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IN THE COURT OF APPEALS OF MARYLAND No. 51 September Term, 1994 ___________________________________

BALTIMORE GAS AND ELECTRIC COMPANY v. TYRONE LANE, a Minor et al.

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Murphy, C.J. Eldridge Rodowsky Chasanow Karwacki Bell Raker JJ. ___________________________________ Concurring Opinion by Chasanow, J. in which Bell, J. joins ___________________________________ Filed: March 28, 1995

The Court unanimously reaches the same result reached by the Court of Special Appeals, i.e., that an eight-year-old child, Tyrone Lane, is not, as a matter of law, barred from recovering against Baltimore Gas and Electric Company (BGE) if he proves BGE was negligent and also proves that defenses such as contributory negligence and assumption of the risk are inapplicable. I concur

in the result, but I am unable to join or, I confess, to fully understand the legal analysis used by the majority to reach that result. An owner of land or a possessor of land is not liable for negligently injuring child or adult trespassers to the land. Premises liability is only imposed for willfully or wantonly injuring or entrapping a trespasser. ___, ___ (1995)(Majority Op. at 6). ___ Md. ___, ___, ___ A.2d

We should not extend that well

established real property principle to children who are invited onto land, but who may be trespassing on chattels. The majority holds that all of the real property law

principles regarding limitation on liability to trespassers on real property are universally applicable to all trespassers on chattels. Recognizing the unfairness of such a limitation on liability to the plaintiffs in the instant case, the majority fails to critically analyze the applicability of real property trespasser rules to children trespassing on personal property, and instead creates a novel new exception for children who would seem to be trespassers to chattels, but who are not deemed trespassers because someone

-2else trespassed before they did. The Court holds that BGE can be liable because it failed to foresee 1) that a four hundred pound spool might be turned on its side and rolled away by a group of children, and 2) that the first group of trespassing children who took the spool would negligently leave it on top of a hill where it could be ridden by, and cause injury to, a "nontrespassing" child. The Court states: "A

reasonable fact finder could find it foreseeable that, when BGE left the spool near a residential neighborhood, boys would move it for the purpose of riding it down a nearby hill. Furthermore, it

could reasonably be foreseeable that another child [plaintiff] might notice this activity and join in it. In sum, we cannot hold

that the intervening acts, which culminated in Lane being injured, were unforeseeable as a matter of law." at ___ (Majority Op. at 16). is far less foreseeable ___ Md. at ___, ___ A.2d

It seems to me that as BGE argued, it that the first trespassers would

negligently move the spool to the top of a hill where it could cause injury to the plaintiff than it is foreseeable that a thief, who takes a car with the keys left in the ignition, would drive the car negligently and cause injury. What we said in Hartford Ins.

Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994), would seem applicable to the majority's analysis in the instant case. In

Hartford, we held that the thief's conduct in taking the van with the keys left in the ignition was predictable, but the negligent manner in which he drove the van and its consequences were "highly

-3extraordinary" and not predictable. 232. The majority apparently holds that Lane, who would seem to be a trespasser on this four hundred pound spool and therefore only entitled to recovery for willful or wanton conduct by BGE, is really not a trespasser because someone else trespassed before he did. The notion that Lane is not a trespasser is apparently based 335 Md. at 160, 642 A.2d at

on antiquated, universally discarded distinctions in old common law pleading. Prosser and Keeton note: "The original common law rule [for an action in trespass to chattel] required that the plaintiff be in possession of the chattel at the time of the trespass, or the action could not be maintained. This was relaxed slightly, at a later date, to allow trespass to be maintained by one who is entitled to possession immediately, or upon demand...." (Footnotes omitted). W. Page Keeton et al., Prosser and Keeton on the Law of Torts

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