Wells v. Polland
| Decision Date | 01 September 1997 |
| Docket Number | No. 1228,1228 |
| Citation | 120 Md.App. 699,708 A.2d 34 |
| Parties | Julie V. WELLS, et al., v. David M. POLLAND, et al. , |
| Court | Court of Special Appeals of Maryland |
Mary Platt Cooper (Amy Leete Leone and McCarthy, Wilson & Ethridge, on the brief), Rockville, for appellee Polland.
Douglas M. Scheller (Law Offices of Timothy P. McGough, on the brief), Baltimore, for appellee Long & Foster.
Argued before MOYLAN, DAVIS, and EYLER, JJ.
This is a premises liability case. Julie V. Wells and Sandra N. Pannenton appeal from a decision of the Circuit Court for Montgomery County (Rupp, J.) granting summary judgment in favor of appellees David M. Polland and Long & Foster Real Estate, Incorporated (Long & Foster). Appellants were injured when an exterior wooden staircase on which they were standing collapsed. The staircase was attached to a beach home owned by Polland. Long & Foster had posted a "sale" sign outside of the house. Appellants filed suit against appellees. Appellee Polland filed a cross-claim against Long & Foster. Long & Foster made a motion for summary judgment against appellants and Polland. Polland joined in Long & Foster's motion for summary judgment against appellants. Appellants filed a cross-motion for partial summary judgment.
On March 24, 1997, the lower court made an oral ruling granting Long & Foster's and Polland's motion for summary judgment against appellants, finding that appellants were trespassers rather than invitees and that appellees did not engage in willful or wanton misconduct or entrapment. The court determined appellants' cross-motion for partial summary judgment to be moot. The order granting summary judgment in favor of appellees was filed on March 26, 1997. On April 1, 1997, appellants filed a Motion to Alter or Amend the court's judgment. In a Memorandum Opinion, dated June 24, 1997, the court denied the Motion to Alter or Amend. Appellants filed this timely appeal raising two issues for our review, which we reframe below as one question with two sub-issues:
Did the circuit court err in granting appellees' motion for summary judgment by 1) ruling that appellants were trespassers rather than invitees on the property being advertised We answer all parts of the question in the negative and affirm the judgment of the circuit court.
for sale, and then 2) ruling that appellees did not engage in wanton or willful misconduct or entrapment?
On July 13, 1995, during their summer vacation in Ocean City, Maryland, appellants were injured when the exterior wooden staircase they were descending from the front door of a beach home collapsed. At that time, and for the preceding four months, Long & Foster had an exclusive listing to sell the property. Polland was title holder of the property. Long & Foster posted a "sale" sign in front of the premises that read: "Sale" "Long & Foster, Realtor" "524-7100"--the telephone number being that of the local Long & Foster office. Long & Foster had Polland sign a Maryland Residential Property Disclosure Statement (disclosure statement) on March 18, 1995. The disclosure statement indicated to Long & Foster that Polland was offering the property for sale "as is" and without representations and warranties by the owner as to the condition of the property or improvements thereon.
Polland had received several notices about the dangerous condition of the beach house from the Town of Ocean City's Building Code Enforcement Office. The first written notice came in July, 1991, four years before the collapse of the staircase. The notice advised Polland that the property in question violated several provisions of the housing code. It specifically advised Polland that the "STAIR NEEDS TO BE REPLACED." An Ocean City Building Code Enforcement Officer had inspected the staircase and found it structurally unsound.
On August 26, 1992, Polland spoke with Building Code Enforcement Officer Kevin Brown by telephone. At that time, Polland indicated that he had not been in or seen his building for five years. In his discussion with Polland, Officer Brown specifically alluded to the unsound condition of the stairs.
In March 1993, Michael B. Richardson, an Ocean City Building Inspector, personally visited the property and subsequently spoke to Polland or his agent(s) about concerns with the house, including vagrants entering and exiting the property. Although this prompted Polland to have some of the windows boarded up and door locks replaced, he never repaired or removed the stairs.
Long & Foster's listing agent first visited the property in March 1995. He walked up the outside staircase to the front door of the property. He testified that the staircase had yellow "caution" tape draped across the lower portion. He stepped over it when he climbed the stairs. He also testified that there was a sign nailed to the front of a step of the exterior staircase that indicated that the property was uninhabitable. Notwithstanding this knowledge, Long & Foster posted a "sale" sign on the property with Polland's permission and consent. It was this sign that drew appellants' attention to the property.
At the time of the incident, an Exclusive Listing Agreement (agreement) was in effect between Long & Foster and Polland. It was pursuant to that agreement that Long & Foster placed the "sale" sign in front of the house. In that agreement, Polland contractually agreed that he, not Long & Foster, was responsible for the care, physical condition, management, maintenance, and repair of the property.
In the proceedings below, Long & Foster asserted that it was only selling the land and not Polland's home on the land. Nevertheless, Long & Foster did not use signs that advertised "acreage" only or "lot for sale" only. The sign Long & Foster used did not explicitly indicate that viewing of the premises was "by appointment only." After the incident, Long & Foster posted a "No Trespassing" sign on the property.
The incident occurred on Thursday, July 13, 1995, shortly after 8:00 p.m. Appellants had been vacationing since the previous Saturday at an adjacent rental condominium known as the Lazy Whale. Appellants had become interested in the possibility of buying a place at the beach and they had seen The "sale" sign and the open ground level door were just off the public sidewalk in front of the property. After observing that the house was obviously unoccupied, appellants and Jason entered through the lower level door and looked around. Desiring to see the main floor, they left the lower level, returned to the public sidewalk, and climbed the exterior wooden staircase leading to the landing at the main entrance to the home. They did not notice any yellow caution tape on the railing or stairs and their access was not obstructed as they ascended the stairs. The door at the top of the stairs was ajar, so they pushed it open a little in order to peak inside what appeared to be a closed-in porch. They did not go inside but were able to look at the main floor through a window inside the porch. As they turned to leave, the exterior staircase collapsed.
the Long & Foster "sale" sign displayed in front of Polland's beach house. On the day in question, the door to the lower level of the beach house was open and had been open all week. That Thursday evening, appellants discussed the possibility of buying the beach house and refurbishing it for themselves. Appellants, with appellant Pannenton's son, Jason, decided to inspect the beach house. They did not know who owned the house. They did not attempt to call the phone number on the "sale" sign or to make any other attempt to contact Long & Foster about the property before entering the premises.
Photographs taken the day after the stairs collapsed reveal that there was no fence or physical barrier around the house or blocking the stairs, but there was yellow plastic caution tape tied on the handrail of the staircase. Appellants testified that they did not notice any yellow tape when they climbed the stairs. Building Inspector Brown testified that he had wrapped the yellow caution ribbon around the guardrail and posted an "occupancy prohibited" sign on the house prior to the date of the incident. The photographs taken after the occurrence also reveal an "occupancy prohibited" sign attached to the house, which was issued by the Town of Ocean City. The investigating officer who responded to the scene on the day after the incident filed a police report stating that he Appellants' suit against appellees followed. After the close of discovery, appellee Long & Foster filed a Motion for Summary Judgment on appellants' claims. Appellee Polland subsequently joined in that Motion for Summary Judgment.
found a "yellow piece of caution tape wrapped around the right hand side of the railing" and an "8" X 11" yellow condemnation sign that had been stapled to the footing of the top step at approximately eye level." There were not any "no trespassing" signs on the property
After a hearing on the motion, the lower court held that appellants were not invitees, but were trespassers on the property when the incident occurred. The lower court held further that, since appellees' actions did not constitute willful or wanton misconduct or entrapment, they did not breach the standard of care they owed to the trespassing appellants. Accordingly, the court entered judgment in favor of appellees. Appellants filed a Motion to Alter or Amend Judgment--Court Decision, which the court subsequently denied. This appeal followed.
Motions for summary judgment are governed by MARYLAND RULE 2-501, which provides that, "[t]he [trial] court shall enter judgment in favor of or against the moving party if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is...
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