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Cigarette butts, mulch don’t mix, Maryland court says

Court of Special Appeals affirms $1.3M verdict

A commercial landowner knew or should have known that one of the many cigarette butts being tossed in mulch on its property could cause a fire that would harm neighbors, a divided Maryland appeals court ruled Thursday in saying a Capitol Heights facility was properly held liable for more than $1.3 million in damage after a blaze ensued.

The Court of Special Appeals’ reported 2-1 decision on liability for a fire sparked a dissenting opinion in defense of mulch.

In its ruling, Maryland’s second-highest court said a jury validly concluded the local Steamfitters Union owed a duty to neighboring property owners to prevent the foreseeable fire that could — and did — result from cigarette butts being dropped in mulch. Steamfitters’ negligence in not discouraging the hazardous littering on its wooded grounds caused a fire that spread to Gordon Contractors Inc.’s and Falco Industries Inc.’s properties, the appellate court added.

“No 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 is considered to be normal, absent extenuating circumstances,” Judge James R. Eyler wrote in an opinion joined by Judge Stuart R. Berger.

“In the case at hand, Steamfitters used its property in a normal manner,” added Eyler, a retired judge sitting by special assignment. “Nevertheless, 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.”

In dissent, Judge Dan Friedman said the many spent cigarettes that did not ignite in the mulch belie the conclusion that Steamfitters knew or should have known of a potential conflagration.

“Use of mulch in landscaping should not be the source of a tort duty,” Friedman wrote.

“My colleagues in the majority seem to think that the existence of hundreds of cigarette butts in the mulch should have put the landowner on notice of the risk of fire,” he added. “I think the opposite. None of those other cigarette butts caused a fire. If there were 1,000 spent cigarette butts in the mulch that is proof not of risk, but that 999 times a fire did not result.”

The fire started on April 6, 2015, when a lit cigarette was discarded on Steamfitters’ mulch bed and the blaze spread to Gordon Contractors and Falco Industries, according to expert testimony at the civil trial initiated by the neighboring properties and their insurance companies. The Prince George’s County Circuit Court jury found Steamfitters liable for damages of $1.22 million to Gordon and its insurers, Erie Insurance Exchange and Continental Casualty Co., and $119,909.10 to Falco and its underwriter, Cincinnati Insurance Co.

Before the trial, Steamfitters sought dismissal of the lawsuit, arguing in vain that it could not be held liable for damage because its property contained no dangerous or illegal condition and any liability would belong to the unknown person who discarded the cigarette.

The Court of Special Appeals, by the slimmest of majorities, said the circuit court judge validly permitted the case to proceed.

“(U)nder Maryland law, a property owner owes a common law duty to the owners and occupants of a neighboring property to use reasonable care when conducting activities on its property so as to avoid harm to the neighboring property,” Eyler wrote.

“Based on the evidence presented at trial, a reasonable jury could conclude that Steamfitters knew or should have known that someone or some group of people on its property was regularly discarding lit cigarettes in the mulch bed that it placed against the fence adjacent to Gordon’s property,” Eyler added. “Despite its knowledge, Steamfitters took no action to prevent the foreseeable risk that a fire might start and spread to adjoining properties.”

But Friedman, in dissent, said the trial judge should have granted Steamfitters’ pretrial motion for summary judgment.

“(T)here is not allegation that the landowner was the person who smoked the cigarettes and discarded the cigarette butts,” Friedman wrote.

“Thus, the majority’s opinion extends tort liability to landowners for the actions of third parties over whom they have little control and with whom they have no demonstrated special relationship,” Friedman added. “(I)n the future, landowners will seek to avoid tort liability by putting out more ashtrays and by cleaning cigarette butts out of their mulch more frequently. I hope they do, but only because it will make things cleaner. I have no belief that doing so will avoid fires.”

Neither Steamfitters’ attorney, James S. Liskow, nor Lawrence F. Walker, lawyer for the neighbors and their insurers, returned telephone and email messages seeking comment Friday afternoon on the decision.

Liskow is with DeCaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie; Walker is with Cozen O’Connor in Philadelphia.

The Court of Special Appeals rendered its decision in the consolidated cases Steamfitters Local Union No. 602 v. Erie Insurance Exchange et al. and Steamfitters Local Union No. 602 v. Cincinnati Insurance Co. et al., Nos. 1168 and 1142, September Term 2017.

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