Hansberger v. Smith

REPORTED

IN THE COURT OF SPECIAL APPEALS

OF MARYLAND

No. 0378

September Term, 2015

MICHAEL HANSBERGER

v.

BRADLEY SMITH, et al.

Nazarian,
Reed,
Zarnoch, Robert A.,
(Retired, Specially Assigned),

JJ.

Opinion by Zarnoch, J.

Filed: July 27, 2016
 On the night of July 8, 2008, appellant Michael Hansberger, and his friend, Ronald

Lewis, attended two “field parties” in Frederick County where underage drinking

occurred. At the second party, a brawl ensued, and Lewis threw a piece of concrete,

striking Hansberger in the head and causing permanent injury. In 2011, Hansberger filed

a complaint in the Circuit Court for Frederick County alleging, among other things,

numerous counts of negligence against Lewis, the organizers of the parties, and the

owners of the farms at which the parties were held. The appellees in the present case are

Claudia Riley, Thomas Riley, Thomas Riley, Jr. and Travis Riley, (the Rileys), Charles

Smith, Jane Smith, Wayne Smith, Catherine Smith, Bradley Smith (the Smiths), and

Jefferson Valley, LLC, Marvin E. Ausherman, Ausherman Holding Corporation, and

Ausherman Development Corporation II (the Smith property owners).1

The Rileys filed a motion to dismiss the suit, or in the alternative, a motion for

summary judgment. The Smiths and Jefferson Valley filed a motion for summary

judgment, and the Smith property owners filed a motion to dismiss on the basis of

limitations, or in the alternative, motion for summary judgment. After a hearing, the

court granted the Rileys’ motion to dismiss, concluding that Hansberger had failed to

articulate a breach of a duty under his theory of social host liability based on Md. Code

(2002, 2012 Repl. Vol., 2014 Supp.), Criminal Law Art. (“CR”) § 10-117 or sustain his

1
The initial complaint did not name Catherine Smith, Marvin E. Ausherman,
Ausherman Holding Corporation, or Ausherman Development Corporation II as
defendants. Hansberger filed a second amended complaint on September 3, 2013.
theory of premises liability.2 The court granted summary judgment for the Smiths and

Jefferson Valley, finding no dispute of material fact, and no duty for the same reasons.

Finally, the court dismissed the Smith property owners and Catherine Smith because

Hansberger added them after the statute of limitations had run.

The case proceeded against Ronald Lewis, and Hansberger obtained a $12 million

judgment against Lewis on April 22, 2015. Taking aim at the Rileys and the Smiths,

Hansberger filed a timely appeal to this Court on April 27, 2015, and presents the

following questions for our review:

I. “Whether [appellees] who hosted a high-risk ‘field party’ on their
residential farms at which they negligently and illegally
furnished alcoholic drinks to drunken, brawling teenagers had a
duty of care to their guest who was maimed by such an inebriated
minor?”

II. “Does the three year period of limitations under Maryland Code
Courts and Judicial Proceedings Article § 5-101 accrue when the
claimant had no knowledge or reason to know of the existence of
additional [appellees] until he received discovery from the other
[appellees]?”

After the circuit court granted judgment for appellees and the case was briefed and

argued, the Court of Appeals issued its opinion in Kiriakos v. Phillips, ___ Md. ___, No.

20, Sept. Term, 2015 (July 5, 2016), which recognized a limited form of social host

liability based on a violation of CR § 10-117. Because Hansberger did not allege or

2
CR § 10-117 prohibits a person from knowingly furnishing alcohol to a minor
and prohibits an adult from knowingly and willfully allowing a minor to possess or
consume an alcohol at a residence that he or she owns or leases and in which he or she
resides. This statute is discussed more fully infra, at 10-12.

2
produce facts that showed a violation CR § 10-117 or that demonstrated appellees’

knowledge of similar brawls in the past, we hold that he has failed to show the breach of

a duty of care owed to him. We also hold that, because Hansberger was aware of the

nature of his injury in 2008, he could not properly add new defendants in 2013, two years

after the statute of limitations expired. We affirm the circuit court.

BACKGROUND

The following information is taken from Hansberger’s allegations as set forth in

his second amended complaint and from depositions taken during discovery. On the

night of July 12, 2008, Travis Riley hosted a party at his home in the Jefferson area of

Frederick County—many young adults attended, including highschoolers and those under

the age of 21.3 Travis advertised the party on Facebook two days before the event and

planned the music. The party was “bring your own beverage,” but one attendee brought a

keg. Riley collected a fee from the attendees to drink from the keg.4 No member of the

Riley family purchased any alcohol for the party.

The party took place in a field about 300 yards away from the family house on

property that was owned by Travis’s parents, Thomas and Claudia Riley. After a fight

broke out, Travis ejected the attendees. Travis did not advise his parents that he planned

a party at the Riley property, nor did his parents provide him with permission to host a

3
Hansberger alleges that “up to 150 people” attended the party. Deposition
testimony indicated that more than 40 people were in attendance.
4
Thomas Riley, Jr., Travis’s older brother, briefly attended the party, but did not
drink.

3
party. In fact, Claudia Riley specifically told Travis not to host a party. The Riley

parents were not home at the time, and were unaware of the event until Claudia returned

home as Travis was getting people to leave.

Bradley Smith was at the Rileys’ farm, and after Travis Riley started to ask people

to leave his property, Bradley invited partygoers to his parents’ farm, about three miles

away. He, however, did not extend a general invitation and did not specifically invite

either Hansberger or Lewis. None of the members of the Riley family attended the party

hosted by Bradley Smith later that night. Bradley Smith left the Riley property at

approximately 11:30 p.m.

The Smith residence was owned by Jefferson Valley, LLC.5 Bradley Smith lived

at a home on this property with his parents, Catherine and Wayne Smith. The area of the

property where the party was held contained a demolished silo, and was strewn with

bricks, rocks and cement pieces. The Smith party was also “bring your own beverage”

and no alcohol was provided by Bradley Smith.

5
The Smiths described the ownership of their farm in the following manner:
When the Smith Farm was sold to Jefferson Valley in March 2003,
Wayne Smith, Catherine Smith, and Bradley Smith were still living in the
house on the Smith Farm. Because Appellee Jefferson Valley, LLC, was
not, as of the date of the conveyance, ready to develop the Smith Farm,
Jefferson Valley allowed Wayne Smith, Catherine Smith, and Bradley
Smith to remain on the Smith Farm and occupy the farm house. All three
continued to reside on the Smith Farm through at least July 12, 2008,
pursuant to an informal understanding with the owner that Wayne Smith
would continue to live in the farm house and serve as caretaker of the
property.

4
 Hansberger and his friend, Ronald Lewis, attended the Riley party, drank, and left

when Travis ended the party. Lewis then went to another friend’s house and continued to

drink, until Hansberger picked him up to go to the Smith party, where they continued to

drink. After Bradley Smith uttered what Lewis thought was a racist comment, Lewis

punched Bradley, and a melee ensued. Most if not all of the attendees engaged in the

fight, and some of the attendees threw bricks, rocks, and cement pieces found on the

property grounds. Hansberger was injured shortly after 2:00 a.m., when he was hit in the

head with a piece of cement while heading to the parked cars. Lewis initially admitted

being the person who threw the cement. The police were called, and Lewis and other

friends left the farm to take Hansberger to receive medical attention. Hansberger

sustained permanent injuries. On February 11, 2009, Lewis plead guilty to reckless

endangerment stemming from Hansberger’s injury at the Smith party.

None of the other Smith defendants, nor the corporate owners of the property,

were aware of the party or that underage drinking was taking place on July 12, 2008.

Bradley Smith’s grandparents, Charles and Jane Smith, lived several houses away from

the Smith farm, and were not present at the farm that evening. Similarly, Bradley

Smith’s parents, Wayne and Catherine Smith, were unaware of the party because they

returned home around 11:00 p.m. on July 12, 2008, and went to sleep around 11:20

p.m.—before any of the partiers had arrived on their property.

Hansberger filed this action in the Circuit Court for Frederick County on July 12,

2011, three years after the events described above. He asserted various theories of

negligence liability against Ronald Lewis, the Rileys, the Smiths, and the owner of the

5
Smith property, Jefferson Valley, LLC.6 Following some initial discovery, on September

3, 2013, Hansberger amended his complaint to add Catherine Smith, Bradley Smith’s

mother, Marvin E. Ausherman, Ausherman Holding Corporation, and Ausherman

Development Corp. II.

All defendants filed dispositive motions. The Rileys filed a motion for dismissal,

or, in the alternative, for summary judgment. The Smiths and Jefferson Valley filed a

motion for summary judgment. Catherine Smith and the remaining Smith property

owners filed a motion to dismiss on the basis of limitations, or in the alternative, a motion

for summary judgment. Hansberger opposed all motions.

The circuit court held a hearing on April 17, 2014. The Rileys, the Smiths, and

Jefferson Valley argued that Hansberger failed to allege or produce facts to support the

existence of a duty of care. Hansberger responded that he properly alleged a cause of

action in negligence, which was based on premises liability and social host liability. He

also argued that there were disputed facts, and that no defendant was entitled to judgment

as a matter of law. The defendants that were added in 2013 (Catherine Smith, Marvin E.

Ausherman, Ausherman Holding Corporation, and Ausherman Development Corporation

II) argued for dismissal because Hansberger had added them to the action two years after

the statute of limitations had run. Hansberger responded that he was permitted to sue

these defendants under the discovery rule, because he had learned of them during

discovery, and had added them shortly thereafter.

6
Hansberger also asserted counts of assault and battery against Lewis.

6
 Ruling from the bench, the court dismissed the later-added defendants based on

limitations. The court also granted summary judgment for Jefferson Valley, reasoning

that Hansberger had failed to articulate a duty owed to him. At the end of the hearing, the

court took under advisement the motions to dismiss or for summary judgment with

respect to the remaining defendants. On June 9, 2014, the court issued an opinion and

order, dismissing the claims against the Riley defendants and granting summary

judgment in favor of the Smith defendants. The court held that neither the Rileys nor

Smiths breached a duty owed to Hansberger.

Hansberger then pursued his claims against the only remaining defendant in the

case, Ronald Lewis. Lewis and Hansberger reached a settlement on Hansberger’s

negligence claim, resulting in a judgment of $12.2 million against Lewis. Final judgment

was entered on April 22, 2015. Hansberger noted his appeal of the order granting

judgment for the Rileys and the Smiths on April 27, 2015.

DISCUSSION

We review a trial court’s decision to grant a motion to dismiss for failure to state a

claim for legal correctness. Rounds v. Md.-Nat’l Capital Park & Planning Comm’n, 441

Md. 621, 635-36 (2015). In considering an appeal from that early stage, we assume the

truth of those facts and allegations in the complaint, and all inferences reasonably drawn

therefrom. Id. at 636.

On appeal from the grant of summary judgment, we “independently review the

record” to ascertain whether there is a genuine dispute of material fact and, “if not,

whether the moving party is entitled to judgment as a matter of law.” Wells Fargo Home

7
Mortg., Inc. v. Neal, 398 Md. 705, 714 (2007) (Citation and internal quotation marks

omitted). We consider “the record in the light most favorable to the nonmoving party and

construe any reasonable inferences that may be drawn from the facts against the moving

party.” Myers v. Kayhoe, 391 Md. 188, 203 (2006) (citing Livesay v. Baltimore, 384 Md.

1, 9 (2004)). However, a plaintiff’s claim must be supported by more than a “scintilla of

evidence[,]” i.e., “there must be evidence upon which [a] jury could reasonably find for

the plaintiff.” Blackburn Ltd. P’ship, 438 Md. at 108 (quoting Beatty v. Trailmaster

Products, Inc., 330 Md. 726, 738-39 (1993)).

“Ordinarily, an appellate court should review a grant of summary judgment only

on the grounds relied upon by the trial court.” Blades v. Woods, 338 Md. 475, 478 (1995)

(citing Md. Rule 8-131(a) (“Ordinarily, the appellate court will not decide any other issue

unless it plainly appears by the record to have been raised in or decided by the trial

court”)). This does not mean, however, that we can only affirm the trial court using the

reasoning—instead, the issue merely needs to have been raised and decided below. See

Conaway v. Deane, 401 Md. 219, 243-44 (2007) (“[I]f two or more similar and

‘inextricably intertwined’ grounds for summary judgment exist, this Court may consider

alternatively any related ground, if raised properly by the litigant in his, her, or its motion

for summary judgment, if we find fault with the ground relied upon facially by the trial

court”), abrogated on other grounds by Obergefell v. Hodges, 135 S. Ct. 2584 (2015).

I. Negligence

Hansberger argues that the Rileys, Smiths, and owners of the Smith property were

negligent due to their breach of a duty resulting from either social host liability or

8
premises liability. Regarding social host liability, Hansberger argues that the appellees

breached a general duty of care evidenced by the General Assembly’s enactment of CR §

10-117. Regarding premises liability, Hansberger argues that the appellees breached

their duty to keep the property safe and warn about known dangers, i.e., the rubble strewn

about the Smith farm. We address each contention in turn.

A. Social Host Liability

To state a negligence claim, a plaintiff must establish four elements: “a duty owed

to him (or to a class of which he is a part), a breach of that duty, a legally cognizable

causal relationship between the breach of duty and the harm suffered, and damages.”

Jacques v. First Nat’l Bank of Md., 307 Md. 527, 531 (1986). Under the “Statute or

Ordinance Rule,” the violation of an ordinance or statute may establish a prima facie case

in negligence.7 Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 111-13 (2014). To invoke

the rule, the plaintiff must: (1) show “the violation of a statute or ordinance designed to

protect a specific class of persons[], and [(2)] that the violation proximately caused the

injury complained of.” Id. at 112 (Citations and internal quotation marks omitted). Even

if a statutory violation has not occurred, the existence of a statute may provide a basis for

a duty of care. Kiriakos, ___ Md. at ___, slip op. at 33-37, 45.

In Kiriakos v. Phillips, the Court of Appeals recognized the existence of a narrow

7
The violation of a statute (or ordinance) is considered evidence of negligence,
but is not negligence per se. After a violation is established, the fact-finder must still
determine whether the defendant acted reasonably under all the circumstances. Hous.
Auth. of Baltimore City v. Woodland, 438 Md. 415, 441 (2014) (quoting Brooks v. Lewin
Realty III, Inc., 378 Md. 70, 85 n.5 (2003)).

9
form of negligence liability on the basis of a violation of CR § 10-117(b).8 Id., slip op. at

9. Because CR § 10-117(b) “holds adults criminally responsible for underage drinking

under specific circumstances,” the Court determined that the law satisfied the first step to

establishing a prima facie case in negligence because it identified “a specific class that

the General Assembly sought to protect: underage people exposed to alcohol.” Id., slip

op. at 14.

Under the second step, a plaintiff must demonstrate “that the violation proximately

caused the injury complained of.” Blackburn, 438 Md. at 112 (Citations and internal

quotation marks omitted). To establish proximate cause in this context, Hansberger must

show that he “is within the class of persons sought to be protected [by the statute], and

[that] the harm suffered is of a kind which the drafters intended the statute to prevent.”

Id. (Citations and internal quotation marks omitted).

The Court held that underage drinkers are within the class that the statute was

designed to protect, and that the law was designed to protect these underage drinkers

from the risky behavior associated with such drinking. Id., slip op. at 18-19. Thus, in

order to establish a prima facie case of negligence, Hansberger had to demonstrate that

the appellees violated CR § 10-117(b). In this case, he must have alleged that an adult

“knowingly and willfully allow[ed] an individual under the age of 21 years actually to

possess or consume an alcoholic beverage at a residence, or within the curtilage of a

8
CR § 10-117(b) provides that “an adult may not knowingly and willfully allow
an individual under the age of 21 years actually to possess or consume an alcoholic
beverage at a residence, or within the curtilage of a residence that the adult owns or
leases and in which the adult resides.”

10
residence that the adult owns or leases and in which the adult resides.” CR § 10-117(b).

The Kiriakos Court also recognized the existence of another theory of negligence

liability—one established by the breach of a common law duty of care, which in turn is

based on the strong public policy underlying CR § 10-117(b). Id., slip op. at 33-34. The

Court analogized its reasoning to that embodied in negligent entrustment cases. Id., slip

op. at 38-42. Applying common law negligence principles to decide questions of duty

under the common law, the Court also considered:

the foreseeability of harm to the plaintiff, the degree of certainty that the
plaintiff suffered the injury, the closeness of the connection between the
defendant’s conduct and the injury suffered, the moral blame attached to
the defendant’s conduct, the policy of preventing future harm, the extent of
the burden to the defendant and consequences to the community of
imposing a duty to exercise reasonable care with resulting liability for
breach, and the availability, cost and prevalence of insurance for the risk
involved.

Id., slip op. at 45 (quoting Ashburn v. Anne Arundel Cnty., 306 Md. 617, 627 (1986)).

As the basis for a common law duty, the Court acknowledged “the strong public

policy underlying CR § 10-117(b),” which represented “the General Assembly’s

determination that underage persons have a diminished ability to handle alcohol and

adults should not facilitate minors’ consumption in the adult’s homes, save the narrow

exceptions in the statute.” Id., slip op. at 34. Distinguishing the breach of a duty of care

in the context of CR § 10-117(b) from dram shop liability, at issue in of Warr v. JMGM

Group, LLC, 433 Md. 170 (2013), the Court observed that “an adult only violates CR §

10-117(b), if he ‘knowingly and willfully allow[s]’ an underage person to possess or

consume alcohol at his home.” Id., slip op. at 35-36. Important for our consideration of

11
the issues here, this “knowing and willful standard” is a predicate for the limited social

host liability. Id., slip op. at 36.

“Knowing” can be defined as either actual knowledge—“an actual awareness or

an actual belief that a fact exists”—or willful blindness—a deliberate avoidance of

making a reasonable inquiry with a conscious purpose to avoid learning whether a fact

exists. See id., slip op. at 35-36, n.44; State v. McCallum, 321 Md. 451, 458 (1991)

(Chasanow, J., concurring). A “willful” act is one that is “committed intentionally, rather

than through inadvertence.” Kiriakos, ___ Md. at ___, slip op. at 36, n.44 (quoting

Deibler v. State, 365 Md. 185, 195 (2001)) (Internal quotation marks omitted). As the

Court noted: “the terms ‘knowing’ and ‘willful’ are not usually paired with negligence.

But nothing prevents us from superimposing this requirement on a cause of action for

social host liability sounding in negligence where an integral statute on which the

negligence depends makes knowledge and willfulness pivotal for culpability.” Id., slip

op. at 37 (citing Ghassemieh v. Schafer, 52 Md. App. 31, 40 (1982)).

From the text of CR § 10-117(b) and the Court’s explication in Kiriakos, it is clear

that, to create a duty of care to a third party injured by the minor, an adult must

intentionally and with some knowledge allow alcohol to be served to an underage person.

It is helpful to review the circumstances set forth in Kiriakos to understand why the Court

imposed liability in that case, and why we decline to do so here.

Kiriakos involved two unrelated incidents in which a third party was injured after

a minor lost control of a vehicle he was driving while intoxicated. In one incident, a

parent knew that friends of her child were drinking in her garage and allowed the

12
intoxicated minor to drive home, even though other teenagers expressed concerns about

his ability to drive safely. Kiriakos, ___ Md. at ___, slip op. at 3-5. A passenger riding

in the flatbed of the truck was thrown from the truck and killed when the intoxicated

minor struck a barrier. Id.

In the other incident that the Court considered, a 25-year-old supplied alcohol to a

person under the age of 21, who was at his house for a celebration. The adult knew that

the underage person was 18, that he had driven to the adult’s house and would have to

drive to leave, and that the person had too much to drink. Kiriakos, ___ Md. at ___, slip

op. at 6-8. The 25-year-old told the underage person that he could leave “whenever he

was ready” if he “was sure that he was going to be able to drive.” Id. After waiting some

time, the 18-year-old left the home in his vehicle in the early morning, and struck and

severely injured a woman walking her dog on the sidewalk. Id.

By contrast, the adults (Claudia and Thomas Riley, and Jane, Charles, Catherine,

and Wayne Smith) did not knowingly or willfully allow minors to drink alcohol on their

respective properties. With regard to the circuit court’s dismissal of the claims against

the Rileys, Hansberger did not allege any facts to show the mental state of the appellees,

instead relying on conclusory statements that the Rileys knew or should have known that

minors were drinking alcohol and that the Rileys negligently allowed their children to

host the party. Neither allegation supports the willful element of CR § 10-117(b). The

circuit court was correct in determining that Hansberger did not allege a duty of care

supported by CR § 10-117(b) with regard to the Rileys.

Hansberger’s claims against the Smiths fail for similar reasons—even when we

13
consider “the record in the light most favorable to the nonmoving party and construe any

reasonable inferences that may be drawn from the facts against the moving party,”

Myers, 391 Md. at 203 (citing Livesay, 384 Md. at 9), because Hansberger’s claim must

be supported by more than a “scintilla of evidence[,]” i.e., “there must be evidence upon

which [a] jury could reasonably find for the plaintiff.” Blackburn Ltd. P’ship, 438 Md. at

108 (quoting Beatty, 330 Md. at 738-39).

In depositions, the Smiths denied any knowledge of the party in their barn and

denied allowing minors to drink alcohol on their premises. Hansberger argues that the

Smiths should have known about the party, because Jane Smith said she had heard noise

from other parties in the past. However, even accepting this fact and all reasonable

inferences from it, Hansberger has failed to produce facts that demonstrate any

willfulness on the part of the Smiths. Hansberger has not provided more than scintilla of

evidence indicating that the Smiths’ knowingly and willfully allowed minors to drink

alcohol on their property.9 We determine that there is no genuine dispute of material fact,

and that Hansberger failed to produce facts sufficient to bring the case to the fact finder

9
Similarly, it was undisputed that employees of Jefferson Valley had no
knowledge of the field party that occurred on July 13, 2008, and Hansberger produced no
evidence that Jefferson Valley willfully allowed minors to consume alcohol on the
property. Further, CR § 10-117(b) requires that an adult “reside” on the property where
the underage drinking occurred, in order for that adult to be liable. Jefferson Valley was
not “residing” on the Smith farm, even though it owned the property. We, thus, affirm
the court’s grant of summary judgment for Jefferson Valley, LLC, on the ground of social
host liability.

14
on the issue of the Smiths’ breach of a duty of care.10 Although the circuit court did not

have the guidance of the Court of Appeals’s decision in Kiriakos, the court correctly

determined that CR § 10-117 did not provide a basis for negligence liability in this case.

We, thus, affirm the circuit court in this regard.

B. Premises Liability

A judgment in negligence based on premises liability provides relief to plaintiffs

10
Hansberger also argues that he stated a negligence claim on the basis of a
violation of subsection (a) of CR § 10-117, which states that

a person may not furnish an alcoholic beverage to an individual if:
(1) the person furnishing the alcoholic beverage knows that the
individual is under the age of 21 years; and
(2) the alcoholic beverage is furnished for the purpose of consumption
by the individual under the age of 21 years.

Although the Court in Kiriakos did not decide whether CR § 10-117(a) created a duty to a
third party independent of that created by CR § 10-117(b), we hold that, under these
circumstances, it would not.
In defining the public policy underlying the General Assembly’s enactment of CR
§ 10-117, the Court emphasized the “knowing and willful” nature of a violation of the
statute. See Kiriakos, ___ Md. at ___, slip op. at 9 (“we hold that there exists a limited
form of social host liability sounding in negligence—based on the strong public policy
reflected in CR § 10-117(b), but that it only exists when the adults in question act
knowingly and willfully, as required by the statute”; id., slip op. at 24 (requiring a
“finding that the social host defendant knowingly and willfully allowed a member of the
protected class to consume alcohol on the host’s premises in violation of the statute”).
The Court viewed the “knowing and willful standard as a predicate for the limited
social host cause of action.” Id., slip op. at 36. Furthermore, the Court underscored that
“that what is blameworthy here is not merely that an underage person drinks alcohol on
an adult’s property, but that, as stated in CR § 10-117(b), the adult ‘knowingly and
willfully’” allows an underage person to drink on the premises. Id., slip op. at 48
(Emphasis added). It is inconceivable that the Court would take such pains to carefully
circumscribe its holding if subsection (a)—which requires a mental state of mere
knowledge and does not confine a violation to an adult’s residence—could be interpreted
to confer open-ended liability. For this reason, a violation of subsection (a) alone does
not create a cause of action for negligence.

15
who are subjected to dangerous conditions on an establishment’s premises. Troxel v.

Iguana Cantina, LLC, 201 Md. App. 476, 491 (2011). “This cause of action is based on

common law principles of negligence and derives from an establishment’s lack of

supervision, care, or control of the premises.” Id. at 493 (citing Restatement (Second) of

Torts § 344 (1965)). All landowners who open their land to the public for business are

required to use reasonable care in the supervision, maintenance, or control of the

premises, and may even be required to protect against the criminal acts of third persons.

Id. (citing Dan B. Dobbs, 2 The Law of Torts § 324 at 876 (2001)).

The owner of a property will be liable to invitees in negligence if “(1) the [owner]

controlled the dangerous or defective condition; (2) the [owner] had knowledge or should

have had knowledge of the injury causing condition; and (3) the harm suffered was a

foreseeable result of that condition.” Veytsman v. New York Palace, Inc., 170 Md. App.

104, 116 (2006) (quoting Hemmings v. Pelham Wood Ltd. Liab. Ltd. P’ship, 375 Md.

522, 537 (2003)).

Hansberger argues that the appellees are liable under a theory of premises liability,

and asserts that the Court of Appeals’s decision in Scott v. Watson, 278 Md. 160 (1976),

as well as this Court’s decisions in Corinaldi v. Columbia Courtyard, Inc., 162 Md. App.

207, cert. dismissed, 389 Md. 124 (2005) and Troxel v. Iguana Cantina, LLC, 201 Md.

App. 476 (2011) provide a basis for his relief. Each case, however, is distinguishable

because the property owner knew or should have known about the dangerous conditions

prior to an injury occurring and because the resulting harm was foreseeable.

In Scott, a landlord received numerous complaints about criminal activity in the

16
parking garage of an apartment building, but failed to take any action to secure the

property. After a victim was shot and killed by an unknown assailant in the garage, the

Court of Appeals determined that the landlord could be liable in negligence, holding that

“[i]f the landlord knows, or should know, of criminal activity against persons or property

in the common areas, he then has a duty to take reasonable measures, in view of the

existing circumstances, to eliminate the conditions contributing to the criminal activity.”

Scott, 278 Md. at 169. In Corinaldi v. Columbia Courtyard, Inc., a person was shot at a

hotel party by an unrelated third party. 162 Md. App. at 213. There was evidence that a

hotel employee was informed about the person with a gun approximately 10 minutes

before the shooting and could have acted upon that information to protect the guests by

calling the police immediately. 162 Md. App. at 226, 228. In Troxel, we determined that

a nightclub had a duty to take precautions against assaults that occurred during “college

nights” where there was evidence that numerous prior incidents of violence during these

events. 201 Md. App. at 498-99. In sum, a duty is imposed on a landowner to eliminate

conditions that contribute to criminal activity if the landowner had prior knowledge of

similar criminal activity—as evidenced by past events—occurring on the premises. See

Corinaldi, 162 Md. App. at 223 & n.5 (2005).

Regarding the dismissal of Hansberger’s claims against the Rileys, we view his

allegations in the light most favorable to him—we, thus, consider Hansberger to be an

invitee to the premises. In this case, no injury occurred on the Riley property, so the

circuit court properly dismissed claims in negligence against the Rileys based on

premises liability. See Veytsman, 170 Md. App. at 116 (requiring plaintiff to allege that

17
the defendant property owner controlled the dangerous condition).

With regard to the Smiths, we do not consider the existence of rubble on the Smith

farm to be a dangerous condition upon which liability can be based. The injury, in this

case, was the result of an intentional criminal act by a third party, Lewis, and was not the

result of an accident resulting from the debris or poor lighting. Under Troxel, because

Lewis’s intentional act caused Hansberger’s injury, Hansberger was required to produce

some evidence that the Smiths knew that prior criminal conduct had taken place at their

farm.

Here, Bradley Smith stated in his deposition that scuffles had occurred at previous

parties. However, there was no evidence of previous criminal complaints and no

indication that anything like the large-scale brawl that precipitated Hansberger’s injuries

had occurred before at the Smith farm. Unlike the owners of the nightclub in Troxel, the

Smiths did not have knowledge of past criminal activity that would have created a duty to

protect Hansberger from being injured by Lewis. Discerning no dispute of material fact

with regard to the Smiths’ knowledge, we affirm the circuit court’s grant of summary

judgment for the Smith appellees.11

II. Dismissal of Late Added Defendants

Hansberger also argues that court erred in dismissing his complaint against the

11
We also affirm the court’s grant of summary judgment for Jefferson Valley,
LLC, on premises liability. It was undisputed that Jefferson Valley was not occupying
the Smith farm, and that it had no knowledge of the field party that occurred on July 13,
2008 or any previous violent activity.

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Smith property owners and Catherine Smith based on limitations. He avers that because

he learned about the existence of these parties through discovery in 2012, his claims

against them were filed well before the three-year statute of limitations set out in

Maryland Code (1974, 2013 Repl. Vol.), Courts & Judicial Proceedings Article § 5-101.

The discovery rule, applicable to all civil actions, “tolls the accrual of the

limitations period until the time the plaintiff discovers, or through the exercise of due

diligence, should have discovered, the injury.” Windesheim v. Larocca, 443 Md. 312,

326-27 (2015) (quoting Frederick Rd. Ltd. P’ship v. Brown & Sturm, 360 Md. 76, 95-96

(2000)) (Emphasis added) (Internal quotation marks omitted). A plaintiff is not permitted

to add a new defendant to a case after the limitations period has expired except to correct

the name of a defendant. Talbott v. Gegenheimer, 237 Md. 62, 63 (1964); see Grand-

Pierre v. Montgomery County, 97 Md. App. 170, 176 (1993).

Here, Hansberger was not correcting a misnomer of a defendant who already had

notice of the suit. Instead, he sought to add several new defendants—parties that, with

due diligence, he could have included in his original complaint. We affirm the judgment

of the circuit court.

JUDGMENT OF THE CIRCUIT
COURT FOR FREDERICK COUNTY
AFFIRMED. COSTS TO BE PAID BY
APPELLANT.

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