Mech v. Hearst Corp.

ALPERT, Judge,

concurring:

I agree with the court in affirming the judgments of the trial court but since I disagree with its analysis in issues 2 and 3 (the application of Bramble v. Thompson, 264 Md. 518 , 287 A.2d 265 (1972)) this concurring opinion is submitted.

The duty owed to a trespasser, inadvertent or otherwise, is to refrain from entrapping the trespasser or injuring him through wilful or wanton misconduct. See Mondshour v. Moore, 256 Md. 617 , 261 A.2d 482 (1970). Because appellant in this case was, at best, a bare licensee, the question is whether the use of a vicious watchdog was tantamount to such conduct. See Macke Laundry Service Co. v. Weber, 267 Md. 426, 428 , 298 A.2d 27 (1972) (duty owed bare licensee is the same owed to a trespasser).

The court summarily answers this question in the negative. The court seems to conclude that as a matter of law, the use of a “vicious watchdog” could never constitute such conduct. The court finds support for this conclusion in an isolated passage of Bramble v. Thompson, wherein the Court of Appeals, addressing the sufficiency of a plaintiffs complaint, stated:

We need not decide to what extent any particular device may be deployed in specific circumstances before it be *431 comes wanton or wilful misconduct or entrapment. We merely conclude that the use of a vicious watchdog to protect its owners’ property does not constitute such action.

264 Md. at 526 , 287 A.2d 265 . It is from this passage the majority implies that under no circumstances can a dog owner be held liable to an inadvertent trespasser because under no circumstance can the use of a vicious watchdog be held to constitute either entrapment or wilful or wanton misconduct.

The court’s reading of Bramble is, however, flawed.

Bramble should not be read so as to preclude a dog from ever being an instrumentality to wilful or wanton misconduct.

The appellants, in Bramble , argued that the dog’s conduct was analogous to a spring gun whose use constituted wanton or wilful misconduct. The Bramble court, like other courts, considered this analogy, see Melsheimer v. Sullivan, 1 Colo.App. 22 , 27 P. 17, 19 (1891) (citing Johnson v. Patterson, 14 Conn. 1 (1840)); Brewer v. Furtwangler, 171 Wash. 617 , 18 P.2d 837, 839 (Sup.Ct.Wash.1933), and agreed with the distinction drawn by the intermediate appellate court of New York in Woodbridge v. Marks, 17 App. Div. 139 , 45 N.Y.S. 156 (1897), wherein it said:

A spring gun is more than likely to take human life. It is placed, not for the purpose of warning others off, but with the design to do them great injury, even if life is not taken should they come in contact with it. A dog is rarely so vicious or powerful that it would endanger a man’s life. And the watch dog is used, not so much for the purpose of injuring an intruder, but rather as a means for warning and frightening him away. A dog gives notice of his presence and attack. A spring gun kills without any notice whatever.

45 N.Y.S. at 160 (emphasis added).

It was within this context, i.e., a dog is not the functional equivalent of a spring gun, that the Bramble court conclud *432 ed that the use of a watchdog did not constitute wanton or wilful misconduct. I agree that when such a distinction can be drawn, the use of the dog does not amount to wanton or wilful misconduct. Where no distinction can be drawn— where a dog is the functional equivalent of a spring gun— there is no reason to conclude that, as a matter of law, the use of a dog could not constitute such misconduct.

The liability incurred in protecting one’s property is closely allied with the privilege to protect the same property. An owner’s privilege is limited in that the force used must be reasonably necessary and not excessive. When defending property alone, there is no privilege to use any force calculated to cause death or serious bodily injury. See Prosser & Keeton, Law of Torts, § 21 p. 134 (3rd ed. 1984).

Where the property is occupied, however, there is a privilege to use deadly force if such force is reasonably necessary. In Maryland, a person’s privilege to defend his property was first discussed in a criminal context by the Court of Appeals in Crawford v. State, 231 Md. 354 , 190 A.2d 538 (1962). There the court, in reversing a manslaughter conviction, noted that in a majority of jurisdictions:

if an assault on a dwelling and an attempted forcible entry are made under circumstances which would create a reasonable apprehension that it is the design of the assailant to commit a felony or to inflict on the inhabitants injury which may result in loss of life or great bodily harm, and that the danger that the design will be carried into effect is imminent, a lawful occupant of the dwelling may prevent the entry even by taking of the intruder’s life.

231 Md. at 360 , 190 A.2d 538 (emphasis in original). The court then recognized that the “rules regarding the defense of one’s person and the rules regarding the defense of one’s habitation are generally similar ... the force used must not be excessive.” Id. at 362 , 190 A.2d 538 .

In a later case, Law v. State, 21 Md.App. 13 , 318 A.2d 859 , cert. denied, 272 Md. 744 (1974), we similarly held that *433 where necessary an owner was privileged to use deadly force to prevent an entry into his home by an intruder who intends to commit a felony therein. We recognized, however, that the use of such force was not justified “ ‘unless unavoidable.’ ” Id. at 28, 318 A.2d 859 (quoting The Law of Crimes and Criminal Procedure (2nd ed. § 345)).

Unfortunately, our courts have not discussed the privilege to use such force in the context of a suit seeking civil liability. I believe, however, that the duty owed to a trespasser, as recognized in Mondshour , would not be breached by the use of some force to repel the trespasser and protect the property. A breach would occur, however, where the degree of force used constituted wanton or wilful misconduct. We said, in Medina v. Meilhammer, 62 Md. App. 239 , 489 A.2d 35 (1985), that wilful or wanton conduct “ ‘tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.’ ” Id. at 250 , 489 A.2d 35 (quoting Prosser & Keeton, Law of Torts, § 34 p. 214 (5th ed. 1984)). Hence, if the force be reasonable, no wilful or wanton misconduct could be construed.

The determination of reasonableness, wantonness or wilfulness, however, should be left to the trier of fact if, based upon the evidence presented, reasonable minds could differ. Mondawmin Corp. v. Kres, 258 Md. 307 , 266 A.2d 8 (1970). I differ from the court in its singular reliance on Bramble so as to withdraw the issue from the jury’s consideration.

I believe that if appellant had produced evidence that appellee’s dog was placed on the lot for the purpose of injuring trespassers and that the dog was trained to kill or inflict serious bodily harm without notice (like a spring gun), sufficient evidence of wilful or wanton misconduct would have been presented to permit a determination by the trier of fact. There was neither direct or circumstantial evidence that the dog was either trained to inflict serious bodily harm or had in the past injured strangers wandering *434 onto the lot. She offered testimony only to the effect that she wandered onto appellee’s premises while searching for a parking lot and that while on the lot she encountered appellee’s dog, which first snarled and growled at her and then knocked her down. She offered no testimony that the dog was used for the purpose of injuring her and/or that it was appellee’s plan to spring the dog on unwary strangers. Further, there is no proof that the dog posed a threat to either her life or that of any other inadvertant trespasser. Indeed, it appears from the record that appellant was aware, albeit momentarily, of the dog’s presence prior to its knocking her down. Under these circumstances, where the evidence of appellee’s wanton or wilful conduct, even when considered in a light most favorable to appellant, was insufficient to cause reasonable minds to differ as to the result, it was not error to grant a directed verdict for appellee.