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Baltimore Gas & Electric Co. v. Flippo

November 4, 1996

BALTIMORE GAS & ELECTRIC COMPANY
v.
DONNA RAE FLIPPO, INDIVIDUALLY, ETC.



APPEAL FROM THE Circuit Court for Prince George's County. William Spellbring, Jr., JUDGE.

Davis, Salmon, and Bloom (Theodore G., Retired, Specially assigned), JJ. Opinion by Bloom, J.

The opinion of the court was delivered by: Bloom

Opinion by Bloom, J.

Baltimore Gas and Electric Company (BGE) appeals from a judgment of the Circuit Court for Prince George's County (Spellbring, J., presiding), entered on a jury verdict that awarded damages to appellees, James Jay Flippo III (J.J.), a minor, and Donna Rae Flippo, his mother, for injuries sustained by the minor when he came into contact with a BGE high voltage line while he was climbing a tree in his neighbor's yard. Appellant asserts that the trial court committed ten reversible errors:

1.

The trial court erred when it failed to conclude that J.J. Flippo could not recover as a matter of law because J.J. Flippo was a trespasser and there was no evidence that BGE engaged in willful or wanton conduct amounting to entrapment.

2.

The trial court erred when it failed to give BGE's requested jury instructions regarding the minor plaintiff's trespass on BGE's property.

3.

The trial court erred when it failed to conclude that a public service company has no duty or obligation to trim trees near its overhead electric distribution system for purposes of public safety.

4.

The trial court erred when it failed to conclude, as a matter of law, that the minor plaintiff is barred from recovery because his own negligence was a cause of his injury.

5.

The trial court erred when it failed to give BGE's requested jury instructions regarding the contributory negligence of the minor plaintiff.

6.

The trial court erred when it failed to give any jury instruction regarding the doctrine of assumption of risk.

7.

The trial court abused its discretion when it allowed the plaintiffs' liability experts to give opinions regarding BGE's alleged negligence.

8.

The trial court erred when it compelled BGE employee William Rees to testify regarding BGE's remedial measures.

9.

The trial court erred when it allowed witnesses to testify that there was no need or reason for BGE to locate a single-phase overhead primary line at the scene of the occurrence.

10.

The trial court erred when it conditioned the admissibility of BGE's scene drawing.

We shall address each of those assertions. Finding no merit in any of them, however, we shall affirm the judgment of the circuit court.

Facts

Appellant Donna Rae Flippo and her two children, J.J. and his sister Jaime, moved into their new home at 1606 Pittsfield Lane in Bowie, Maryland, around the middle of September 1992. The children were enrolled at Pointer Ridge Elementary School. On 1 October 1992, J.J., who was then almost ten years old, and Jaime, who was then seven, went to play in the back yard of the home of Mr. and Mrs. Richard Gaines, on Pickford Lane in Bowie, with the Gaineses' sons, five-year-old Richie and seven-year-old Robbie, and other neighborhood children who were Jaime's classmates.

In the back yard of the Gaines property, at or near the rear lot line, was a white pine tree. J.J. and Robbie Gaines began to climb the tree. After he had climbed almost to the top of the tree, J.J. started to slip; instinctively he reached out and his hand came in contact with one of two BGE high voltage wires that ran through the foliage and among the limbs of the pine tree. As a result of that contact with the electric wire, J.J. sustained severe injuries.

Additional facts will be added as necessary to the discussion.

I.

Appellant's first contention is that, as a matter of law, J.J. was a trespasser to whom it owed no duty except to refrain from willfully and wantonly injuring him.

In Baltimore Gas & Elect. Co. v. Lane, 338 Md. 34, 656 A.2d 307 (1995), Chief Judge Murphy, writing for the Court of Appeals, carefully explained that "two points regarding the duty of the possessor of property are often overlooked in this area of law that is sometimes labeled, too narrowly, 'landowner liability,' or 'premises liability.'" First, the property need not be real property; the same principles apply to both real and personal property. Second, it is the possession of property, not the ownership, from which the duty flows. Id. at 44-45. The Court reiterated that the extent of the duty owed by the possessor of property to a person who comes in contact with that property depends on the status of that person while on the property.

Maryland law recognizes four classifications: invitee, licensee by invitation, bare licensee, and trespasser.... To an invitee -- one on the property for a purpose related to the possessor's business -- the possessor owes a duty of ordinary care to keep the property safe for the invitee.... To a licensee by invitation -- essentially a social guest -- the possessor owes a duty of reasonable care to warn the guest of dangerous conditions that are known to the possessor but not easily discoverable.... To a bare licensee -- one on the property with permission but for his or her own purposes -- the possessor owes a duty only to refrain from willfully or wantonly injuring the licensee and from creating "'new and undisclosed sources of danger without warning the licensee....'" To a trespasser -- one on the property without permission -- the possessor owes no duty "except to refrain from willfully or wantonly injuring or entrapping the trespasser."

Id. at 44 (citations omitted).

Examining appellant's contention in the light of those principles, we can quickly eliminate any notion that J.J. trespassed when he climbed the tree. The tree was possessed by the Gainses, as to whom J.J. was a social guest, by implied invitation to play with the Gaines children.

Appellant refers to the fact that it had an easement, granted to it by the developer of the community, to maintain its poles, and the electric lines strung from pole to pole, along the rear lot lines of the properties within the neighborhood. An easement is not a possessory property right. BGE had neither a right of possession of the airspace in the vicinity of its wires or a right to preclude others from that airspace and thus has no basis to assert that J.J. was trespassing on its easement. Cf. Wagner v. Doehring, 315 Md. 97, 553 A.2d 684 (1989), which involves a right-of-way from which the dominant owner could exclude others.

Appellant's principal argument with respect to its trespass contention is that J.J. trespassed on its personal property, i.e., its high voltage line. It cites and relies upon Grube v. Mayor, etc., of Baltimore, 132 Md. 355, 103 A. 948 (1918); Driver v. Potomac Electric Power Co., 247 Md. 75, 230 A.2d 321 (1967); Mondshour v. Moore, 256 Md. 617, 261 A.2d 482 (1970); Fitzgerald v. Montgomery County Board of Education, 25 Md. App. 709, 336 A.2d 795 (1975); and Murphy v. Baltimore Gas and Electric Company, 290 Md. 186, 428 A.2d 459 (1981).

Grube was a case involving a ten-year-old boy who sustained injuries by coming into contact with an electric wire when he climbed the power company's pole, which was erected in a school yard owned by Baltimore City. The Court of Appeals held that, because the boy was either a trespasser or bare licensee as to the City's property and definitely a trespasser as to the power company's pole, neither the City nor the power company owed him any duty except to refrain from willfully or intentionally injuring him. Mondshour was a case involving a six-year-old boy who, intending to show his companion "a trick," climbed up onto the rear tire of a transit bus that had stopped at an intersection and was severely injured when the bus started in motion. The Court held that the child was a trespasser upon the transit company's bus and, therefore, neither the transit company nor its driver owed him any duty except to refrain from wantonly or willfully injuring him. In Fitzgerald v. Montgomery County Board of Education, a six-year-old girl who accompanied her parents and her older brother to a high school parking lot, long after school hours, to watch her brother ride a go-cart on the parking lot, climbed up onto a concrete pillar on which was erected a light pole. She was electrocuted when her leg came in contact with an exposed wire on the light pole. This Court held that the child was a trespasser or, at best, a bare licensee and, therefore, the trial court did not err in granting summary judgment in favor of the Board of Education. Since the trespass or bare license in Fitzgerald was to the school parking lot, not the light pole, that case is obviously not applicable to appellant's theory that J.J. trespassed upon its personal property. Grube and Mondshour, on the other hand, did involve trespasses upon personal property and therefore have some relationship to this case, but those trespasses were intentional, unlike the accidental, inadvertent contact in this case.

The Driver case involved an injury incurred as a result of contact of a rig operated by the plaintiff and a high tension power line. There any similarity between that case and this one ends. The holding in Driver was that the injured plaintiff was contributorily negligent as a matter of law. As a mere afterthought, and by way of dictum, the Court commented that, in any event, the plaintiff was a trespasser or, at most, a licensee, to whom the power company owed no duty except to refrain from willfully or wantonly injuring him.

The Murphy case does bear some theoretical resemblance to this case. In Murphy, a man who had been bowling returned to his automobile, which was parked in the bowling alley parking lot. He approached what appeared to him to be a trash dumpster on the parking lot and reached inside in search of his missing radio. He was able to lift the top of the metal container he thought was a dumpster because the tabs and welds on the top of the container were bent and broken. He received a severe electric shock because the metal container was a broken BGE electric transformer box rather than a dumpster. The Court of Appeals held that the injured man could not recover because he was a trespasser to whom BGE owed no duty except to abstain from willfully or wantonly injuring or entrapping him. Appellant's reliance on Murphy is twofold: (1) Murphy stands for the proposition that one may be a trespasser to personal property and thereby entitled to no greater duty toward him from the possessor of the chattel than he would be entitled to from the possessor of land ...


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