SWAROOP, INC. v. Hart

• Decision Date: 19 July 2004
• Docket Number: No. 226,226
• Citation: 854 A.2d 269,158 Md.App. 63
• Parties: SHASTRI NARAYAN SWAROOP, INC., v. Jonathan D. HART, et ux.
• Court: Court of Special Appeals of Maryland

854 A.2d 269

158 Md.App. 63

SHASTRI NARAYAN SWAROOP, INC., v. Jonathan D. HART, et ux.

No. 226, Sept. Term, 2003.

Court of Special Appeals of Maryland.

July 19, 2004.

David S. Goldberg, Hunt Valley, for Appellant.

Mark C. Miller (William J. Blondell, Jr., on the brief), Baltimore, for Appellee.

Panel: DAVIS, SONNER and KENNEY, JJ.

DAVIS, Judge.

Firefighter appellee, Jonathan Hart, on appeal, asseverates a belief that there is an undercurrent eroding application of the fireman's rule. Because the trend has been "logically further extended," he contends, by the recent decision of the Court of Appeals in Tucker v. Shoemake, 354 Md. 413, 731 A.2d 884 (1999), and our decision in Rivas v. Oxon Hill Joint Venture, 130 Md.App. 101, 744 A.2d 1076 (2000), he asks that we affirm the jury award of $454,396.43. The very decisions, upon which he relies, however, deftly submerge the proposition he espouses on appeal.

Appellee¹ filed suit against appellant Shastri Nayaran Swaroop, Inc., owner and operator of the Regal Inn on Pulaski Highway in Baltimore County, for injuries sustained while responding to a fire at the motel. Subsequent to discovery, including extensive depositions of parties and witnesses, appellant filed a motion for summary judgment, asking the lower court to rule that the fireman's rule applies as a matter of law. After appellee responded, the Circuit Court for Baltimore County conducted a hearing on November 5, 2001 and denied the motion.

A trial was then held from March 10 to 12, 2003, during which appellant made a motion for judgment after the conclusion of appellees' case, which was denied, as was appellant's renewed motion for judgment after all of the evidence had been presented. The case was subsequently submitted to the jury which returned its verdict on March 12, 2003; judgment was entered on March 13, 2003.

The instant appeal followed in which appellant raises the following questions:

I. Did the [c]ircuit [c]ourt err or abuse its discretion in denying appellant's motion for summary judgment?

II. Did the [c]ircuit [c]ourt err or abuse its discretion in denying appellant's motions for judgment during the jury trial, thus permitting the matter to be submitted to the jury?

III. Did the [c]ircuit [c]ourt err or abuse its discretion in refusing to instruct the jury with respect to the Maryland law on liability of a premises owner for an injury sustained by one coming onto the premises with regard to the legal status of that individual at the time of the injury and the nature of the cause or event resulting in the injury?

IV. Assuming that summary judgment was properly denied, motions for judgment were properly denied, and the jury instructions were appropriate, did the jury verdict conform to the evidence and to the instructions?

Because we hold that the fireman's rule is applicable and the circuit court therefore erred in denying appellant's motion for summary judgment and motions for judgment, we need not reach questions 3 and 4. We shall, accordingly, reverse the judgment of the circuit court.

FACTUAL BACKGROUND

Summarily, at approximately 4:30 a.m. on January 25, 2000, appellee, after responding to a call for a fire, was injured when he fell several feet down an open stairwell as he attempted to make his way to the second level of appellant's motel where patrons were ostensibly trapped. Undisputably, he fell because of low visibility. Appellee submitted what he styled as the "material facts" in his memorandum in support of his response to appellant's motion for summary judgment:

II. Material Facts

In January 2000, the Plaintiff, Jonathan Hart, was employed as a Lieutenant with the Baltimore County Fire Department. Jonathan Hart was assigned to the Station Number 15, Eastview. On January 25, 2000, between 4:30 a.m. and 5:00 a.m., Jonathan Hart and other members of the Baltimore County Fire Department responded to a call for a motel fire on Pulaski Highway.

Upon arrival at the Regal Inn, the firefighters encountered heavy fire and smoke conditions. The building was not visible upon arrival due to the heavy smoke. Fire was observed on the second floor of the two-story motel. Jonathan Hart was ordered to perform search and rescue on the side of the building. Mr. Hart gathered his equipment, including a thermal imaging device, and proceeded to the side of the building to search for victims.

A thermal imaging device or camera detects differences in temperature and is used to search for victims and to determine the location of the fire. The operator of the camera can look through it and see a silhouette with any temperature change within one tenth of a degree. The camera is used in "view and move" fashion. In other words, the operator of the device views an area, then lowers the camera and moves in the direction viewed.

Mr. Hart, standing in the parking lot on the side of the building, sought access to the second floor of the motel to search for trapped victims. Mr. Hart, as he could not otherwise see because of darkness and smoke, viewed the building through the thermal imaging camera and determined that there was no fire below the second floor. He then looked for a stairway to access the second floor. He saw what he believed to be a stairway and walked towards the building.

He did not look into the thermal imaging camera once he began walking. A railing extended along the walkway on the side of the building. Mr. Hart used the railing as a guide into an otherwise blind path as he walked with his equipment. As he walked along the railing, he stepped into space, falling several feet into an open and unguarded stairwell. Mr. Hart sustained severe injuries as a result.

(Emphasis added.)

During discovery, appellee testified at his deposition on January 11, 2001:

Q. Was there, were there flames visible?

A. Yes.

Q. Was there smoke visible?

A. It was dark out, but I would say yes.

Q. All right. And where was the smoke, to the best of your recollection?

A. Coming from that area. And the smoke that I could see — I don't know the answer to that question.

Q. Well, was —

A. I can't tell, I mean, I don't remember what, it's hard to describe seeing smoke, is what I'm saying. If you're looking at it against the moonlight, you can say yeah, [sic] I see smoke. When you're looking at a dark building, it's hard to say you see it.

Q. Was there smoke on the first floor?

A. I don't remember. I don't remember.

Q. Was there smoke on the parking lot?

A. I would say yes, but I don't — I remember smelling smoke more than I remember seeing it.

Q. You didn't see it, you smelled it?

A. Well, I'm not saying I didn't see it. But I, I, I[sic] would say I don't remember.

...

A. At this point I surveyed the first floor of the building. I had checked for fire in this area, but I was also interested, I didn't know how to get upstairs.

Q. Okay.

A. I didn't know how to get to the second floor. I looked for a stairwell, and I thought I saw a stairwell over here.

...

Q. All right, Mr. Hart. So you were looking for a stairwell, and you thought you found one?

A. Right.

Q. Could you go on?

A. Okay. At that point I walked sort of towards the building, I could see this railing here. And came to the railing. And was along the railing, carrying my equipment. I wasn't looking through the thermal imager after I left this point.

...

Q. Okay. Continue.

A. So I didn't see a space up into the sidewalk here, up to the sidewalk. So, now, but I saw what I thought was a stairwell down here anyway.

Q. When you refer to a space, are you referring to a stairwell?

A. No, no, no. I didn't see somewhere to walk through the railings.

Q. Okay.

A. But it didn't make any difference to me at that point because I thought I saw a stairwell down here. So I moved towards the stairwell. And I was holding, with my equipment, I had took [sic] everything with me. And the next thing I knew, I was, I was lying upside down on a stairwell.

Q. So, in fact, you did see a stairwell, it just wasn't what you perceived?

A. No.

Q. Okay.

A. I don't think that's what I even saw. I was looking past that. Because, in other words — I understand what you're saying. And I could understand that if I was looking down the stairwell. In other words, if I was looking down a stairwell with a thermal imager, I would have seen a series of lines which I would have perceived as steps. But if I was holding the thermal imager at the wrong angle, then I wouldn't have been looking at steps going up, I would have been looking at steps going down. But where I was standing I was looking across the stairwell.

Q. All right. Let me see if I get this correctly. You were looking through the thermal imager.

A. Uh-huh.

Q. And you were looking straight ahead?

A. Yes.

Q. And the thermal imager did not pick up steps?

A. Which ones, the ones I fell down?

Q. Yes.

A. Yes, because I was aiming it past that.

Appellee's "Material Facts" and deposition testimony above were not controverted by appellant and constituted the principal basis upon which the circuit court denied appellant's motion for summary judgment.

SUMMARY JUDGMENT

Appellee contends that the court properly denied appellant's motion for summary judgment because "the negligence which caused [appellee's] injuries was independent of the reason his services as a fireman were required at the location."

Summary judgment is appropriate when, reviewing the entire record, and drawing all reasonable inferences in favor of the party against whom summary judgment is sought, there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501(e); Okwa v. Harper, 360 Md. 161, 178, 757 A.2d 118 (2000); Magee v. DanSources Technical Servs., Inc., 137 Md.App. 527, 769 A.2d 231 (2001).

The purpose of summary judgment is to determine whether there are facts in dispute that must be resolved through a more formal dispute resolution process, such as a trial on the merits. Eng'g Mgt. Servs., Inc. v. Md. State...