Macke Laundry Service Co. v. Weber

• Decision Date: 18 December 1972
• Docket Number: No. 88,88
• Citation: 298 A.2d 27,267 Md. 426
• Parties: , 66 A.L.R.3d 365 MACKE LAUNDRY SERVICE CO. of Maryland et al. v. Daniel B. WEBER, Jr., an infant et al.
• Court: Maryland Court of Appeals

Page 426

267 Md. 426

298 A.2d 27, 66 A.L.R.3d 365

MACKE LAUNDRY SERVICE CO. of Maryland et al. v. Daniel B. WEBER, Jr., an infant et al.

No. 88.

Court of Appeals of Maryland.

Dec. 18, 1972.

Hugh E. Donovan, Rockville (Donahue & Ehrmantraut, Rockville, on the brief) for appellants.

David B. Lamb, Washington, D. C., for appellee.

Argued before BARNES, McWILLIAMS, SINGLEY, SMITH, DIGGES, and LEVINE, JJ., and CHARLES E. MOYLAN, Jr., Special Judge.

SINGLEY, Judge.

Daniel Bruce Weber, Jr. (Bruce) who brought suit by his mother and next friend, Karen B. Weber, was about three and a half years of age on 19 November 1968. On that day, Bruce wandered alont into the laundry room of the apartment building managed by Carl M. Freeman Associates, Inc. (Freeman) at 7909 Kreeger Drive, Adelphi, Maryland, where he lived with his parents, and was severely injured when in an attempt to stop a clothes dryer he placed his left hand in the drive mechanism on the back of the dryer. The dryer was owned by Macke Laundry Service Co. of Maryland and serviced by Macke Laundry Service Co. of D. C. (Macke). A judgment of $8,000.00 was entered on a jury verdict in Bruce's favor, and a judgment of $1,000.00, in Mrs. Weber's favor, each of them against Freeman and the two Macke companies. Thereafter, a judgment of $9,000.00 was entered on Freeman's crossclaim against the two Macke companies. ¹ This appeal was brought by the two Macke companies from the judgments in favor of Bruce and his mother.

Nothing is more certain than that we have consistently declined to adopt the doctrine of attractive nuisance in cases involving children who are licensees or trespassers. Osterman v. Peters, 260 Md. 313, 314, 272 A.2d 21 (1971); Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 411-412, 265 A.2d 897 (1970); Mondshour v. Moore, 256 Md. 617, 621-623, 261 A.2d 482 (1970); Hicks v. Hitaffer, 256 Md. 659, 661, 666, 669-670, 261 A.2d 769 (1970); State v. Fidelity Warehouse Co., 176 Md. 341, 348-350, 4 A.2d 739 (1939), nor have we been willing to accept the more modern version of the doctrine formulated by Restatement (Second), Torts § 339, at 197 (1965), Herring v. Christensen, 252 Md. 240, 241, 249 A.2d 718 (1969).

Our rule is that a landowner is obliged to accord to a trespasser, even one of tender years, a duty which does not transcend the obligation to abstain from willful or wanton misconduct and entrapment, Fopma v. Bd. of County Comm'rs, 254 Md. 232, 234, 254 A.2d 351 (1969); Herring v. Christensen, supra, 252 Md. at 241, 249 A.2d 718; Barnes v. Housing Authority, 231 Md. 147, 153, 189 A.2d 100 (1963); Levine v. Miller, 218 Md. 74, 79, 145 A.2d 418 (1958).

A bare licensee, like a trespasser, takes the property as he finds it and is owed no duty greater than that owed the trespasser, crown Cork & Seal Co. v. Kane, 213 Md. 152, 157, 131 A.2d 470 (1957). An invitee, however occupies a different status. As Judge Digges, speaking for the Court in Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972) observed:

'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.'

There is substantial authority for the proposition that when a landlord sets aside areas for the use of his tenants in common, he owes the duty of reasonable and ordinary care to keep the premises safe for his invitees. The Court, speaking through Judge Hammond, articulated the rule in Landay v. Cohn, 220 Md. 24, 150 A.2d 739 (1959):

'Where a landlord leases separate portions of a property to different tenants and reserves under his control halls, stairways or other parts of the property for use in common by all the tenants, he must use ordinary care and diligence to maintain the retained parts in reasonably safe condition. Seaman v. State, 213 Md. 359, 366, 131 A.2d 871 (1957); McKenzie v. Egge, 207 Md. 1, 7, 113 A.2d 95 (1955); Ross v. Belzer, 199 Md. 187, 190, 85 A.2d 799 (1952); Levine v. Miller, 218 Md. 74, 78, 145 A.2d 418 (1958).

The duty stems from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the portions of the property retained by him. Crown Cork & Seal Co. v. Kane, 213 Md. 152, 131 A.2d 470 (1957); 32 Am.Jur. Landlord & Tenant § 688, p. 563; 52 C.J.S. Landlord and Tenant § 417(b), p. 26; Prosser, Torts, 2nd Ed., § 80, p. 471. Such an invitation extended to a tenant includes the members of his family, his guests, his invitees and others on the land in the right of the tenant. Restatement, Torts, Sec. 360, Comment (d); Prosser, op. cit., § 80, p. 471. It has been held that a child on the land at the invitation of the child of the tenant is entitled to the benefit of the landlord's obligation in this respect. Harakas v. Dickie, 224 Mo.App. 171, 23 S.W.2d 651; Couglin v. Jones, 162 Misc. 843, 295 N.Y.S. 681, aff'd 254 App.Div. 854, 6 N.Y.S.2d 363. See also Mercier v. Bushwick Sav. Bank, 261 App.Div. 151, 24 N.Y.S.2d 666; and Annot., 26 A.L.R.2d 468, 477. There is an important qualification to the rule as to the duty of the landlord. His responsibility for the reasonably safe condition of premises retained under his control is limited to the confines of his invitation to use them, express or implied. It does not extend to the use of such premises for an unintended purpose. Levine v. Miller, supra, 218 Md. 74, 78-79, 145 A.2d 418; Restatement, Torts, Sec. 360, comment (d); Prosser, op cit., § 80, p. 473; 32 Am.Jur. Landlord & Tenant § 690; 52 C.J.S. Landlord and Tenant § 417(b); Markussen v. Mengedoht, 132 Neb. 472, 272 N.W. 241, 243, and cases cited therein; Ryerson v. Bathgate, 67 N.J.L. 337, 51 A. 708, 709; Seaman v. Henriques, 139 Conn. 561, 95 A.2d 701, 703; Cohen v. Davies, 305 Mass. 152, 25 N.E.2d 223; Wholey v. Kane, 16 App.Div. 166, 44 N.Y.S. 649.' 220 Md. at 27-28, 150 A.2d at 740.

To the same effect are Arshack v. Carl M. Freeman Associates, 260 Md. 269, 274, 272 A.2d 30 (1971); Windsor v. Goldscheider, 248 Md. 220, 222, 236 A.2d 16 (1967); Elmar Gardens, Inc. v. Odell, 227 Md. 454, 457, 177 A.2d 263 (1962).

Our decisions have consistently held a landlord liable for improper maintenance of facilities or for failure to remedy defects in equipment over which he retains control and furnishes for common use by his tenants, 2310 Madison Ave., Inc. v. Allied Bedding Mfg. Co., Inc., 209 Md. 399, 408-409, 121 A.2d 203 (1956); Com. Realty Co. v. Nat'l Distillers Products Corp., 196 Md. 274, 279, 76 A.2d 155 (1950); Kinnier v. Adams, Inc., 142 Md. 305, 307-308, 120 A. 838 (1923); Prosser, The Law of Torts § 63, at 408 (4th ed. 1971); Annot., Landlord's Liability for Personal Injury or Death Due to Defects in Appliances Supplied for Use of Different Tenants, 25 A.L.R.2d 576 (1952).

In Barnes v. Housing Authority, supra, a three-year-old child was injured when he fell into an unguarded window well located at a housing project where the child lived with his parents. We affirmed the entry of a directed verdict at the conclusion of the plaintiff's case, because there was no showing that a paved walkway 18 inches from the window well was unsafe, nor was there any showing of an invitation by the landlord to tenants or their children to use any area adjacent to the walkway as a substitute for it. In consequence, when the child left the walkway, he ceased to be an invitee.

Levine v. Miller, supra, rested upon a similar distinction. There, the 10-year-old plaintiff was permitted to use a recreation room in one of a group of apartment buildings where she lived with her parents as a day camp for smaller children, provided that she signed for the key (the room was customarily locked), locked the room when she had finished using it, and returned the key to the office. On the day when she was injured by a falling radiator in the room, she had left a door open on leaving the room and six hours later had returned to the room alone after the permitted use had ceased. We affirmed the granting of a directed verdict for the landlord because we concluded that when the plaintiff departed from the conditions imposed by the landlord, she lost her status as an invitee and became a mere licensee to whom the landlord owed no duty other than to avoid willful injury or entrapment.

Such a change in status may be chronological, as it was in Levine, or geographical, as it was in Barnes, supra, and in Pellicot v. Keene, 181 Md. 135, 28 A.2d 826 (1942). In Pellicot, the six-year-old plaintiff went to a grocery store with his mother, a customer. While there, he went behind the counter and fell into an open trap door. An appeal was taken from a judgment in favor of the defendant storekeeper. Our predecessors affirmed, holding that while the plaintiff and his mother were invited to enter the store, there was neither an express nor an implied invitation to customers to go behind the counter, because it was not a self-service operation. When the plaintiff did so, he became a mere licensee.

An analogous result obtained in Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973 (1893), where the infant plaintiff went with his school class to visit the defendant's power plant and fell into a vat. The Court held that where a bare permission to enter the premises was asked, and leave was granted, the visitors were mere licensees.

Although a landlord owes no greater duty of care to a child...