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Mulch, cigarette butts don’t mix, Md. high court says

Court of Appeals affirms $1.3M verdict

Brynja McDivitt Booth, the newest jurist on the Maryland Court of Appeals. (The Daily Record / Bryan P. Sears)

Court of Appeals Judge Brynja McDivitt Booth wrote the unanimous opinion. (The Daily Record / Bryan P. Sears)

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

Quoting Smokey Bear, the Court of Appeals 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 high court added.

“’Only you can prevent wildfires,’” Judge Brynja M. Booth wrote in introducing the Court of Appeals’ opinion equating a landowner’s legal duty to neighboring properties to campers’ moral responsibility to extinguish their campfires.

“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,” Booth wrote. “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.”

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 the mulch on its property was neither a dangerous nor illegal substance and any liability would belong to the unknown person who discarded the cigarette.

The Court of Special Appeals upheld the jury’s verdict in May 2019, saying in a reported 2-1 decision that the circuit court judge validly permitted the case to proceed.

The Court of Appeals agreed Monday, noting it is “within the common knowledge of an average person” that mulch is flammable and that an unextinguished cigarette butt can ignite it.

“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,” Booth wrote. “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.”

Steamfitters’ attorney, James S. Liskow, did not immediately return a message Thursday seeking comment on the decision. Liskow is with DeCaro, Doran, Siciliano, Gallagher & DeBlasis LLP in Bowie.

Lawrence F. Walker, counsel for the neighbors’ insurers, declined to comment on the ruling. Walker is with Cozen O’Connor in Philadelphia.

The Court of Appeals rendered its 7-0 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., No. 40 September Term 2019.


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