Ward v. Hartley

• Decision Date: 10 April 2006
• Docket Number: No. 175, September Term, 2005.,175, September Term, 2005.
• Citation: 168 Md. App. 209,895 A.2d 1111
• Parties: Andrew WARD v. Stephen A. HARTLEY, et al.
• Court: Court of Special Appeals of Maryland

895 A.2d 1111

168 Md. App. 209

Andrew WARD v. Stephen A. HARTLEY, et al.

No. 175, September Term, 2005.

Court of Special Appeals of Maryland.

April 10, 2006.

Francis A. Pommett, III, Baltimore, for appellant.

Jared Silberzahn (Clifford A. Robinson, H. Barritt Peterson, Jr., on the brief), Towson, for appellee.

Panel: SALMON, DEBORAH S. EYLER and THEODORE G. BLOOM (Ret., Specially Assigned), JJ.

SALMON, J.

This case had its origin on December 23, 2002, when a dog owned by Maconio Alston and his wife, Charlene Alston (the "Alstons"), bit Andrew Ward ("Ward"), causing him severe injury. Ward was bitten on premises rented by the Alstons from Stephen A. Hartley and his wife, Patricia.

Ward sued the Hartleys and the Alstons in the Circuit Court for Baltimore City for injuries caused by the dog bite. Ward alleged that the defendants were liable to him for negligence and strict liability.

The Hartleys filed a motion for summary judgment in which they claimed that Ward could not prove liability against them because:

1. As landlords they did not maintain control over the premises leased to the Alstons and therefore they owed no duty to the tenants' invitees (such as Ward) who were injured while on the leased premises.

2. Alternatively, even if Ward could prove that the Hartleys retained control over the portion of the premises where the injury occurred, Ward could not prove that they had any knowledge of the vicious propensities of the Alstons' dog prior to the date of Ward's injury.

3. Even if Ward could prove that the Hartleys had a duty to inspect the leased premises, Ward could not prove that had an inspection been made by them prior to the date of injury they would have discovered that the Alstons kept a vicious dog on the premises.

Baltimore City Circuit Court Judge Joseph Kaplan heard the Hartleys' motion for summary judgment and granted it on the grounds raised by the movants. Ward filed a motion to reconsider, which Judge Kaplan denied. Ward then dismissed, without prejudice, the Alstons as defendants and filed this timely appeal in which he contends that Judge Kaplan erred in granting summary judgment in favor of the Hartleys.

I.

The Hartleys' motion for summary judgment and Ward's opposition thereto were based on the following material:

1. Copy of a lease between Mr. Hartley and the Alstons.¹

2. A police report concerning the December 23, 2002, incident.

3. Interrogatory answers filed by Ward and Stephen Hartley.

4. Excerpts from the depositions of: (a) Ward, (b) Maconio Alston; (c) Charlene Alston; and (d) Stephen Hartley.

II.

Set forth in Part II is a summary of the material reviewed by the motions judge, which we have presented in the light most favorable to Ward, the non-prevailing party below. See Md. Rule 2-501.²

About two-and-one-half years before Ward was bitten, Stephen Hartley and the Alstons entered into a lease dated March 20, 2000. The lease was a very simple one that required the tenants to pay rent on a monthly basis. There was no fixed term for the lease.

The leased premises consisted of a row house and the adjacent land known as 2692 Wilkins Avenue, Baltimore City. The lease did not contain a "no pets" prohibition; it did contain, however, several routine provisions, to which Ward directs our attention, i.e., (1) the Alstons were prohibited from conducting any business on the leased premises without the express consent of the landlord; (2) the Alstons were prohibited from subletting or assigning the leased premises without Mr. Hartley's prior written authorization; (3) the Alstons were prohibited from keeping on the premises anything that would affect the fire insurance that covered the dwelling and its contents; (4) the tenants promised that they would not violate any "federal, state, or local ordinance"; (5) the landlord retained "the right to enter the premises at reasonable hours of the day to examine the same" provided, however, that the tenants gave their consent and were given "reasonable advance notice of the inspection"; and (6) if the Alstons failed to pay rent or failed to abide by any of the covenants in the lease, then Mr. Hartley had the right to file a court action against the tenants for "possession, rent, or damages."

Ward was bitten by the Alstons' dog, Sammy, at 9:30 a.m. on December 23, 2002. At the time of the incident, Maconio and Charlene Alston lived at the leased premises with their two daughters, Alexis, age eleven, and Atlantis, age nineteen, along with Atlantis's husband.

Ward, a cabdriver, went to the Alstons' home to pick up Alexis, who had an appointment at the Kennedy Kreiger Institute. When he arrived at the Alstons' home, he honked his horn, got no response, and then went to the Alstons' front door and knocked. He heard someone (later identified as Charlene Alston) tell the children not to open the door. When Ward heard this, he stepped back. At about the same time, a child, apparently Alexis, opened the front door. As the child did so, someone inside the house hollered, "Get the dog." Ward then saw a pit bull dog that "looked big" come "charging" out of the house. Ward hit the dog over the head with some rolled up cab sheets. The dog spun around and bit Ward's right foot. Ward then ran back to his cab and climbed on the top of it, even though the dog's jaws were still clamped onto his foot.

A police cruiser, which happened to be driving by at the time, stopped after Ward signaled for it to do so. "Two boys"³ ran out of the Alstons' row house and, while laughing, grabbed the dog and brought it into the house. Charlene Alston then came out of the house. While smoking a cigarette and in the presence of the police officer, she said, "I told them [about] that [expletive] dog."⁴ As a result of the dog bite, Ward's foot was severely injured, and he was required to undergo surgery to repair the damage.

The police report, which was attached to Ward's opposition to the motion for summary judgment, read, in pertinent part, as follows:

Ms. Charlene Alston ... came out [of the row house] and retrieved ... [the pit bull].... The owner of the three-year-old pit bull (Sammy)[,] Ms. Alston[,] advised that her dog has never done this before. She further advised that Sammy has all his vaccinations but couldn't provide proof....

Maconio Alston testified at deposition that, prior to the December 23, 2002, incident, Sammy, who he said was a "pit bull-chow mix," had never showed its teeth to anyone in an aggressive manner, never bitten anyone, nor had he done anything else to lead him to believe that the dog was vicious or dangerous. When his wife, Charlene Alston, was deposed, she corroborated her husband's testimony that the dog had never shown vicious propensities.

Mrs. Alston also said in deposition that, when she yelled "Don't open the door," she did so because she did not want Alexis to open the door and leave the house with a stranger. She denied that she yelled the command because she was afraid that the dog might get out of the house or that he might attack someone.

Mr. Hartley ("Hartley") testified at his deposition that the Alstons moved into the rental property on March 19, 2000. According to Hartley's testimony, Mr. Alston had the responsibility of maintaining the property. Between the date that the property was rented and the date of the dog-bite incident, Hartley never inspected the inside of the house that he rented, but approximately every three to four months he would "drive by to make sure all the windows were still there and stuff like that. . . ." Hartley did not even know that the Alstons kept a dog on the leased property until he was notified of the December 23, 2002, dog-bite incident.

III.

In Hemmings v. Pelham Wood Ltd., 375 Md. 522, 537-38, 826 A.2d 443 (2003), Judge Lynne Battaglia, for the Court of Appeals, set forth several principles of law that are here important, viz.,

When a landlord has leased property but has not parted control with a portion of it, we have held that the landlord may be liable for a foreseeable injury caused by a known dangerous or defective condition located within the part of the property over which the landlord retained control. As our discussion will highlight, the duty of a landlord in these cases depends on the existence of three circumstances: (1) the landlord controlled the dangerous or defective condition; (2) the landlord had knowledge or should have had knowledge of the injury causing condition; and (3) the harm suffered was a foreseeable result of that condition.

A landlord's control over conditions on its premises always has been a critical factor that we consider in determining landlord liability. Judge Eldridge, speaking recently for the majority of the Court in Matthews v. Amberwood Assoc., 351 Md. 544, 557, 719 A.2d 119 ... (1998), described our traditional emphasis in premises liability cases addressing the landlord's control over the dangerous or defective condition:

[A] common thread running through many of our cases involving circumstances in which landlords have been held liable (i.e., common areas, pre-existing defective conditions in the leased premises, a contract under which the landlord and tenant agree that the landlord shall rectify a defective condition) is the landlord's ability to exercise a degree of control over the defective or dangerous condition and to take steps to prevent injuries arising therefrom.

Conversely, when a landlord has turned over control of a leased premises to a tenant, it ordinarily has no obligation to maintain the leased premises for the safety of the tenant. See Matthews, 351 Md. at 556-57, 719 A.2d 119... ("The principal rationale for the general rule that the landlord is not ordinarily liable for injuries caused by defects or dangerous conditions in the leased premises is that the landlord `had parted with control.'") (quoting Marshall v. Price, 162 Md. 687, 689, 161 A. 172 ... (1932)); Elmar Gardens, Inc. v. Odell, 227 Md. 454,...