Wagner v. Doehring

• Decision Date: 01 September 1988
• Docket Number: No. 63,63
• Citation: 315 Md. 97,553 A.2d 684
• Court: Maryland Court of Appeals
• Parties: George O'Neill WAGNER, et al. v. William E. DOEHRING, Personal Representative of the Estate of William E. Doehring, Jr., et al. ,

Page 97

315 Md. 97

553 A.2d 684

George O'Neill WAGNER, et al. v. William E. DOEHRING, Personal Representative of the Estate of William E. Doehring, Jr., et al.

No. 63, Sept. Term, 1988.

Court of Appeals of Maryland.

Feb. 27, 1989.

Motion for Reconsideration Denied April 7, 1989.

Angus R. Everton (Charles N. Ketterman, Donahue, Ehrmantraut & Montedonico, Chartered, on brief), Baltimore, for petitioner.

Kevin J. McCarthy, Catherine Cronin, McCarthy, Bacon, Costello & Stephens, Landover, for amicus curiae Potomac Elec. Power Co. Paul W. Davis, Baltimore, for amicus curiae Baltimore Gas & Elec. Co.

Louise A. Lock (Peter G. Angelos, Michael T. Ward, Law Offices of Peter G. Angelos, all on brief), Baltimore, for respondent.

Argued before ELDRIDGE, COLE, RODOWSKY, McAULIFFE, ADKINS, BLACKWELL, JJ., and CHARLES E. ORTH, Jr., Associate Judge for the Court of Appeals of Maryland (retired), Specially Assigned.

ADKINS, Judge.

William E. Doehring, Jr., died as a result of injuries sustained when the motorcycle he was operating struck a chain which was placed across a right-of-way by the holder of the right-of-way. The issue this Court must determine is the duty of care owed by the holder of the easement, or right-of-way, to one who enters the easement without authority from either the easement holder or the grantor of the easement.

Petitioners, George O'Neill Wagner and Beverly L. Wagner, t/a Bowag Kennels, own a 1.6 acre parcel of land (dominant estate) which is wholly surrounded by land (servient estate) owned by Reuben Shiling and W. Dale Hess. ¹ In August 1964, Shiling and Hess granted to the prior owners of the dominant estate a 50 foot wide right-of-way running 722.93 feet over the servient estate and connecting the dominant estate to Singer Road, a public road, thus providing a means of ingress and egress to the holders of the easement. Shiling and Hess reserved the right to use the right-of-way but have not used it nor granted others the right to do so.

The intersection of the right-of-way with Singer Road is forked, with a small triangular patch of land between the two prongs. On this patch there is a sign advertising the kennel, a mailbox and a newspaper box. Singer Road is a rural, unlighted, two-lane road running through a wooded area. Like the right-of-way, it has what appears to be a macadam surface.

The Wagners operated a kennel which catered to show dogs. Unauthorized motorcyclists drove upon the right-of-way in order to get to a dirt pathway on the servient estate. The cyclists drove at high speeds, scaring the Wagners' grandchildren and the dogs, and on occasion had parties alongside the road. In September 1982, in order to impede entry upon the right-of-way, the Wagners stretched a chain between two poles, at the top of the fork of the right-of-way. The parties dispute whether the chain was marked with reflectors or warning signs.

Just before midnight on 2 October 1982, William E. Doehring, Jr., and his friend and passenger Kelvin Henderson turned off of Singer Road and onto the right-of-way; the motorcycle they were riding was not equipped with a headlight and the riders were not wearing helmets. Doehring and Henderson had not been granted permission to use the right-of-way by Shiling, Hess, or the Wagners. The motorcycle struck the chain, and the riders were thrown off. Doehring died several hours later at the hospital.

Respondents, William E. Doehring, father of the decedent, as personal representative of the estate, and Elizabeth M. Doehring, the decedent's mother (the Doehrings), filed wrongful death and survival actions against the Wagners in the Circuit Court for Harford County. The trial court (Whitfill, J.) granted the Wagners' motion for summary judgment. Judge Whitfill held that Doehring was a trespasser as to the Wagners and that they owed him "no duty of care except to refrain from willfully or wantonly injuring or entrapping him." The Court of Special Appeals reversed and remanded for trial. Doehring v. Wagner, 75 Md.App. 67, 540 A.2d 499 (1988). ²

The intermediate appellate court, relying on principles of property law, determined that the Wagners' easement was " 'a nonpossessory interest in the real property of another,' " and that the use of the right-of-way was not exclusive. 75 Md.App. at 72, 74, 540 A.2d at 501, 502 (quoting Boucher v. Boyer, 301 Md. 679, 688, 484 A.2d 630, 635 (1984)). Concluding that the Wagners were not possessors of land, the court held they did not

enjoy the limited liability afforded a landowner. Instead of measuring [the Wagners'] conduct by the willful and wanton standard applicable to a trespasser/possessor relationship, the trial court must examine whether they used reasonable care....

Id. [75 Md.App.] at 74-75, 540 A.2d at 502. This court granted the Wagners' petition for writ of certiorari in order to determine, under the circumstances of this case, the duty owed to a trespasser by the holder of an easement for ingress and egress.

A brief review of applicable law provides the context within which we answer the question before us. In Maryland, the liability of an owner of real property is dependent upon the standard of care owed an individual. The standard of care, in turn, depends upon the individual's status while on the real property. Rowley v. City of Baltimore, 305 Md. 456, 464, 505 A.2d 494, 498 (1986); Sherman v. Suburban Trust Co., 282 Md. 238, 241-242, 384 A.2d 76, 79 (1978); Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972). The status may be that of invitee, licensee by invitation, bare licensee, or trespasser. ³

A landowner must use reasonable and ordinary care to keep the premises safe for an invitee, defined as one permitted to remain on the premises for purposes related to the owner's business. Bramble, 264 Md. at 521, 287 A.2d at 267. A licensee by invitation is a social guest and is owed a duty of reasonable care and must be warned of known dangerous conditions that cannot reasonably be discovered. Id. at 521-522, 287 A.2d at 267. A bare licensee is one who enters upon property, not as a social guest, but for his or her own convenience or purpose and with the landowner's consent. Mech v. Hearst Corp., 64 Md.App. 422, 426, 496 A.2d 1099, 1101 (1985), cert. denied, 305 Md. 175, 501 A.2d 1323 (1986). No duty is owed to a bare licensee except that he or she may not be wantonly or willfully injured or entrapped, nor may the occupier of land "create new and undisclosed sources of danger without warning the licensee." Sherman, 282 Md. at 242, 384 A.2d at 79. Under some circumstances, the landowner may be liable to a bare licensee for a dangerous condition known to the landowner. See W. Prosser, The Law of Torts § 60, at 417-418 (W. Keeton 5th ed. 1984).

Finally, a trespasser is one who intentionally and without consent or privilege enters another's property. Id. [264 Md.] at 522, 287 A.2d at 267. No duty is owed, except to refrain from willfully or wantonly injuring or entrapping the trespasser. Id. This rule of limited liability to trespassers permits "a person to use his own land in his own way, without the burden of watching for and protecting those who come there without permission or right." W. Prosser, supra, § 58, at 395 [footnote omitted].

In this case, Doehring and Henderson, while on their motorcycle, intentionally entered upon the right-of-way. Clearly, as to the landowners, Shiling and Hess, they were trespassers--they had no consent or privilege to enter upon the land. Further, no consent was given by the Wagners, the holders of the right-of-way. ⁴

The Doehrings assert, however, and the Court of Special Appeals agreed, that the holder of a right-of-way is not entitled to the limited liability afforded a landowner. We disagree. Our decision rests upon the distinction between property and tort concepts of possession.

For purposes of property law, an easement is defined as

an interest in land in the possession of another which

(a) entitles the owner of such interest to a limited use or enjoyment of the land in which the interest exists;

(b) entitles him to protection as against third persons from interference in such use or enjoyment;

(c) is not subject to the will of the possessor of the land;

(d) is not a normal incident of the possession of any land possessed by the owner of the interest, and

(e) is capable of creation by conveyance.

Restatement of Property § 450 (1944). It is "a nonpossessory interest in the real property of another...." Boucher v. Boyer, 301 Md. at 688, 484 A.2d at 635. See also Restatement of Property § 450, comment b. The nonpossessory character of an easement distinguishes the interest from possessory interests such as that held by the owner of the absolute fee. The easement holder has "no right to the land itself ..., to the soil of the land or to any corporeal interest in it...." 2 G. Thompson, Real Property § 315, at 6 (1980 Repl.Vol.). The easement holder cannot use the land for any purpose other than that contemplated by the grant. Id. at 7. Moreover, the holder of a right-of-way does not ordinarily have exclusive use of the way; thus, the landowner, his invitees, or other easement holders may use the right-of-way. See id. § 426, at 654-655; 25 Am.Jur.2d Easements and Licenses § 77, at 483 (1966).

The grant of a right-of-way does, however, entitle the holder to use the premises at reasonable times and to maintain, improve, or repair the way to serve its purpose. Tong v. Feldman, 152 Md. 398, 402-403, 136 A. 822, 823-824 (1927); Fedder v. Component Struct. Corp., 23 Md.App. 375, 381, 329 A.2d 56, 60 (1974); 2 G. Thompson, supra, § 315, at 6-7. And, as contemplated by § 450(b) of the Restatement of Property, the holder of the way is entitled "to protection as against third persons from interference...." As we shall explain, we believe this protection includes the limited liability afforded a landowner against a trespasser, i.e., that no liability should attach...