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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2539 September Term, 1999 _______________________________

LEO G. MOLOCK, SR., ET AL.

V.

DORCHESTER COUNTY FAMILY YMCA, INC.

_______________________________ Salmon, Sonner, McAuliffe, John F. (Ret., Specially Assigned), JJ. _______________________________ Opinion by Salmon, J.

Filed: August 29, 2001

On April 3, 1998, between 6 and 9 p.m., the Dorchester County Family YMCA ("YMCA") held a Friday night roller skating event, which was billed: Kids Night." "Skate with the Easter Bunny Healthy

The event combined "Family Night" events with the

normal skating that usually occurred on Friday nights at the YMCA. The skating was supervised by a skate monitor, a YMCA

program director, and others, including a volunteer who, dressed as the Easter Bunny, skated among the children. Some parents of

the children also sat in the bleachers surrounding the skating area. Family In the hallway and rooms adjacent to the gymnasium, other Night and activities took place such as crafts, face by

painting,

gymnastics. from various

Information civic

booths

manned were

representatives present.

organizations

also

Approximately three hundred people were in attendance.

Around 8 p.m., the skate monitor, a YMCA volunteer named Vince Vigneri, was told by a teenager that "someone is going to bank my cousin." Mr. Vigneri correctly understood the verb Mr. Vigneri did not ask who was

"bank" as meaning "beat up."

going to beat up whom; he simply told his informant to stay inside the gymnasium where there was supervision. Mr. Vigneri

also told the program director, Frieda Dietrich, that there was a rumor that a fight was going to take place. Ms. Dietrich, in

turn, told the front desk clerk, Angie Major, to ask the police to come for a "sweep through" at 8:50 p.m., so that there would

be additional adult supervision when the event ended. About 8:50 p.m., fifteen-year-old Leo Molock, Jr.

("Molock"), got in a fight in the YMCA parking lot with Leroy McKnight ("McKnight"), age fourteen. for McKnight. The fight did not go well

After blows were struck, McKnight walked away

from Molock, took a pocket knife from his cousin and returned to where Molock was standing. died from his stab wounds. Appellants, who are the parents of Molock, filed a complaint in the Circuit Court for Dorchester County against the YMCA. trial, the plaintiffs produced evidence that, if At McKnight then stabbed Molock, who

believed,

showed that the YMCA did not use reasonable care in supervising activities on their premises. produced countervailing evidence On the other hand, the YMCA showing that they did use

reasonable care under the circumstances. The trial judge's jury instructions included the following: Now, this is a case brought in negligence. It is the [p]laintiff's burden to prove that the [d]efendant was negligent and the negligence produced the injury that is complained of. Now, negligence is doing something that a person using ordinary care would not do or failing to do something that a person using ordinary care would do. So, the measure and the thing you must look for is ordinary care. That's the burden. If a person fails to do it then the burden [sic] is negligent. So, you're looking at ordinary care, and 2

you'll hear counsel argue to you about ordinary care and what they believe constitutes ordinary care in this case. And ordinary care simply means that amount of caution, attention or skill that a reasonable person would use under similar circumstances. That is the important measure you're talking about, the duty, a reasonable person, not the smartest person in the world or the least intelligent but a reasonable person. And we're held and the [d]efendant in this case is held to that kind of care, which a reasonable person would use under similar circumstances. * * * Now, we're talking here, the [d]efendant was at the YMCA, and the YMCA operated this business, if I may call it that. And by operating that enterprise assumed certain responsibilities to people who are there. And the liability of YMCA depends on the nature of the people who were there. And I would instruct you, under the law in this case, those who were there at the invitation of YMCA are what we call invitees. And an invitee is a person who is invited or permitted to be on another's property for the purposes related to the owner's or occupant's business. In this case [t]he [c]ourt instructs you that Molock, young Molock, and the others there were invitees of YMCA. And the duty that is owed to an invitee is to use reasonable care to see that those portions of the property which the invitee may be expected to use are safe. I'll repeat that. The duty owed to an invitee is to use reasonable care to see that those portions of the property which the invitee may be expected to use[] are safe. And that's the basis -- the duty that you must consider in determining whether there was a breach of that duty. 3

(Emphasis added.) Once the trial judge concluded his instructions, counsel for the plaintiffs put on the record his exceptions to the

instructions.

The only exception that is here relevant was:

[W]e sought an instruction on [loco] parentis involving special relationship, the special relationship between the child and an organization like the YMCA which we believe the analogous [sic] to that of a school and a pupil, which requires a special instruction pursuant to the special instruction filed in this case. That's all, Your Honor. The instruction to which plaintiffs' counsel referred was the following: The relation of the YMCA to its members who are children is analogous to one who stands in loco parentis, with the result that the YMCA is under a special duty to exercise reasonable care to protect its members who are children from harm. (Footnote omitted) (emphasis added). Henceforth, we shall refer

to this instruction as the "in loco parentis" instruction. The trial judge declined to give the requested instruction. After being given a special verdict form, the jury retired to deliberate. The first question on the verdict form was, "Do you find that the [d]efendant was negligent and that its negligence was a proximate cause of the death of Leo Molock, Jr.?" answered "no" to the first question 4 and The jury their

concluded

deliberations.

After judgment was entered in favor of the YMCA, In the question presented

the Molocks filed this timely appeal.

portion of their brief, they raise one question, viz: Whether the [circuit court] erred in instructing the jury that the YMCA's duty to nearly 300 teenagers attending its Friday night skating event was only to see that those portions of the premises to which the invitees may be expected to use were safe and not to prevent foreseeable harm? Appellants ask us to consider whether the instruction

actually given by the trial judge -- as opposed to the in loco parentis instruction that was rejected -- was erroneous. made clear by appellants' argument, viz: The [circuit] [c]ourt erred in instructing the jury that the duty of the YMCA was limited to seeing that those portions of the premises which the invitee may be expected to use were safe; the YMCA had a special duty to protect the teenagers from 1 foreseeable harm. According to appellants, This instruction is inapposite to the evidence in the case[,] which demonstrated that the YMCA, an organization nearly identical in social features to a school, invited nearly three hundred teenagers to a Friday evening social event and assumed the responsibilities for their safety beyond simply keeping safe those portions of the premises that the children might be expected This is

Appellants slightly changed their argument in another part of their brief when they said that the trial judge erred when he told the jury that "the duty that is owed to an invitee is to use reasonable care to see that those portions of the property to which the invitee may be expected to use are safe." (Emphasis added.)

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to use. The foregoing argument was not preserved for appellate

review because appellants made no objection to the instructions actually given in the trial court. Maryland Rule 2-520(e) reads: Objections. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury. Although not listed as a question presented, appellants do raise a second question, viz: Did the trial court err in rejecting their in loco parentis instruction? That question was properly raised below. In Farley v. Allstate Ins. Co., 355 Md. 34 (1999), the Court of Appeals said: In reviewing the propriety of a trial court's denial of a requested jury instruction, we must examine "whether the requested instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and finally whether the substance of the requested instruction was fairly covered by the instruction actually given." Id. at 47 (quoting Wegad v. Howard St. Jewelers, Inc., 326 Md. 409, 414 (1992)); see Jacobs v. Flynn, 131 Md. App. 342, 383, 6

cert. denied sub nom. Kishel v. Jacobs, 359 Md. 669 (2000); Green v. State, 119 Md. App. 547, 563 (1998); Md. Rule 2-520(c). But, even if an instruction is applicable in light of the

evidence before the jury, "a court need not give a requested instruction, even if it may be a correct exposition of the law, 'if the matter is fairly covered by instructions actually

given.'"

Kennelly v. Burgess, 337 Md. 562, 577 (1995) (quoting

Md. Rule 2-520); see Dover Elevator Co. v. Swann, 334 Md. 231, 258-59 (1994) (stating that "[a] number of Maryland cases also assert the proposition are that specifically where the requested jury given

instructions

unnecessary

instructions

adequately encompass the field of law and a party's counsel has room to argue applicable law in light of the facts of the case"); Aronstamn v. Coffey, 259 Md. 47, 51 (1970); Baltimore Gas & Elec. Co. v. Flippo, 112 Md. App. 75, 92 (1996), aff'd, 348 Md. 680 (1998). The purpose of jury instructions is to aid the jury in clearly understanding the case and . . . to provide guidance for the jury's deliberations by directing their attention to the legal principles that apply to and govern the facts in the case; and to ensure that the jury is informed of the law so that it can arrive at a fair and just verdict. Robertson v. State, 112 Md. App. 366, 385 (1996); see Chambers v. State, 337 Md. 44, 48 (1994). 7 But, "the standard for

reversible error places the burden on the complaining party to show both prejudice and error." omitted). A person in loco parentis is "charged, factitiously, with a parent's rights, duties, and responsibilities." Black's Law Dictionary (4th ed. 1951). "A person in loco parentis to a child is one who means to put himself in the situation of the lawful father [or mother] of the child with reference to the father's [or mother's] office and duty of making provision for the child. Or, as defined by Sir Wm. Grant, Master of the Rolls, a person in loco parentis is one, 'assuming the parental character and discharging parental duties.' Weatherby v. Dixon, 19 Ves. 412. . . . There must be some indication, in some form, of an intention to establish it. It is a question of intention." Von der Horst v. Von der Horst, 88 Md. 127, 130-31, 41 A. 124 (1898). Pope v. State, 284 Md. 309, 322 (1979). There was no direct or circumstantial evidence presented from which the jury could have legitimately concluded that the YMCA intended that it would take over the parents' rights and duties while the children were on its premises. prove that agents of the YMCA undertook Appellants did to monitor the Farley, 355 Md. at 47 (citation

activities of its patrons.

But most enterprises that invite

large numbers of the general public onto their premises, whether the invitees are young or old, monitor the activities of their patrons. The mere fact that the activities of the young patrons

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are monitored does not, standing alone, create a duty to act in loco parentis for those children. In the lower court, appellants relied on Restatement

(Second) of Torts, section 320 (1965).

That section describes

the duty of a person having custody of another in loco parentis to control the conduct of third persons, as: One who is required by law to take or who voluntarily takes the custody of another under circumstances such as to deprive the other of his normal power of self-protection or to subject him to association with persons likely to harm him, is under a duty to exercise reasonable care so to control the conduct of third persons as to prevent them from intentionally harming the other or so conducting themselves as to create an unreasonable risk of harm to him, if the actor (a) knows or has reason or know that he has the ability to control the conduct of the third persons, and (b) knows or should know of the necessity and opportunity for exercising such control. Restatement (Second) of Torts

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