Murphy v. Baltimore Gas and Elec. Co.

• Decision Date: 23 April 1981
• Docket Number: 87,Nos. 59,s. 59
• Citation: 290 Md. 186,428 A.2d 459
• Parties: Timothy Paul MURPHY v. BALTIMORE GAS AND ELECTRIC COMPANY. Douglas SMITH et ux. v. REEDERS MEMORIAL HOME, INC. et al.
• Court: Maryland Court of Appeals

Page 186

290 Md. 186

428 A.2d 459

Timothy Paul MURPHY v. BALTIMORE GAS AND ELECTRIC COMPANY.

Douglas SMITH et ux. v. REEDERS MEMORIAL HOME, INC. et al.

Nos. 59, 87.

Court of Appeals of Maryland.

April 23, 1981.

Joseph B. Harlan, Baltimore (Klein, Harlan & Knust, Baltimore, on the brief), for appellant in No. 59.

John C. Armor, Towson, for appellants in No. 87.

Robert A. Amos, Baltimore (Clifford E. Schulte and James A. Biddison, Jr., Baltimore, on the brief), for appellee in No. 59.

M. Bradley Hallwig, Baltimore (Anderson, Coe & King, Baltimore, on the brief), for appellee, Reeders Memorial Home, Inc.

Leonard S. Jacobson, County Sol., and James G. Beach, III, Asst. County Sol., Towson, for appellee, Baltimore County.

Argued before MURPHY, C. J., and SMITH, DIGGES, ELDRIDGE, COLE, DAVIDSON and RODOWSKY, JJ.

DIGGES, Judge.

These two independent appeals bring before this Court issues relating to the tort liability of owners of property to those injured while using it. Since the contentions being made here by the appellants in both actions are essentially legal in nature and either identical or closely related, we deem it expedient to dispose of the two appeals in one opinion. A brief summary of the unfortunate historical facts of each action will suffice.

In the first case we ponder, appellant Timothy Paul Murphy obtained a judgment in the amount of $150,000.00 following a jury trial in the Superior Court of Baltimore City for damages sustained when his hand came in contact with an electrical transformer owned by appellee Baltimore Gas & Electric Company. Judge Greenfeld, who presided at the trial, after determining that the evidence was legally insufficient to support the verdict, entered a judgment N.O.V. in favor of the electric company, and we granted certiorari prior to the intermediate appellate court's consideration of Murphy's appeal. The accident out of which this proceeding arises occurred on February 4, 1977, after Mr. Murphy and his wife emerged from the Brunswick Cedonia Bowling Lanes on Hamilton Avenue in Baltimore City at around 9:00 p. m. and proceeded to their vehicle located in Brunswick's adjacent parking lot. Upon observing that the citizen's band radio was missing from his newly purchased vehicle, this appellant approached several teenage children standing near the side of the bowling alley whom he believed might have knowledge of the disappearance. As he advanced, Mr. Murphy heard a "clanking" noise which he thought sounded like the closing of the top of a trash dumpster, so, when a discussion with the youths proved not to be helpful, he proceeded toward what he thought was a rubbish receptacle located at the side of the building to determine whether the CB radio had been disposed of there. The area surrounding what was in reality a high voltage electrical transformer was dark, and it was for this reason that appellant was unable to see the doors equipped with locks on the front of the unit. The transformer, surrounded on three sides by a brick wall attached to the building, was situated on a concrete support slab imbedded in the ground, with a protective metal pole centered in the opening to the pad. When Mr. Murphy lifted the top of the container about a foot, causing it to slide off the rear, he was unable to observe anything but darkness inside the unit. ¹ He then returned to the bowling alley, and waited for the police to respond to a call made by a friend on his behalf. Apparently becoming somewhat impatient when the police failed to arrive after twenty minutes, this appellant reapproached the container, lit two matches in an attempt to see whether his radio lay within it, and received a severe electric shock when his hand came in contact with the transformer located within the unit.

The other case we consider arose out of the death by drowning on October 7, 1977, of 31/2 year old Christopher Smith in a pond belonging to appellee, Reeders Memorial Home, Inc. Since the appeal brings into question the propriety of the Circuit Court for Baltimore County granting both Reeder's demurrer and co-appellee Baltimore County's motion raising preliminary objection, we assume the truth of the facts alleged in appellants' amended declaration. The parcel of land on which the "abandoned quarry" known as "Becky's Pond" is situated is adjacent to an apartment building where appellants Douglas and Pamela Smith lived with their victim child. The pond, for some twenty years, had been utilized by residents of the neighborhood for recreational purposes. Reeders, having knowledge of this use, posted "no trespassing" signs and erected a barbed wire fence around the property at some point in the past, but, by the time of Christopher's death, the signs had disappeared and the fence had fallen into such disrepair that uninhibited access to the parcel existed. These appellants additionally allege that two other children have drowned in the pond during the preceding decade, and that the failure to maintain a fence is a violation of the Baltimore County Code. The Smiths also joined Baltimore County as a defendant, alleging that this political entity deliberately failed to require that Reeders provide a fence complying with county law, and prevented that appellee from draining the pond, in order that the County could purchase the property at a reduced price. In this way, it is alleged, the County (as well as Reeders) "deliberately us(ed) the possibility of another death as a bargaining point in an effort to gain an economic advantage of $20,000.00 or more with respect to the other." A motion raising preliminary objection filed by the County grounded on that body's claimed immunity was granted and Reeder's demurrer was sustained without leave to amend. When the Smiths appealed, we issued our writ of certiorari before the Court of Special Appeals decided the issues presented.

The previous decisions of this Court well document that in Maryland, while required to provide ordinary care for an invitee, owners of real and personal property have consistently been held to owe no duty to a trespasser, except to abstain from willfully or wantonly injuring or entrapping such a person. E. g., Sherman v. Suburban Trust, 282 Md. 238, 241-42, 384 A.2d 76, 79 (1978); Bramble v. Thompson, 264 Md. 518, 521-22, 287 A.2d 265, 267 (1972); Osterman v. Peters, 260 Md. 313, 314, 272 A.2d 21, 22 (1971); Hensley v. Henkels & McCoy, Inc., 258 Md. 397, 398, 265 A.2d 897, 898 (1970) (in which Judge Smith for the Court exhaustively reviewed the applicable law of this and other states); Hicks v. Hitaffer, 256 Md. 659, 666-68, 261 A.2d 769, 772 (1970); Mondshour v. Moore, 256 Md. 617, 619-20, 261 A.2d 482, 483 (1970); Fopma v. Bd. of County Comm'rs, 254 Md. 232, 234, 254 A.2d 351, 352 (1969); Herring v. Christensen, 252 Md. 240, 241, 249 A.2d 718, 719 (1969); Carroll v. Spencer, 204 Md. 387, 391-94, 104 A.2d 628, 630-31 (1954); State v. Machen, 164 Md. 579, 582-83, 165 A. 695, 696 (1933); Stansfield v. C. & P. Tel. Co., 123 Md. 120, 123-25, 91 A. 149, 150 (1914) (no liability to man who was electrocuted while climbing a telephone pole located on or over public property to rescue kitten). And this is true even though the trespasser be a child of tender age. Osterman v. Peters, supra (41/2 years); Mondshour v. Moore, supra (6 years); Hensley v. Henkels & McCoy, Inc., supra (10 years); Carroll v. Spencer, supra (8 years); Fopma v. Bd. of County Comm'rs, supra (7 years); Herring v. Christensen, supra (3 years). Being fully aware that this great array of authority (which could have been expanded), constitutes virtually an impregnable barrier to their recovery in these cases, appellants invite this Court to abolish the common law distinctions between the duties owed the various classes of users of another's property in favor of applying the general negligence standard to all. At least with respect to trespassers, the status of the injured parties in the two cases here, we decline this entreaty. ² The basis for the existing allocation of responsibility between owner and trespasser, reaffirmed today, has so frequently been broadcast by this Court over the last century that it would be superfluous to do more here than refer those interested to the cases earlier cited and the authorities relied on in each. ³

Each appellant, recognizing the possibility that we will not alter the common law with respect to an owner's responsibility to trespassers, claims the existence of an exception which, it is insisted, renders the general rule of no liability inapplicable to his case.

We initially consider Mr. Murphy's claim. He asserts that under the abutting owner principles iterated in Pindell v. Rubenstein, 139 Md. 567, 115 A. 859 (1921), the electric company is responsible for his injuries and the jury verdict should be reinstated. Mr. Murphy can gain no solace from Pindell, where a young boy was injured by a gate that fell on him as he walked along the adjacent public sidewalk. The Court there explained that even assuming the child had climbed upon or otherwise come into contact with the gate ... it is the duty of an abutting owner, maintaining structures along and adjacent to a highway, to use reasonable care to see that they are kept in such a condition as not to endanger the safety of persons engaged in the reasonable and lawful use of the highway. In measuring the extent of that duty we must be mindful of the fact that the public highways are the common and universal avenues of travel and communication for the entire public, and they may lawfully be used by children of tender ages, by the aged and infirm and by persons suffering from physical disability. Having in mind those considerations, it would be unreasonable to hold that an abutting owner could maintain a structure immediately adjacent to the highway in such a position that a person travelling along the highway could by merely taking hold of it cause it to fall and injure him,...