Moore v. JIMEL, INC

• Citation: 147 Md.App. 336,809 A.2d 10
• Decision Date: 27 September 2002
• Docket Number: No. 1985,1985
• Parties: Rebecca M. MOORE v. JIMEL, INC., t/a Hightopps Bar and Grill.
• Court: Court of Special Appeals of Maryland

809 A.2d 10

147 Md.App. 336

Rebecca M. MOORE v. JIMEL, INC., t/a Hightopps Bar and Grill.

No. 1985, Sept. Term, 2001.

Court of Special Appeals of Maryland.

September 27, 2002.

Michael B. Green, Towson, for appellant.

Kathleen M. McDonald (Kerr McDonald, LLP on brief), Baltimore, for appellee.

Argued before SONNER, ADKINS, CHARLES E. MOYLAN, JR., (retired, specially assigned), JJ.

MOYLAN, Judge.

The appellant, Rebecca M. Moore, was, on October 4, 1998, a customer in the commercial establishment owned by the appellant, Jimel, Inc., t/a Hightopps Bar and Grill in the Fells Point neighborhood of Baltimore City. While using the ladies' restroom on the third floor at approximately 6 p.m., she was attacked and raped. She sued the appellee in the Circuit Court for Baltimore City for negligently having failed to provide the security owed to her as a business invitee.

The appellee moved for summary judgment in its favor. Judge John Carroll Byrnes granted the summary judgment motion, ruling that the appellant failed to establish a duty to protect a patron against crimes committed by third persons.

In Valentine v. On Target, 353 Md. 544, 549, 727 A.2d 947 (1999), Judge Karwacki listed for the Court of Appeals the required elements of the tort in question.

To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty."

It is the first of those elements that concerns us here. This case turns on whether the Hightopps Bar and Grill, under the undisputed circumstances of this case, owed a duty to its customers to provide enhanced security to guard against criminal attacks on the customers by third persons.

The Existence of a Duty Is a Question of Law

A key procedural question is that of whether the existence of such a duty is a question of fact, for a jury, or a question of law, capable of being decided by the judge on summary judgment. It is the teaching of Valentine, 353 Md. at 549, 727 A.2d 947, that that question is one for the court, as a matter of law.

Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court.

(Emphasis supplied).

In the Valentine case itself, the Court of Appeals affirmed the dismissal of a suit because the complaint, as a matter of law, failed to allege a legally cognizable duty owed by the defendant to the plaintiff. The Court cited a number of cases in which there had been held to be the lack of a duty and in which such a determination was one properly to be decided by the trial judge, as a matter of law.

As clearly outlined by Judge Wilner, "[t]he view expressed in Scott has been confirmed in later cases. See Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985)

; cf. Southland Corp. v. Griffith, 332 Md. 704, 716-17, 633 A.2d 84 (1993), applying the same principle with respect to a duty to aid, i.e., there is no duty on the part of a storeowner to aid a customer from attack by a third person in the absence of statute or special relationship. See also Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986) (police officer had no duty to prevent allegedly drunk driver from injuring pedestrian); Furr v. Spring Grove State Hosp., 53 Md.App. 474, 454 A.2d 414,

cert. denied, 296 Md. 60 (1983) (psychiatrist owed no public duty to prevent harm by failing to detain patient); Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994)." Valentine v. On Target, 112 Md.App. 679, 686, 686 A.2d 636, 639 (1996).

353 Md. at 552, 727 A.2d 947.

In Nails v. Community Realty Co., 166 F.3d 333, 1998 U.S.App. LEXIS 31576 (4th Cir.1998),¹ the United States Court of Appeals for the Fourth Circuit applied Maryland law as it held:

Under Maryland law whether a landlord has a duty to protect tenants is a legal question, ... which we review de novo.

(Emphasis supplied).

The Factual Background

Sunday, October 4, 1998, was the final day of the Fells Point Festival, an occasion on which the neighborhood and its commercial establishments would be expected to be more than ordinarily crowded. The Hightopps Bar and Grill is at the corner of Broadway and Thames Street, the literal epicenter of Fells Point. Hightopps is a three-story establishment. The first floor is a bar, with several tables for customers. It is entered from Thames Street. The second floor contains both a game area and a restaurant. The third floor has an outdoor deck overlooking both Thames Street and Broadway. It also has a bar, two restrooms, a storage area, and an office.

There are two approaches to the second and third floors. They may be reached through a ground level door on Broadway, which leads to a stairway with entrances to both the second and third floors. Those upper levels may also be approached from an interior stairway leading from the first floor bar area. There are thus two doors providing ingress for the public, one on Thames Street and one on Broadway.

Because of the anticipated crowd from the Fells Point Festival (the weather turned out to be cold and damp and the crowd was less than anticipated), Hightopps had approximately six security personnel on duty on the evening of October 4. A separate guard was stationed at each of the public entrances, the door on Thames Street and the door on Broadway. Their primary mission was to prevent 1) underage persons and 2) obviously intoxicated persons from entering the establishment. A third guard was stationed at the top of the stairs leading up from the door on Broadway, at the entrance to the third-floor deck. The other three security personnel walked throughout the premises to prevent disruptive incidents between patrons and to handle them if any such incidents should occur.

The appellant, as part of a party of six persons, arrived at the Fells Point Festival at approximately five p.m. In her party was her fiancé, Jason Postlewaite; her friend, Lauren Wolf; another work-acquaintance named Jen; and two friends of Jason's, Ryan Currie and Ryan Dunnigan. Shortly after their arrival at the Festival, the party entered Hightopps via the door on Broadway and climbed the stairs directly to the third-floor deck.

The appellant recalled that someone at the Broadway entrance was "carding," to wit, checking the identification cards for age, of everyone who entered. She also recalled a bartender being present behind the third-floor deck bar. When the appellant and Lauren returned from an uneventful trip to the restroom shortly after their arrival at Hightopps, the appellant recalled there being between six and ten customers, in addition to her own party, on the third-floor deck.

The appellant described her first and uneventful trip to the restroom. From the deck she ascended five to seven steps to a hallway. The door to the ladies' room was "another twelve strides" from the top of those stairs. That third-floor ladies' room had two stalls, each with a swinging door. The large stall on the left (as one enters the ladies' room) had a sliding-type latch; the other stall had no latch. The door from the hallway had no lock because the restroom was designed to be used by more than one person at a time.

On that first trip, the appellant simply "primped" at the mirror while Lauren used one of the stalls. In terms of noise level, the appellant and Lauren were able to converse with each other in normal tones. Lauren made no comment about a door not closing or a latch not working. The appellant saw nothing that caused her to be concerned for her safety. She described the facility as a "fairly typical bar bathroom." Although the appellant's brief now characterizes the lighting as "dim," her deposition testimony was that the lighting did not appear to her to be particularly dim, either in the restroom or in the hallway leading to the restroom. It was, moreover, not yet dark outside.

At about six p.m., the appellant made her second trip to the restroom, on that occasion alone. At that time, in addition to her own party there were "between two and six other people" on the deck. With respect to the demeanor of the crowd, moreover, the appellant, in her deposition, described it as being qualitatively quiet as well as quantitatively sparse.

Q. Was there anything about the other patrons that you saw at Hightopps at any time before this incident that caused you to be concerned about your safety or your security?

A. No.

Q. They weren't rowdy or poorly dressed?

A. No, it was just rather quiet. Most of what I remember being up there were kind of petite little females, because I think that's kind of why my party was interested in staying up there.

Q. You mean the men in your party?

A. Yes.

(Emphasis supplied).

There was no suggestion as to why there should have been a heightened need for security because of an unusually large or unruly crowd. Indeed, where a rape occurs in an allegedly lonely restroom off an allegedly secluded hallway, the danger would seem to stem more from the lack of people than from the presence of too many people.

When the appellant arrived there, no one else was in the restroom. The appellant chose the stall on the right, without the latch, rather than the stall on the left, with the latch. It did not concern her that she had to hold the stall door shut, because she had been in public restrooms before where that had been the case.

The appellant then saw a man enter the restroom, a man she knew, from past acquaintanceship, to be one Richard Casey.² In her deposition, the appellant stated that she "looked" and "kind of opened her stall door to see if it was Lauren." The lack of a...