stated at page 220, 216 A.2d at page 286:

'As a frequent visitor to the bank, she had been in and out of the entrance where the accident occurred on many occasions without ever having experienced any difficulty with the revolving door or the steps at the entrance. Although she was arthritic, she never used a cane or crutch prior to the accident. * * *

On the day of the accident, as the plaintiff was slowly walking through the revolving door to leave the bank, a young man, unknown to her and never thereafter identified, rushed into the bank and rotated the door so rapidly that one of the wings struck her in the back and caused her to fall out of the door and down the steps at the entrance onto the sidewalk. She sustained a fractured hip.'

On those facts the Court in Hamill said (P. 221, 216 A.2d p. 287):

'* * * there was no evidence of a causal connection between its (defendant's) alleged negligence and the injury sustained by the plaintiff.'

Accordingly, the subject case is controlled by the decision in Hamill, supra, unless beyond its purview, by reason of facts and circumstances such as will bring it within the ambit of Eyerly, supra.

In Eyerly it was said, 168 Md. at page 607, 178 A. at page 694:

'So where a storekeeper invites the public to come upon his premises to buy his wares, he is held to a positive affirmative duty to protect them, not only against dangers which may arise from some defect or unsafe condition of the physical property upon which they are invited to enter, but against dangers which may be caused by the negligent acts of his employees, or even of customers, where, as a reasonably prudent person, he should have anticipated the possible occurrence and the probable results of such acts.' (Italics supplied)

The trial court granted the defendant's motion for a directed verdict at the end of the plaintiff's case upon the ground that there was no evidence legally sufficient to establish the negligence of the defendant. From the judgment in favor of the defendant thereafter entered, the plaintiff has appealed. It is conceded that the plaintiff was not contributorily negligent.

The appellant urges that the rule declared in Restatement (Second) of Torts § 344 (1965) applies:

' § 344. Business Premises Open to Public: Acts of Third Persons or Animals

A possessor of land who holds it open to the public for entry for his business purposes is subject to liability to members of the public while they are upon the land for such a purpose, for physical harm caused by the accidental, negligent, or intentionally harmful acts of third persons or animals, and by the failure of the possessor to exercise reasonable care to

(a) discover that such acts are being done or are likely to be done, or

(b) give a warning adequate to enable the visitors to avoid the harm, or otherwise to protect them against it.'

Appellant urges that the evidence establishes that such prior incidents had occurred as would give notice to the appellee that actions such as caused harm to the appellant had been and were likely to be done but that the appellee had breached its duty to its invitees (a) by failure to warn them of the potential danger and/or (b) by failure to provide adequate guards to protect them against it.

In Buchanan v. Galliher, 11 Md.App. 83, 87, 272 A.2d 814, 817, we said:

'When a trial court is called upon by a motion for a directed verdict to rule upon the legal sufficiency of the evidence to require submission of any issue to a jury, the court must assume the truth of all credible evidence on that issue and of all inferences fairly deducible therefrom, and consider them in the light most favorable to the party against whom the motion is made, and if such evidence and inferences lead to conclusions from which reasonable minds could not differ, then the issue is one of law for the court and not one of fact for the jury.'

We shall consider the evidence in this case in the light of that rule of law.

Four guards, whose duty primarily was related to the prevention of shoplifting, provided the only internal security within the store. No guard patrolled Clay Street. Evidence concerning five prior incidents involving revolving doors was introduced. Some related to the revolving door in the north building; some to that in the south. The incidents were described as follows:

On December 13, 1968 a patron was injured while leaving the door of the north building 'when someone pushed the door around very hard and knocked her to the ground. She said it was either a man or a boy.'

On November 2, 1969 while a patron was 'going through door someone from behind hurriedly swung door and struck her between shoulders. She did not see who it was, only that it was someone (female) in a hurry.'

On December 2, 1969 a patron moving from Clay Street through the revolving door was injured when 'someone pushed through the door and Mrs. Green fell into the vestibule.'

On January 26, 1970 a patron was hurt using the revolving door exit to Clay Street from the leather goods department. 'She states she was thrown out into the alley and thought she felt a hand at her back and a sensation of being pushed.'

On August 11, 1970 a patron moving to Clay Street from the stationery department 'was entering revolving door when a young...