STEAMFITTERS LOCAL UNION NO. 602
ERIE INSURANCE EXCHANGE, ET AL. STEAMFITTERS LOCAL UNION NO. 602
CINCINNATI INSURANCE CO., ET AL.
Circuit Court for Prince George's County Consolidated
Case Nos. CAL 15-38293, CAL 16-07205
Berger, Friedman, Eyler, James, R. (Senior Judge, Specially
James R., J.
litigation that resulted in these consolidated appeals
commenced on December 14, 2015, when Gordon Contractors, Inc.
("Gordon") and its insurers, Erie Insurance
Exchange ("Erie") and Continental Casualty Company
("Continental"), appellees, filed a complaint in
the Circuit Court for Prince George's County, Case No.
CAL 15-38293, against Steamfitters Local Union No. 602
("Steamfitters"), appellant. Gordon, Erie, and
Continental alleged that on or about April 6, 2015, a fire
that originated in a mulched strip of land on
Steamfitters' property caused damage to real and personal
property on Gordon's adjacent storage yard. Steamfitters
filed a third party complaint against the Heating, Piping and
Refrigeration Training Fund ("Training Fund"),
seeking contractual indemnification pursuant to an agreement
for the use of space, common law indemnification, and
second action was commenced on March 4, 2016, when Cincinnati
Insurance Company ("Cincinnati") filed a complaint
in the Circuit Court for Prince George's County, Case No.
CAL 16-07205, 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"). Cincinnati alleged that the April 6, 2015
fire that started in the mulched strip of land on
Steamfitters' property, spread to Falco's property
and caused substantial damage to real and personal property.
Steamfitters filed a third party complaint against the
Training Fund in that case as well.
April 2016, the two cases were consolidated. For ease of
reference, we shall refer to Gordon, Erie, Continental, and
Cincinnati collectively as either the plaintiffs or
and the Training Fund filed motions for summary judgment.
After a hearing, the court denied Steamfitters' motion
for summary judgment and granted summary judgment in favor of
the Training Fund. The cases against Steamfitters were tried
before a jury from July 17 to 20, 2017. The jury returned
verdicts in favor of the plaintiffs. Damages were awarded in
favor of Erie a/s/o 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 a/s/o Gordon in the amount of
$72, 338.48; and in favor of Cincinnati a/s/o Falco in the
amount of $119, 909.10. This timely appeal followed.
presents the following questions for our consideration:
I. Do commercial landowners owe their commercial neighbors a
duty of care to prevent third parties, with whom they have no
special relationship or vicarious responsibility, from
discarding cigarettes in mulch based solely on notice of
prior smoking activities on the property as evidenced by old
II. In asserting that a commercial landowner violated a duty
of care to prevent third parties from discarding cigarettes
in mulch does a Plaintiff need to provide the fact finder
with expert testimony as to reasonable, standard and
effective measures to prevent same?
III. Was Defendant prejudiced by the circuit court's
charging the jury with a spoliation instruction where the
only evidence of such spoliated evidence's existence is
testimony that the party requesting such instruction referred
to the evidence as useless and declined to copy same and
where a request to hold evidence which specifically
identified persons present at the time of the occurrence was
later received and further, where the evidence was only
"unbelievably close" to the area of interest and
did not directly show same?
IV. Was it proper for the circuit court to enter summary
judgment on an indemnity agreement as it did not expressly
call for one party to indemnify another for its own
negligence 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 as to how
the parties acted after a term of years specified in the
addition, appellees request that the appeal be dismissed
because Steamfitters failed to include certain agreed-upon
items in the joint record extract in violation of Md. Rule
8-501. Alternatively, they request that Steamfitters be
ordered to pay the costs incurred in preparing an appendix.
reasons set forth below, we shall deny the motion to dismiss,
affirm the circuit court's judgments, and order that the
costs to be paid by appellant pursuant to our mandate include
those costs incurred by appellees in preparing the appendix.
times relevant to the instant case, Gordon was the owner of a
storage yard, located at 8722 Ashwood Drive in Capitol
Heights, that it used to store materials for its construction
business. Falco occupied a commercial warehouse that was
adjacent to one side of Gordon's property and
Steamfitters owned property adjacent to the other side.
Gordon and Steamfitters' properties were separated by a
chain link fence with security slats. On Steamfitters'
side of the fence, there was a strip of land covered with
mulch, a parking lot abutting it, and a building used as a
union hall. The Training Fund operated an apprentice school
in the union hall pursuant to a written agreement with
Steamfitters for the use of space.
and Falco alleged that the April 6, 2015 fire started when an
unknown person discarded a lit cigarette into the mulch bed
on Steamfitters' side of the fence. Gordon and Falco did
not allege that Steamfitters was vicariously liable or that
it had a duty to control the unknown person, but proceeded
instead on the theory that Steamfitters, as the property
owner, failed to use reasonable care to prevent the
foreseeable risk of fire spreading to neighboring properties.
business manager and corporate designee, Daniel Loveless,
explained that, generally, most of the apprentices went
directly from their jobs to the Training Fund's
apprentice school and arrived between 2:30 and 5 p.m. Over
time, he observed that, prior to the start of classes,
apprentices napped, gossiped, minded their own business,
and/or drank beer. Mr. Loveless was responsible for property
maintenance. Although no employee was specifically assigned
the task of cleaning up trash along the fence line between
Steamfitters and Gordon's properties, Mr. Loveless had
done so 2 to 3 times prior to the fire. According to Mr.
Loveless, the mulch had not been replaced in a while, and the
ground was bare in spots. Mr. Loveless was not sure if he had
seen cigarette butts in the mulch prior to the fire, but
after the fire, he did observe cigarette butts in the mulch.
He 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. He was "pretty sure" that Steamfitters did
not have a smoking policy and that smoking was allowed
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'
Mastripolito, a corporate representative of Steamfitters,
walked through the mulched area 8 times between February 2015
and the date of the fire. He testified that he did not see
any cigarette butts in the mulch, but acknowledged that he
had bad 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[.]"
Crosby, an acting lieutenant and fire investigator assigned
to the Prince George's County 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 concluded that the fire originated along the fence
line between the Steamfitters and Gordon properties and that
constant wind on the day of the fire, with gusts up to 40
miles per hour, kept the fire low and pushed it down the
fence line toward a dumpster, where it grew. He opined that
embers from the mulch were blown by the wind into
Gordon's construction yard where they ignited combustible
foam insulation and caused the fire to grow. The foam
insulation liquified and ran down the parking lot to one side
of the Falco property, burning two fire trucks along the way.
to Lieutenant Crosby, the only possible ignition source was a
cigarette. A very large number of cigarette butts were found
in the mulch on Steamfitters' side of the fence, and
Lieutenant Crosby 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. He
acknowledged that the combustible foam insulation on
Gordon's property was stored too close to the fence line,
in violation of certain code provisions, but concluded that
because of the strong winds, it did not matter where that
material was stored.
parked on Gordon's lot sustained damage in the fire.
Lieutenant Crosby noted that the vehicles were burned from
left to right and that there was no damage on one side of
them. If the fire had started in one of the vehicles, it
would have been totally consumed. As a result, Lieutenant
Crosby ruled out the possibility that the fire started in one
of those vehicles.
reaching that conclusion, Lieutenant Crosby 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. Mr. Grasso went outside, saw flames and heavy
black smoke, went back inside, and told everyone to move
their vehicles. 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.
were surveillance cameras on the Falco property, on the
exterior of a church across the street from Steamfitters'
property, and on the exterior of Steamfitters' building.
Lieutenant Crosby obtained and reviewed video recordings from
the Falco property and the church and 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.
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.
operations manager, Dale Wauters, was familiar with
Gordon's construction yard and three trucks that were
burned in 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 4 feet wide
and 8 feet tall and long, stored approximately 3 to 4 feet
from the fence, and that the insulation packaging included a
warning that the product was combustible. He described a
slope of about 4 feet from the base of the fence to the flat
yard on 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 Gordon and Steamfitters' properties. According to
Mr. Wauters, the wind blew pine needles 20 to 30 feet into
Gordon's construction yard.
Berlin, Gordon's Chief Financial Officer, testified that,
prior to the fire, he was not familiar with any code
provision requiring 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 described the damage Gordon incurred as a result of
the fire including the destruction of a structure, 3
destroyed vehicles and a tow trailer, damaged containers,
hazardous material clean-up, and the loss of inventory. He
also testified that Gordon's lot was not scraped or
cleaned until sometime between June and October 2015, when a
company provided hazardous waste removal. The parties
stipulated that Erie paid Gordon $1, 039, 176.67 for its
hired fire investigator Michael Schaal, to investigate the
origin and cause of the fire. At trial, he was admitted as an
expert in fire origin, cause, growth, and spread. During his
investigation, Mr. Schaal 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, Mr. Schaal stated that the most significant factor
in the fire 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 specifically
noted that fire does not burn against the wind. According to
Mr. Schaal, burning mulch, leaves, and pine needles could
have been carried by the wind and ignited combustibles
"farther down the line." The location of the foam
insulation on Gordon's construction lot had no effect on
the cause of the fire and, because of the wind speed and
direction, would have burned regardless of whether it was
stored 4 feet or 20 feet from the fence. Mr. Schaal stated
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."
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 was observed at the ground level along the fence line.
In the video from the church, Mr. Schaal observed white smoke
drift across the parking lot for 23 minutes and then
instantly turn black. 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 that was
later observed was caused by the burning of the insulation.
He did not observe fire in the cab of any vehicle on
Gordon's lot, which would be expected if the fire
originated in a vehicle. Mr. Schaal 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,
the origin of the fire was on Steamfitters' side of the
photographs of the mulched area taken after the fire were
introduced into evidence. The photographs depicted a large
number of cigarette butts in varying condition. Appellees
argued that one could infer that the butts had been deposited
over a long period of time.
defense presented testimony from fire investigator Richard
Thomas Long, Jr., an engineer employed by Exponent, Inc., 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. He hypothesized that the fire
originated in the mulch on Steamfitters' side of the
fence. Mulch fires, however, are "very low intensity
fire[s]," that would not produce six-foot-tall flames.
According to Mr. Long, the burn patterns on the fence and
north of the 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.
Long testified that there were no pine needles, mulch, or
other "thick, porous debris" more than 5 to 6 feet
into Gordon's construction lot, there was no evidence
that the fire spread 15 feet into Gordon's construction
lot, and if the fire had come through the fence, it would
have spread only 5 to 6 feet before encountering gravel which
"doesn't burn." He maintained that the foam
insulation, which was "highly combustible," was too
close to the fence, which made it easier for it to ignite if
the wind pushed the mulch fire through the fence.
cross-examination, Mr. Long acknowledged that initially he
had developed two possible theories about the cause of the
fire. The first was, as he testified at trial, that the foam
insulation boards were too close to the fence and that they
ignited when the fire was pushed through the fence. His
second theory was that the fire started in a Ford F-250 truck
that was parked on Gordon's lot. That theory was based,
in part, on the testimony of Mr. Grasso who, as we have
already 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
untruthful, 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 Mr. Long had not previously noticed. Thereafter,
Mr. Long abandoned his opinion that the fire started in a
vehicle parked on Gordon's construction lot. At trial,
Mr. Long acknowledged that, in his deposition, he opined that
the burn patterns on the base of the fence, where Lieutenant
Crosby and Mr. Schaal placed the origin of the fire, were
caused by melting foam insulation that pooled in that area.
When asked how the melted insulation flowed up hill, Mr. Long
stated that there was not really a change in elevation at
evidence relating to the storage of insulation was relevant
to the defense of contributory negligence. The jury rejected
shall include additional facts as necessary in our discussion
of the issues presented.
TO DISMISS THE APPEAL
preliminary matter, we address a motion to dismiss the appeal
filed by Gordon, Erie, and Continental, and adopted by
Cincinnati. Those appellees argue that dismissal is warranted
because, without explanation, Steamfitters failed to comply
with Maryland Rule 8-501, which requires the appellant to bear
responsibility for creating a record extract. Specifically,
they contend that Steamfitters failed to include in the joint
record extract certain trial exhibits that, ultimately, were
included in an appendix to the brief filed on behalf of
Gordon, Erie, and Continental. Alternatively, Gordon, Erie,
and Continental seek reimbursement for the cost of preparing
the appendix that was attached to their brief.
Rule 8-501 clearly requires the parties to cooperate in the
preparation of the record extract and sets forth the
procedure to be used when the parties cannot agree on what
should be included. The rules of appellate procedure
"'are "precise rubrics" established to
promote the orderly and efficient administration of justice,
and thus are to be strictly followed.'" Lisy
Corp. v. McCormick & Co., Inc., 445 Md. 213, 224
(2015)(quoting Duckett v. Riley, 428 Md. 471, 477
(2012)). Sanctions for violations of Md. Rule 8-501(c) are
discretionary. Md. Rule 8-501(m); Tannehill v.
Tannehill, 88 Md.App. 4, 10 (1991); In re Joshua
W., 94 Md.App. 486, 491 (1993). We have observed that
dismissal of an appeal for an appellant's violation of
the rules is "a 'drastic corrective'
measure." Rollins v. Capital Plaza Assocs.
L.P., 181 Md.App. 188, 202 (2008)(quoting Brown v.
Fraley, 222 Md. 480, 483 (1960)). Reaching a decision on
the merits of a case "is always a preferred
alternative," and we will not ordinarily dismiss an
appeal "in the absence of prejudice to appellee or a
deliberate violation of the rule." Joseph v. Bozzuto
Mgmt. Co., 173 Md.App. 305, 348 (2007).
case at hand, appellant prepared a joint record extract, but
failed to include certain exhibits requested by counsel for
Erie. There is no evidence to suggest that Steamfitters'
failure to include the exhibits was purposeful. Nevertheless,
appellees Gordon, Erie, and Continental, who filed a joint
brief, bore the expense of preparing an appendix containing
the exhibits that were excluded from the record extract.
Aside from that additional expense, there is no indication
that the parties were prejudiced as a result of
Steamfitters' failure to include the exhibits in the
record extract. For that reason, we shall deny the motion to
dismiss the appeal, but note that the costs to be paid by
appellant pursuant to our mandate shall include those costs
incurred by Gordon, Erie, and/or Continental in preparing the
appendix to their brief.
contends that the trial court erred in denying its motion for
judgment because commercial landowners do not owe commercial
neighbors a duty of care to prevent third parties, with whom
they have no special relationship or vicarious
responsibility, from discarding cigarettes in mulch based
solely on notice of prior smoking activities on the property
as evidenced by old cigarette butts. According to
Steamfitters, it did not violate a rule or statute, there was
nothing dangerous or illegal about the condition of its
property, and it had no special relationship with its
commercial neighbors that would establish a duty to protect
them from the acts of a third party. Steamfitters maintains
that a discarded cigarette is not a condition of real
property and that there was "nothing special about the
mulch at issue," as it was not placed or stored in an
unreasonable manner and is a commonly used product.
Steamfitters argues that, although foreseeability of harm is
a factor in determining whether a duty of care exists, it is
not, by itself, sufficient to establish a duty of care.
Specifically, with regard to the condition of its property,
was nothing about the condition of the property that was
dangerous or illegal. Prior to the fire, the subject property
contained mulch next to a fence. The mulch allegedly
contained cigarette butts of indeterminate age. Those
cigarette butts were not dangerous or illegal. They had been
smoked and spent. For any danger to exist a third party had
to commit an action and discard a cigarette. Plaintiffs, as
mere neighbors with Steamfitters, were owed no duty of care
by Steamfitters to protect Plaintiff from the torts of third
persons. The relationship between commercial neighbors (if
any) cannot and does not create any sort of special
counter that, under 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.
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.
Despite its knowledge, Steamfitters took no action to prevent
the foreseeable risk that a fire might start and spread to
the particular facts of this case, appellees are correct.
Standard of Review Regarding Duty of Care
considering a trial court's decision to deny a motion for
judgment, we apply the following standard of review:
We review a trial court's decision to grant or deny a
motion for judgment applying the de novo standard of
review. DeMuth v. Strong, 205 Md.App. 521, 547
(2012). "In the trial of a civil action if, from the
evidence adduced that is most favorable to the plaintiff, a
reasonable finder of fact could find the essential elements
of the cause of action by a preponderance standard, the issue
is for the jury to decide, and a motion for judgment should
not be granted." Id. (citation omitted).
Wallace & Gale Asbestos Settlement Trust v.
Busch, 238 Md.App. 695, 705, cert. granted, 462
Md. 84 (2018). We perform the same task as the trial court,
affirming the denial of the motion for judgment "if
there is 'any evidence, no matter how slight, that is
legally sufficient to generate a jury question.'"