Mech v. Hearst Corp.

ROBERT M. BELL, Judge,

dissenting.

I believe that the evidence regarding the nature and quality of appellee’s conduct with respect to the control of its dog on its premises, which was presented during appellant’s case, was sufficient to enable appellant to survive a motion for directed verdict. Therefore, I dissent from that portion of the majority opinion that holds, as a matter of law, the evidence was insufficient to establish willful and wanton misconduct or entrapment on the part of appellee.

Before setting out the facts presented during appellant’s case, I think it well to rehearse the standard by which a trial judge’s grant of a motion for directed verdict1 is reviewed. “If there is any legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then a trial court would be invading the province of the jury by declaring a directed verdict. In such circumstances, the case should be submitted to the jury and a motion for directed verdict denied, (citation *435omitted)” Impala Platinum v. Impala Sales, (U.S.A.), Inc., 283 Md. 296, 328, 389 A.2d 887, (1978). See also Beahm v. Shortall, 279 Md. 321 (1977), Ralph Pritts & Sons, Inc. v. Butler, 43 Md.App. 192, 403 A.2d 830 (1979). Thus, when ruling on a motion for directed verdict, the trial judge must consider the evidence presented, together with all reasonable and legitimate inferences deducible therefrom, in the light most favorable to the party against whom the motion is made, Gleason v. Jack Alan Enterprises, Inc., 36 Md. App. 562, 374 A.2d 408 (1977), and must grant the motion only if but one inference can be drawn with regard to the issue presented. Smack v. Jackson, 238 Md. 35, 207 A.2d 511 (1965).

With these principles firmly in mind, the facts presented by appellant will be set forth in the light most favorable to her. Appellant, having been informed by a fellow employee of the existence of a parking lot in the 400 block of Front Street, at which she could park her car at a reasonable monthly rental, sought to locate the parking lot during her lunch break. Although she had difficulty finding the correct block of Front Street, when she arrived in the 400 block, she came upon appellee’s property. It was located in a commercial area, surrounded by a chain link fence higher than she was tall, with the gates wide open. Inside the fence was a plain building with an open door. To appellant, it looked like a large lot. No signs of any kind were observed on or about the parking lot. Thinking that it “was the lot [she] was looking for”, appellant entered to “make arrangements to park [her] car”, or to ask “if [she] was in the right place”. When she had taken two or three steps inside the lot, appellee’s dog, a German Shepherd, named Smokey, growled at her and attacked, knocking her to the ground and causing various serious injuries.

Appellant was transported by ambulance to the hospital, where she was treated. Upon her release, in company with her sister and brother-in-law, appellant revisited the scene of her injuries. At that time, around 4 p.m., the dog was observed secured by a “short” chain. The gates to the lot *436were still open and inside were gasoline pumps, an attendant’s station, a cement block building and a row of barrels. Trucks, with the name “News American” on the side, and cars were parked on the lot. No signs of any kind were visible on the premises.

The majority finds support for its conclusion that appellee is not guilty of willful and wanton misconduct or entrapment in Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972). Implicit in the rationale underlying that conclusion and in the majority opinion itself is the proposition that the keeping of a known vicious dog on private property cannot constitute, under any circumstances, willful and wanton misconduct or entrapment. My disagreement with the majority’s conclusion and its rationale is emphatic.

Before proceeding to consider the evidence actually presented, its tendency to prove willful and wanton misconduct or entrapment on the part of appellee, and the applicability of Bramble, I think it appropriate to point out that at work here are, potentially, two distinct theories on which liability may be premised. The first, which I will call, “premises liability”, and which was discussed in part I of the majority opinion (with which I agree), is dependent on the standard of care owed to an individual user of property, which, in turn, is dependent upon that individual’s status while on the property. See, Murphy v. Baltimore Gas and Electric Co., 290 Md. 186, 428 A.2d 459 (1981); Bramble, supra; Kight v. Bowman, 25 Md.App. 225, 333 A.2d 346 (1975). It is from this theory that we glean the standard of care — to refrain from willful and wanton misconduct or entrapment — owed a trespasser or bare licensee. See Bramble, supra.

The second theory, which I designate, for purposes of this opinion and to avoid the confusion inherent in failing to precisely define the issue before us, “dog owner’s liability”, is dependent upon an owner’s “control” of his dog. Slack v. Villari, 59 Md.App. 462, 476 A.2d 227 (1984). Liability arises when it is shown that either: (1) without regard to *437the knowledge of the dog’s viciousness, the dog owner failed to exercise the degree of control of the dog as would be exercised by a “reasonable person”, or (2) “... the owner knew, or by the exercise of ordinary or reasonable care, should have known, of the propensity of the animal to do the particular mischief that was the cause of the harm.” Herbert v. Ziegler, 216 Md. 212, 216, 139 A.2d 699 (1958). See Twigg v. Ryland, 62 Md. 380 (1884).

I am satisfied that, under the facts presented, liability, if it exists, must rest on a “premises liability” analysis. The dog owner’s “liability” analysis has importance only with regard to assessing the quality of the premises owner’s conduct toward the “bare licensee”; to the extent that reference to the standard of care imposed on the dog owner with respect to the control of his or her dog provides evidence which would enable the trier of facts to characterize that conduct with respect to the premises as willful and wanton, then, to that extent, it has relevance.

I now consider the case sub judice in light of Bramble.

In Bramble, the issue was whether the pleadings stated a cause of action2 and, therefore, whether the trial court’s sustaining of demurrers to the plaintiff’s declaration was proper. In finding that the trial judge properly sustained the demurrers, the Court pointed out: 264 Md. at 523, 287 A.2d 265

Once they state in their declaration that they were trespassers, albeit inadvertent, there is simply no authority in Maryland which permits their recovery unless wilful or wanton misconduct or entrapment on the part of the animal’s owners can be shown. No such allegation was made here, (emphasis added)

After having considered, and rejected, the various theories espoused by plaintiffs “to escape from their unenviable *438predicament,” and with particular reference to the plaintiffs argument that the defendant’s dog was analoguous to a spring gun, it said:

We need not decide to what extent any particular device may be deployed in specific circumstances before it becomes 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[,]

Id. at 526, 287 A.2d 265 because,

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 watchdog 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.

Woodbridge v. Marks, 17 App.Div. 139, 45 N.Y.S. 156, 160 (1897).

Although Bramble teaches that the mere use of a vicious watchdog is not, in and of itself, willful and wanton misconduct or entrapment, Bramble also recognizes that a dog owner’s willful and wanton misconduct may render the dog owner liable even to one wrongfully on his premises. Thus, Bramble should not be read as standing for the proposition that a vicious dog on private property cannot be a factor, even an important one, in a set of circumstances which, when taken together, could amount to willful and wanton misconduct or entrapment. To do so would render meaningless the Court’s recognition of the standard of care owed a trespasser. Because there were no allegations in that regard, the Court simply had no occasion to focus on or discuss what additional facts and circumstances would be necessary to constitute such conduct. It is interesting to note, in that regard, however, that the tendency of a dog to *439give “notice of his presence and attack” was a significant factor in its analysis.

The case sub judice differs from Bramble in at least two respects. First, here, the issue is the sufficiency of the evidence, rather than the sufficiency of the pleadings, an issue appellee has not, and could not, raise. Appellant, unlike the plaintiffs in Bramble, in addition to alleging facts supportive of strict liability and labeling appellee’s conduct, “reckless”, alleged facts from which willful or wanton misconduct or entrapment could have been inferred.3 Second, the issue having been raised by the pleadings, appellant presented evidence to prove the nature and effect of appellee’s conduct.

“Willful” and “wanton” conduct,
is in the nature of an intentional wrong, the tendency of which to injure is known or should be known and ordinarily is accompanied by an indifference to and disregard of the probable harmful consequences. Something more is required than mere inadvertance or lack of attention; there must be a more or less extreme departure from ordinary standards of care and the conduct must differ in quality, as well as in degree, from ordinary negligence, and must involve a conscious disregard of a known, serious danger. It is usually regarded as “willful” or “wanton” to fail to exercise ordinary care to prevent injury to a person who is actually known to be, or reasonably is expected to be, within the range of a dangerous act being done, or a hidden peril on the premises. (citations omitted)

*44065 C.J.S. Negligence § 63(38). See Medina v. Meilhammer, 62 Md.App. 239, 489 A.2d 35 (1985) (discussing punitive damages, “willful” and “wanton” conduct is extraordinary or outrageous conduct, amounting to a reckless disregard of the rights of others.)

Turning to the instant case, the injuries alleged occurred on appellee's property and appellant was, at best, a bare licensee. It is apparent, therefore, that appellant, to survive a motion for directed verdict, must have produced evidence from which it could be inferred that appellee’s conduct with regard to its premises, under the circumstances,4 was willful and wanton misconduct or constituted entrapment. Appellant testified that appellee’s property was located in a commercial area; that it appeared to be a public parking lot; that it was unattended; that the gates were open; and that no signs designating the property as private property or warning of the presence of a vicious dog were displayed on or about the premises. In addition, her testimony was such as to permit the trier of fact to conclude that the dog was not secured and gave no warning prior to its attack. Moreover, unlike Slack v. Villari, supra, ample evidence of appellee’s knowledge of its dog’s “mischievous propensities” was presented. The deposition of appellee’s Transportation Manager, which was read at trial, contained evidence that at least four persons had been attacked or bitten by appellee’s dog. Furthermore, there was evidence that an inter-office memorandum had been circulated by appellee to all department heads, alerting them that the garage had obtained a watchdog and warning them against going near the dog for any reason. It thus is clear that appellee had full knowledge of the dog’s vicious propensities.

By themselves, the property’s location, appearance, lack of an attendant, and accessibility, though clearly relevant, *441arguably may be insufficient to show willful and wanton misconduct or entrapment. But here there is much more: evidence of a vicious dog’s presence, as to which appellant remained unwarned up to the point of attack, evidence of appellee’s substantial knowledge of that dog’s vicious propensities, evidence that this vicious dog was not secured, and evidence that no signs designating the property private property or giving notice of the dog’s presence were displayed on the property. When the totality of the circumstances, as revealed by appellant’s evidence is considered, appellee’s conduct with respect to its property, especially as it relates to the dog kept thereon, takes on a different and more reckless and sinister aspect. I think that from these circumstances a jury could infer that appellee’s conduct was willful and wanton or constituted entrapment. I would reverse.

. Former Md.Rule 552 (present Rule 2-519).

. In Bramble, the plaintiffs alleged in their declaration that they were inadvertent trespassers on the defendants' land, that they were injured by defendants’ dog while on defendants’ land, and that defendants’ dog had vicious propensities, of which defendants were aware.

. Specifically she alleged:

That [appellee] was negligent in that it failed to post signs adequately warning ... of the dog’s presence and failed to post signs warning [appellant] to keep out of and off of its lot, failed to have an attendant, failed to restrict the area in which the dog could roam unattended, failed to close the gates to its lot when the area in which [appellant] unknowingly entered, which danger was known or should have been known by [appellee] ...

. Appellee's knowledge and duty with respect to the control of its dog is perhaps a major, though not the exclusive, circumstance to be considered.