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Steamfitters Local Union No. 602 v. Erie Insurance Exchange

Court of Special Appeals of Maryland

May 30, 2019

STEAMFITTERS LOCAL UNION NO. 602
v.
ERIE INSURANCE EXCHANGE, ET AL. STEAMFITTERS LOCAL UNION NO. 602
v.
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 Assigned), JJ.

          OPINION

          Eyler, James R., J.

         The 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 contribution.

         A 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.

         In 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 appellees.

         Steamfitters 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.[1] This timely appeal followed.

         QUESTIONS PRESENTED

         Appellant 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 cigarette butts?
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 contract expired?

         In 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.

         For the 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.

         FACTUAL BACKGROUND

         At all 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.

         Gordon 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.

         Steamfitters' 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' property.

         John 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[.]"

         Wayne 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.

         According 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.

         Vehicles 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.

         In 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.

         There 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.

         Lieutenant 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.

         Gordon's 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.

         Bruce 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 property damage.

         Erie 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."

         Mr. 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 fence.

         Several 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.

         The 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.

         Mr. 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.

         On 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 that point.

         The evidence relating to the storage of insulation was relevant to the defense of contributory negligence. The jury rejected that defense.

         We shall include additional facts as necessary in our discussion of the issues presented.

         MOTION TO DISMISS THE APPEAL

         As a 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[2], 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.

         Maryland 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).

         In the 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.

         DISCUSSION

         I.

         Steamfitters 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, Steamfitters argues:

         There 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 relationship.

         Appellees 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 adjoining properties.

         Under the particular facts of this case, appellees are correct.

         A. Standard of Review Regarding Duty of Care

         In 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.'" C&M ...


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