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HEADNOTE: Lester Rivers v. Hagner Management Corporation, et al., No. 516 & No. 1870, September Term, 2007 NEGLIGENCE; PREMISES LIABILITY; ARSON; DUTY OF CARE; FORESEEABILITY; LANDLORD-TENANT; STATUTORY COMPLIANCE. In a negligence action brought by a tenant against a landlord, based on injuries sustained by the tenant while attempting to escape from a fire set by an arsonist, the circuit court erred as a matter of law in granting summary judgment in favor of the owner of building, based on its conclusion that the landlord had no duty to protect against the arson. The owner conceded, for purposes of the motion, that it did not provide the egress that was required by a local fire safety code. The landlord had a duty to comply with the fire safety code, so as to minimize danger to its tenants from fires that might occur, regardless of their cause. The risk of fire is foreseeable.

REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 516 & No. 1870 SEPTEMBER TERM, 2007

LESTER RIVERS v. HAGNER MANAGEMENT CORPORATION, et al.

Hollander, Zarnoch, Thieme, Raymond G., Jr. (Retired, specially assigned), JJ.

Opinion by Hollander, J.

Filed: October 29, 2008

In this negligence/premises liability action brought by Lester Rivers, appellant, against Hagner Management Corporation ("Hagner") and Oxon Park Apartments, Inc. ("Oxon Park"), appellees, Rivers sued to recover for injuries he sustained while attempting to flee from a fire in the entryway of the apartment building in which he resided. Appellees owned and operated the building. Because the fire was started by a serial arsonist, the Circuit Court for Prince George's County concluded that appellees were not negligent and granted summary judgment to them. Appellant has noted two appeals in connection with the litigation (No. 516 and No. 1870, September Term, 2007), which have been consolidated for briefing and argument. As to appeal No. 516, appellant presents the following four questions: 1. Did the Trial Court Err in Granting Appellees' Motion for Summary Judgment on the grounds that there are no genuine disputes as to any material facts and that the Appellees are entitled to judgment as a matter of law? Did the Trial Court Err in Granting Appellees' Motion for Summary Judgment on the grounds that there was no duty of care owed to Mr. Rivers? Did the Trial Court Err in Granting Appellees' Motion for Summary Judgment on the grounds that Mr. Rivers must prove that Appellees were aware of criminal activity similar to the arson that occurred at Mr. Rivers' apartment building on June 19, 2003? Did the Trial Court Err in Granting Appellees' Motion for Summary Judgment on the grounds that even if the [appellees] were in violation of the Prince George's County Fire Code, as alleged, Mr. Rivers must prove it was likely the [appellees] could have prevented the arsonist from starting the fire in the entryway by adhering to the fire code?

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Appeal No. 1870 pertains to the court's denial of appellant's motion to enforce a settlement agreement. In his brief, appellant advises that, "[a]fter further consideration, Mr.

Rivers hereby withdraws his request that this Court consider the issues surrounding the enforcement of any settlement." Appellant has not presented any argument as to the merits of No. 1870. For the reasons that follow, as to appeal No. 516, we shall reverse and remand for further proceedings. As to appeal No. 1870, we shall dismiss the appeal. See Md. Rules 8504(a)(5) & 8-602(a)(8). FACTUAL AND PROCEDURAL SUMMARY1 In the early morning hours of June 19, 2003, an arsonist set fire to the bottom level of the stairwell in an apartment building located at 2619 Southern Avenue in Temple Hills (the "Property").2 The Property, originally constructed in the 1940s, was part of Oxon Park

The account of the undisputed material facts regarding the fire is drawn from a deposition of appellant submitted as an attachment to appellees' motion for summary judgment and to appellant's opposition to the motion. The arson in this case was one of many linked to Thomas A. Sweatt, the so-called "D.C. serial arsonist." Although the parties do not mention Sweatt by name in their briefs, they informed the trial court that the fire was the work of the D.C. serial arsonist. In a "two-year campaign of terror," between March 2003 and his arrest in April 2005, Sweatt committed a series of residential arsons in Maryland, Virginia, and the District of Columbia. Del Quentin Wilber, "Man Arrested in D.C. Area's Arson Wave," WASH. POST, April 28, 2005, at A1. The fires were generally set in the early morning, "by lighting plastic jugs filled with gasoline, often on porches or just outside doors." Id. The fire at issue was listed in contemporaneous reports of fires attributed to Sweatt. See, e.g., Matthew Cella, "Serial Arsonist Suspected in Fire at Northeast Home; Similarities Still Sought in PG, D.C. Blazes," WASH. TIMES, July 1, 2003, at B1. Upon his arrest, Sweatt admitted "that he picked targets at random, that he typically placed the device near a door because it was more likely to burn at that location and that he (continued...)
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Apartments, an apartment complex in Prince George's County (the "County") that is owned and managed by appellees. Appellant lived on the second floor of the Property, in Apartment 202. At the time of the incident, appellant was getting ready for work and noticed smoke coming into his apartment over and under the door to his unit. When appellant opened the door, he saw thick, black smoke in the hall. He woke his wife, told her to get dressed, and called 911. Appellant was informed by the dispatcher that the fire had already been reported. Because smoke was entering the apartment, appellant and his wife decided to escape from the building by way of the building's only stairwell. Appellant descended the stairs first. When appellant reached the landing, his legs caught fire. He pushed his wife back up the steps and ran outside the building, where he attempted to extinguish the fire on his legs by rolling on the ground.3 According to appellant, when the paramedics arrived, about

(...continued) was, at times, aware that persons were in the homes at which he set these devices on fire." U.S. Dep't of Justice, Press Release, "Thomas Sweatt Pleads Guilty to 45 Residential Arsons in Maryland, District of Columbia and Virginia Including Two Homicides," at 2 (June 6, 2005). Sweatt was prosecuted in federal court in the District of Maryland for two deaths resulting from the fires; many more people were injured. Id. at 1. In June 2005, Sweatt pleaded guilty to two counts of possession of destructive devices in furtherance of a crime of violence, and admitted to setting 45 residential fires. Id. at 1-2. He was sentenced in September 2005 to life in prison. U.S. Dep't of Justice, Press Release, "`Serial Arsonist' Thomas Sweatt Sentenced to Life in Prison for Setting 45 Residential Fires in Maryland, District of Columbia and Virginia," at 1 (Sept. 12, 2005). Sweatt later admitted to having set hundreds of residential fires in the D.C. area over the course of decades, several of which were fatal. See Dave Jamieson, "Letters from an Arsonist," WASH. CITY PAPER, June 1-7, 2007, Vol. 27, No. 22. Appellant's wife, "had gotten to another apartment on the first floor, and she was in the window," where she was "found" and rescued by the fire department.
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fifteen to twenty minutes later, "[t]hey cut my pants, and when I looked down, you could see the skin rolled up on my legs. . . . They couldn't get my tennis shoes off because they melted to my skin." Appellant sustained severe burns to both legs. On December 19, 2005, appellant filed a "Complaint" against Hagner in the Circuit Court for Prince George's County, containing a single count of negligence. An "Amended Complaint," adding Oxon Park as a defendant, was filed on June 16, 2006. Appellant alleged that appellees "failed to provide or maintain smoke and fire alarms in working order so that [its] tenants would be provided sufficient warning to exit in the event of a fire." Further, he alleged that, on the date of the fire, "means of egress at the Oxon Park Apartment complex were obstructed; the smoke detector in [appellant's] apartment was missing; [and] fire extinguishers were not available in the corridors." According to appellant, appellees owed numerous duties, including "maintain[ing] . . . a safe and unobstructed egress by which tenants would be provided a safe and clear passage from the building in the event of . . . a fire" and "obey[ing] all local, state, and federal regulations and standards concerning the maintenance [and] management . . . of the subject premises." According to appellant, appellees' breach of these duties was the proximate cause of his injuries, which included "severe and permanent injuries to his body . . . permanent scarring . . . medical expenses . . . lost income from his employment, and . . . pain and discomfort . . . ." On March 5, 2007, appellees filed a "Motion for Summary Judgment" and a supporting "Memorandum of Fact & Law." They argued that, based on the undisputed facts, appellees "cannot be held liable for the causes of action asserted by [appellant] because the
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[arson] was not foreseeable and, therefore, [appellees] owed [appellant] no duty whatsoever to prevent the [arson]." Appellees also contended: 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. (Internal citations omitted.) In his "Opposition to Defendants' Motion for Summary Judgment," appellant argued: [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]. . . . When viewing the facts in the light most favorable to the [appellant], there are sufficient facts and reasonable inferences that can be drawn there from, to support his negligence claim. Therefore, [appellant] respectfully requests that [appellees'] Motion be denied.

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Appellant attached several exhibits to his "Opposition," including the deposition, affidavit, and report of Bernard Schwartz, a professional engineer and certified fire investigator. Schwartz inspected the Property on behalf of appellant and opined that appellees were negligent for violating the Prince George's County Fire Prevention Code ("Fire Code"), codified at Prince George's County Code (2003),

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