Pratt v. Maryland Farms Condominium Phase 1, Inc.

• Decision Date: 08 June 1979
• Docket Number: No. 1102,1102
• Citation: 42 Md.App. 632,402 A.2d 105
• Parties: Allen W. PRATT et al. v. MARYLAND FARMS CONDOMINIUM PHASE 1, INC.
• Court: Court of Special Appeals of Maryland

Page 632

42 Md.App. 632

402 A.2d 105

Allen W. PRATT et al. v. MARYLAND FARMS CONDOMINIUM PHASE 1, INC.

No. 1102.

Court of Special Appeals of Maryland.

June 8, 1979.

Barry F. Selig, Bethesda, with whom were Sullivan & Selig, P. A., Bethesda, on the brief, for appellants.

Christopher L. Allen, Wheaton, with whom were James A. Welch and Welch, Murphy & Welch, Wheaton, on the brief, for appellee.

Argued before MASON, WILNER and MacDANIEL, JJ.

MacDANIEL, Judge.

The appellants, Allen W. Pratt, a minor, by and through his father and next friend, George H. Pratt, and George H. Pratt, individually, filed a suit, in the Circuit Court for Prince George's County, against Potomac Electric Power Company (Pepco) and Maryland Farms Condominium, Phase 1, Inc. The appellants alleged that the defendants were responsible for injuries sustained by the minor child on April 16, 1977, when he climbed a pine tree and came in contact with an uninsulated electrical wire. The tree and the electrical easement were on the property of the condominium complex where the child lived with his parents.

Prior to trial, on August 31, 1978, the appellants settled with Pepco and signed a Joint Tort feasor's Release. The trial with respect to Maryland Farms, the appellee, proceeded. The appellee moved for a directed verdict at the conclusion of the plaintiffs' case and again at the conclusion of the entire case. Rulings on the motions were reserved by the lower court. The case was submitted to the jury, which returned a judgment in favor of the appellants for $20,000. After a hearing on the arguments, the court granted the appellee's Motion for Judgment N.O.V.

The testimony in the court below showed that Allen Pratt was thirteen years old and was in the eighth grade at the time of the accident. He testified that he went behind the condominium complex to climb trees with his younger sister and her friend, Donna Shepherd. He was asked:

"Q Underneath the trees what is located back there?

A Under the pine trees a bike rack.

Q . . . (D)id you ever go down there to play?

A No Q Did you ever go down there and observe anybody else playing in that area?

A No.

Q Did you ever go down to that area to climb trees?

A No.

Q Why did you pick the pine tree?

A Because it's an easy one to get to.

Q Before you went up into the tree and started climbing it did you observe any power lines or electrical wires coming into or out of the tree?

A No.

Q How high off the ground would (the lowest) branch have been if you recall?

A About five feet.

Q When you got up into the tree just prior to the time that you were shocked what were you doing?

A Throwing down pine cones.

Q So you were picking pine cones off the limbs and throwing them to the ground?

A Yes.

Q As you reached for the pine cones did you see any electrical wires in the tree?

A No."

In addition, he was asked:

"Q Allen, were you aware that someone else had injured themself on the electrical wires prior to the time that you hurt yourself?

A No."

Donna Shepherd, who was eleven at the time of the trial, testified that she and others ride their bikes in the area where Allen Pratt was injured. She was shown a picture of the tree involved in the accident, and she testified:

"Q And in looking at it now does it look like the tree?

A Yeah.

Q Do you see the wire above it?

A Yes.

Q Okay, do you how do you know where (Allen Pratt) was?

A Because I stood back and looked up.

Q Could you see the wires when you looked up there?

A Un huh.

Q You can see them now, though, can't you?

A Yes."

The appellee's General Manager, Georgene O'Hara, testified that she was aware, at the time, that Pepco had an electrical wire running through the particular tree which Allen Pratt had climbed. She knew that a bike rack was in the general area of the tree. She also was aware of a prior accident, in July 1976, in which an individual hired by the appellee received an electrical shock while removing a dead tree from the premises. She never hired anyone to prune the trees in the easement area.

Joseph Morgan, a maintenance engineer for the appellee, testified that initially the bike rack had been placed some distance from the tree in question, but that "the tenants or somebody else moved it back there." He testified that he was in the specific area almost every day because it was the site of a compacter. He had no knowledge that children played in the area. He testified that the appellee did not trim the trees in the area, but that Pepco periodically checked the trees.

The appellant's mother, Mrs. Pratt, was shown a photograph of the tree in question, and she testified:

"Q Does that picture fairly and accurately reflect the condition of the tree, bike rack, fence, etc., that you have mentioned as it was on that date?

A Well, it looks like it. That is the way the tree looked and you can see the wires here, too."

The trial judge instructed the jury as follows:

"If you find from the testimony that the Defendant, Maryland Farms Condominium, prior to the Plaintiff's injury had actual knowledge or that a reasonable prudent person should have foreseen or anticipated the electric wires were a danger to the Plaintiff by virtue of the Defendant's prior knowledge that the electric power line was uninsulated that the Defendant's prior knowledge that a tree trimmer had been electrically burned on July 16, 1976, by these electrical wires, that the Defendant's prior knowledge that a bicycle rack was near the tree through which the uninsulated electrical wires and that children use bicycles and that Defendant, Maryland Condominium, failed to guard against or protect the Plaintiff by taking reasonable steps to protect him, then you must find the Defendant, Maryland Farms Condominium, negligent."

With regard to the conduct of Allen Pratt, the judge said:

"A Plaintiff cannot recover if his negligence is a cause of his own injury. The Defendant has the burden of proving by the preponderance of the evidence that the Plaintiff's negligence was a cause of the Plaintiff's injury. Contributory negligence is negligence on the part of the person injured which proximately causes the injury of which he complains. The standard by which the conduct of the Plaintiff, a child, is measured when the Plaintiff, a child, is injured as a result of a contact with electric wires while climbing a tree is such care as is ordinarily exercised by children of the same age, capacity, discretion, and experience under the same or similar circumstances."

In explanation of its granting of the appellee's Motion for Judgment N.O.V., the court stated:

"I think it is well settled in the cases that we have had so far, and is precedent in Maryland Law, that a possessor of land is liable for harm that is caused to an invitee by a condition of which he was aware or in the exercise of due care should have been aware only if he realizes that the condition constitutes an unreasonable risk to an invitee, that there is reason to believe that the invitee will discover the risk and fails to exercise reasonable care to make the condition reasonably safe or to warn the invitee.

"Even if this Court determines under that case I have just cited that Maryland Farms, Inc. knew or should have known that the position of the tree in relation to the wires created an unreasonable risk, there was no reason for Maryland Farms, Inc. to believe that Allen Pratt, acting as a reasonable person, would not discover the wires and realize the risk of coming into contact with them."

I

The appellants argue, now, that the lower court erred in granting the appellee's Motion for Judgment N.O.V. There was, the appellants contend, sufficient evidence for the jury to determine the question of negligence.

In the present case, both parties concede, and, accordingly, we will assume, that Allen W. Pratt was on the property in question as an invitee of the appellee. In Maryland, the liability of possessors of land with regard to invitees is as follows:

"A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees; and

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

(c) fails to exercise reasonable care to protect them against the danger." Restatement (Second) of Torts § 343 (1965).

For statements of approval of these principles see Honolulu Ltd. v. Cain, 244 Md. 590, 596, 224 A.2d 433 (1966), and the cases therein cited. See also Gast, Inc. v. Kitchner, 247 Md. 677, 685, 234 A.2d 127 (1967).

The above standards clearly apply to common areas set aside by a landlord for the use of his tenants. See, e. g., Macke Laundry Serv. Co. v. Weber, 267 Md. 426, 429, 298 A.2d 27 (1972), and the cases cited therein. Although there is no clear authority in Maryland, we hold that these standards apply to the conduct of a landlord even where there is an easement across his property and the easement-holder has certain duties of maintenance and repair.

The Court of Appeals of Maryland has explicitly elaborated on the above rule in Yaniger v. Calvert Bldg. & Con. Co., 183 Md. 285, 288, 37 A.2d 263, 264-265 (1944), as follows:

"The liability of the owner of a public building to invitees has been defined by this Court in numerous cases and the law governing it is well settled. The owner is not an insurer of such persons but owes them the duty, only, to exercise ordinary care to render the premises reasonably safe and to give warning of latent or concealed perils. When the facts alleged show that the danger is as obvious to an invitee as it is to the owner, the latter is not liable for injuries sustained in failing to heed the danger. Pinehurst Co. v. Phelps, 163 Md. 68, 160 A. 736; Morgenstern v. Sheer, 145 Md. 208, 217, 125 A. 790; Fulton...