UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 08-1411
ASSURANCE COMPANY OF AMERICA; RICK DANSEY, individually,
Plaintiffs - Appellants,
v.
YORK INTERNATIONAL, INCORPORATED; DAVID W. DEWITT, t/a
Dewitt Plumbing, Heating and Air Conditioning; DAVID W.
DEWITT; GREGORY D. MORTIMER PROPERTIES, INCORPORATED,
Defendants - Appellees.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05-
cv-01301-AMD)
Argued: December 2, 2008 Decided: January 6, 2009
Before GREGORY and AGEE, Circuit Judges, and Rebecca Beach
SMITH, United States District Judge for the Eastern District of
Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory wrote the
opinion, in which Judge Agee and Judge Smith joined.
ARGUED: William C. Parler, Jr., PARLER & WOBBER, Towson,
Maryland, for Appellants. Brian W. Casto, MILES & STOCKBRIDGE,
P.C., Baltimore, Maryland; Robert L. Hebb, SEMMES, BOWEN &
SEMMES, Baltimore, Maryland, for Appellees. ON BRIEF: Phillip
S. Anthony, PARLER & WOBBER, Towson, Maryland, for Appellants.
Timothy L. Mullin, Jr., MILES & STOCKBRIDGE, P.C., Baltimore,
Maryland, for Appellee York International, Incorporated; David
P. Bokow, LAW OFFICES OF GUIDO PORCARELLI, Hunt Valley,
Maryland, for Appellee Gregory D. Mortimer Properties,
Incorporated.
Unpublished opinions are not binding precedent in this circuit.
2
GREGORY, Circuit Judge:
Assurance Co. of America (“Assurance”) and Rick Dansey
(hereinafter “Plaintiffs”) appeal the district court’s decision
granting the Defendants’ motion for summary judgment on the
Plaintiffs’ products liability and negligence claims. For the
reasons set forth below, we affirm the decision of the district
court.
I.
This lawsuit arises out of a November 17, 2004, fire that
damaged the vacation home of Rick Dansey. At the time of the
fire, the Dansey vacation home was still under construction, but
it had been substantially completed. Two furnaces serviced the
home at the time of the fire--one serviced the first and second
levels of the home (“the East Furnace”) and the other serviced
the basement (“the West Furnace”). Both furnaces were installed
in a utility room in the basement of the home. The Plaintiffs
allege that the fire originated in the interior of the East
Furnace and was caused by a defect in the furnace. The East
Furnace was manufactured by York International, Inc. (“York”),
and was installed in the home by David W. Dewitt, the HVAC
subcontractor for the construction project. Gregory D. Mortimer
Properties, Inc. (“MPI”), was the general contractor for the
construction of the home.
3
Carl Lee, MPI’s project manager, first contacted Dewitt in
August 2004 to install the two furnaces. Accordingly, Dewitt
purchased the furnaces and converted them from natural gas
sources to propane sources. Dewitt then took the furnaces to
the home on August 15, 2004, but he did not make them
operational at that time. In early October, Lee contacted
Dewitt to complete the installation of the furnaces. On October
17, 2004, Dewitt connected the furnaces to the home’s propane
supply. At that time, Dewitt performed a “three test system” in
which he turned each furnace’s thermostat on and off three times
in succession to ensure that they were running properly. It is
undisputed that the furnaces were properly installed.
During the installation of the subject furnaces, Dewitt did
not advise any MPI employees that they should not operate the
furnaces while completing the construction of the home. Dewitt
admitted that he had read the York installation manual, which
states that “[t]he furnace is not to be used for temporary
heating of buildings or structures under construction.” (J.A.
1606.) Dewitt claimed that he had advised MPI of the York
manual’s warning during previous installations, but he was aware
that MPI nonetheless routinely used the furnaces during the
final phase of home construction. On the other hand, both Lee
and Gregory Mortimer testified that Dewitt never told them that
4
they should not operate the furnaces while construction was
ongoing.
After Dewitt completed the installation of the furnaces,
MPI began using them as a heating source in the home. According
to Mortimer, the furnaces were left in the automatic position to
control the environment within the home to allow for the curing
of drywall compound and to acclimatize wood finish products.
Mortimer further indicated that, while he sometimes replaced
filters on furnaces during construction, he could not recall
whether he or any of his employees replaced the filters for
these furnaces.
The fire at the Dansey vacation home was discovered by an
MPI employee in the early morning hours of November 17, 2004.
Deputy State Fire Marshal Jamie Rodeheaver and Deputy State Fire
Marshal Ryan Chapman responded to the scene and investigated the
fire. Both Rodeheaver and Chapman concluded that the fire
originated in the interior of the East Furnace. In support of
this conclusion, the fire marshals noticed that there was burn
damage on the floor directly above the East Furnace, which
caused the floor to cave in towards the utility room. In
addition, the fire marshals noted a distinct difference between
the condition of the interior of the East Furnace and the West
Furnace. The interior of the East Furnace had extensive warping
and melting, whereas the interior of the West Furnace “had very
5
limited damage,” and a paper manual inside the West Furnace was
undamaged by the fire. (J.A. 1498.)
In making the determination that the fire originated in the
interior of the East Furnace, the fire marshals did a cursory
inspection of potential ignition sources and did not undertake a
detailed examination of the electrical arcing found on wiring
throughout the utility room. Indeed, Chapman acknowledged that
the fire marshals’ primary job in investigating these types of
fires is to rule out arson as the cause of the fire.
Furthermore, the fire marshals did not identify any defect
within the furnace that may have caused the fire nor suggest any
theories about how the fire may have started, as such questions
are outside of their expertise.
Following the fire marshals’ investigation, the Plaintiffs
engaged the services of Robson Forensic, Inc. (“Robson”), a
forensic engineering company, to examine the fire scene, analyze
the East Furnace, and produce expert opinions regarding the
cause of the fire. Dale Cagwin, a Robson engineer, wrote an
initial report (the “Cagwin report”) concerning the cause of the
fire; however, that report did not identify any specific defect
within the East Furnace that caused the fire. Instead, the
Cagwin report was limited to opinions regarding the negligence
of MPI and Dewitt.
6
According to the Cagwin report, the failure of MPI and
Dewitt to follow the York manual’s instructions regarding the
use of the furnace and their failure to properly maintain and
inspect the furnace were breaches of the standard of care and
caused the fire. Further, the Cagwin report stated that Dewitt
should have either prevented MPI from operating the furnace
until construction was complete or ensured that the furnace was
being maintained, and his failure to take either action
contributed to the fire. Daryl Ebersole, another Robson
engineer, had similar opinions regarding the negligence of MPI
and Dewitt. 1
Seven months after the Cagwin report was issued, Cagwin and
Ebersole were deposed. During these depositions, both experts
espoused a more detailed causation theory and identified a
specific defect within the furnace that they claimed was the
cause of the fire. 2 In their depositions, the Robson experts
first opined that the fire originated in the interior of the
1
Gary Tucker, a Robson expert, had previously written a
report in which he opined that the fire started when the East
Furnace’s induction fan motor overheated and ignited surrounding
flammable materials. Daryl Ebersole initially subscribed to the
theory, but the theory was eventually abandoned by the
Plaintiffs and repudiated by Ebersole.
2
Because the experts’ deposition testimony was
substantially identical, we will consolidate the experts’
opinions and note the instances where the opinions diverge.
7
furnace, most likely in the vicinity of the induced draft fan.
In support of this opinion, the experts relied on the fact that
there was significant fire damage inside the furnace, with the
most severe damage in the location of the induced draft fan.
The experts also relied on evidence that the underside of the
deck of the home was charred in the area where the combustion
byproducts were released into the outside air. According to the
experts, this evidence demonstrates that the furnace was running
at the time of the fire and that the fire occurred as a result
of elevated temperatures within the furnace.
Regarding the cause of the fire, the experts posited what
has been termed the “clogged filter” theory. According to this
theory, MPI’s use of the furnace in the home during construction
first led to the return air filter becoming clogged. This
clogged filter restricted the airflow in the furnace, which
caused a temperature increase in the combustion gas system.
Next, the high temperature limit switch failed to shut down the
furnace. Finally, the combustion gas became so hot that it
ignited a polymer component in the combustion gas system, most
likely the induced draft fan.
As part of the Robson experts’ “clogged filter” theory of
causation, they identified the high temperature limit switch as
the particular defect within the furnace that caused the fire.
The high temperature limit switch is a temperature-sensing
8
switch that is designed to shut down the furnace if the
temperature of the combustion air and the circulating air get
too high, and it should activate at a temperature range between
150 degrees and 200 degrees Fahrenheit. The high temperature
limit switch is located on the top edge of the furnace.
The Robson experts gave two alternative explanations for
the failure of the high temperature limit switch to shut down
the East Furnace: (1) the location of the switch did not allow
it to sense the increase in temperature (a design defect), or
(2) the sensor component in the switch malfunctioned (a
manufacturing defect). According to the experts, the high
temperature limit switch was destroyed in the fire, and thus
they could not determine whether the failure of the high
temperature limit switch was due to a design defect or a
manufacturing defect.
On May 13, 2005, Dansey and his homeowner’s insurance
carrier, Assurance, filed this lawsuit against York in the
United States District Court for the District of Maryland. On
May 25, 2006, the Plaintiffs filed an amended complaint, adding
MPI and Dewitt as defendants. The Plaintiffs alleged the
following causes of action against York: negligence, strict
liability, defect in design, defect in manufacture, defect in
warning, breach of express warranty, breach of implied warranty,
and violation of the Maryland Consumer Protection Act. The
9
Plaintiffs alleged claims of negligence, breach of contract,
breach of express warranty, and breach of implied warranty
against both MPI and Dewitt. The Defendants moved to exclude
the expert testimony of Cagwin and Ebersole and moved for
summary judgment on all claims.
The district court excluded the experts’ testimony based on
the “clogged filter” theory because the court found the experts’
opinions unreliable. Moreover, the district court found that
the Plaintiffs could not alternatively rely on an “indeterminate
defect” theory to prove a product defect. Accordingly, the
district court granted summary judgment to the Defendants on the
products liability claims. The district court also granted
summary judgment in favor of MPI on the negligence claim,
finding that the Plaintiffs failed to show that MPI’s improper
use of the furnace proximately caused the fire. In addition,
the district court granted summary judgment in favor of Dewitt
on the negligence claim because it found that Dewitt did not
have a duty to control MPI’s use of the furnace. The Plaintiffs
appeal.
II.
We review the district court’s grant of summary judgment de
novo, applying the same legal standards as the district court.
Catawba Indian Tribe of S.C. v. City of Rock Hill, 501 F.3d 368,
370-71 (4th Cir. 2007); Nguyen v. CNA Corp., 44 F.3d 234, 236
10
(4th Cir. 1995). Summary judgment is appropriate “if the
pleadings, the discovery and disclosure materials on file, and
any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a
matter of law.” Fed. R. Civ. P. 56(c); see also Celotex Corp.
v. Catrett, 477 U.S. 317, 324 (1986). In deciding a motion for
summary judgment, the district court must view all reasonable
inferences drawn from the evidence in the light that is most
favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Laber v. Harvey, 438 F.3d 404,
415 (4th Cir. 2006) (en banc).
A.
The Plaintiffs first challenge the district court’s grant
of summary judgment to the Defendants on the products liability
claims, contending that they put forth evidence from which a
reasonable juror could find the existence of a defect in the
East Furnace. In particular, the Plaintiffs claim that the
testimony of the fire marshals and the Robson experts was
sufficient to avail themselves of the “indeterminate defect”
theory of proving a product defect.
Under Maryland law, a plaintiff in a products liability
action must establish three evidentiary “basics” regardless of
the theory of recovery: “1) the existence of a defect; 2) the
attribution of the defect to the seller; and 3) a causal
11
relation between the defect and the injury.” Jensen v. Am.
Motors Corp., 437 A.2d 242, 247 (Md. Ct. Spec. App. 1981);
accord Phipps v. Gen. Motors Corp., 363 A.2d 955, 958 (Md.
1976). A product defect may be shown by putting forth one or
more of three different types of evidence: “(1) direct proof
based on the nature of the accident in the context of the
particular product involved; (2) circumstantial proof based on
an inference of a defect from a weighing of several factors; and
(3) direct affirmative proof through opinion testimony by an
expert witness.” Shreve v. Sears, Roebuck & Co., 166 F. Supp.
2d 378, 407-08 (D. Md. 2001). “Proof of a defect must arise
above surmise, conjecture, or speculation; and one’s right to
recovery may not rest on any presumption from the happening of
an accident.” Jensen, 437 A.2d at 245 (internal citation
omitted); accord Virgil v. “Kash N’ Karry” Serv. Corp., 484 A.2d
652, 656 (Md. Ct. Spec. App. 1984). Nevertheless, the addition
of any facts that provide proof of a defect beyond that of
conjecture or speculation may be sufficient to withstand summary
judgment. C & K Lord, Inc. v. Carter, 536 A.2d 699, 709-10 (Md.
Ct. Spec. App. 1988); see Jensen, 437 A.2d at 244.
Initially, the Plaintiffs attempted to provide direct proof
of a product defect through the testimony of the Robson experts.
Once the district court excluded the experts’ opinions based on
the “clogged filter” theory, the Plaintiffs next attempted to
12
prove the existence of a product defect through circumstantial
evidence. Maryland has adopted the so-called “indeterminate
defect” theory, which uses circumstantial evidence to prove a
product defect. See Harrison v. Bill Cairns Pontiac, Inc., 549
A.2d 385, 390 (Md. Ct. Spec. App. 1988).
Under the “indeterminate defect” theory, first articulated
by the Maryland Court of Special Appeals in Harrison, “[a]n
inference of a defect may be drawn from the happening of an
accident, where circumstantial evidence tends to eliminate other
causes, such as product misuse or alteration.” Id. The
Harrison decision identified five factors that must be
considered in determining whether a plaintiff can avail itself
of the “indeterminate defect” theory: “(1) expert testimony as
to possible causes; (2) the occurrence of the accident a short
time after the sale; (3) same accidents in similar products; (4)
the elimination of other causes of the accident; (5) the type of
accident that does not happen without a defect.” Id.; see Ford
Motor Co. v. Gen. Accident Ins. Co., 779 A.2d 362, 371 & n.16
(Md. 2001) (adopting the Harrison five-factor test). Although
there is no precise formulation as to how to consider these
factors on a motion for summary judgment, “[t]o the extent that
a plaintiff’s showing on one or more of these factors cuts
against these conclusions, then the strength of the inference of
a defect weakens and plaintiff risks the entry of summary
13
judgment for defendant.” Shreve, 166 F. Supp. 2d at 408-09; see
also Crickenberger v. Hyundai Motor Am., 944 A.2d 1136, 1145
(Md. 2008) (affirming the granting of summary judgment to the
defendants on the “indeterminate defect” theory); Harrison, 549
A.2d at 391-92 (same).
The district court determined that the Plaintiffs could not
prevail under the “indeterminate defect” theory as a matter of
law, both because the Plaintiffs’ allegations of product misuse
precluded the application of the theory and because the
Plaintiffs failed to put forth evidence establishing the
majority, if any, of the Harrison factors. We find it
unnecessary to decide whether the district court erred in
concluding that the Plaintiffs’ allegations of product misuse
precluded the application of the “indeterminate defect” theory,
for we agree with the district court that the Plaintiffs failed
to put forth evidence from which a reasonable juror could infer
the existence of a defect.
With regard to the first Harrison factor--expert testimony
as to possible causes of the fire--the Plaintiffs contend that
the district court did not exclude the Robson expert testimony
regarding possible causes of the fire but rather excluded only
their opinion that the use of the furnace during construction
clogged the furnace filter and led to an increase in
temperature. This contention fails. It is clear from the
14
district court’s memorandum opinion that the court excluded all
opinions of the Robson experts that were related in any way to
the “clogged filter” theory, including opinions regarding the
failure of the high temperature limit switch. According to the
district court, the experts “opine (without a scintilla of
evidence) that the high temperature limit switch failed to shut
down the furnace because of a defect or improper placement.”
(J.A. 2316 (emphasis added).) The district court continued:
“[P]laintiffs lack any affirmative evidence that the high
temperature limit switch was defective; nor does their theory
explain how or if the other temperature sensing safety devices
failed. Plaintiffs’ experts essentially suggest that because
there was a fire, the switch must have failed.” (J.A. 2321.)
Indeed, the district court later noted that the Plaintiffs could
not rely on any of the Robson experts’ opinions because they had
“put all their eggs in the ‘clogged-filter’ basket.” (J.A.
2325.) On appeal, the Plaintiffs did not argue that the
district court erred in its exclusion of the Robson experts’
opinions, 3 and we will not accept the alternative argument that
the district court did not mean what it said.
3
The Plaintiffs point out that they did in fact give notice
of appeal on the district court’s exclusion of the Robson
experts’ opinions. However, the Plaintiffs failed to address
this argument in both the Opening Brief and Reply Brief, and
thus this argument has been abandoned. Cf. United States v. Al-
(Continued)
15
Without the benefit of the excluded Robson expert
testimony, the Plaintiffs cannot establish the first Harrison
factor. The Plaintiffs contend that the determination by the
fire marshals that the fire originated inside the East Furnace
qualifies as expert testimony regarding possible causes of the
fire. Even taking this evidence in the light most favorable to
the Plaintiffs, it is not the type of evidence that satisfies
the first Harrison factor. In cases in which courts have found
the first factor to have been satisfied, plaintiffs put forth
expert testimony of possible causes of the fire, not merely
possible origins of the fire. See, e.g., Shreve, 166 F. Supp.
2d at 410 (snow thrower continued to rotate after auger drive
lever was released); Harrison, 549 A.2d at 386 (defect in
automobile’s electrical system). The fire marshals’ opinions
were limited to the origin or source of the fire, and opinions
regarding causation were outside their field of expertise. In
fact, the only expert testimony that the district court admitted
regarding causation was that proffered by the Defendants, which
refuted the contention that the fire was caused by a defect in
Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) (“It is a well
settled rule that contentions not raised in the argument section
of the opening brief are abandoned.”); accord Edwards v. City of
Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).
16
the East Furnace. The Plaintiffs are thus left with no expert
testimony identifying any possible causes of the fire.
Turning to the second Harrison factor--the occurrence of
the accident a short time after the sale--there are several
dates of importance. First, the subject furnace was shipped
from York to its distributor on March 17, 2004, eight months
before the fire. The furnace was sold to Dewitt on August 12,
2004, a little more than three months before the fire. After
Dewitt purchased the furnace, he converted the furnace from a
natural gas to a propane furnace. The furnace was installed in
the basement of the Dansey vacation home on August 15, 2004,
approximately three months before the fire, and it was connected
on October 17, 2004, one month before the fire.
Although there are no “hard-and-fast” rules regarding what
length of time is sufficient to satisfy this factor, the
Harrison case suggested that in most of the cases where courts
have found the factor to be satisfied, the accidents occurred
within two to three months of the time that the products left
the control of the manufacturer. 549 A.2d at 391.
Nevertheless, the Harrison court cited a case in which a court
found the factor to be satisfied even though the product was
purchased approximately eight and one-half months before the
accident, see id., and thus it is conceivable that the eight
17
months between the time the furnace left York’s control to the
time of the fire would satisfy the second Harrison factor.
With regard to the third Harrison factor--evidence of the
same types of accidents in similar products--the Plaintiffs
acknowledge that they have no evidence of prior similar
accidents involving this York furnace model. The Plaintiffs
contend that this factor does not weigh against the application
of the “indeterminate defect” theory because a manufacturer
should not have a “free pass from liability for its first
defective product.” (Appellant’s Br. 40). However, the
Harrison decision included this factor among those to be
considered and did not suggest that any one factor was more or
less important than another. Therefore, the lack of similar
accidents involving this York furnace model cuts against the
application of the “indeterminate defect” theory.
The fourth Harrison factor--the elimination of other causes
of the fire--also has not been sufficiently established by the
Plaintiffs. The Plaintiffs attempt to rely on the
investigations of the fire marshals and Ebersole to satisfy this
factor. However, the evidence shows that the fire marshals did
little more than a cursory examination of other possible causes
of the fire, as their main investigatory function was to rule
out arson as a cause. Moreover, the fire marshals did not
perform a detailed examination of any electrical appliances or
18
the wiring in the utility room. Ebersole, for his part, did not
undertake an appropriate investigation to rule out other
potential causes of the fire. 4 Although Ebersole tested other
mechanisms within the furnace to determine whether any of those
internal mechanisms may have caused the fire, his testing
assumed the very premise that the fourth Harrison factor was
designed to validate: that there were no other potential causes
of the fire besides a defect in the furnace. In essence,
Ebersole assumed the outcome of his investigation--a defective
furnace--without testing and excluding alternate theories of
causation.
Turning to the final factor--the type of accident that does
not happen without a defect--the parties disagree about how this
factor should be interpreted. According to the Plaintiffs, the
appropriate inquiry is whether a fire could occur in the
interior of a furnace without a defect, whereas the Defendants
argue that the appropriate inquiry is whether a fire could occur
in a utility room without a defect in the furnace.
We do not need to decide which of these formulations is
correct, because the Plaintiffs have failed to satisfy this
4
Because Ebersole’s testimony in this regard does not
appear to be based on the “clogged filter” theory, we will
assume that this testimony was not among the evidence excluded
by the district court.
19
factor even under their formulation of the inquiry. First,
there was electrical wiring throughout the utility room and
running through the furnace, and it is quite possible that a
fire could originate in the furnace even though the electrical
wiring was the cause. Moreover, the furnace itself had been
converted from a natural gas furnace to a propane furnace, and
the fire could have resulted from a faulty conversion. Finally,
the furnace was improperly used by MPI for at least a month
prior to the fire, and this improper use may have been the cause
of the fire. For all of these reasons, the fire could have
originated inside the furnace absent a defect.
Examining all of the Harrison factors, only one of the
factors--whether the accident occurred a short time after the
sale--has been established by the Plaintiffs. Given the
Plaintiffs’ failure to provide expert testimony as to the
possible causes of the fire, their failure to eliminate other
possible causes of the fire, and the lack of evidence of similar
accidents involving this York furnace model, a reasonable juror
could not infer that the fire was caused by a defect in the York
furnace. Therefore, the district court did not err in granting
summary judgment on the products liability claims.
B.
The Plaintiffs next challenge the district court’s grant of
summary judgment in favor of MPI on the negligence claim, which
20
was based on its determination that the Plaintiffs had put forth
no evidence from which a reasonable juror could conclude that
MPI’s improper use of the furnace was a proximate cause of the
fire. In response, MPI contends that the Plaintiffs have not
provided evidence that MPI breached the standard of care or that
its actions caused the fire, and thus the decision of the
district court should be affirmed on either ground.
In order to prevail on a negligence claim, the plaintiff
must show the following: “(1) that the defendant was under a
duty to protect the plaintiff from injury, (2) that the
defendant breached that duty, (3) that the plaintiff suffered
actual injury or loss, and (4) that the loss or injury
proximately resulted from the defendant’s breach of the duty.”
Rosenblatt v. Exxon Co., U.S.A., 642 A.2d 180, 188 (Md. 1994);
accord Valentine v. On Target, Inc., 727 A.2d 947, 949 (Md.
1999). In order to prove that a professional, such as a
homebuilder, breached the standard of care, the plaintiff must
put forth evidence of the standard of care that the professional
should have followed as well as evidence that the professional
failed to exercise the requisite care. Cf. Crockett v.
Crothers, 285 A.2d 612, 613-14 (Md. 1972) (describing the proof
required for a plaintiff to prevail on a negligence claim
against an engineer).
21
Here, the Robson experts testified that the standard of
care for homebuilders required MPI to follow all of the
manufacturer’s instructions regarding the use of products
installed in the home. Further, the Robson experts testified
that MPI employees breached this standard of care when they
began using the furnace in the Dansey vacation home contrary to
the instructions in the York manual. Assuming that the district
court did not exclude this testimony, a reasonable juror could
have concluded from this evidence that MPI breached the standard
of care.
Even if MPI breached the standard of care, after the
district court excluded the expert testimony that was based on
the “clogged filter” theory, the Plaintiffs had no evidence that
MPI’s use of the furnace during construction proximately caused
the fire, except for the bare assertions of the Robson experts.
The Plaintiffs’ theory of causation was inextricably linked to
the “clogged filter” theory, and the only evidence the district
court admitted regarding the plausibility of the “clogged
filter” theory was that of a York expert who testified that it
was impossible for the fire to have started due to a clogged
filter.
Even though the issue of proximate causation is generally
left to a jury, if the evidence can lead to no other conclusion,
then causation can be decided as a matter of law. See May v.
22
Giant Food, Inc., 712 A.2d 166, 175 (Md. Ct. Spec. App. 1998)
(citing Baltimore Gas & Elec. Co. v. Lane, 656 A.2d 307, 316
(Md. 1995)). Here, the Plaintiffs put forth no evidence
connecting the actions of MPI with the fire in the Dansey
vacation home. Accordingly, the district court was correct in
granting summary judgment to MPI on the negligence claim.
C.
Finally, the Plaintiffs contend that the district court
erred in granting summary judgment to Dewitt on the negligence
claim. According to the Plaintiffs, Dewitt was negligent when
he made the furnace system operational knowing that MPI had a
practice of using furnaces for temporary heat prior to the
completion of its construction projects. Although the
Plaintiffs do not explicitly state as much, a necessary
component of their negligence claim is that Dewitt had a duty to
prevent MPI from operating the furnace system while construction
was ongoing. On the other hand, Dewitt argues that he owed no
such duty under Maryland law, and thus the granting of summary
judgment was proper.
To maintain a negligence claim against Dewitt, the
Plaintiffs are required to show that Dewitt owed Dansey a
legally cognizable duty. See Dehn v. Edgecombe, 865 A.2d 603,
611 (Md. 2005); Valentine, 727 A.2d at 949. A duty, in
negligence cases, is defined as “an obligation, to which the law
23
will give recognition and effect, to conform to a particular
standard of conduct toward another.” Ashburn v. Anne Arundel
County, 510 A.2d 1078, 1083 (Md. 1986) (quoting Prosser & Keeton
on the Law of Torts § 53 (5th ed. 1984)) (internal quotations
omitted). The existence of a legally cognizable duty is a
question of law to be decided by the court. Hemmings v. Pelham
Wood Ltd. Liab. Ltd. P’ship, 826 A.2d 443, 451 (Md. 2003);
Muthukumarana v. Montgomery County, 805 A.2d 372, 387 (Md.
2002).
The Plaintiffs failed to identify any duty owed by Dewitt
to prevent MPI from operating the furnace during construction.
Maryland has adopted the Restatement (Second) of Torts, which
“articulates the general rule that ‘there is no duty so to
control the conduct of a third person as to prevent him from
causing physical harm to another unless (a) a special relation
exists between the actor and the third person which imposes a
duty upon the actor to control the third person’s conduct, or
(b) a special relation exists between the actor and the other
which gives to the other a right to protection.’” Lamb v.
Hopkins, 492 A.2d 1297, 1300 (Md. 1985) (quoting Restatement
(Second) of Torts § 315 (1965)); see also Remsburg v.
Montgomery, 831 A.2d 18, 31 (Md. 2003) (discussing Maryland’s
adoption of the Restatement (Second) of Torts regarding this
issue). The Restatement (Second) of Torts lists the types of
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special relations to which such a duty attaches, see §§ 314A,
316-320, 5 and notably this list does not include two parties in a
contractual relationship such as that between Dewitt and MPI.
Further, the Plaintiffs have not identified any Maryland
decisions supporting their contention that an installer of a
product has a duty to prevent an experienced homebuilder from
improperly using the installed product.
Since the Plaintiffs cannot show that Dewitt owed a duty to
control MPI’s use of the furnace, the district court did not err
in granting summary judgment in favor of Dewitt on the
negligence claim.
III.
For the foregoing reasons, we affirm the judgment of the
district court.
AFFIRMED
5
The types of special relations include: common carrier and
passenger (§ 314A(1)), innkeeper and guest (§ 314A(2)),
possessor of land open to the public and person who enters the
land (§ 314A(3)), parent and child (§ 316), master and servant
(§ 317), landlord and tenant (§ 318), caretaker and person known
to have dangerous propensities (§ 319), and custodian and ward
(§ 320).
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