Coates v. Southern Maryland Electric Cooperative, Inc.

CATHELL, Judge,

concurring:

I concur in the result reached in this case. I write separately because I believe that the majority has not gone far enough in limiting the type of action filed in this case. The majority’s reliance on foreseeability as the standard for determining liability on the part of an owner of property, whether publicly or privately owned, presumes that there could be a duty on the part of a property owner to insure that, if someone runs off the traveled portion of a public road onto the owner’s property, there will be nothing on the owner’s property for the vehicle to run into.

*527 The owner of any property abutting a public road, especially abutting on curved sections, can foresee, generally, that there is a likelihood that vehicles will run off those sections of the road. When the owner is aware that cars have run off particular sections of the road onto the owner’s property with some frequency, there is a more specific foreseeability that it will happen again. The majority’s opinion today leaves room for an assertion by the motorist, and especially any passengers, involved in a subsequent accident, that the owner has a duty to make sure there are no obstacles on the owner’s property for the uninvited motorist to strike. Leaving the door open, even if barely so, in my view, could lead to ludicrous results in future cases.

There are certainly hundreds, if not thousands, or even more, of miles of curvy rural roads in the state. Farms abut many, if not most, of these roads. If a farmer owns land devoted to a crop of timber, that abuts a road at a point where frequent accidents have occurred, then it can be argued under the majority’s opinion that future accidents are foreseeable, and thus the farmer must cut down his or her trees in order to provide an unobstructed location for an accident to occur on his property. If a farmer devotes that same roadside property to pasturage and a car runs off the road, hitting the farmer’s prize bull or prize boar hog causing injury to the motorist’s passengers (as well as to the hog), the farmer may be liable because he or she has permitted the animals to be on the property eating his grass while cars are traveling the road. If the farmer maintains a farm pond at that same location, and a motorist runs off the road into the pond, and the motorist, or the passenger, drowns, it may be argued under the majority’s opinion that the farmer can be held liable.

In hilly or mountainous areas of the state, there are curved and hilly roads that run through towns. I would imagine that accidents occur in these areas, probably in certain areas with some frequency. Businesses and residences often abut these roads, even the curved and downgrade sections. It certainly can be foreseen that trucks, or other vehicles, sometimes encounter brake problems that interfere with their ability to *528 remain on the road. Do the owners of improved properties at dangerous locations have a duty to move or demolish their structures in order to provide runoffs for out-of-control vehicles?

I would hold simply that there is no. duty on the part of a property owner to provide a safe place on his or her property for motorists, and their passengers, to have accidents. This Court said ninety-six years ago, in West Virginia Central & Pittsburgh R.R. v. State ex rel. Fuller, 96 Md. 652, 666 , 54 A. 669, 671-72 (1903):

[TJhere can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury..... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.

The case of Lamb v. Hopkins, 303 Md. 236 , 492 A.2d 1297 (1985), involved the duty of a person, who had control over a person he knew to be dangerous, to exercise due care so that the dangerousness of the actor did not result in injury to another. While it did not discuss the duties of property owners to provide safe havens for accident-prone motorists, the opinion did discuss certain principles applicable in the case sub judice. Judge Cole, for the Court, stated:

Three basic elements are necessary to state a cause of action in negligence. First, the defendant must be under a duty to protect the plaintiff from injury. Second, the defendant must fail to discharge that duty. Third, the plaintiff must suffer actual loss or injury proximately resulting from that failure. See, e.g., Scott v. Watson, 278 Md. *529 160, 165 , 359 A.2d 548, 552 (1976); Peroti v. Williams, 258 Md. 663, 669 , 267 A.2d 114, 118 (1970). The focus in this case shall be on the first element, duty, which in general terms requires an actor to conform to a certain standard of conduct for the protection of others against unreasonable risks. See Prosser and Keeton on the Law of Torts § 30, at 164 (W. Keeton 5th ed.1984)....

Appellants basically contend that an individual who controls a person known by him to be dangerous owes a duty to exercise due care to those who may be foreseeably harmed by the failure to exercise this level of care, regardless of whether the foreseeably harmed person is readily identifi.able.... The appellees, however, counter that they owed no duty of care to the Lambs because the appellees had neither the right nor the ability to control Newcomer’s conduct. Absent a special relationship not present here, appellees contend that no basis exists for imposing liability on them for Newcomer’s tortious acts.

In support of their respective positions each party relies upon §§ 315 and 319 of the Restatement (Second) of Torts (1965) [hereinafter cited as Restatement]. Because we have never examined these provisions in detail in the past, cf. Scott v. Watson, supra (citing § 315), we find it necessary to do so now.

A.

Section 315 is a special application of the general rule set forth in § 314. Section 314 states that “[t ]he fact that the actor realizes or should realize that oxtion on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”

Id. at 241-42, 492 A.2d at 1300 (emphasis added) (alterations in original).

Lamb clearly involves another area of negligence law. Nonetheless, I fail to see any duty owed by a property owner to people who crash onto and into his or her property, nor do I see any special relationship between property owners and *530 crashing motorists. Merely because a property owner may realize that he or she has the power to make the property safer for people who crash into or onto it, “does not of itself impose upon him a duty to take such action.” Lamb, 303 Md. at 242 , 492 A.2d at 1300 ; Restatement, supra § 314.

In my view, without duty there is no liability, regardless of whether a result is foreseeable or a party has the power to influence that result. I respectfully suggest that the majority’s emphasis in this case on foreseeability principles is unnecessary and, perhaps, with all due respect, misleading, in that such emphasis may suggest, even in similar circumstances, that property owners have a duty to utilize their property in such a manner that uninvited, crashing motorists are protected from injuring themselves. Property owners are not insurers of the safety of motorists who crash upon their property. So long as a property owner does not permit his activities to encroach onto the traveled portions of highways, i.e., the area designed for lawful use of motorists, the Court should hold that owners have no duty to do anything on their property to lessen the damage to passengers injured by the actions and/or negligence of themselves or others.

Judge ELDRIDGE has authorized me to state that he joins in this concurrence.