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Breaking Legal Developments


Published by:
Peter A. Lynch, Esq.
of Cozen O'Connor


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In Lester Rivers v. Hagner Management (Oct. 29, 2008) Maryland Court of Appeals, No. 516 and 1870, a summary judgment motion granted by the trial court was later overturned on appeal. The plaintiff had been injured in an arson fire when the building he attempted to flee had only one exit. He alleged his injuries occurred because he could not flee due to the arsonist starting the fire at the only exit to the building. Plaintiff's expert testified that having only one exit violated the applicable fire code, thus making the landlord liable for the injuries sustained.

The defendant moved for summary judgment claiming because the fire was caused by an arsonist, that was not foreseeable there could be no liability. Specifically they argued:

In order to impose a duty on a business premises owner, requiring that he protect individuals upon his premises from the intentional criminal acts of third parties, it must be shown that the incident from which the case arises was foreseeable. Proof of foreseeability requires evidence that the defendant knew or should have known that highly similar criminal activity against persons or property had occurred on the premises previously. . . . [T]he test as to whether a particular event is foreseeable is determined by evidence of prior, similar crimes committed against individuals lawfully on the defendant’s premises, or the premises itself.

The determination of whether a particular incident was foreseeable, thereby creating a duty on the part of the defendant, is a question of law for the court. Here, there is absolutely no evidence of any prior incidences of arson occurring in Mr. Rivers’ apartment building, or even in the apartment complex known as the Oxon Park Apartments, from which a court could deem that this fire, started by a serial arsonist, was foreseeable. Furthermore, no similar incidents were cited by [appellant] in his Amended Complaint, or were testified to at any depositions. Therefore, in the absence of proof of any such prior similar incidents, there can be no duty imposed upon [appellees] whereby they should have precluded the occurrence. Accordingly, [appellees] are entitled to summary judgment.

The Court of Appeals reviewed the applicable law noting the plaintiff was asserting:

[Appellees’] Motion requests judgment be entered as a matter of law in this case because, they claim, there is an absence of proof of any prior similar incidents and, therefore, there can be no duty imposed upon the [appellees] whereby they should have precluded the occurrence. . . . The basis for their request for judgment is misplaced. . . . [T]he facts establish a violation of a statute and a prima facie case of negligence. [Appellees’] negligence is based on their violation of the fire code, not any breach of duty to protect against third party actors as alleged by the [appellees]. . . .

At the outset, the Court of Appeals rejected appellees’ contention that a duty of care is not created “simply by the existence of a statute.” To the contrary, “[a] duty may be, and often, is prescribed by statute.”

Thus, when a plaintiff alleges that a defendant’s duty is established by statute, “all that a plaintiff must show is: (a) the violation of a statute or ordinance designed to protect a specific class of persons which includes the plaintiff, and (b) that the violation proximately caused the injury complained of.” As the Court explained once the violation of a statute is shown, “[p]roximate cause is established by determining whether the plaintiff is within the class of persons sought to be protected, and the harm suffered is of a kind which the drafters intended the statute to prevent. It is the existence of this cause and effect relationship that makes the violation of a statute prima facie evidence of negligence.”

The plaintiff need not show that the defendant had knowledge of the statutory violation (although the statute itself might require knowledge in order to establish a violation). Notably, while “[t]he majority of state courts treat the violation as negligence per se . . . Maryland is among the minority of states that treat the violation simply as evidence of negligence.” Thus, once the plaintiff has presented a prima facie case, by introducing “evidence that the violation of the statute proximately caused the plaintiff’s injury,” the defendant’s negligence becomes a question for the fact finder. At that point, “[t]he trier of fact must . . . evaluate whether the actions taken by the defendant were reasonable under all the circumstances.” Id.

Appellant was within the class of persons that the Fire Code seeks to protect, and that the injuries he suffered are the kind the Fire Code is intended to prevent. The purpose of the two-exit requirement of the Life Safety Code is to obviate the danger of an apartment building’s “occupants attempting to use a single means of egress that is blocked by fire or smoke.” NFPA 101, § 2-8. That is exactly what allegedly occurred in this case. It was eminently foreseeable that, if a fire, whatever its origin, blocked the single exit to the Property, the occupants would be burned as they attempted to escape via that exit. That is the precise contingency the two-exit requirement is intended to address.

Based on that, the Court of Appeals reversed the judgment for the defendant. It ordered the matter to be tried based on the Fire Code violation allegation.

Mr. Lynch can be reached at Cozen and O'Connor, 501 West Broadway, Suite 1610, San Diego, California 92101, 800-782-3366 (voice), 619-234-7831 (fax), (e-mail), Follow us on Twitter at @firesandrain.

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