Macias v. Summit Mgmt., Inc.

• Citation: 220 A.3d 363,243 Md.App. 294
• Decision Date: 21 November 2019
• Docket Number: No. 1130, Sept. Term, 2018,1130, Sept. Term, 2018
• Parties: Damien A. MACIAS v. SUMMIT MANAGEMENT, INC.
• Court: Court of Special Appeals of Maryland

243 Md.App. 294

220 A.3d 363

Damien A. MACIAS

v.SUMMIT MANAGEMENT, INC.

No. 1130, Sept. Term, 2018

Court of Special Appeals of Maryland.

November 21, 2019

Argued by: William C. Brennan, Jr. (Douglas E. Brown, Nicholas G. Madiou, Brennan, McKenna & Lawlor, Chtd, on the brief), Greenbelt, MD, for Appellant.

Argued by: Sean P. Edwards (Guido Porcarelli, Law Offices of Frank F. Daily, PA, on the brief), Hunt Valley, MD, for Appellee.

Panel: Meredith, Leahy, Beachley, JJ.

Leahy, J. Eight-year-old Damien Macias and his two younger siblings, Gabrial and Olivia, accompanied their mother one summer day in 2013 to the Waters House Condominium complex in Germantown, Maryland to visit their grandparents. While playing outside, Damien and Gabrial climbed atop the Waters House community sign made of large stones ("community sign"). After about ten minutes the boys decided to jump down and go back inside. When they went to dismount, they held onto the edge of a flat stone, which identifies the complex as "Waters House." The flat stone dislodged from the larger stonework holding it, causing the boys to fall to the ground, and the flat stone to fall on top of Damien. Damien suffered serious injuries to his chest and legs as a result and was transported to Children's Hospital for treatment.

Damien, and his father as next friend, filed a negligence action in the Circuit Court for Montgomery County against the Council of Unit Owners of Waters House Condominium ("Council") and Summit Management ("Summit" or collectively with Council as "Appellees"). The circuit court granted summary judgment in favor of Appellees. The court ruled that Damien was a bare licensee when he climbed the community sign because he was on it without the consent of the owner. The court also held, however, that even if Appellees owed Damien a greater duty of care, summary judgment was appropriate because (after close of discovery) there was no evidence that Appellees had any notice that the children had been climbing on the sign or any reason to suspect that the sign was in any way dangerous or defective. Damien and his father ("Appellants") noted a timely appeal and present the following question:

[Did] the circuit court err[ ] by granting Appellees' motion for summary judgment and determining that Damien was a bare licensee and not an invitee when he played on the welcome sign on the grounds of the residence in which his grandparents resided?

We conclude, based on the material facts not in dispute in this case, that Damien was an invitee at the time he and his brother played on and around the community sign located in the common area of the condominium complex. Even allowing that Appellees owed Damien the highest duty as an invitee, we hold that the court decided correctly that Appellants failed to establish a prima facie case of negligence because the record reflects that Appellees did not have actual or constructive knowledge of any dangerous or defective condition, or that by the exercise of reasonable care, Appellees could have discovered the condition in time to warn Damien. Restatement (Second) of Torts § 343 (1965) ; Hansberger v. Smith , 229 Md. App. 1, 13, 21, 142 A.3d 679 (2016). Accordingly, we affirm the court's grant of summary judgment.

BACKGROUND

The record evidence at summary judgment consisted primarily of the depositions of Damien and his parents, as well as some photographs of the community sign and surrounding area.¹ The following facts contained in the record were not disputed before the trial court.

The Macias family made frequent visits to Waters House Condominium complex where Larry and Maria Ward, Damien's grandparents, have owned a unit in the complex since 2005. The condominium complex was, at the time of the incident, managed by Summit. The community sign faces an intersection and the area behind it is grassy and landscaped with several trees and bushes. There is no sign or fencing indicating that the community sign or the area around it is off limits to guests. A playground is located on the grounds on the side opposite of the grandparents' condominium from where the sign is located.

Damien's father, Damien M. Macias, did not accompany the family to the Wards' condominium on July 6 because he had to work. While playing outside that day, Damien and his brother Gabrial, who was age six at the time, climbed atop the community sign, a five-foot-tall stone wall in which the flat stone sign was embedded.² Damien stated during his deposition that he wanted to sit on top of the wall so that he could watch cars passing on the street. He grabbed onto the top of the ledge and climbed up the back of the community sign. Gabrial followed and the two sat on top looking at cars for about 10 minutes before deciding that they wanted to go back inside. Gabrial was scared to jump off the wall, so Damien suggested that they climb down the front where there were more handholds and footholds available.

When Damien went to dismount, he grabbed onto the top of the flat stone sign that was attached to the stone wall. Gabrial followed almost immediately after. Damien was able to push Gabrial out of the way to prevent him from being injured before the sign fell on top of Damien. No adult was outside with the boys directly supervising them at the time of the accident. Their mother, Mrs. Leticia Macias, stated in her deposition that she was inside cooking, but that her mother was outside with Olivia gardening and her father could see the boys playing from inside the condominium by looking out of the bay window.

Mrs. Macias testified during her deposition that this was not the first time the boys had climbed on top of the community sign. She explained that their father had "frequently" sat the boys atop the wall to watch firetrucks pass by. She further testified that it was the habit of the boys to play outside in the area around the community sign because it was visible from the bay window inside the Ward's condominium.

When prompted, Mrs. Macias admitted that she had never seen any children other than her own climbing the sign. She also agreed that, prior to the accident, she did not know of any defect in the construction of the community sign and there was no visible indication that it could present a danger. Damien also admitted, during his deposition, that his first indication that the community sign was dangerous occurred as he was climbing down the front of it and the flat stone began falling on top of him. He acknowledged that on previous ventures on and around the community sign, he had never heard any suspicious sounds or felt any movement that would suggest a problem. He also agreed that the community sign was in good shape visibly on the day of the accident.

Damien's father explained during his deposition that the community sign "looked secure and safe" and that is why he allowed his children to play on it. He admitted that no one from the Council or Summit had given the children permission to climb on the community sign. He stated that, to his knowledge, no one else had ever been injured by coming into contact with the community sign, and he had no knowledge of the flat stone sign falling out of its stone framework on any prior occasion.

The Complaint

On July 18, 2017, Appellants filed a two-count complaint in the Circuit Court for Montgomery County asserting negligence claims against the Council and Summit.³ They charged that Appellees breached their duty owed to Damien, as an invitee on the premises of Waters House, by failing to inspect the community sign and failing to warn of any foreseeable dangers. They also alleged that the law imposed a "more stringent duty of care" on Appellees under the doctrine of attractive nuisance.⁴

Appellees filed an answer generally denying liability and asserting that the complaint failed to state a claim upon which relief could be granted. They also asserted nine affirmative defenses, including assumption of the risk and contributory negligence.

Motion for Summary Judgment

After the close of discovery, on April 6, 2018, Appellees filed a motion for summary judgment. Appellants filed an opposition, and the parties appeared in the circuit court for a hearing on June 19. In support of their motion, Appellees argued that Damien was a trespasser at the time he was injured because there was no invitation, express or implied, for Damien to climb the community sign. Appellees pointed out that neither Damien nor Mr. Macias testified that Appellees had in any way given Damien permission to play, or induced him to play, on the community sign. Relying on Osterman v. Peters , 260 Md. 313, 272 A.2d 21 (1971), Barnes v. Housing Authority of Balt. City , 231 Md. 147, 189 A.2d 100 (1963), and Levine v. Miller , 218 Md. 74, 145 A.2d 418 (1958), among other cases, Appellees averred they owed him no duty except to refrain from "willful or wanton misconduct and entrapment." Furthermore, they contended that, even if Damien was an invitee, thereby imposing a higher duty of care on Appellees, there was no evidence produced during discovery that Appellees had notice of any dangerous condition. They asserted: "it is undisputed that no one else had ever been injured climbing [the] wall[,] ... that the wall was not in poor or bad disrepair[,] ... and that [Appellees] did not know that any children or any individuals had ever climbed on [the] wall before." Appellees highlighted that the record lacked any evidence that they had knowledge of a defect in the construction of the community sign or that they had knowledge that the Macias children sometimes climbed on it. Appellees noted that all three deponents testified that they, also, did not have any notice of any danger or risk associated with the sign. Finally, Appellees asserted that Damien was contributorily negligent, or, in the alternative, that he assumed the risk of injury when he climbed down the front wall holding onto the flat stone in the sign.

To the contrary, Appellants maintained...