Vann v. Willie

• Decision Date: 20 December 1978
• Docket Number: No. 148,148
• Citation: 395 A.2d 492,284 Md. 182
• Parties: , 98 A.L.R.3d 1121 Alton VANN, Sr. v. Wilbur WILLIE et al.
• Court: Maryland Court of Appeals

Page 182

284 Md. 182

395 A.2d 492, 98 A.L.R.3d 1121

Alton VANN, Sr. v. Wilbur WILLIE et al.

No. 148.

Court of Appeals of Maryland.

Dec. 20, 1978.

Samuel D. Hill, Towson (White, Mindel, Clarke & Hill, Towson, and Lynn D. Tanner, Jr., Aberdeen, on the brief), for appellant.

C. Russell Fields, Baltimore (Charles S. Keyes and Keyes & Simmons, Baltimore, on the brief), for Wilbur Willie.

Austin W. Brizendine, Jr., Towson (Brizendine & Brizendine, Towson, on the brief), for H. E. Koontz Creamery, Inc.

Argued before MURPHY, C. J., and SMITH, DIGGES, LEVINE, ^* ELDRIDGE, ORTH and COLE, JJ.

COLE, Judge.

The Court of Special Appeals in the instant case agreed with the trial court in holding that the appellant, while swimming in the Bush River in Harford County, could not recover for injuries received when he collided with a motorboat. Vann v. Willie, 38 Md.App. 49, 379 A.2d 411 (1977). The Court of Special Appeals, after determining that the appellant could not recover under any theory of Maryland tort law, concluded that under Executive Jet Aviation v. City of Cleveland, ¹ 409 U.S. 249, 93 S.Ct. 493, 34 L.Ed.2d 454 (1972), admiralty law did not apply because the accident did not involve a vessel engaged in traditional maritime activity, I. e., commercial activity.

In our view the appellant cannot recover under either maritime law or Maryland tort law simply because he failed to show negligence on the part of the alleged tort-feasors which proximately caused the harm complained of. Thus, under the facts of this case it was unnecessary for the Court of Special Appeals to address the issue as to when and under what circumstances admiralty law would be applicable in this State; we still regard this question as unanswered. Nevertheless, we shall affirm and state our reasons.

In August of 1973, H. E. Koontz, Inc. (Koontz) maintained certain shore property off the Bush River which was used in the summer by its higher echelon employees and their guests for recreational purposes. At the time of the accident Wilbur Willie (Willie), an executive employee, his wife, his daughter and son-in-law, Richard Varnedoe (Varnedoe), were staying at the property. Koontz kept a boat at the property for the use of its employees which was 16 to 18 feet long and powered by a sixty horsepower outboard motor. The windshield of the boat had sustained a one-quarter inch crack from top to bottom on its right side in 1969 or 1970 but had been repaired by a series of nuts, bolts and washers spaced three to four inches apart along the length of the crack. The boat had been used every summer since repaired without incident up to the day of this accident. The president of Koontz, Mr. Oursler, testified at the trial that the windshield as repaired was stronger than before and that the crack as repaired did not materially impair the vision of the operator of the boat.

The collision that gave rise to this controversy occurred August 16, 1973. Alton Vann, Sr. (Vann) was taking his usual late afternoon swim in the Bush River near the Koontz property, having chosen on that day to swim a stroke called the crawl. In the manner in which Vann executed this stroke, his face was alternately turned out of the water in order to breathe, then submerged. Meanwhile Varnedoe was operating the motorboat, towing Willie on water skis and steering the boat at times as close as twenty-five to forty feet from piers adjacent to the Koontz property.

Varnedoe approached the accident site from the opposite direction and Vann was unaware of being on a collision course with the approaching boat, neither having seen it bearing down on him nor having heard the boat's motor. Observers on the shore perceived that the boat and Vann were in danger of hitting each other, but their attempts to warn the parties were to no avail. Varnedoe misunderstood their gestures and Vann did not see them. Vann continued his crawl. Willie released the tow line and dropped into the water. As Varnedoe cut the power and began to turn the boat sharply toward the center of the river to circle around to pick up Willie, the boat ran into Vann. Varnedoe jumped into the river and proceeded to assist Vann in reaching the shore. Vann had suffered injuries to his head and right forearm.

Vann filed suit in the Circuit Court for Harford County against Varnedoe for negligent operation of the boat; against Willie for negligently entrusting the boat to an incompetent operator; and against Koontz for entrusting an unsafe chattel to an incompetent operator and providing an unseaworthy boat. ² The trial judge granted directed verdicts for Willie and Koontz. ³ Vann appealed to the Court of Special Appeals which affirmed and we granted certiorari to consider the issues presented by the parties.

Vann contends that he produced evidence of negligence and thus it was error for the trial judge to direct verdicts for Koontz and Willie. We have held that a case should be submitted to the jury "if there be any evidence, however, slight, legally sufficient as tending to prove negligence . . . ." Haraszti v. Klarman, 277 Md. 234, 352 A.2d 833 (1976); Curley v. General Valet Service, 270 Md. 248, 311 A.2d 231 (1973); Fowler v. Smith, 240 Md. 240, 213 A.2d 549 (1965). Thus, if Vann presented any evidence tending to show negligence which was the proximate cause of his injuries, the trial court erred in directing a verdict against him.

Vann attempts to impose liability upon Koontz based on the theory of negligent entrustment as set forth in § 389 of 2 Restatement (Second) of Torts (1965):

One who supplies directly or through a third person a chattel for another's use, knowing or having reason to know that the chattel is unlikely to be made reasonably safe before being put to use which the supplier should expect it to be put, is subject to liability for physical harm caused by such use to those whom the supplier should expect to use the chattel or to be endangered by its probable use, and who are ignorant of the dangerous character of the chattel of whose knowledge thereof does not make them contributorily negligent, although the supplier has informed the other for whose use the chattel is supplied of its dangerous character.

Vann concedes that while this Court has referred to § 389 at times, we have never applied this section to impose liability on the supplier of a chattel, citing our decision in State v. Jones, 186 Md. 270, 46 A.2d 623 (1951). However, Vann urges us to apply § 389 to the facts of this case. Section 389 is predicated on the supplying of an Unsafe chattel and the record shows that Vann failed to introduce any evidence to prove that the boat was unsafe. Six witnesses called by Vann all testified that the crack in the windshield did not materially obstruct their vision.

However, even assuming for the sake of argument that Vann proved that the boat was unsafe, his contention fails for the reason that § 389, comment d. of the Restatement provides for imposition of liability on the supplier "if, but only if, his conduct is, in law, the cause of bodily harm sustained by another . . . .", and Vann failed to demonstrate that the repaired crack in the windshield of the boat was the proximate cause of his injuries.

We have defined proximate cause many times in our prior opinions to mean that negligence is not actionable unless it, without the intervention of any independent factor, causes the harm complained of. Peterson v....