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HEADNOTE:
PREMISES LIABILITY -- SUMMARY JUDGMENT IN FAVOR OF OWNER OF BAR AND GRILL -- NO GENERAL DUTY ON RESTAURANT OWNER TO PROTECT PATRONS FROM CRIMES COMMITTED BY THIRD PERSONS -- FORESEEABILITY OF RISK BASED ON KNOWLEDGE OF PRIOR CRIMES ON PREMISES MAY CREATE A DUTY OF PROVIDING SECURITY

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1985 September Term, 2001 ______________________________________

REBECCA M. MOORE

v.

JIMEL, INC., t/a HIGHTOPPS BAR AND GRILL ______________________________________ Sonner Adkins Moylan, Charles E., Jr. (retired, specially assigned), JJ. ______________________________________ Opinion by Moylan, J. ______________________________________ Filed: September 27, 2002

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1985 September Term, 2001 ______________________________________

REBECCA M. MOORE

v.

JIMEL, INC., t/a HIGHTOPPS BAR AND GRILL ______________________________________ Sonner Adkins Moylan, Charles E., Jr. (retired, specially assigned), JJ. ______________________________________ Opinion by Moylan, J. ______________________________________ Filed:

The appellant, Rebecca M. Moore, was, on October 4, 1998, a customer in the commercial establishment owned by the appellant, Jimel, Inc., t/a Hightopps Bar and Grill in the Fells Point neighborhood of Baltimore City. While using the ladies' restroom

on the third floor at approximately 6 p.m., she was attacked and raped. She sued the appellee in the Circuit Court for Baltimore

City for negligently having failed to provide the security owed to her as a business invitee. The appellee moved for summary judgment in its favor. Judge

John Carroll Byrnes granted the summary judgment motion, ruling that the appellant failed to establish a duty to protect a patron against crimes committed by third persons. In Valentine v. On Target, 353 Md. 544, 549, 727 A.2d 947 (1999), Judge Karwacki listed for the Court of Appeals the required elements of the tort in question. To maintain an action in negligence, the plaintiff must assert in the complaint the following elements: "(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant's breach of the duty." It is the first of those elements that concerns us here. This

case turns on whether the Hightopps Bar and Grill, under the undisputed circumstances of this case, owed a duty to its customers to provide enhanced security to guard against criminal attacks on the customers by third persons.

-2The Existence of a Duty Is a Question of Law A key procedural question is that of whether the existence of such a duty is a question of fact, for a jury, or a question of law, capable of being decided by the judge on summary judgment. It

is the teaching of Valentine, 353 Md. at 549, that that question is one for the court, as a matter of law. Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court. (Emphasis supplied). In the Valentine case itself, the Court of Appeals affirmed the dismissal of a suit because the complaint, as a matter of law, failed to allege a legally cognizable duty owed by the defendant to the plaintiff. The Court cited a number of cases in which there

had been held to be the lack of a duty and in which such a determination was one properly to be decided by the trial judge, as a matter of law. As clearly outlined by Judge Wilner, "[t]he view expressed in Scott has been confirmed in later cases. See Lamb v. Hopkins, 303 Md. 236, 492 A.2d 1297 (1985); cf. Southland Corp. v. Griffith, 332 Md. 704, 716-17, 633 A.2d 84 (1993), applying the same principle with respect to a duty to aid, i.e., there is no duty on the part of a storeowner to aid a customer from attack by a third person in the absence of statute or special relationship. See also Ashburn v. Anne Arundel County, 306 Md. 617, 510 A.2d 1078 (1986) (police officer had no duty to prevent allegedly drunk driver from injuring pedestrian); Furr v. Spring Grove State Hosp., 53 Md. App. 474, 454 A.2d 414, cert. denied, 296 Md. 60 (1983) (psychiatrist owed no

-3public duty to prevent harm by failing to detain patient); Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 642 A.2d 219 (1994)." Valentine v. On Target, 112 Md. App. 679, 686, 686 A.2d 636, 639 (1996). 353 Md. at 552. In Nails v. Community Realty Co., 1998 WL 879511, 1998 U.S. App. LEXIS 31576 (4th Cir. 1998),1 the United States Court of Appeals for the Fourth Circuit applied Maryland law as it held: Under Maryland law whether a landlord has a duty to protect tenants is a legal question, ... which we review de novo. (Emphasis supplied). The Factual Background Sunday, October 4, 1998, was the final day of the Fells Point Festival, an occasion on which the neighborhood and its commercial establishments crowded. would be expected to be more than ordinarily

The Hightopps Bar and Grill is at the corner of Broadway

and Thames Street, the literal epicenter of Fells Point. Hightopps is a three-story establishment. several tables for customers. The first floor is a bar, with Street. The

It is entered from Thames

The second floor contains both a game area and a restaurant.

third floor has an outdoor deck overlooking both Thames Street and Broadway. office. It also has a bar, two restrooms, a storage area, and an

Nails v. Community Realty Co. is an unpublished opinion of the Fourth Circuit listed at 166 F.2d 333. The text of the opinion is nonetheless circulated by both West Law and LEXIS.

1

-4There are two approaches to the second and third floors. They may be reached through a ground level door on Broadway, which leads to a stairway with entrances to both the second and third floors. Those upper levels may also be approached from an interior stairway leading from the first floor bar area. There are thus two doors

providing ingress for the public, one on Thames Street and one on Broadway. Because of the anticipated crowd from the Fells Point Festival (the weather turned out to be cold and damp and the crowd was less than anticipated), Hightopps had approximately six security

personnel on duty on the evening of October 4.

A separate guard

was stationed at each of the public entrances, the door on Thames Street and the door on Broadway. Their primary mission was to

prevent 1) underage persons and 2) obviously intoxicated persons from entering the establishment. A third guard was stationed at

the top of the stairs leading up from the door on Broadway, at the entrance to the third-floor deck. The other three security

personnel walked throughout the premises to prevent disruptive incidents between patrons and to handle them if any such incidents should occur. The appellant, as part of a party of six persons, arrived at the Fells Point Festival at approximately five p.m. In her party

was her fianc

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