Steamfitters Local v. Erie Insurance , 469 Md. 704 ( 2020 )

Steamfitters Local Union No. 602 v. Erie Insurance Exchange, et al.; Steamfitters Local
Union No. 602 v. Cincinnati Insurance Company, et al., No. 40, September Term, 2019,
Opinion by Booth, J.
TORT LIABILITY – PROPERTY OWNER’S DUTY OF CARE TO NEIGHBORING
PROPERTY OWNER TO MAINTAIN PROPERTY IN A MANNER TO AVOID
RISK OF FIRE. For at least the past 80 years, this Court has recognized that ownership,
operation, and maintenance of property comes with a common law duty to use reasonable
care so as not to cause harm to the neighboring property owners. A duty may arise when,
viewing the totality of the circumstances, there exists a dangerous or hazardous condition
on the property and the property owner was on notice of the dangerous or hazardous
condition. Under the specific facts and circumstances presented in this case, the defendant
commercial property owner owed its neighbors a common law duty to maintain its property
in a manner that would not cause an unreasonable risk of a fire spreading to the neighboring
property. Under the facts presented, there was evidence from which the jury could
determine that the defendant had actual or constructive knowledge that hundreds of
cigarettes had been discarded in the mulched common area along the property line, which
created a foreseeable risk of fire spreading to the neighboring property. It was for a jury
to resolve conflicts in the evidence presented to determine whether the defendant breached
its duty of care to neighboring property owners to avoid the likely spread of fire arising
from a cigarette discarded in mulch.
EXPERT TESTIMONY – MATTERS WITHIN COMMON KNOWLEDGE. Expert
testimony was not required to prove the applicable standard of care and to establish the
reasonable steps a commercial landowner must take to fulfill its duty to prevent cigarettes
from being regularly discarded in mulched common areas in order to avoid causing a fire.
Preventative steps that could have been taken are not outside the ken of the average
layperson. Jurors were free to use their common knowledge and experience to consider
reasonable steps that could have been taken to prevent a fire. Similarly, the foreseeable
risk of fire being created by habitually discarding cigarettes in a combustible substance is
a matter of common knowledge, well known to ordinary people.
SPOLIATION INSTRUCTION. The trial court did not abuse its discretion when it
instructed the jury on spoliation of the evidence under the facts presented in this case.
CONTRACTUAL INDEMNIFICATION. The trial court did not err in granting
summary judgment in favor of the third-party defendant on the third-party complaint for
contractual indemnification. Under the plain language of the indemnification provision,
the third-party defendant did not agree to indemnify the third-party plaintiff for its own
negligence.
Circuit Court for Prince George’s County
Case Nos.: CAL 15-38293; CAL 16-07205
Argued: January 10, 2020
IN THE COURT OF APPEALS
OF MARYLAND
No. 40
September Term, 2019
STEAMFITTERS LOCAL UNION NO. 602
v.
ERIE INSURANCE EXCHANGE, et al.
STEAMFITTERS LOCAL UNION NO. 602
v.
CINCINNATI INSURANCE COMPANY, et al.
Barbera, C.J.
McDonald
Watts
Hotten
Getty
Booth
Biran,
JJ.
Opinion by Booth, J.
Pursuant to Maryland Uniform Electronic Legal Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document
is authentic.
Suzanne Johnson
2020-07-27 15:20-04:00 Filed: July 27, 2020
Suzanne C. Johnson, Clerk
“Only You Can Prevent Wildfires.”
-Smokey Bear1
In this case, we are asked to determine whether the owner of a commercial property
owes its neighbor a common law duty to use reasonable care to prevent the risk of a spread
of fire, where the property owner knows, or should know, that persons are habitually
discarding hundreds of cigarette butts in a mulched common area along the boundary
between the properties.
On April 6, 2015, a fire started on property owned by Steamfitters Local Union No.
602 (“Steamfitters”) in Capitol Heights, Maryland, in a mulched strip of common area
running along the boundary line between Steamfitters’ property and a commercial
construction yard owned by Gordon Contractors, Inc. (“Gordon”). The fire spread along a
chain-link fence that separated the properties, causing property damage to Gordon’s
1
Created in 1944, the Smokey Bear Wildfire Prevention campaign is the longest-
running public service advertising campaign in U.S. history. See https://perma.cc/Q748-
KE8Z. Beloved by children for decades, Smokey Bear’s image is protected by U.S. federal
law and is administered by the United States Forest Service, the National Association of
State Foresters, and the Ad Council. Id. Although in the early years, the bulk of Smokey’s
campaign was directed at forest fires, as reflected in the 1947 slogan (“Remember . . . Only
YOU can Prevent Forest Fires[]”), the slogan was updated in 2001 to its current version of
“Only You Can Prevent Wildfires” in “response to a massive outbreak of wildfires in
natural areas other than forests and to clarify that Smokey is promoting the prevention of
unwanted and unplanned outdoor fires versus prescribed fires.” Over the years, Smokey’s
public service announcements have warned about the dangers of discarding cigarette butts
by throwing them out car windows or discarding them in flammable materials. To this
day, Smokey’s message includes advice on the disposal of cigarettes and tobacco products,
warning persons not to “throw smoking materials” into combustible materials such as
“brush or leaves.” https://perma.cc/EHT3-5H4D.
construction yard, as well as to a property adjoining Gordon’s property. The fire was
started in an area where Steamfitters’ apprentices regularly congregated for hours at a time,
prior to the commencement of their training classes held in Steamfitters’ union hall. During
the investigation into the cause of the fire, hundreds of cigarette butts that had been
discarded in the mulch were recovered.
The litigation that resulted from the fire damage commenced on December 14, 2015,
when Gordon and its insurers, Erie Insurance Exchange (“Erie”) and Continental Casualty
Company (“Continental”) filed a complaint in the Circuit Court for Prince George’s
County against Steamfitters alleging a single count of negligence and claiming damages of
$1,276,200.24.
Steamfitters filed a third-party complaint against the Heating, Piping and
Refrigeration Training Fund (the “Training Fund”), alleging contractual indemnification,
common law indemnification, and contribution.
A second action was commenced on March 4, 2016, when Cincinnati Insurance
Company (“Cincinnati”), as the subrogee of Falco Industries, Inc., C & M Properties, LLC,
C & M Properties Delaware, LLC, and Garage Center, LLC (referred to collectively as
“Falco”) filed a complaint against Steamfitters in the Circuit Court for Prince George’s
County, alleging a single count of negligence. Cincinnati alleged that the fire started in the
mulched strip of land on Steamfitters’ property and spread to Falco’s property, causing
substantial damage to Falco’s real property and personal property. Steamfitters also filed
2
a third-party complaint against the Training Fund with respect to Cincinnati’s claim,
alleging contractual indemnification, common law indemnification, and contribution.2
In April 2016, the two cases were consolidated. For ease of reference, we shall refer
to Gordon, Erie, Continental, and Cincinnati as either the Plaintiffs or the Respondents.
Steamfitters and the Training Fund filed cross-motions for summary judgment on
the issue of contractual indemnification.3 After a hearing, the circuit court denied
Steamfitters’ motion and granted summary judgment in favor of the Training Fund. The
circuit court found that Steamfitters was not entitled to indemnification under the use
agreement between the parties (“Agreement”) because: (1) the Training Fund did not
explicitly agree to indemnify Steamfitters for Steamfitters’ own negligence; (2) the
Agreement expired before the fire occurred; and (3) the claims against Steamfitters did not
arise out of the Training Fund’s use of the premises. Steamfitters also moved for summary
judgment against the Plaintiffs on the negligence claims. The court denied Steamfitters’
motions.
The case against Steamfitters was tried before a jury from July 17–20, 2017.
Steamfitters moved for judgment at the conclusion of the Plaintiffs’ case-in-chief, at the
conclusion of the defense, and at the conclusion of the Plaintiffs’ rebuttal case. In doing
so, Steamfitters argued that it had no common law duty to the neighboring properties. The
2
In the case filed by Cincinnati, as a subrogee of Falco, against Steamfitters,
Steamfitters also filed a third-party complaint against Gordon containing two counts:
common law indemnification and contribution.
3
Steamfitters abandoned its claims for common law indemnification and
contribution before judgment was entered on the parties’ cross-motions.
3
trial judge denied the motions. The jury returned verdicts in favor of the Plaintiffs.
Damages were awarded in favor of Erie, as the subrogee of Gordon, in the amount of
$1,039,176.67; in favor of Gordon, individually, in the amount of $111,125.38; in favor of
Continental, as Gordon’s subrogee, in the amount of $72,338.48; and in favor of
Cincinnati, as subrogee of Falco, in the amount of $119,909.10. Steamfitters noted a timely
appeal. The Court of Special Appeals affirmed the trial court’s judgments in a split
decision. See Steamfitters Local Union No. 602 v. Erie Ins. Exch., 241 Md. App. 94 (2019)
(Friedman, J., dissenting).
Steamfitters petitioned for writ of certiorari,4 which we granted to consider the
following questions, which we rephrased:
1. Does an owner of commercial property owe the neighboring property owners a
duty to use reasonable care to prevent the spread of fire, where the property
owner knows, or should know, that persons are habitually discarding hundreds
of cigarette butts in a mulched common area adjacent to the property line?
2. Was expert testimony required to establish this duty?
4
The questions presented in the petition for writ of certiorari were:
1. Do landowners owe their neighbors a duty of care to protect against potential
fires starting in normal, harmless areas of the property, such as landscape
mulch, caused by third persons over whom they have no control?
2. Does a plaintiff need to provide expert testimony as to reasonable, standard
and effective measures to prevent such fires?
3. Under the facts and circumstances of this case, was the spoliation instruction
unfairly prejudicial to the appellants?
4. Was it proper for the trial court to enter summary judgment on an
indemnification agreement where the contention was that the negligence was
that of third parties whose activities were related to the indemnitor and where
there were questions of fact with regard to whether the contract had expired?
4
3. Did the circuit court abuse its discretion in giving a spoliation instruction under
the facts of this case?
4. Did the circuit court err in granting summary judgment in favor of the third-party
defendant on the issue of contractual indemnification?
For the reasons more fully discussed herein, we answer the first question in the
affirmative, and questions two through four in the negative. We affirm the judgment of
the Court of Special Appeals in its entirety.
I.
Factual Background
Steamfitters owns and maintains a union hall in Capitol Heights, Maryland. The
union has apprentices who pay dues and receive training, among other benefits. The
Training Fund operated an apprentice school in the union hall and provided training to
Steamfitters’ apprentices, pursuant to a written Agreement with Steamfitters for the use of
space.
Gordon owns a construction material yard adjacent to Steamfitters’ union hall.
Falco occupies a commercial warehouse that is on the other side of Gordon’s property. The
Gordon and Steamfitters properties were separated by a chain-link fence with security slats.
Steamfitters created and maintained a ten-foot-wide mulch bed that ran approximately 200
feet along the fence between its parking lot and Gordon’s yard. The mulch bed consisted
of shredded wood mixed with dead pine needles from trees planted in the bed.
Gordon and Falco alleged that the April 6, 2015, fire started on Steamfitters’ property
after a lit cigarette was discarded in the mulched area on Steamfitters’ side of the fence. The
5
fire spread along the fence between the properties and ignited foam insulation that was stored
against the fence on Gordon’s side that liquefied, thereby causing further spread, and
ultimately engulfing multiple vehicles and the contents of a large dumpster. Before it was
extinguished, the fire also spread to property belonging to Falco and its business affiliates.
Gordon and Falco did not allege that Steamfitters was vicariously liable or that it had a duty
to control the unknown person who allegedly discarded the cigarette. Rather, Gordon and
Falco proceeded on the theory that Steamfitters, as the property owner, failed to use
reasonable care to prevent the foreseeable risk of fire spreading to nearby properties.
The Court of Special Appeals summarized the trial testimony and evidence pertinent
to the matters presented on appeal. See Steamfitters Local Union No. 602 (“Steamfitters”),
241 Md. App. at 104–10. We paraphrase the court’s summary below.
Steamfitters’ business manager and corporate designee, Daniel Loveless, generally
explained the apprentices’ use of Steamfitters’ property. Because the apprentices work all
over the Washington, D.C., metro area, and often do not have time to go home before
classes, Steamfitters provided its apprentices with a parking lot on its property on which to
congregate, sometimes for hours before classes. Apprentices would arrive between 2:30
p.m. and 5:00 p.m. Over time, Mr. Loveless observed that, prior to the start of classes,
apprentices passed the time by napping, gossiping, minding their own business, and
smoking, and that some drank beer. Mr. Loveless was responsible for property
maintenance. Although no employee was specifically assigned the task of cleaning up
trash along the fence that separated Steamfitters’ and Gordon’s properties, Mr. Loveless
had done so on two or three occasions prior to the fire. According to Mr. Loveless, the
6
mulch had not been replaced in a while, and the ground was bare in some areas. During
his deposition, Mr. Loveless testified that he was unclear whether he had seen cigarette
butts in the mulch prior to the fire. However, he admitted that after the fire, he saw cigarette
butts in the mulch. Mr. Loveless acknowledged that there were more butts “than there
should have been,” and that, “[i]n the right situation,” a carelessly discarded cigarette could
start a fire. Excerpts from Mr. Loveless’s deposition were read to the jury at trial, including
his admission that cigarettes discarded into mulch present a risk of fire:
Q. Do you agree it’s a fire hazard throwing cigarette butts in mulch?
A. I think so, yes.
Mr. Loveless testified that he was “pretty sure” that Steamfitters did not have a
smoking policy. He also confirmed that smoking was permitted outside of the union
building. It was undisputed that Steamfitters did not issue any guidelines, communications,
policies or recommendations regarding smoking and that there were no signs prohibiting
smoking on Steamfitters’ property.
John Mastripolito, a corporate representative of Steamfitters, testified that he
walked through the mulched area eight times between February 2015 and the date of the
fire. He stated that he did not see any cigarette butts in the mulch, but acknowledged that
he had poor vision, wore glasses, and would not be concerned even if there were 100
cigarette butts in the mulch because he was “just not into cigarette butts[.]”
The weather on the date of the fire was dry and windy. The fire was investigated
independently by the Prince George’s County Fire Marshal’s Office, and also by fire
investigators for all parties. Wayne Crosby, an acting lieutenant and fire investigator
7
assigned to the Prince George’s Fire Marshal’s Office, was the lead investigator for the
fire. He testified as an expert in fire origin, cause, growth, and spread. Lieutenant Crosby
determined that the fire started in the mulch bed on Steamfitters’ side of the fence and that
there was constant wind on the day of the fire, with gusts up to 40 miles per hour, which
kept the fire low and pushed it down the fence line toward a dumpster, where it grew. He
opined that the embers from the mulch were blown by the wind into Gordon’s construction
yard where they ignited combustible foam insulation, and that the fire continued to grow.
Lieutenant Crosby described how the foam insulation liquified and ran down the parking
lot to one side of the Falco property, burning two fire trucks along the way.
Lieutenant Crosby opined that the only possible ignition source for the fire was a
cigarette. He noted that a very large number of cigarette butts were found in the mulch on
Steamfitters’ side of the fence, and he opined that the fire started when someone flicked a
cigarette into the mulch near the fence or when the wind blew a cigarette butt up against
the fence. Lieutenant Crosby acknowledged that the combustible foam insulation on
Gordon’s property was stored too close to the fence line, in violation of certain code
provisions. However, he concluded that because of the strong winds, where the material
was stored was immaterial.
Vehicles parked on Gordon’s property were damaged in the fire. Lieutenant Crosby
testified that he ruled out the vehicles as the cause of the fire. He stated that the vehicles
were burned from left to right and that there was no fire damage on one side of them.
Lieutenant Crosby explained that if the fire had started in one of the vehicles, it would have
been totally consumed.
8
In concluding that the fire had not originated in one of the vehicles, Lieutenant
Crosby testified that he reviewed a videotaped interview of Richard Grasso, who had been
teaching an apprentice class at the time the fire was discovered. Mr. Grasso said that a
student told him there was a fire in the parking lot. In both his recorded interview and a
written statement, Mr. Grasso stated that he walked across the parking lot, looked over the
fence, and saw a vehicle on Gordon’s property that had smoke coming out from under its
hood. In a later interview, Mr. Grasso stated that he saw the fence line on fire.
As part of their investigation, the Fire Marshal’s Office canvassed the area to obtain
videos from building-mounted cameras and cell phones. Three building-mounted cameras
that might have captured relevant information were identified—a surveillance camera on
the Falco property, a camera affixed to the exterior of a church across from Steamfitters’
property, and a camera located on the exterior of Steamfitters’ building. Lieutenant Crosby
obtained and reviewed the video recordings from the Falco property and the church. He
requested, but did not receive, the video recording from Steamfitters’ building. Neither of
the videos showed Mr. Grasso, or any other person, walk across the parking lot and look
over the fence at the vehicles parked on Gordon’s property. The video from the church
showed “a lot of white smoke . . . burning for a long time[,]” which supported Lieutenant
Crosby’s conclusion that the fire started at the fence line.
Lieutenant Crosby collected a sample of the mulch and conducted a burn test, which
demonstrated that a cigarette butt could start a mulch fire under wind conditions similar to
those that existed on the day of the fire. The video recording of the burn test was played
for the jury.
9
Dale Wauters, Gordon’s operations manager, was familiar with Gordon’s
construction yard, and testified to the conditions on the property, and the damages sustained
as a result of the fire. Mr. Wauters was responsible for taking a monthly inventory of items
on the construction lot, and he inspected the lot a couple of times per week. He testified
that Gordon had stacks of foam insulation, about four feet wide and eight feet tall and long,
which were stored approximately three to four feet from the fence. He noted that the
insulation packaging included a warning that the product was combustible. Mr. Wauters
described a slope of approximately four feet from the base of the fence to the flat yard of
Gordon’s property and acknowledged that it was feasible for Gordon to store the insulation
15 feet away from the fence. There were pine trees on the mulched strip of land between
the Gordon and Steamfitters properties. Mr. Wauters testified that the wind blew pine
needles 20 to 30 feet into Gordon’s construction yard.
Bruce Berlin, Gordon’s Chief Financial Officer, testified that, prior to the fire, he
was not aware of any code provision that required the foam insulation to be stored a certain
distance from the property line. He stated that the insulation was closer to the fence near
the parked vehicles, but as the slope between the two properties became steeper, the
insulation was stacked farther away from the fence. Mr. Berlin summarized the property
damage incurred by Gordon as the result of the fire, which included the destruction of the
structure, three destroyed vehicles and a tow trailer, damaged containers, loss of inventory,
and the expense of the hazardous materials clean-up. He testified that Gordon’s lot was
not scraped or cleaned until sometime between June and October 2015, when a company
10
provided hazardous waste removal. The parties stipulated that Erie paid Gordon
$1,039,176.67 for its property damage.
Erie’s expert witness on fire investigations, Michael Schaal, testified as to the origin
of the fire, as well as its cause, growth and spread. Mr. Schaal stated that, during his
investigation, he observed “[h]undreds and hundreds, if not thousands of cigarettes” in the
mulched area on Steamfitters’ side of the fence. Although the mulch, pine needles, and
cigarette butts were all combustible materials involved in the fire, Mr. Schaal stated that the
most significant factor was the wind. On the day of the fire, the wind was blowing from the
southeast across Gordon’s lot and the fire burned in that direction. Mr. Schaal explained that
fire does not burn against the wind. He testified that burning mulch, leaves, and pine needles
could have been carried by the wind resulting in combustibles “further down the line” having
been ignited. It was Mr. Schaal’s opinion that the location of foam insulation on Gordon’s
property had no effect on the cause of the fire. He explained that due to the speed and
direction of the wind, the foam insulation would have burned regardless of whether it was
stored four feet or twenty feet from the fence. Mr. Schaal testified that the wind was blowing
“20 or 22 knots” and the fire “spread across the parking lot very, very rapidly.” By the time
the fire department arrived, the fire “was well-involved.”
Like Lieutenant Crosby, Mr. Schaal rejected the idea that the fire originated in a
vehicle on Gordon’s lot because if it had, the fire would have had to burn back against the
wind to cause the damage that occurred on the ground level along the fence line. Based upon
his review of the surveillance video from the church property, Mr. Schaal observed white
smoke drift across the parking lot for 23 minutes and then the smoke instantly turned black.
11
He opined that the white smoke was caused by “the mulch and pine straw burning along the
fence line” and that the heavy black smoke was caused by the burning of the insulation.
Moreover, Mr. Schaal stated that he did not observe fire in the cab of any vehicle on Gordon’s
property, which would have been expected if the fire originated in a vehicle. Mr. Schaal also
rejected the idea that the burn pattern along the base of the fence was caused by burning
foam insulation and not burning mulch. He concluded that the fire spread from Steamfitters’
side of the fence to Gordon’s lot because the wind picked up embers and spread them to
Gordon’s lot or because the fire spread through the base of the chain-link fence. In either
event, he opined that the fire originated on Steamfitters’ side of the fence.
Several photographs of the mulched area taken after the fire were introduced into
evidence. The photographs show hundreds of cigarette butts in the mulch bed in varying
condition. Gordon and its insurers argued the inference that the butts had been deposited
over a long period of time.
Steamfitters presented testimony from fire investigator, Richard Thomas Long, Jr.,
who was accepted as an expert in fire origin, cause, and spread. Mr. Long first visited the
site of the fire on May 11, 2015, when he was invited to attend a joint-party investigation.
Later in October 2015, he inspected the vehicles that were burned in the fire. As part of
his investigation, Mr. Long reviewed aerial and historic images of the property, weather
data, surveillance and cell phone videos, and the Prince George’s County Code. Although
Mr. Long hypothesized that the fire originated in the mulch on Steamfitters’ side of the
fence, he testified that mulch fires are “very low intensity fire[s],” that would not produce
six-foot-tall flames. Mr. Long testified that the burn patterns along the fence and the
12
dumpster were too tall to have been caused by a mulch fire. He opined that the burn
patterns on the fence were caused by the burning foam insulation that hit the fence and
discolored it.
Mr. Long testified that there were no pine needles, mulch, or other “thick, porous
debris” more than five to six feet into Gordon’s lot, there was no evidence that the fire spread
15 feet into Gordon’s property, and if the fire had come through the fence, it would have
only spread five to six feet before encountering gravel, which “doesn’t burn.” According to
Mr. Long, the “highly combustible” foam insulation was too close to the fence, which made
it easier to ignite when the wind pushed the mulch fire through the fence.
On cross-examination, Mr. Long acknowledged that he had initially developed two
possible theories about the cause of the fire. The first was that the foam insulation boards
on Gordon’s property were stored too close to the fence, and they ignited when the fire was
pushed through the fence. The second theory was that the fire started in a vehicle that was
parked on Gordon’s lot. That theory was based, in part, on the testimony of Mr. Grasso,
who, as previously noted, claimed that when he looked over the fence, he saw fire near the
parked vehicles. Mr. Long acknowledged that if Mr. Grasso’s testimony was determined
to be incorrect, he would have to eliminate the vehicle as a possible cause of the fire. At
Mr. Long’s deposition, counsel for Gordon and its insurers pointed out that Mr. Grasso did
not appear in any video looking over the fence, a fact that had escaped Mr. Long’s notice.
Thereafter, Mr. Long abandoned his second theory concerning a vehicle fire as a potential
cause. At trial, Mr. Long acknowledged that he had given deposition testimony in which
he rendered an opinion that the burn patterns on the base of the fence, where Lieutenant
13
Crosby and Mr. Schaal had placed the origin of the fire, were caused by melting foam
insulation that pooled in that area. When asked how melting insulation flowed up hill, Mr.
Long admitted that there was not really a change in elevation at that point.
As the Court of Special Appeals stated, “[t]he evidence relating to the storage of
insulation was relevant to the defense of contributory negligence. The jury rejected that
defense.” Steamfitters Local Union No. 602 v. Erie Ins. Exch., 241 Md. App. 94, 110
(2019).
Additional facts are included below as necessary to our discussion of the questions
presented.
II.
Proceedings Before the Court of Special Appeals
After the jury returned verdicts in favor of the Plaintiffs, Steamfitters noted a timely
appeal. The Court of Special Appeals affirmed the circuit court’s judgment. With respect
to the issue of whether Steamfitters owed a duty to its neighbors under the facts of this
case, the court noted that “[n]o Maryland case has addressed the specific issue before us in
the context of a fire caused by a condition that is not inherently dangerous but rather
considered to be normal, absent extenuating circumstances.” Id. at 116. Although it had
no case with similar facts upon which it could rely, the Court of Special Appeals recognized
that this Court “has determined that a property owner owes a common law duty of
reasonable care to the owners and occupants of neighboring property when conducting
activities on his or her property so as to avoid harm to the neighboring property.” Id.14
Applying established principles applicable to the duty of reasonable care owed by a
property owner to his or her neighbor, the Court of Special Appeals concluded that
Steamfitters owed its neighbors a duty under the specific facts of this case “because the
otherwise normal condition became dangerous by virtue of the practice of persons tossing
cigarette butts into the mulch.” Id. at 120. The court found that “there was evidence from
which the jury could determine that Steamfitters was aware that hundreds of cigarettes had
been discarded in the mulch and that this practice put it on notice that a dangerous practice
was occurring on its property, specifically the disposal of cigarettes in a combustible
substance.” Id. The court concluded that “[i]t was for the jury to resolve conflicts in the
evidence presented and to determine whether Steamfitters breached its duty of care to
neighboring property owners to avoid the likely spread of fire arising from a cigarette
discarded in mulch.” Id. at 121.
The Court of Special Appeals further held that expert testimony was not required to
prove the existence of Steamfitters’ duty, stating that “[t]he foreseeable risk of fire created
by habitually discarding cigarettes in a combustible substance is a matter of common
knowledge, well known to ordinary people. Likewise, the duty to exercise reasonable care
to guard against the risk of fire was not so esoteric as to require expert testimony.” Id. at
124. Accordingly, the intermediate appellate court affirmed the circuit court’s denial of
Steamfitters’ motions for judgment based on the existence of the duty and that the evidence
presented was sufficient for the jury to conclude that Steamfitters was aware that people
on their property were regularly discarding cigarettes into combustible mulch. Id.15
With respect to spoliation, the Court of Special Appeals held that the trial court did
not abuse its discretion in giving the spoliation instruction. Steamfitters, 241 Md. App. at
128–33. Finally, the court affirmed the entry of summary judgment in favor of the Training
Fund, holding that the terms of the Agreement did not require the Training Fund to
indemnify Steamfitters for Steamfitters’ own negligence. Id. at 136–37.5
As set forth below, we agree with the Court of Special Appeals’ well-reasoned
analysis and affirm its judgment.
III.
Discussion
We first consider Steamfitters’ contention that it did not owe the neighboring
properties a duty under the facts and circumstances of this case.
A Property Owner’s Common Law Duty of Reasonable Care to Use Property in a
Manner to Avoid Harm to the Neighboring Property
Steamfitters contends that the circuit court erred in denying its motion for judgment
because it owed no duty of care to Gordon and Falco because mulch is “not a dangerous
condition” and because it had no duty to prevent third persons from smoking near its
mulched common area. In its brief, Steamfitters asserts that the Court of Special Appeals
5
In his dissenting opinion, Judge Friedman set forth four reasons why he disagreed
with the Majority’s holding that Steamfitters owed the neighboring property owners a duty
of care, stating that: (1) the “[u]se of mulch in landscaping should not be the source of tort
duty”; (2) the presence of old cigarette butts did not increase the risk of fire; (3) the
Majority’s opinion extends tort liability to landowners for actions of third parties over
whom they have no control; and (4) if landowners put out more ashtrays and cleaned up
mulched areas in the future, it will not avoid fires. Steamfitters Local Union No. 602 v.
Erie Ins. Exch., 241 Md. App. 94, 137–39 (2019). For the reasons set forth in this opinion,
we disagree.
16
erroneously found a duty “based on foreseeability alone,” and that it “never truly even
defined” the duty. From there, Steamfitters argues that the Court of Special Appeals
“extends premises liability further than anywhere else in the nation, imposing a duty that
is at once both undefined and unlimited[,]” and therefore, “cannot be fulfilled.”
The Respondents assert that neither the circuit court nor the Court of Special
Appeals created a new tort, nor did the Court of Special Appeals or the trial court impose
a duty in this case based upon foreseeability alone. Rather, Respondents argue that the
courts simply applied the well-recognized principle that property owners owe a duty to
occupants of neighboring land to use reasonable care when conducting activities on the
land so as to avoid harm to the neighboring land. In the context of this case, Respondents
contend that the Court of Special Appeals correctly determined that the common law duty
of reasonable care owed by Steamfitters to its neighbors was the duty “to avoid the likely
spread of fire arising from a cigarette discarded in mulch[,]” or put another way, the “duty
to prevent cigarettes from being discarded in mulch and causing a fire.” Steamfitters, 241
Md. App. at 121 (internal quotations omitted).
We review a trial court’s decision to grant or deny a motion for judgment de novo.
Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393–94 (2011). In a civil trial, if,
considering the evidence in a light “most favorable to the plaintiff, a reasonable finder of
fact could find the essential elements of the cause of action by a preponderance of the
evidence standard, the issue is for the jury to decide, and a motion for judgment should not
be granted.” DeMuth v. Strong, 205 Md. App. 521, 547 (2012) (citations omitted). An
appellate court performs the same task as the trial court, affirming the denial of the motion
17
for judgment, “if there is ‘any evidence, no matter how slight, that is legally sufficient to
generate a jury question.’” C & M Builders, LLC v. Strub, 420 Md. 268, 291 (2011)
(quoting Tate v. Bd. of Educ., 155 Md. App. 536, 544–45 (2004)). In other words, “we
will reverse the trial court’s denial of a motion for judgment notwithstanding the verdict
only if the facts and circumstances permit but a single inference as relates to the appellate
issue presented.” Jones v. State, 425 Md. 1, 31 (2012) (citations omitted).
In a negligence action, a plaintiff bears the burden of proving: “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 that duty.” Rowhouses, Inc. v. Smith,
446 Md. 611, 631 (2016) (quoting Hamilton v. Kirson, 439 Md. 501, 523–24 (2014)). The
determination of whether a duty exists is a legal conclusion that this Court reviews de novo.
Todd v. Mass Transit Admin., 373 Md. 149, 155 (2003) (citing Valentine v. On Target,
Inc., 353 Md. 544, 549 (1999)).
Here, we are focused on the first element—whether Steamfitters owed the
neighboring property owners a duty to protect them from injury. In determining whether
a duty exists in a particular context, this Court has often turned to W. Page Keeton, et al.,
Prosser and Keeton on the Law of Torts (“Keeton”) § 53 (5th ed. 1984), which
characterizes “duty” as “an obligation, to which the law will give recognition and effect,
to conform to a particular standard of conduct toward another.” See, e.g., Blondell v.
Littlepage, 413 Md. 96, 120 (2010); Gourdine v. Crews, 405 Md. 722, 745 (2008);
Pendletown v. State, 398 Md. 447, 461 (2007); Doe v. Pharmacia & Upjohn Co., 388 Md.
18407, 415 (2005); Hemmings v. Pelham Wood LLLP, 375 Md. 522, 536 (2003); Todd v.
Mass Transit Admin., 373 Md. 149, 155 (2003); Ashburn v. Anne Arundel Cty., 306 Md.
617, 627 (1986). No universal test has ever been formulated for determining whether a
duty exists. Jacques v. First Nat. Bank of Md., 307 Md. 527, 533 (1986) (quoting Keeton,
§ 53, at 357–58). Rather, the requirements of a legal duty are dependent upon the specific
facts and circumstances presented. Village of Cross Keys, Inc. v. U.S. Gypsum Co., 315
Md. 741, 751–52 (1989) (quoting W. Va. Central R. Co. v. Fuller, 96 Md. 652, 666 (1903)).
A tort ‘“duty’ is . . . an expression of the sum total of those considerations of policy which
lead the law to say that the plaintiff is entitled to protection.” Jacques, 307 Md. at 533(quoting Keeton, § 53, at 358).
As we have repeated on numerous occasions, when determining whether a tort duty
should be recognized, we consider, among other things, the following variables:
[T]he foreseeability of harm to the plaintiff, the degree of
certainty that the plaintiff suffered the injury, the closeness of
the connection between the defendant’s conduct and the injury
suffered, the moral blame attached to the defendant’s conduct,
the policy of preventing future harm, the extent of the burden
to the defendant and the consequences to the community of
imposing a duty to exercise care with resulting liability for
breach, and the availability, cost and prevalence of insurance
for the risk involved.
Asburn, 306 Md. at 627 (quoting Tarasoff v. Regents of Univ. of Cal., 551 P.2d 334, 342
(Cal. 1976)). Among these factors, foreseeability weighs the heaviest. Kennedy Krieger
Inst. v. Partlow, 460 Md. 607, 634 (2018). In determining whether a duty exists, we
consider foreseeability prospectively—taking into account the facts existing at the time of
the negligent conduct. Henley v. Prince George’s Cty., 305 Md. 320, 336 (1986).
19
We disagree with Steamfitters’ assertion that the Court of Special Appeals created
a “new duty” to be imposed upon property owners. For at least the past 80 years, this Court
has recognized that ownership, operation, and maintenance of property come with the
common law duty to use reasonable care so as not to cause harm to the neighboring
property owners. The duty recognized by this Court is not dependent upon the presence of
a particular type of material, or the occurrence of a particular type of activity. Rather, a
duty may arise when, viewing the totality of the circumstances, there exists a hazardous
condition and the property owner was on notice of the hazardous condition. See, e.g., La
Belle Epoque, LLC v. Old Europe Antique Manor, LLC, 406 Md. 194, 219 (2008) (“A
person who negligently fails to make the condition reasonably safe can be liable for harm
that the condition causes to neighboring premises.” (citation omitted)); Rosenblatt v. Exxon
Co., U.S.A., 335 Md. 58, 76–77 (1994) (“[T]he occupier of land owes a duty to occupants
of neighboring land to use care when conducting activities on the land so as to avoid
causing harm to the neighboring land.”); Frenkil v. Johnson, 175 Md. 592, 599 (1939)
(“[O]ne must use his own rights and property so as to do no injury to those of others.”);
Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197, 213 (1939) (explaining that when a person
elects to do or keep something on his or her property that exposes neighboring property to
danger, that person has a duty to make the condition reasonably safe); see also, 1 Am. Jur.
2d Adjoining Landowners § 11 (2019) (noting that “[a] landowner has a duty to use one’s
property so as to not unnecessarily and negligently injure one’s neighbor”).
We first recognized this duty in Frenkil v. Johnson, 175 Md. 592 (1939). In that case,
we considered the duty owed to a plaintiff who sustained injuries while seated in his vehicle
20
on a street when an explosion occurred in a nearby building that the defendants were
demolishing. Employees of the defendant reported the smell of gas in the building being
demolished and, after an investigation, the gas company removed some gas meters and
plugged some service pipes that entered the building. Id. at 598. Thereafter, the employees
continued to smell gas and reported the smell to their supervisor, but no further action was
taken to locate the source of the gas or otherwise remedy the situation. Id. After the
explosion, it was determined that the gas was not entering the building because of any defect
in the prior work by the gas company, but rather through a stone foundation wall. Id.In discussing the tort liability of the defendant, who was occupying the premises for
the purpose of demolishing the building, we recognized the general principle of law that,
within certain limitations, “one must use his own rights and property so as to do no injury
to those of others.” Id. 599. With respect to the dangerous condition, such as the escape
of gas, we explained that:
the occupier is not liable until he knew, or in the exercise of
reasonable prudence and diligence, should have known, of the
altered and dangerous condition, and continues it after such
knowledge is so acquired or imputed.
Hence, after the occupier or possessor knows or should know
of the danger of the artificial condition of the premises to others
outside the land, and fails to exercise reasonable care and
diligence to make the condition reasonably safe either by
removing the danger or by giving adequate warning or by using
other effective safeguards, the occupant or possessor becomes
liable to persons outside the land for injuries which are the
proximate result of such artificial conditions.
Id. at 600 (citations omitted). We determined that the “perils of explosion and fire” from
the accumulation of gas in the building being demolished “were obvious and known to the
21
defendant for such a length of time as to make it a question for the jury whether the
defendant, after he knew of the dangerous condition . . . failed to use reasonable care and
diligence to prevent injuries by explosion to travelers upon the adjoining public streets.”
Id. at 601.
In La Belle Epoque, LLC v. Old Europe Antique Manor, LLC, 406 Md. 194 (2008),
we considered a property owner’s duty after a third-party tenant placed garbage and debris
in a common area that blocked a culvert, which caused snow and rain to back up into another
tenant’s space, resulting in property damage. We reversed the trial court’s entry of summary
judgment in favor of the property owner and held that the property owner “would be liable
for its own negligence for injury caused to others resulting from the placement of debris in
the alley, whether or not the alley is considered a common area.” Id. at 218 (citing Frenkil,
175 Md. at 599). We explained that “[a] person who negligently fails to make the condition
reasonably safe can be liable for harm that the condition causes to the neighboring premises.”
Id. at 219. In other words, we imposed a duty of reasonable care on the property owner for
its own conduct in allowing a hazardous condition created by a third party to continue after
learning of its existence. We observed that “a reasonable trier of fact could conclude that the
pile of trash and debris that [the property owner] allegedly allowed to accumulate in the alley
constituted a dangerous condition on the premises and that [the property owner] failed to
remove the debris or protect others from that condition.” Id.
Our jurisprudence is consistent with the general principles of tort law espoused by
Keeton concerning duties owed by property owners to their neighbors. Keeton notes that
“[t]he possessor of land is first of all required to exercise reasonable care, with regard to
22
any activities which he carries on, for the protection of those outside of his premises.”
Keeton, supra, § 57, at 387. Keeton points out that “one important limitation upon the
responsibility of the possessor of land to those outside of his premises has been the
traditional rule . . . that he is under no affirmative duty to remedy conditions of purely
natural origin upon his land, although they may be highly dangerous or inconvenient to his
neighbors.” Id. at 390. On the other hand, if the occupant has “altered the condition of the
premises . . . the condition is no longer to be regarded as a natural one, and he will be held
liable for the damage resulting from any negligence.” Id. at 390–91.
As the Court of Special Appeals observed, although no Maryland case discusses a
property owner’s duty of care in the context of fire spread under conditions similar to the
facts of this case, courts in other jurisdictions and treatises have recognized that a property
owner has a duty of reasonable care to maintain his or her property in a manner so as not
to allow fire to ignite and spread to neighboring properties. Steamfitters, 241 Md. App. at
119–21 (discussing Scully v. Fitzgerald, 843 A.2d 1110 (N.J. 2004) and Hesse v. Century
Home Components, Inc., 514 P.2d 871, 872–74 (Or. 1973)). See also Dealers Serv. &
Supply Co. v. St. Louis Nat’l Stockyards Co., 508 N.E.2d 1241, 1244–45 (Ill. App. Ct.
1987) (holding that a property owner had a duty to use and maintain its property in a
manner so as not to create an unreasonable risk of fire spreading to adjoining property);
Custom Craft Tile v. Engineered Lubricants Co., 664 S.W.2d 556, 558 (Mo. Ct. App. 1983)
(holding that a property owner had a duty not only to use reasonable care in preventing the
outbreak of fire, but also to guard against the risk of fire spreading to neighboring
properties); Empire State Bldg. Co. v. Bryde, 318 N.W.2d 65, 68 (Neb. 1982) (“‘[W]here
23
one negligently stores combustible material on his property in such a way that it is
reasonably foreseeable that fires will start thereon and spread to the property of another, he
may be held liable for damage caused when this occurs, although the fire starts
accidentally[.]’” (quoting 35 Am. Jur. 2d Fires § 27 (1967))).
In Scully, the Supreme Court of New Jersey found a property owner liable for
property damage arising from a carelessly discarded cigarette by an unknown person.
Scully involved two separate rental properties that were adjacent to each other and were
owned by the same landlord. In the area where the fire started, the landlord stored
combustible materials. The plaintiff commercial tenant sued his landlord alleging that the
landlord breached his duty to maintain his neighboring apartment complex in a reasonably
safe condition so as not to endanger the property of others. Scully, 843 A.2d at 1112–14.
The plaintiff presented evidence that in the area where the fire started, the defendant stored
lawn mowers, gasoline, mulch, old papers, refuse, construction debris, and garbage both in
and out of trash cans. Id. at 1113. The storage area was freely accessible to others, and
the tenants regularly smoked cigarettes on the deck above the storage area, discarding their
cigarette butts into the area. Id. Fire officials investigating the blaze found cigarette butts
in the general area. Id.
After the trial court granted summary judgment in favor the landlord on the basis
that the plaintiff failed to prove a duty, the New Jersey Supreme Court reversed. The court
recognized the “simple proposition” that a property owner will be liable if he “takes
inadequate precautions to guard against the risk of fire when it is reasonably foreseeable
that an errant spark from a trespasser’s or stranger’s discarded match or cigarette will ignite
24
a blaze that will spread and engulf neighboring properties.” Id. at 1117. The court held
that the duty to act reasonably arose from the combined presence of flammable materials
and the knowledge that people were carelessly discarding cigarettes in the vicinity of the
flammable materials. Id. The court determined that “in view of the surrounding
circumstances, . . . ‘a person of ordinary experience and intelligence would have foreseen’”
that a fire could have been caused by the tenants’ actions in “routinely discard[ing]
cigarettes within the immediate vicinity of the flammable materials.” Id. (citation
omitted). Accordingly, the court held that under the circumstances, the defendant owed a
common law duty to “guard against the risks associated with the start or spread of a fire by
the negligent or intentional act of a third party . . . .” Id.
Applying the general principles of a property owner’s duty of reasonable care
espoused by this Court in La Belle Epoque and Frenkil, and which have been similarly
applied by other courts, we hold that under the specific facts and circumstances presented
in this case, Steamfitters owed its neighbors a common law duty to maintain its property
in a manner that would not cause an unreasonable risk of the spread of fire to the
neighboring properties. We agree with the Court of Special Appeals that although
Steamfitters used its property, including the mulch strip, in a normal or ordinary manner,
“there was evidence from which the jury could determine that Steamfitters was aware that
hundreds of cigarettes had been discarded in the mulch and that this practice put it on notice
that a dangerous practice was occurring on its property, specifically the disposal of
cigarettes in a combustible substance.” Steamfitters, 241 Md. at 120.
25
The Plaintiffs presented evidence at trial that Steamfitters created the mulched area
immediately adjacent to Gordon’s property and permitted individuals to linger in the
common areas of its property for hours while passing time prior to the commencement of
their mandatory training. There was evidence from which a jury could determine that union
officials, Mr. Loveless and Mr. Mastripolito, knew or should have known that individuals
were carelessly discarding hundreds of cigarette butts in the mulch because they both
walked through that area on several occasions in the weeks before the fire. Steamfitters’
business manager, Mr. Loveless, acknowledged that there were more butts “than there
should have been” and that discarding cigarette butts in mulch presents a risk of fire.
Despite this knowledge, Steamfitters took no action to prevent the foreseeable risk that a
fire might start on its property as a result of individuals’ careless acts of habitually
discarding cigarette butts in the mulch.6
Steamfitters asserts that this case is distinguishable from other premises liability
cases because mulch is not a “dangerous condition.” Of course, we agree that simply
keeping mulch on one’s property is not considered to be a “dangerous” condition or
activity. However, an otherwise natural or normal condition can become dangerous when
one adds human activity into the mix. For example, the presence of surface water is a
6
Steamfitters also relies upon Patton v. United States Rugby Football, Union, Ltd.,
381 Md. 627 (2004), and argues that it could not be liable because it had no duty to control
the conduct of third parties. Steamfitters’ reliance on Patton and principles associated with
third-party control, have no application here. As the trial court and Court of Special
Appeals correctly noted, the Respondents’ claims were not based upon a theory of
vicarious liability. Instead, the negligence claims were based upon Steamfitters’ own
negligence and the duty owed to neighboring property owners, which this Court has
recognized for decades.
26
natural condition that does not create tort liability on its own. However, if a property owner
artificially increases or concentrates the natural flow of surface water over his or her
property in a manner that causes damage to a neighboring property, the property owner
may be liable for damages caused by the altered flow. See, e.g., Battisto v. Perkins, 210
Md. 542, 546 (1956) (holding that where a property owner removed all ground cover,
thereby increasing the runoff and causing damage to the adjacent property owner, the
property owner had a “duty to use reasonable precautions against harm” sustained by the
neighbor and that “[w]hat would be reasonable is ordinarily a question for the jury”).
This case is not simply about the presence of mulch. We agree with the Court of
Special Appeals that a duty arose because the otherwise normal condition—the placement
of mulch—“became dangerous by virtue of the practice of persons tossing cigarette butts
into the mulch.” Steamfitters, 241 Md. App. at 120. It is the confluence of factors in this
case that leads us to conclude that Steamfitters owed its neighbors a duty to take reasonable
steps to remove the danger. Steamfitters knew that the individuals congregated for hours
in the common area prior to class and that those individuals smoked and discarded their
cigarette butts during that time. Given the hundreds of cigarette butts that were discarded
in the mulch strip, a jury could determine that Steamfitters knew or should have known
that individuals were habitually discarding cigarettes in mulch. It is within common
knowledge that discarding cigarettes in combustible material such as mulch could start a
fire—and it is certainly a foreseeable consequence of allowing or enabling the constant
littering or disposal of cigarettes along a common boundary between commercial
properties.
27
Like the Court of Special Appeals, we “emphasize that this conclusion rests on the
evidence from which a jury could find that a large number of cigarette butts were discarded
in the mulch over a long period of time prior to the fire.” Id. at 121. This is not a situation
where only a few errant butts were found in the area, or where there was no evidence from
which a jury could conclude that the property owner had actual or constructive knowledge
of the hundreds, if not thousands, of cigarette butts located in a combustible material
located adjacent to the neighboring property. Under the totality of the facts presented in
this case, “[i]t was for the jury to resolve conflicts in the evidence presented and to
determine whether Steamfitters breached its duty of care to neighboring property owners
to avoid the likely spread of fire arising from a cigarette discarded in mulch.” Id.We hold that, under the facts of this case, Steamfitters had a duty to exercise
reasonable care to maintain its property in a manner that would not cause an unreasonable
risk of the spread of fire from cigarette butts habitually discarded in combustible material.
Accordingly, we agree with the Court of Special Appeals that the trial court did not err in
denying Steamfitters’ motion for judgment and permitting the jury to resolve the
negligence claim.
Is Expert Testimony Required for the Jury to Understand the Fire Hazards Associated
with Habitually Discarding Cigarettes in Mulch?
Steamfitters contends that the circuit court erred in denying its motion for judgment
because the Plaintiffs did not present expert testimony, which it asserts was required to
establish the standard of care and reasonable steps that commercial landowners must take
to prevent people on their premises from discarding cigarettes in flammable mulch.
28
Steamfitters suggests that the property owner’s standard of care in this case is beyond the
understanding of an average person because compliance potentially requires the
“demolition and/or construction of[] commercial property” and, therefore, an
understanding of engineering and building codes.
The Respondents argue, conversely, that ordinary people of average intelligence
understand the risk of fire presented in this case, as well as what reasonable steps
Steamfitters could have taken to mitigate that risk. They suggest that the jury could use its
common knowledge and experience to determine how Steamfitters could satisfy its duty to
its neighbors and that this did not require any expertise.
We generally review a trial court’s decision to admit or deny evidence for abuse of
discretion. Johnson v. State, 457 Md. 513, 530 (2018) (citing Hopkins v. State, 352 Md.
146, 158 (1998)). In deciding whether a trial court abused its discretion we will uphold the
court’s findings of fact unless they are clearly erroneous but will afford no deference to the
court’s conclusions of law. Brooks v. State, 439 Md. 698, 708 (2014) (citations omitted).
Expert testimony is generally admissible when it would be useful to the factfinder
in understanding evidence or determining a fact in issue. See Md. Rule 5-702. However,
“[e]xpert testimony is required ‘only when the subject of the inference [to be drawn by the
jury] is so particularly related to some science or profession that it is beyond the ken of the
average layman . . . .” Johnson, 457 Md. at 530 (quoting Bean v. Dep’t of Health & Mental
Hygiene, 406 Md. 419, 432 (2008) (citations omitted)) (emphasis in original). Expert
testimony is not required for matters that would be within the common knowledge of an
average person. Id.29
Like the analysis of the New Jersey Supreme Court in Scully, and of the Court of
Special Appeals in this case, we agree that the issues in dispute here fell within the common
knowledge of jurors. As the court explained in Scully,
Certain dangerous conditions that create the foreseeable risk of
fire are well known to ordinary people and are a matter of
common knowledge. A jury does not need a fire expert to
explain to it the dangers that might follow when a lit cigarette is
thrown into a pile of papers or other flammable material. . . . It
is within the province of the jury ultimately to determine
whether [the] defendant breached that duty.
843 A.2d at 1118 (citation omitted). We agree with the Court of Special Appeals that “the
same result is warranted in the instant case.” Steamfitters, 241 Md. at 124. Here, the
Plaintiffs did not allege that Steamfitters violated a duty established by a building code or
civil engineering standard. Rather, the Plaintiffs asserted that Steamfitters “owed a
common law duty to maintain its property in a reasonably safe manner so as to prevent
harm to neighboring properties.” Id. “The foreseeable risk of fire created by habitually
discarding cigarettes in a combustible substance is a matter of common knowledge, well
known to ordinary people.” Id. Indeed, most individuals who have watched a public
service announcement by Smokey Bear, see note 1, supra, are aware of the fire hazards
associated with discarding cigarette butts in flammable materials.
Similarly, “the duty to exercise reasonable care to guard against the risk of fire was
not so esoteric as to require expert testimony.” Id. The jury was free to use their common
knowledge and experience to consider how this fire could have been prevented, such as
implementing a no-smoking policy on the property, removing the mulch, creating a
designated smoking area in another location on the property where the ground material did
30
not consist of combustible materials, or any number of reasonable options in light of the
activity that Steamfitters knew, or should have known, was habitually transpiring on its
property. It was within the jury’s province to apply its common knowledge and experience
to determine what constituted reasonable care to guard against the risk of fire and whether
Steamfitters breached that duty.
Spoliation Instruction
Steamfitters also argues that the trial court abused its discretion in giving the jury
the standard spoliation instruction that addressed both negligent and intentional spoliation
of evidence. This instruction pertained to a video recording from a surveillance camera on
Steamfitters’ building that was pointed close to the area where the fire was alleged to have
originated. Steamfitters failed to produce the video during discovery, and it was undisputed
that the video was taped over and destroyed 30 days later. There was evidence at trial that
on separate occasions, Lieutenant Crosby and Erie’s claims adjuster, Dustin Sclater, asked
for the video before it was destroyed. Respondents sent a litigation hold letter on April 23,
2015, to which counsel for Steamfitters responded, prior to the destruction of the tape.
Steamfitters asserts that the circuit court’s spoliation instruction was erroneously
given because the Respondent failed to prove that the video was relevant and because the
instruction was unfairly prejudicial. Steamfitters maintains that an insurance claims
adjuster employed by Erie reviewed the tape, advised that it was “useless” and declined a
copy on a thumb drive prior to the destruction of the recording. They argue that the
spoliation instruction was improper because the taped-over footage was not relevant
evidence.
31
The Respondents argue that this is a gross mischaracterization of the evidence.
They assert that the video contained highly-relevant evidence that would have supported
their theory of the case—footage of union apprentices smoking cigarettes on Steamfitters’
property, near the place where the fire must have started. Moreover, the Respondents argue
that Steamfitters cannot challenge the portion of the instruction pertaining to intentional
spoliation because they failed to object on those grounds at trial and instead, only made a
general relevance objection.
This Court reviews a trial court’s grant or denial of a requested jury instruction for
abuse of discretion. Keller v. Serio, 437 Md. 277, 283 (2014) (citing Stabb v. State, 423
Md. 454, 465 (2011)). When applying the abuse of discretion standard in this context, we
look to the following factors: “(1) whether the requested instruction was a correct statement
of the law; (2) whether it was applicable under the facts of the case; and (3) whether it was
fairly covered in the instructions actually given.” Id. (citations omitted) (internal
quotations omitted). Steamfitters focuses on the second factor. For the reasons set forth
below, we agree with the Court of Special Appeals that the circuit court did not abuse its
discretion in giving the instruction.
1. Evidence Pertaining to the Steamfitters’ Video Recording
As described above, the Fire Marshal’s Office attempted to obtain videos from
building-mounted cameras and cell phones as part of its investigation. At trial, Lieutenant
Crosby testified that he identified three surveillance cameras in the vicinity of the fire. One
camera was mounted on Falco’s building, one was on a church across the street from the
fire, and the third was on Steamfitters’ building. The Fire Marshal’s office requested and
32
received the video footage from Falco and the church, but no recording was provided by
Steamfitters.
Concerning attempts made by the Fire Marshal’s office to obtain the surveillance
video coverage from Steamfitters, Lieutenant Crosby testified as follows:
Q. [Counsel for Erie:] And were there efforts made to obtain
those videos?
A. [Lieutenant Crosby:] Yes.
Q. And when did your office attempt to secure those videos in
terms of timing? From the date of the fire, how many days out
were those requests made?
A. Well, we know that videos are time sensitive as far as
security goes. Most of them that have seven days, most of them
have 30 days, so we try to do it within that seven-day period.
I’m not sure exactly which day Investigator Murray and
Investigator Wells went and obtained those videos, but we did
get the information from who could provide those videos from
Fal[c]o and the church from across the street.
Q. And did your office request copies of any security videos
from Steamfitters?
A. Yes.
Q. Did you ever receive them?
A. No.
Q. Do you know when that request was made?
A. I don’t know the exact date when it was made because, like
I said, we had people assigned to different portions of the
investigation. And Fire Investigator Murray and Captain Wells
were assigned to get the video. I’m not sure what day they
went.
33
Erie’s claims adjuster, Dustin Sclater, testified that at some point after the fire, he
went to Steamfitters’ building to meet with certain individuals in an attempt “to get some
information regarding the cause of the fire.” Mr. Sclater could not recall with whom he
met, but he understood that person to be an employee of Steamfitters. As he entered the
building, Mr. Sclater noticed a security monitor pointed toward Gordon’s property and took
a photograph of it. Although Mr. Sclater could not recall if he asked for a copy of the
surveillance video from the day of the fire, he testified, “I’m sure I would have asked for a
copy” and that he “probably would have asked” for one.
There was conflicting testimony about who was present, as well as the discussions
that took place between Steamfitters’ corporate representative, John Mastripolito, and Mr.
Sclater during this time period shortly after the fire. Mr. Mastripolito testified that at some
unspecified time, he met with Mr. Sclater, who had come to Steamfitters’ building to look
at the video surveillance equipment. He testified that “there was [sic] two lieutenants. I
don’t know who the other one was.” He believed that the lieutenants were from the fire
department and that they viewed the surveillance footage with Mr. Sclater. Mr.
Mastripolito testified that he told Mr. Sclater and the other individuals present that they
were free to take a copy of the video recording and that he offered them a thumb drive, but
they declined. On cross-examination, Mr. Mastripolito indicated that the individuals who
he claimed told him that “the film didn’t show anything” and “was useless” were the
unidentified investigators from the Fire Marshal’s office, not Mr. Sclater. Mr. Mastripolito
could not recall if Mr. Sclater told him that the recording was of no use to him, but he stated
34
that Mr. Sclater did not disagree with the statements made by the lieutenants nor did he ask
that the video recording be preserved.
Mr. Sclater disagreed with Mr. Mastripolito’s version of events. Mr. Sclater
testified that when he went to Steamfitters’ building, the only person with him was his
supervisor from Erie. He stated that they met with a woman and a man, not Mr.
Mastripolito. He denied being present with any investigators from the Fire Marshal’s
Office. Mr. Sclater could not rebut the claim that “they” (the investigators from the Fire
Marshal’s Office) said the tape was “useless” because he denied being present at the union
hall with the Fire Marshal’s investigators when that statement was allegedly made.
The parties do not dispute that counsel for Erie sent a letter, dated April 23, 2015,
less than three weeks after the fire, to Steamfitters’ legal department that stated in part:
Please accept this letter as a request that you place a litigation
hold on any documents, data or other forms of media that
identify who was present on your property on the date of the
fire. We would also the [sic] like the identity of any
employees, apprentices or union members who may have been
smoking near the fence separating your property and Gordon
Construction’s property.
It is also undisputed that Steamfitters failed to preserve or produce the video recording
taken from the date of the fire. In his deposition, which was read to the jury, Steamfitters’
corporate designee, Daniel Loveless stated:
We were asked by our attorney to provide some footage of the
-- from the security cameras that we have, and we were able to
determine that we couldn’t go back that far. I think our video
stored 30 days, or whatever. And when we were asked, it was
more than 30 days past the date of the fire, so we were unable
to retrieve any of that.
35
2. Spoliation Instruction Given to the Jury
At the close of all the evidence, the trial court instructed the jury on the issue of
spoliation,7 as follows:
The destruction of or the failure to preserve evidence by a party
may give rise to an inference unfavorable to that party . . . . If
you find that the intent was to conceal the evidence, the
destruction of -- the destruction or failure to preserve evidence
may be inferred to indicate that the party believes that his or
her case is weak and that he or she would not prevail if the
evidence was preserved.
Now, in this regard, the spoliation of the evidence, it has to do
with film that Steamfitters Union have, if they take pictures of
their property, and whether they spoliated that evidence or
spoiled that evidence by taping over the film.
The lawyers will argue about that, and they will explain it
better than probably I have. But in any event, if you find that
the destruction or failure to preserve the evidence was
negligent, you may, but are not required to, infer that the
evidence, if preserved, would have been unfavorable to the
parties.
So it’s up to you to find out whether -- or make a determination
as to whether that indicated that their case was weak or whether
it indicated that they thought that it would be unfavorable to
them in some respect.
7
The instruction given by the court was based on Maryland Civil Pattern Jury
Instruction 1:16, which provides:
The destruction of or the failure to preserve evidence by a party
may give rise to an inference unfavorable to that party. If you
find that the intent was to conceal the evidence, the destruction
or failure to preserve must be inferred to indicate that the party
believes that his or her case is weak and that he or she would
not prevail if the evidence was preserved. If you find that the
destruction or failure to preserve the evidence was negligent,
you may, but are not required to, infer that the evidence, if
preserved, would have been unfavorable to that party.
36
After the jury was instructed, Steamfitters’ counsel objected to the instruction on
the ground that there was no factual predicate to support it. He pointed to Mr. Loveless’s
testimony to support Steamfitters’ position that the video recording had been taped over
prior to receiving the litigation hold letter. Steamfitters’ counsel also argued that the
requested video recording did not show the area where the fire was alleged to have
originated and that the video recording was not relevant. In response, counsel for the
Plaintiffs argued that the video recording would have shown an area “unbelievably close”
to where the fire was alleged to have originated and might have shown what people were
doing in the parking lot. Steamfitters’ counsel countered that “this video might have
showed people congregating here, it might have also been completely irrelevant, which is
what Mr. Sclater told my folks. So why preserve it anyway? They haven’t made a showing
that there would be any reasons to ever preserve this video.” The court rejected
Steamfitters’ argument and overruled its objection.
3. The Trial Court Did Not Abuse Its Discretion in Giving the Spoliation
Instruction
We agree with the Court of Special Appeals that Steamfitters’ relevance argument
is without merit. There was evidence in the record that the camera was pointed in a
direction that would have captured persons present on Steamfitters’ property prior to and
at the time of the fire, as well as a portion of the property close to the origin of the fire.
Video of that area may have captured other evidence similar to the evidence captured by
the other video cameras, which were shown to the jury, such as the color of the smoke,
wind direction, and speed.
37
As noted in Anderson v. Litezenburg, it is for the jury to determine whether the
destruction of evidence was merely the product of mistake, or whether the alleged spoliator
intentionally destroyed the evidence. 115 Md. App. 549, 561 (1997) (quoting Miller v.
Montgomery Cty., 64 Md. App. 202, 214–15 (1985)). As the Court of Special Appeals
correctly observed, the evidence was subject to different interpretations as to why
Steamfitters did not preserve the video recording. Steamfitters, 241 Md. App. at 131. It
was for the jury to consider Steamfitters’ explanation of why it failed to preserve this
evidence, to judge the credibility of the witnesses, and to draw inferences therefrom. The
circuit court did not abuse its discretion in giving the spoliation instruction.
Lastly, Steamfitters argues that the circuit court abused its discretion in giving the
portion of the spoliation instruction related to intentional spoliation, contending that there
was no evidence that the video recording was intentionally destroyed. The Respondents
counter that this issue was not properly preserved for consideration on appeal because
Steamfitters failed to object to that specific portion of the jury instruction. Like the Court
of Special Appeals, we agree.
Maryland Rule 2-520(e) provides that “[n]o 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.” This rule requires an objecting party to “be precise in stating
objections to jury instructions at trial, for the plain reason that the trial court has no
opportunity to correct or amplify the instructions for the benefit of the jury if the judge is
not informed of the exact nature and grounds of the objection.” Fearnow v. Chesapeake &
38
Potomac Tel. Co. of Md., 342 Md. 363, 378 (1996) (citations omitted). We agree with the
Court of Special Appeals that, because Steamfitters did not specifically raise with the trial
judge the issue of the instruction’s reference to intentional spoliation, the issue is not
preserved on appeal.8
Propriety of Entry of Summary Judgment on Contractual Indemnification
Lastly, Steamfitters argues that the circuit court erred in granting summary
judgment to the Training Fund because genuine issues of material fact existed as to the
indemnification clause of the Training Fund’s use agreement. Steamfitters asserts that it
bargained for indemnity against the negligence of third persons on its premises for classes
conducted by the Training Fund, and that negligent cigarette disposal by one of the
Training Fund’s students falls within the indemnity provision.
A circuit court may grant a motion for summary judgment if there is no genuine
dispute of material fact and the moving party is entitled to judgment as a matter of law.
Md. Rule 2-501(f). This Court reviews a grant of summary judgment de novo, examining
the record independently to determine whether any factual disputes exist when viewed in
the light most favorable to the non-moving party and in deciding whether the moving party
is entitled to judgment as a matter of law. Rowhouses, Inc. v. Smith, 446 Md. 611, 630
(2016) (quoting Hamilton v. Kirson, 439 Md. 501, 522 (2014)) (quotations omitted). This
Court limits its review to the grounds relied upon by the trial court. Hamilton, 439 Md. at
8
Even if the Steamfitters had preserved this contention, we agree with the Court of
Special Appeals that it is for the jury to determine whether the destruction of evidence is
the product of mistake or is intentional. Steamfitters, 241 Md. App. at 179 (citing Anderson
v. Litezenburg, 115 Md. App. 549, 560–61 (1997)).
39
523. The interpretation of a contract is a question of law, which we also review de novo.
Questar Builders, Inc. v. CB Flooring, LLC, 410 Md. 241, 262 (2009) (citation omitted).
In its third-party complaint against the Training Fund, Steamfitters sought
indemnification pursuant to the Agreement, and alternatively, common law
indemnification or contribution, in the event that it was held liable to the Plaintiffs for
claims related to the fire. The Agreement, titled “Agreement for Use of Space,” was
entered into between Steamfitters and the Training Fund, and permitted the Training Fund
to use four classrooms within the union hall, together with a non-exclusive right to use the
common areas of the building (along with other tenants of the building), and the right to
use a portion of the parking lot as designated by Steamfitters. The Agreement provided for
a term of five years, commencing on January 1, 2009 and expiring on December 31, 2014.
The Agreement required Steamfitters to insure the building against loss or damage and the
Training Fund to maintain insurance on the value of its personal property located within
the premises. The Agreement contained the following indemnity provision:
(d) Indemnity. Training Fund hereby agrees to indemnify, hold
the Union harmless and defend the Union from and against any
cost, damage, action, claim, liability or expense (including
attorney’s and other professional fees) incurred by or claimed
against the Union, directly or indirectly, as a result of or in any
way arising from Training Fund’s use and occupancy of the
Premises or any part thereof or out of any parking areas,
sidewalks, or other amenities in the vicinity of the Premises, or
in any other manner which relates to the business of the
Training Fund.
As noted above, the Agreement, by its express terms, expired months prior to the
fire. It was undisputed that the Training Fund continued to use the classrooms until May
40
27, 2015, and that it did not make any payments for the use of the premises after the
Agreement expired on December 31, 2014.
The Training Fund filed a motion for summary judgment as to Steamfitters’
complaint for contractual indemnification. It argued, inter alia, that the Agreement expired
more than four months prior to the fire and that there was no provision to extend that
Agreement beyond December 31, 2014. The Training Fund also argued that even if the
Agreement had not expired, the fire did not arise from the Training Fund’s operation of
classes or a student’s use of the parking lot; rather, it arose from Steamfitters’ use of the
property.
Steamfitters opposed the summary judgment motion, arguing that it was entitled to
indemnification under the Agreement because the Plaintiff’s allegations that “apprentices
waiting for Training Fund’s classes to commence started the fire[,]” related directly or
indirectly to the Training Fund’s use and occupancy of the premises and the business of
the Training Fund. Steamfitters also argued that it was entitled to common law indemnity
and/or contribution because the Training Fund had a duty to police apprentices prior to the
start of classes.
At a motions hearing, counsel for Steamfitters abandoned its claim for common law
indemnification and contribution and limited its claim to contractual indemnity. After
additional briefing and arguments, the trial court granted summary judgment in favor of
the Training Fund. The Court recognized that the Plaintiffs’ claims were premised on
Steamfitters’ failure to make the premises reasonably safe, i.e., its own negligence. The
court reasoned that the claims were premised on an unknown person discarding a cigarette
41
in the mulch, not necessarily an apprentice. In entering summary judgment, the court found
that: (1) under the indemnity provision in the Agreement, the Training Fund did not
specifically agree to indemnify Steamfitters for Steamfitters’ own negligence; (2) the
Agreement containing the indemnity provision had expired months prior to the fire; and
(3) the Plaintiffs’ claims against Steamfitters did not arise out of the Training Fund’s use
of the premises, but out of Steamfitters’ own use and operation of the premises.
We agree with the Court of Special Appeals that the circuit court did not err in
granting summary judgment in favor of the Training Fund. By its plain terms, the
indemnity provision applies only to claims that arise from the Training Fund’s “use and
occupancy” of the property or that “relate[] to the business of the Training Fund.” The
Plaintiffs’ claims against Steamfitters did not arise out of the Training Fund’s use and
occupancy of the premises and did not relate to the Training Fund’s business. Instead, the
Plaintiffs’ claims arose out of and related to Steamfitters’ own negligent use and operation
of the property. As noted by the Court of Special Appeals, it is well-established that a
contract cannot be construed to indemnify a party against its own negligence unless the
contract expressly or unequivocally states that this is the parties’ intent. Bd. of Trustees,
Cmty. Coll. of Baltimore Cty. v. Patient First Corp., 444 Md. 452, 465 (2015). We will
not interpret an agreement to indemnify a party against its own negligence absent express
language or other “unequivocal terms.” Id. at 465 (quoting Crockett v. Crothers, 264 Md.
222, 227 (1972)); see also Mass Transit Admin. v. CSX Transp., Inc., 349 Md. 299, 309–
10 (1998) (“Consequently, we require that there be no ambiguity and that the
indemnification, if intended to embrace the sole negligence of the indemnitee, be
42
unequivocal.”). We construe the language of an indemnification provision in accordance
with its customary, ordinary, and accepted meaning. See Atl. Contracting & Material Co.
v. Ulico Cas. Co., 380 Md. 285, 300–01 (2004) (citations omitted).
Under the plain language of the indemnification provision, the Training Fund did
not agree to indemnify Steamfitters for its own negligence. Accordingly, the trial court
properly granted summary judgment in favor of the Training Fund. We will not address
the additional reasons given by the trial court in light of our holding.
IV.
Conclusion
For at least the past 80 years, this Court has recognized that ownership, operation, and
maintenance of property comes with a common law duty to use reasonable care so as not to
cause harm to the neighboring property owners. A duty may arise when, viewing the totality
of the circumstances, there exists a dangerous or hazardous condition on the property and
the property owner was on notice of the dangerous or hazardous condition. We hold that
under the specific facts and circumstances presented in this case, Steamfitters owed its
neighbors a common law duty to maintain its property in a manner that would not cause an
unreasonable risk of the spread of fire to the neighboring properties. Under the facts
presented, there was evidence from which a jury could determine that Steamfitters had actual
or constructive knowledge that hundreds of cigarettes had been discarded in the mulched
common area along the property line, which created a foreseeable risk of fire spread to the
neighboring properties. It was for a jury to resolve conflicts in the evidence presented in this
43
case and to determine whether Steamfitters breached its duty of care to neighboring property
owners to avoid the likely spread of fire arising from a cigarette discarded in mulch.
We hold that expert testimony was not required to prove the applicable duty of care
and to establish the reasonable steps a commercial landowner must take to fulfill its duty
to prevent cigarettes from being regularly discarded in mulched common areas and causing
a fire. Preventative steps that could have been taken are not outside the ken of the average
layperson. Jurors were free to use their common knowledge and experience to consider
reasonable steps that could have been taken to prevent a fire. Similarly, the foreseeable
risk of fire created by habitually discarding cigarettes in a combustible substance is a matter
of common knowledge, well known to ordinary people.
We hold the trial court did not abuse its discretion when it instructed the jury on
spoliation of the evidence under the facts presented in this case.
The trial court did not err in granting summary judgment in favor of the Training
Fund on the third-party complaint for contractual indemnification. Under the plain
language of the indemnification provision, the Training Fund did not agree to indemnify
Steamfitters for Steamfitters’ own negligence.
The judgment of the Court of Special Appeals is affirmed.
JUDGMENT OF THE COURT OF
SPECIAL APPEALS IS AFFIRMED.
COSTS IN THIS COURT AND IN THE
COURT OF SPECIAL APPEALS TO BE
PAID BY PETITIONER.
44