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Opinions – Maryland Court of Special Appeals: 10/31/11

Negligence

Premises liability

BOTTOM LINE: The circuit court erred in granting summary judgment for defendant bar owners and managers, where patron who suffered injuries in a barroom brawl presented sufficient evidence to sustain a premises liability negligence claim.

CASE: Troxel v. Iguana Cantina, LLC, No. 820, Sept. Term, 2010 (filed Oct. 3, 2011) (Judges Eyler, J., KEHOE & Mittelstaedt (specially assigned)). RecordFax No. 11-1003-02, 35 pages.

FACTS: Iguana Cantina was a club owned and operated by Iguana Cantina, LLC and under a lease with Lockwood Associates, LLC. Every Thursday night, Iguana Cantina hosted a “college night” promotion that permitted adults between the ages of 18 and 21 to attend the nightclub.

On Sept. 25, 2008, James Troxel, 20 years old at the time, attended “college night.” At approximately 12:30 am, Troxel was involved in an altercation with several unidentified males on the dance floor. When security personnel saw Troxel’s body on the floor, they carried him out of the club. Troxel alleged that, as a result of the beating, he suffered permanent physical and neurological injuries.

Troxel sued: (1) Iguana Cantina, LLC, (2) Timothy Bennett, the general manager, (3) Lockwood Associates (4) Parkway Corporation, the managing entity for Lockwood Associates, and (5) the senior principals of Parkway Corporation (collectively, Iguana Cantina).

The circuit court granted summary judgment in favor of Iguana Cantina. The court concluded that Troxel’s claim was an attempt to assert “dram shop” liability, which does not exist under Maryland law and that there was no evidence to support a negligence claim.

Troxel appealed to the Court of Special Appeals, which reversed and remanded.

LAW: There are two distinct causes of action that a plaintiff can bring to impose liability on a business for injuries sustained on or off the establishment’s premises: a dram shop liability claim and a premises liability claim. Dram shop liability provides relief to plaintiffs who are injured as a result of the establishment’s sale of alcohol. This type of liability is not recognized as a valid cause of action in Maryland. Felder v. Butler, 292 Md. 174, 183–84 (1981).

A premises liability claim is based on common law principles of negligence and derives from an establishment’s lack of supervision, care, or control of the premises. RESTATEMENT (SECOND) OF TORTS §344.

Under this type of theory, a tavern owner will have a duty to protect his patrons, and thus be liable for negligence, if: “‘(1) the [owner] controlled [a] dangerous or defective condition; (2) the [owner] had knowledge or should have had knowledge of the injury causing condition; and (3) the harm suffered was a foreseeable result of that condition.’” Veytsman v. New York Palace, Inc., 170 Md.App. 104, 116 (2006) (quoting Hemmings v. Pelham Wood Ltd. Liab. Ltd. P’ship, 375 Md. 522, 534–35 (2003)).

The gravamen of Troxel’s cause of action was that the injury resulted from Iguana Cantina’s failure to protect patrons from a dangerous condition, and not from the furnishing of alcohol. Indeed, in Maryland, cases that involve an injury to a business invitee on the premises of a restaurant, hotel, or bar are routinely analyzed in the premises liability context. See Veytsman, 170 Md.App. at 123.

A properly pleaded claim of negligence includes four elements. The plaintiff must show: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that duty, (3) that the defendant’s breach of the duty proximately caused the loss or injury suffered by the plaintiff, and (4) that the plaintiff suffered actual loss or injury. Corinaldi v. Columbia Courtyard, Inc., 162 Md.App. 207, 218 (2005).

There are three general theories on which a landowner may be held liable when someone is injured by third party criminal activities on the premises. Under the first theory, a duty is imposed on the landowner to eliminate conditions that contribute to criminal activity if the landowner had prior knowledge of similar criminal activity — evidenced by past events — occurring on the premises. Corinaldi, 162 Md.App. 223. In the second scenario, a duty is imposed on the landowner to prevent criminal conduct of a specific assailant if the landowner is aware of the violent tendencies of that particular assailant. Id. at 224. The third category involves the imposition of a duty on a landowner if the landowner had knowledge of events occurring immediately before the actual criminal activity that made imminent harm foreseeable. Id. See also Scott v. Watson, 278 Md. 160 (1976).

Troxel asserted that the facts of this case fit into the first of the three categories. In 2006, the Baltimore Police Department reported eight aggravated assaults, one robbery and one potential rape that occurred within the premises of Iguana Cantina. During the twelve months leading up to September 2008, the Baltimore Police Department again reported four aggravated assaults, one robbery, and two assaults on police officers, all occurring inside Iguana Cantina. Zachary Belcher, a former Iguana Cantina security guard who worked at the nightclub from March 2005 through June 2008, stated in an affidavit that in his experience as a security guard at Iguana Cantina, he “experienced up to five fights per night on college nights.”

A fact finder could reasonably infer from this evidence that Iguana Cantina knew or should have known about a dangerous condition within its premises and therefore had an obligation to take reasonable steps to eliminate the dangerous condition under its control.

Iguana Cantina had a legal duty to take reasonable measures to provide a safe environment for its patrons because of the history of violent incidents that occurred on its premises in the years and months leading up to Sept. 25, 2008.

A duty is breached when a person or entity fails to conform to an appropriate standard of care and, in doing so, fails to protect third persons against unreasonable risks. B.N. v. K.K., 312 Md. 135, 141 (1988).

The evidence was sufficient to create a question for the fact finder as to whether Iguana Cantina breached its duty to Troxel. See Todd v. Mass Transit Admin., 373 Md. 149 (2003). Fred Del Marva, an expert witness retained by Troxel, submitted an affidavit stating that Iguana Cantina’s “college night” promotions “created a substantial risk of injury to business-invitee patrons” and that “violent behavior such as brawls, beatings, and the like are the fully-expected consequence of underage alcoholic consumption in crowded night club environments.” Moreover, Del Marva stated that Iguana Cantina could have taken simple steps to minimize the risk of injury within its premises.

Accordingly, a fact finder could reasonably conclude that Iguana Cantina, given the history of criminal conduct occurring within its premises, breached its duty to provide adequate security to protect its patrons from violent attacks. It is a reasonable inference that Iguana Cantina should have had more security guards patrolling the nightclub, or should have had security guards stationed in more strategic locations, or should have abandoned the “college night” promotion altogether. Thus, whether Iguana Cantina’s security measures constituted a breach was a question ripe for the fact finder.

“Negligence is not actionable unless it is a proximate cause of the harm alleged.” Pittway Corp. v. Collins, 409 Md. 218, 244 (2009). “To be a proximate cause for an injury, ‘the negligence must be 1) a cause in fact, and 2) a legally cognizable cause.’” Id. at 243 (quoting Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 156–57 (1994)).

Causation-in-fact concerns the threshold inquiry of whether a defendant’s conduct actually produced an injury. Pittway, 409 Md. at 244. Where it is possible that two or more independent negligent acts brought about the injury, the substantial factor test is used. Id. Under this test, causation-in-fact may be found if it is more likely than not that the defendant’s conduct was a substantial factor in producing the plaintiff’s injuries. Id.

Once causation-in-fact is established, “the proximate cause inquiry turns to whether the defendant’s negligent actions constitute a legally cognizable cause of the complainant’s injuries.” Pittway, 409 Md. at 245. This part of the causation analysis requires the Court to consider whether the actual harm to a litigant falls within a general field of danger that the actor should have anticipated or expected. The question of legal causation most often involves a determination of whether the injuries were a foreseeable result of the negligent conduct. Id. at 245–46.

Moreover, injuries that result from a highly extraordinary event will not be deemed foreseeable; in such a case, a court may declare the intervening force to be a superseding cause of the plaintiff’s injuries. Id. at 247; RESTATEMENT (SECOND) OF TORTS § 435(2) cmt. c (1965).

Here, on the issue of cause-in-fact, a jury could reasonably conclude that Iguana Cantina’s failure to provide adequate security was a substantial factor in bringing about Troxel’s injuries.

On the question of legal causation, when viewing all facts, and all reasonable inferences drawn from the fact, in a light most favorable to Troxel, the evidence suggested that his injuries were the foreseeable result of a typical night at Iguana Cantina. It was foreseeable from the previous incidents of violence that a large, rowdy crowd might accumulate in Iguana Cantina; that a physical altercation might occur on the dance floor; that it might be difficult to detect a physical altercation without certain security measures in place; and that a person like Troxel might suffer a physical injury as a result of violence inflicted by third persons at the nightclub. See Griffith v. Southland Corp., 94 Md.App. 242 (1992). Thus, Troxel’s negligence claim should have survived a motion for summary judgment.

Accordingly, the judgment of the circuit court was affirmed.

COMMENTARY: Iguana Cantina argued that Troxel relied on mostly inadmissible and misleading documents in attempting to argue that numerous violent and criminal incidents occurred at the club.

Ordinarily, an appellate court should review a grant of summary judgment only on the grounds relied upon by the trial court. Blades v. Woods, 338 Md. 475, 478 (1995). Likewise, if issues are presented to the trial court, but not decided by the trial judge, the issues generally cannot be raised on appeal. Burdette v. LaScola, 40 Md.App. 720, 733 (1978). The Court may nevertheless exercise its discretion, pursuant to Rule 8–131(a), to consider a matter not addressed by the trial court if doing so would aid the trial court on remand or prevent another appeal.Montgomery County Bd. of Educ. v. Horace Mann Ins. Co., 154 Md.App. 502 (2003).

The trial court did not rule on the admissibility or relevancy of the documents, nor did it base any portion of its decision, oral or written, on a finding that the documents could not be considered.

Even if the Court wanted to ignore certain documents in the record, it would not have known which documents to ignore because Iguana Cantina failed to object to specific exhibits in the record or provide specific reasons for their objections. The burden does not rest on the Court to go through the record, item by item, to determine which sections of which documents are admissible and which are not.

Accordingly, the full record that was presented to the circuit court was considered.

PRACTICE TIPS: Dram shop liability and premises liability are distinct but not mutually exclusive concepts. In a state that recognizes dram shop liability, for example, a plaintiff may recover under a dram shop theory if the plaintiff is injured on the premises of a tavern as a result of the tavern’s sale of alcohol to a noticeably intoxicated or underage patron. If there is also a history of similar violent conduct on the premises, then a plaintiff may have a cause of action based on premises liability. See Teshima, Tavernkeeper’s Liability to Patron for Third Person’s Assault, 43 A.L.R. 4th 281.

Zoning

Nonconforming use permit process

BOTTOM LINE: The Baltimore City Board of Municipal and Zoning Appeals, in accordance with the Open Meetings Act and the Maryland Code, did not err in permitting the continued nonconforming use of the subject property as a restaurant.

CASE: Tuzeer v. YIM, LLC, No. 816, Sept. Term, 2010 (filed Oct. 3, 2011) (Judges GRAEFF, Hotten & Kenney (retired, specially assigned). RecordFax No. 11-1003-01, 35 pages.

FACTS: The property at 123-129 West 27th Street, Baltimore, Maryland (the W. 27th Street property) consists of four row houses that were combined to form a single unit. The property was built in the 1940s, and YIM, LLC has owned it since November 2006.

When YIM purchased the property, a bar was operating there. It ultimately sold the business interest to Two Sisters Grille, LLC, which operated as a restaurant and bar. A small bakery used a separate area of the property, as well as a portion of the restaurant’s kitchen space.

Two Sisters closed at the end of May 2008. In December 2008, YIM leased the property to David Weishaus, and they began the process of procuring the proper permits to operate a restaurant with a liquor license. That same month, December 2008, Two Sisters filed a petition for hardship extension with the Baltimore City Board of Liquor Commissioners, requesting an extension of its liquor license to permit the transfer of the liquor license to the new restaurant operator for the W. 27th Street property. The Board of Liquor Commissioners granted the request, approving an extension for 180 days from Dec. 11, 2008.

On May 11, 2009, YIM filed a use and occupancy permit application with the Department of Housing and Urban Development, requesting a permit for the W. 27th Street property to be used as a lounge & restaurant on the first and second floors. The permit application was initially approved that day, but the permit subsequently was voided. YIM appealed to the Baltimore City Board of Municipal and Zoning Appeals (the Board).

On June 15, 2009, after the initial permit application was voided, YIM filed a use and occupancy permit application with the Department of Housing and Community Development, seeking to “continue use and extend time limit for discontinuation for portion of 1st floor (restaurant with liquor license).” YIM’S application was denied and YIM appealed to the Board.

The Board held a hearing regarding YIM’s request to use a portion of the first floor of the W. 27th Street property as a restaurant with a liquor license. The Board issued a written Resolution, setting forth the evidence that had been presented.

The Resolution then set forth the Board’s conclusions. The Board found that the use of the property as a restaurant, subject to conditions can continue. The use had not been discontinued or abandoned, see Baltimore City Zoning Code (BCZC) §13-407, and even if the evidence confirmed that it had been discontinued, subsection 13-407(c) would apply which excepts Class III nonconforming uses in the R-8- District. The Board imposed restrictions on the hours of operation, ordering that the restaurant be closed no later than 10:00 p.m. on week nights and no later than midnight on Friday and Saturday nights.

Hasip Tuzeer and other neighbors of the W. 27th Street (the Neighbors) property appealed. The circuit court affirmed the Board’s finding of continued nonconforming restaurant use for the first floor of the property. The court further found no violation of the Open Meetings Act or Article 66B. The court found, however, that the Board erred in placing limitations on the restaurant’s operating hours.

The Court of Special Appeals affirmed.

LAW: “A court’s role in reviewing an administrative agency adjudicatory decision…’is limited to determining if there is substantial evidence in the record as a whole to support the agency’s findings and conclusions, and to determine if the administrative decision is premised upon an erroneous conclusion of law.’” Assateague Coastkeeper v. Md. Dep’t of the Env’t, — Md.App. —-, No. 471, Sept. Term, 2010, slip op. at 26 (filed Sept. 6, 2011) (quoting Najafi v. Motor Vehicle Admin., 418 Md. 164, 173-74 (2011)).

The W. 27th Street property is part of the R-8 District, which allows property to be used as a dwelling and for other limited purposes, not including a restaurant.

The use of the property here involves a nonconforming use, which is defined as a “lawfully existing use of a structure or of land that does not conform to the applicable use regulations of the district in which it is located.” Trip Assocs. Inc. v. Mayor and City Council of Balt., 392 Md. 563, 572-73 (2006) (quoting BCZC §13-102). “A valid and lawful nonconforming use is established if a property owner can demonstrate that before, and at the time of, the adoption of a new zoning ordinance, the property was being used in a then-lawful manner for a use that, by later legislation, became non-permitted.” Id. at 573.

A nonconforming use may be eliminated by “‘[d]iscontinuance or abandonment,’ the failure actively and continuously to operate the nonconforming use.” Trip Assocs., 392 Md. at 576 (quoting BCZC §13-407).

At the time of the hearing, BCZC §13-407 provided that whenever the active and continuous operation of any Class III nonconforming use, or any part of that use, has been discontinued for 12 consecutive months, the discontinuance constitutes an abandonment of the discontinued nonconforming use, regardless of any intent to resume active operations or otherwise not abandon the use. BCZC §13-407(a)(1)(i).

On June 14, 2010, after the Board’s Resolution here, the Baltimore City Council enacted Ordinance 10-289. The ordinance repealed BCZC §13-407(c), which provided that the provision relating to abandonment of use did not apply in the R-8 district. Accordingly, a nonconforming use in the R-8 district now is subject to elimination by abandonment of use.

Section 13-407(c) provided an exception to the rule that the right to a noncomforming use could be lost if the use was discontinued for 12 consecutive months. The Board referenced the exception; it stated that if the evidence confirmed that the nonconforming use had been discontinued, the exception would apply. The Board, however, found that the “use had not been discontinued or abandoned.”

Thus, the change in the law did not impact the primary finding of the Board, and it does not require reversal of the Board’s decision.

The Open Meetings Act is codified in SG §10-501 and is applicable to meetings of “public bodies.” The requirements of the Act apply when a public body meets to consider “granting a license or permit” or “a special exception, variance, conditional use, zoning classification, the enforcement of any zoning law or regulation, or any other zoning matter.” SG §10-503(b)(1)(2).

SG §10-505 provides that, with certain exceptions, “a public body shall meet in open session,” and SG §10-506 provides for advance notice of such a meeting.

“While the Act does not afford the public any right to participate in the meetings, it does assure the public right to observe the deliberative process and the making of decisions by the public body at open meetings. In this regard, it is clear that the Act applies, not only to final decisions made by the public body exercising legislative functions at a public meeting, but as well to all deliberations which precede the actual legislative act or decision, unless authorized by [§ 10-508] to be closed to the public.” Cmty. & Labor United for Balt. Charter Comm. v. Balt. City Bd. of Elections, 377 Md. 183, 193 (2003).

Article 66B § 2.08(b) sets forth the specific requirements for meetings conducted by the Board. There was no dispute that the public was permitted to observe the Board as it discussed whether to approve YIM’s nonconforming use permit, in accordance with Article 66B §2.08(b)(3)(ii).

The Neighbors nevertheless asserted that there was a violation of the Open Meetings Act and Article 66B because the Resolution was not signed by all the Board members.

In Wesley Chapel Bluemount Ass’n v. Baltimore County, 347 Md. 125 (1997), the Court of Appeals held that the Baltimore County Board of Appeals violated the Open Meetings Article in affirming the approval of a development plan without conducting its deliberations in public.

In that case, however, the Board of Appeals specifically denied a request to conduct its deliberations in public based on its determination that appeals of development plans did not involve “other zoning matters” subject to the Open Meetings Act. Id. at 134. The Court of Appeals disagreed, but there is no indication in the opinion that where, as here, the Board does deliberate in an open meeting, a subsequent written Resolution signed by less than all of the Board members violates the Open Meetings Act or Article 66.

The Board heard testimony at a public meeting, and it subsequently conducted its deliberations in a public meeting, during which the Board voted. There is no authority for the proposition that a Resolution subsequently signed by the Executive Director is not valid.

Accordingly, the Neighbors failed to meet their burden of showing a violation of the Open Meetings Act or Article 66B based on the fact that the Resolution was not signed by all the Board members.

The Neighbors also argued that a Board member’s participation in the hearing by speaker phone is not authorized by the Open Meetings Act or Article 66B.

Maryland’s Open Meetings Act defines “meet” as “to convene a quorum of a public body for the consideration or transaction of public business.” SG §10-502(g). “Convene” is defined as: (1) “To call together; to cause to assemble.” BLACK’S LAW DICTIONARY 355; and (2) “to come together in a body,” “to summon before a tribunal,” or “to cause to assemble.” WEBSTER’S NINTH NEW COLLEGIATE DICTIONARY 286. “Assemble” means “to bring together (as in a particular place or for a particular purpose).” Id. at 109.

Article 66B refers to the Board members being “present” to vote to reverse a decision of an administrative officer. Art. 66B §2.08(i)(1) and (2). The term “present” is defined as: “In attendance; not elsewhere.” BLACK’S LAW DICTIONARY at 1221.

In Freedom Oil Co. v. Illinois Pollution Control Board, 655 N.E.2d 1184, 1191 (Ill.App.Ct.1995), the Illinois Appellate Court addressed whether the use of telephone conferences fell within the definition of a meeting under the Open Meetings Act. The Illinois Open Meetings Act defined “meeting” as “a gathering of a quorum.” Id. at 1190. The court found persuasive an opinion by the Attorney General, which found: (1) although a “gathering” suggests “physical coming together of persons,” with the existing technology, “a group of persons may come together by ‘non-corporal’ means as well”; (2) where “a telephone conference call is broadcast over a speakerphone so the broadcast is open to members of the public … accessibility of the public is satisfied”; and (3) “a meeting held by telephone conference … complies with the Open Meetings Act.” Id.

The court emphasized that the Illinois Pollution Control Board complied with the applicable rules necessary to hold a hearing, including posting public notice of the hearing and keeping minutes, and it noted that there was no evidence that the complaining party was unable to hear the telephone conference. Id. at 1191. Accordingly, it rejected the argument that the Board had no authority to conduct a meeting by telephone conference. Id. at 1189. See also Goode v. Mich. Dept. of Soc. Servs., 373 N.W.2d 210, 212 (Mich.Ct.App.1985).

There is nothing in Maryland’s Open Meetings Act or Article 66B that prohibits a meeting with one or more members participating by telephone conference, as long as the conference call is broadcast over a speakerphone so it can be heard by members of the public.

Accordingly, the Board did not violate the Open Meetings Act or Article 66B in approving YIM’s nonconforming use permit where one voting member was present by speaker phone.

COMMENTARY: BCZC §13-407(a) provides that the cessation of “active and continuous operations of any … non-conforming use … for 12 months” constitutes an abandonment of the use “regardless of any reservation of an intent to resume active operations or otherwise not abandon the use.”

Generally, a finding of abandonment requires the “(a) an intention to abandon and (b) some overt act, or some failure to act, which carries the implication that the owner does not claim or retain any interest in the subject matter.” Dorman v. Mayor and City Council of Balt., 187 Md. 678, 684 (1947). Here, however, because of the language in BCZC §13-407(a), intent is not an issue.

Abandonment in this context “focuses not on the owner’s intent, but rather, on whether the owner failed to use the property as a nonconforming use in the time period specified in the zoning ordinance.” Trip Assocs., 392 Md. at 577. The abandonment or discontinuance, however, “must be active and actual.” Id. Here, there was not a failure to act for 12 months.

YIM introduced evidence demonstrating its efforts to obtain alternate tenants, including signing a lease with Mr. Weishaus in December 2008, and, after the community had an acrimonious meeting with Mr. Weishaus, signing a new lease with a new tenant.

YIM filed two permit applications, one in March 2009 for interior and exterior painting and repair of drop ceiling tile, and one on May 11, 2009, for a continuation of a restaurant use permit. All of these efforts were made within twelve months of the prior restaurant closing.

Under these circumstances, the Board properly could find there was not an “active and actual” abandonment or discontinuation after Two Sisters closed at the end of May 2008.

Accordingly, there was substantial evidence to support the Board’s Resolution.

PRACTICE TIPS: Pursuant to SG §10-510(d)(4), a court may void an action that violated the Open Meetings Act only when the aggrieved party demonstrates that a government body “willfully failed to comply” with the requirements of the Act. See Handley v. Ocean Downs, LLC, 151 Md.App. 615, 641 (2003).