UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 10-1204
KIMBERLY A. BOOKER, Individually and as personal
representative of the estate of her deceased son, Alexander
Lance Booker; ALPHONSO BOOKER, III, individually,
Plaintiffs - Appellants,
v.
PETERSON COMPANIES,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Greenbelt. Roger W. Titus, District Judge. (8:09-
cv-02144-RWT)
Submitted: January 13, 2011 Decided: February 25, 2011
Before MOTZ, SHEDD, and WYNN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Patrick M. Regan, REGAN, ZAMBRI & LONG, PLLC, Washington, D.C.,
for Appellants. Ryan K. Bautz, ANDERSON, COE & KING, LLP,
Baltimore, Maryland; Timothy F. Maloney, JOSEPH GREENWALD &
LAAKE, P.A., Greenbelt, Maryland, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Kimberly A. Booker, individually and as a personal
representative of the estate of her deceased son, Alexander L.
Booker, and her husband, Alphonso Booker, III, appeal the
district court’s order granting Defendant Peterson Companies’
(“Peterson”) motion for judgment on the pleadings. We affirm.
We review “a district court’s decision to grant
judgment on the pleadings de novo, applying the same standard
for Rule 12(c) motions as for motions made pursuant to Rule
12(b)(6).” Burbach Broad. Co. of Delaware v. Elkins Radio
Corp., 278 F.3d 401, 405-06 (4th Cir. 2002). We accept as true
the factual allegations contained in the complaint and draw all
reasonable inferences in favor of the plaintiffs below. Id. In
order to survive a motion for judgment on the pleadings, the
complaint must contain sufficient facts “to raise a right to
relief above the speculative level” and “state a claim to relief
that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555, 570 (2007). A federal court sitting in diversity
jurisdiction must apply the substantive law of the forum state.
Erie R.R. Co. v. Tompkins, 304 U.S. 64, 78 (1938); Colgan Air,
Inc. v. Raytheon Aircraft Co., 507 F.3d 270, 275 (4th Cir.
2007). It is undisputed that Maryland state law is applicable
to this case.
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In negligence actions under Maryland law, “the duty or
standard of care owed to a person by an owner or occupier of
land is determined by that person’s purpose for being on the
property.” Wells v. Polland, 708 A.2d 34, 39 (Md. Ct. Spec.
App. 1998). While the highest duty is owed to invitees, “a
trespasser, even one of tender years, takes the property as he
finds it and is owed no duty by the owner except that he may not
be willfully or wantonly injured or entrapped by the owner once
his presence is known.” Fitzgerald v. Montgomery Cnty. Bd. of
Educ., 336 A.2d 795, 797 (Md. Ct. Spec. App. 1975). This
limitation of a landowner’s liability to a trespasser “permits a
person to use his own land in his own way, without the burden of
watching for and protecting those who come there without
permission or right.” Wells, 708 A.2d at 40 (internal quotation
marks omitted).
Here, Appellants concede that, at the time of the
tragic accident that led to Alexander’s death, Alexander was a
trespasser onto Peterson’s property. Accordingly, Peterson only
owed him the duty to refrain from willfully or wantonly injuring
or entrapping him once his presence became known. Though
Appellants characterize the alteration of the ignition system of
an all-terrain vehicle as willful and wanton behavior, such a
characterization contravenes Maryland precedent. Under Maryland
law, “[w]illful misconduct is performed with the actor’s actual
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knowledge or with what the law deems the equivalent to actual
knowledge of the peril to be apprehended, coupled with a
conscious failure to avert injury.” Wells, 708 A.2d at 44.
Similarly, “a wanton act is one performed with reckless
indifference to its potential injurious consequences[; t]he term
. . . generally denotes conduct that is extremely dangerous and
outrageous, in reckless disregard for the rights of others.”
Id. (internal quotation marks and citation omitted). “A land
owner does not have a duty to make the land safe for trespassers
or to warn trespassers of any potential dangers that may lie
therein.” Id. at 45.
Appellants request this court to “bravely carve out an
exception” to Maryland law due to the tragic circumstances of
this case. The function of federal courts sitting in diversity,
however, “is to ascertain and apply the law of a State as it
exists [and] not [to] create or expand that State’s public
policy.” St. Paul Fire & Marine Ins. Co. v. Jacobson, 48 F.3d
778, 783 (4th Cir. 1995). Therefore, we decline Appellants’
invitation to rewrite Maryland law.
Accordingly, we affirm the judgment of the district
court. We dispense with oral argument because the facts and
legal contentions are adequately presented in the materials
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before the court and argument would not aid the decisional
process.
AFFIRMED
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