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Kimberly Shields et al. v. Arthur Wagman et al. - No. 109, 1997 Term LANDLORD AND TENANT -- A landlord of commercial property may be liable for injuries sustained by an invitee who was bitten by a dog in the common area when the landlord had knowledge of the potential danger to invitees in the common area and the ability to rid the premises of that danger by refusal to re-let the premises to that commercial lessee who kept the dog.

Circuit Court for Prince George's County Case # CAL 93-21603

IN THE COURT OF APPEALS OF MARYLAND No. 109 September Term, 1997 ________________________________________

KIMBERLY SHIELDS et al. v. ARTHUR WAGMAN et al.

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Bell, C. J. Eldridge Rodowsky Chasanow Raker Wilner Cathell JJ. _______________________________________ Opinion by Chasanow, J. ________________________________________ Filed: August 6, 1998

In the instant case, we are called upon to determine whether a landlord of commercial property may be held liable for injuries sustained in the common area and caused by an American Pit Bull Terrier (pit bull) kept on the leased premises by one of the tenants where the landlord had knowledge of the potential danger and the ability to rid the premises of that danger by refusing to re-let the premises. We hold that, under the circumstances of this case, there was a duty by which the landlord may be held liable for the injuries sustained by the Petitioners.

I. Because this case comes to us on an appeal from the granting of Respondent's motion for judgment, we must look at the facts in the light most favorable to the non-moving party, Petitioners. See, e.g., Martens Chevrolet v. Seney, 292 Md. 328, 331, 439 A.2d 534, 536 (1982). This appeal arises out of two cases consolidated for trial seeking damages from the landlords of a strip mall for injuries sustained by two individuals, a business invitee and a tenant, as a result of being attacked by a pit bull owned by another tenant and kept on the leased premises. Arthur Wagman, Lynn Wagman, Ernest Young, Marian Young, and Kenneth Zawatsky were partners in Hampton-Edgeworth Joint Venture (Joint Venture or Respondents, collectively).1 Joint Venture owned a commercial strip mall, leased primarily While there was some question about the nature of the business entity, Respondents admitted the partnership in their opening statement at trial before the Circuit Court for Prince George's County. Moreover, Kenneth Zawatsky, one of the partners, testified about the policy of the "partnership" with respect to the strip mall. Zawatsky also testified that
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by automobile repair shops, in Capitol Heights, Maryland. The strip mall contained eight bays, each with an office area. At all times relevant to the instant case, Arthur Wagman (Wagman) served as the managing or leasing agent for the property and was, thus, "in charge of the property" for the partnership. One of the bays was leased to David Thomas (Thomas) who operated an automobile repair shop. Thomas leased the premises pursuant to a written lease; however, that lease had expired prior to the attacks that led to the instant case, and Thomas remained as a month-tomonth tenant. Thomas owned three pit bull dogs which he kept on the leased premises. One of these pit bulls was named "Trouble." Trouble was acquired by Thomas in 1991 or 1992 and lived on premises, i.e., did not go home at night with Thomas. Testimony at trial suggests that Thomas generally kept Trouble in a cage that appeared to be made of chicken wire during the day except when Thomas took Trouble and the other dogs for a run twice a day or on limited occasions when Trouble was chained to Thomas's truck. At night, Trouble was allowed to run loose in the shop. There was also testimony that at times Thomas let Trouble run loose in the office during the day when the office was open to the public. On at least two occasions Trouble was permitted to run free in the parking area of the strip mall. Petitioner M. Bernard Johnson operated an auto repair shop a block away from Thomas's shop from February 1987 to December 1993. At that point Johnson moved his shop to the strip mall owned by Respondents, and in February 1994, he began leasing one

Wagman was the managing agent for the partnership for the strip mall.

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of the bays, thereby becoming one of Respondents' tenants. Prior to moving his shop to Respondents' strip mall, Johnson visited Thomas's shop once or twice a week to borrow tools. Johnson testified that he had seen Trouble, who Johnson characterized as "very vicious," at the strip mall as early as 1991. There was testimony at trial that, from the time Johnson moved to the strip mall, Johnson and Wagman frequently discussed Trouble's viciousness and the possible threat Trouble's presence posed. Moreover, there is some evidence that, as a result of this concern, Wagman warned Thomas to get Trouble off the premises or he would have to evict him. Early in the morning of August 28, 1993, Petitioner Kimberly Shields went to the strip mall to drop her car off to be repaired by Thomas. When she arrived, Thomas's office was shut and locked. Because she saw Thomas's truck parked outside, she went over to the door and peered in the window. Thomas, who was on the phone at the time, signaled for her to wait a minute. Inside, Shields could also see two dogs, one of which was Trouble who was not caged or leashed at the time. Trouble immediately jumped up, turned around, and started barking. Alarmed, Shields tried to return to her car, but before she could get there Trouble lunged twice at the door. With the second lunge, Trouble burst through the door and attacked Shields, locking onto her calf. Thomas came out of the store and tried to pull Trouble off Shields, eventually succeeding in prying the dog away. Shields was then taken to the hospital. Following the attack, Shields underwent emergency surgery and remained in the hospital for a week, later returned to the hospital for additional surgical procedures including skin grafting, and missed four months of work. As a result, Shields filed suit on

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November 26, 1993, claiming that both Thomas and Wagman, as the landlord, were negligent and thereby caused Shields to "sustain[] severe and permanent personal injuries, incur[] medical expenses, and ... be required to expend sums for loss of wages, and [that Shields] was prevented from pursuing her ordinary activities." Wagman was served with the Shields complaint on December 10, 1993.2 On January 30, 1995, Johnson was attacked by Trouble in the parking lot of the strip mall. At about 11 p.m. that night, Johnson was accompanying one of his customers to pick up her car when he heard a noise and noticed Trouble coming towards him. To escape, Johnson jumped on the hood of a van parked in the parking lot. Trouble chased him onto the roof of the van and onto the hood of another car. At that point, Trouble locked onto Johnson's arm. Thomas came over, and together Thomas and Johnson beat Trouble until finally Trouble released Johnson's arm, but not before his arm had been torn open. As a result of his injuries, Johnson underwent several surgeries, lost sensation in his arm, and was impaired in his ability to do some aspects of his job. On May 22, 1995, Johnson filed suit against Respondents, under both negligence and strict liability theories, claiming that Johnson "sustained severe and permanent personal injuries, incurred medical expenses, and will be required to expend sums for loss of wages,

Although Shields's original complaint named only Thomas (individually and trading as Master Care Automotive) and Arthur Wagman, Shields later amended her complaint to add Louie Thomas, Eula Thomas, Lynn Wagman, as well as the following, both individually and trading as Hampton-Edgeworth Joint Venture: Arthur and Lynn Wagman, Ernest and Marian Young, and Zenneth Zawatsky. Louie Thomas and Eula Thomas were dismissed from the action, and Shields's complaint against Thomas was dismissed at the start of trial.

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and was prevented from pursuing [his] ordinary activities." Johnson's case was later consolidated with the Shields case for trial before the Circuit Court for Prince George's County on January 16, 1996. At the close of the Petitioners' case, Respondents moved for judgment, and the court granted their motion, concluding that "the landlord owes no special duty to the invited public into the leased premises." Petitioners appealed to the Court of Special Appeals which affirmed. We shall reverse.

II. As with other types of negligence, to sustain a cause of action against a landlord for injuries resulting from an attack by a tenant's vicious dog, the plaintiff must prove: "`(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached the 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.'" See BG&E v. Flippo, 348 Md. 680, 700, 705 A.2d 1144, 1153-54 (1998)(quoting Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 188 (1994)). At issue in the instant case is the first element, i.e., whether, under the circumstances, the landlord had a duty by which the landlord may be held liable for injuries sustained by the Petitioners. One relationship that courts have found may justify the imposition of a duty to act affirmatively is the relationship between the possessor of property and one who comes onto the property. Whether an affirmative duty is owed generally depends upon the person's status on the property. See Flippo, 348 Md. at 688, 705 A.2d at 1148. For example, "[t]he

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owner must use reasonable and ordinary care to keep his premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which [an] invitee, by exercising ordinary care for his own safety, will not discover." Bramble v. Thompson, 264 Md. 518, 521, 287 A.2d 265, 267 (1972); see also Flippo, 348 Md. at 688-89, 705 A.2d at 1148. Whereas, with respect to a trespasser, no affirmative duty is owed except "to refrain from willfully or wantonly injuring the" trespasser. Bramble, 264 Md. at 522, 287 A.2d at 267; see also Flippo, 348 Md. at 689, 705 A.2d at 1148. "[W]hen the owner has parted with his control," i.e., has leased the premises to a tenant, we have held that "the tenant has the burden of the proper keeping of the premises." Marshall v. Price, 162 Md. 687, 689, 161 A. 172, 172 (1932). Where the owner maintains control, however, the owner may be held liable for injuries. The injuries in the case sub judice were sustained in the common area of a strip mall. This Court has long recognized that in common areas the relationship between a landlord and one who comes on the land may justify the imposition of a duty to use reasonable care and diligence, in part, because the landlord generally retains control over common areas. Landay v. Cohn, 220 Md. 24, 27, 150 A.2d 739, 740 (1959); McKenzie v. Egge, 207 Md. 1, 7, 113 A.2d 95, 97-98 (1955); see also Ross v. Belzer, 199 Md. 187, 190, 85 A.2d 799, 800 (1952). Because the injuries in the instant case occurred in the common area, we need not decide what liability might have been imposed had the injuries occurred inside the leased premises where Maryland law is less settled.

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MARYLAND CASES REGARDING COMMON AREAS "[W]here a landlord leases separate portions of his property to different tenants and reserves under his control the passageways and stairways, and other parts of the property for the common use of all the tenants[,] he must then exercise ordinary care and diligence to maintain the retained portions in a reasonably safe condition."3 Langley Park Apts. v. Lund Adm'r, 234 Md. 402, 407, 199 A.2d 620, 623 (1964). Our recognition of landlord liability in common areas is generally premised on the control a landlord maintains over the common areas. This duty stems in part "from the responsibility engendered in the landlord by his having extended an invitation, express or implied, to use the portion of the property retained by him." Landay, 220 Md. at 27, 150 A.2d at 741. This common area exception has been recognized in multi-unit residential facilities: "`"[Where] the construction of tenement or apartment houses,

Our view of landlord liability for injuries occurring in common areas is consistent with RESTATEMENT (SECOND) OF TORTS

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