Mech v. Hearst Corp.

• Decision Date: 01 September 1984
• Docket Number: No. 1550,1550
• Citation: 64 Md.App. 422,496 A.2d 1099
• Parties: Marie MECH v. HEARST CORPORATION, t/a News American Baltimore. ,
• Court: Court of Special Appeals of Maryland

Page 422

64 Md.App. 422

496 A.2d 1099

Marie MECH v. HEARST CORPORATION, t/a News American Baltimore.

No. 1550, Sept. Term, 1984.

Court of Special Appeals of Maryland.

Sept. 9, 1985.

Frederick Wm. Miller, Baltimore (Susan S. Miller, Baltimore, on the brief), for appellant.

G. Macy Nelson, Baltimore (Anderson, Coe & King, Baltimore, on the brief), for appellee.

Argued before WEANT, ALPERT and ROBERT M. BELL, JJ.

WEANT, Judge.

This argle-bargle was precipitated by these facts. On 28 August 1981, appellant Marie Mech decided to spend part of that day's lunch hour in Baltimore City searching for a public parking lot which reputedly charged a reasonable monthly fee about which she had heard from one of her co-workers. After some initial difficulty, she came to the block she had been given where she found a lot surrounded by a high chain-link fence. The fence had a large open gate; inside was a "plain building" with an open door. The woman did not observe any signs on the fence or in the lot. There were some trucks on the lot but no cars. Mech assumed that she was at the right place.

Unfortunately, she had not found a public parking lot but a truck garage facility belonging to appellant, the Hearst Corporation, publisher of the Baltimore News American. After Mech had walked a few steps through the open gate and onto appellee's property, appellee's guard dog, "Smokey", appeared, apparently unchained, "growling and snarling." Smokey knocked Mech to the ground, causing damage to her right knee and other injuries.

Mech brought an action for damages in the Superior Court (now the Circuit Court) for Baltimore City. She alleged that appellee was liable under two theories, negligence and strict liability. The case was tried before a jury in April, 1984. At the close of all the evidence the trial judge granted appellee's motion for directed verdict as to both counts on the grounds that appellee owed Mech, a trespasser or "bare licensee," no duty other than to refrain from willful or wanton injury or entrapment, and that the evidence was insufficient to support a finding of a breach of this duty. On appeal, Mech presents these questions:

1. Was there sufficient evidence for the jury to determine the status of [appellant] on [appellee's] property?

2. Was there sufficient evidence for the jury to determine if [appellee] was guilty of willful misconduct or entrapment?

3. Was there sufficient evidence for the jury to decide if [appellee] was liable under the theory of strict liability?

4. Should the Court abolish the common law distinctions in landowner's duty towards an invitee, licensee or trespasser?

For the reasons set forth below, we affirm.

1.

It is a venerable principle of Maryland law that in negligence actions the standard of care required of owners and occupiers of land with respect to an individual on their land is determined by "the individual's status while on the property, i.e., whether he is an invitee, licensee, or trespasser." Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972). Where the person is a "bare licensee"--one who enters the property for his own purpose or convenience and with the landowner's consent but not as a social guest--the law imposes only a minimal obligation on the landowner: to refrain from willfully or wantonly injuring or entrapping the person "once his presence is known." Id. The same standard applies to trespassers, defined as those who enter without privilege or consent of the landowner. 264 Md. at 522, 287 A.2d at 267. In ruling that, as a matter of law, Mech was "at most, a bare licensee," the trial judge concluded that the above-described standard was applicable in the case sub judice. Mech now asserts that her status on appellee's land was a question of fact which the judge should have submitted to the jury. In particular, Mech claims that there was sufficient evidence to support a finding that she was an implied invitee, and therefore entitled to a higher standard of care.

Generally, invitees are those who enter the subject property in connection with the owner's business. Crown Cork and Seal Co. v. Kane, 213 Md. 152, 157, 131 A.2d 470, 472 (1957). An invitation may be implied, however, from "circumstances, such as custom, the acquiescence of the owner in habitual use, the apparent holding out of premises to a particular use by the public, or simply in the general arrangement or design of the premises." 213 Md. at 159, 131 A.2d at 473. According to Mech, the jury may properly have concluded that this objective test was satisfied, in view of circumstances including (a) the "design and general appearance" of appellee's lot, (b) the open gate to the lot, and (c) the absence of warning signs.

We disagree, first of all, that there was any evidence to support a finding that Mech was an invitee. In order for there to be an implied invitation, "there must be, in the conduct or words of the possessor, some inducement or encouragement to enter, and mere permission or acquiescence is not sufficient." Woodward v. Newstein, 37 Md.App. 285, 293, 377 A.2d 535, 540 (1977), cert. denied, 282 Md. 740 (1978). There can be no doubt that proof of encouragement or inducement by appellee is absent from the record before us. Even in an urban setting, the presence of an open gate leading to an unmarked lot does not, in our view, indicate acquiescence to intrusions, let alone an inducement. Moreover, in contrast to Crown Cork, supra, there was no evidence of a custom of permitting Mech or other strangers to visit the property. Indeed, appellee's use of a guard dog for several years contradicts this hypothesis. Finally, the other cases cited by Mech are similarly distinguishable. See, e.g., Gray v. Sentinel Auto Parks Co., 265 Md. 61, 288 A.2d 121 (1972); Atran v. Furness, 251 Md. 216, 246 A.2d 767 (1968); Hutzler Brothers Co. v. Taylor, 247 Md. 228, 230 A.2d 663 (1967).

Although we agree with the trial judge that there was no basis for finding that Mech was an implied invitee, we believe his characterization of her status as "at most, a bare licensee" was in fact too charitable. As we noted above, neither the open gateway to appellee's property nor any of the other circumstances described at trial suggest that appellee had acquiesced or consented, expressly or otherwise, to Mech's entry on the site. Absent such consent or acquiescence, Mech could only have been a trespasser. See, e.g., Bramble, supra; Carroll v. Spencer, 204 Md. 387, 393, 104 A.2d 628, 630 (1954). Although this point is inconsequential with regard to Mech's negligence claim, because the applicable standard of care is the same, see supra; infra Part 2, it is material to two other issues raised. See infra Parts 3, 4.

2.

Next, Mech argues that, if she was a trespasser, there was sufficient evidence to support a finding that appellee's conduct did not conform to the appropriate standard of care. Specifically, she claims that, in light of evidence that Smokey had bitten others before her, the jury may properly have found that appellee acted willfully or wantonly in failing to take preventive measures such as warning signs.

A motion for directed verdict should be denied if there is the slightest legally relevant and competent evidence from which a rational mind could infer the material facts in issue. Impala Platinum Limited v. Impala Sales (U.S.A.), Inc., 283 Md. 296, 328, 389 A.2d 887, 906 (1978). Accordingly, we consider whether there was any evidence, properly admitted, tending to show that appellee acted willfully or wantonly.

"Willful or wanton" generally denotes conduct that is extreme and outrageous, in reckless disregard for the rights of others. E.g., Medina v. Meilhammer, 62 Md.App. 239, 249-50, 489 A.2d 35, 40 (1985). There was no evidence that appellee intended to injure Mech. As to whether the conduct was extreme and outrageous, the Bramble court's comments are instructive, though the holding in that case is not strictly dispositive of this case. In summarizing its opinion, the Court said, "[w]e merely conclude that the use of a vicious watchdog to protect its owners' property does not constitute [wanton or willful entrapment or misconduct]." Bramble, 264 Md. at 526, 287 A.2d at 270. The facts in Bramble are highly analogous to those in the case sub judice. The Bramble opinion does not indicate that any warning signs had been placed by the landowner. Though appellee's similar failure to place warning signs may have been inconsiderate and ill-advised, it is clear, we believe, that under the law of this State appellee's conduct was not so extreme and outrageous that the jury could properly have characterized it as willful or wanton. Therefore, the trial judge correctly entered a directed verdict for appellee on the negligence count.

3.

Next Mech contends that the trial judge improperly granted a directed verdict for appellee on Mech's strict liability count.

The owner of an animal that injures another may be strictly liable for damages if the owner had prior notice that the animal was vicious. Twigg v. Ryland, 62 Md. 380 (1884); Slack v. Villari, 59 Md.App. 462, 473, 476 A.2d 227, 232, cert. denied, 301 Md. 177, 482 A.2d 502 (1984). This rule does not apply, however, if the plaintiff was a trespasser at the time of injury and the animal was a guard dog. Bramble, 264 Md. at 522-23, 287 A.2d at 268. In such a situation, the negligence standard is the sole standard of care, and the plaintiff must show that the defendant failed to conform his conduct to this standard in order to recover damages under either theory. Id. Having properly concluded that Mech could not recover under her negligence count, the trial judge correctly entered judgment for appellee on the strict liability claim as well.

4.

Finally, Mech urges us to abolish the common law distinctions regarding the standard of care to invitees, licensees, and trespassers. In declining to do so, we point out that in a recent case...