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Macias v. Summit Management, Inc.

Court of Special Appeals of Maryland

November 21, 2019


          Circuit Court for Montgomery County Case No. 434536-V

          Meredith, Leahy, Beachley, JJ.


          LEAHY, J.

         Eight-year-old Damien Macias and his two younger siblings, Gabrial and Olivia, accompanied their mother one summer day in 2013 to the Waters House Condominium complex in Germantown, Maryland to visit their grandparents. While playing outside, Damien and Gabrial climbed atop the Waters House community sign made of large stones ("community sign"). After about ten minutes the boys decided to jump down and go back inside. When they went to dismount, they held onto the edge of a flat stone, which identifies the complex as "Waters House." The flat stone dislodged from the larger stonework holding it, causing the boys to fall to the ground, and the flat stone to fall on top of Damien. Damien suffered serious injuries to his chest and legs as a result and was transported to Children's Hospital for treatment.

         Damien, and his father as next friend, filed a negligence action in the Circuit Court for Montgomery County against the Council of Unit Owners of Waters House Condominium ("Council") and Summit Management ("Summit" or collectively with Council as "Appellees"). The circuit court granted summary judgment in favor of Appellees. The court ruled that Damien was a bare licensee when he climbed the community sign because he was on it without the consent of the owner. The court also held, however, that even if Appellees owed Damien a greater duty of care, summary judgment was appropriate because (after close of discovery) there was no evidence that Appellees had any notice that the children had been climbing on the sign or any reason to suspect that the sign was in any way dangerous or defective. Damien and his father ("Appellants") noted a timely appeal and present the following question:

[Did] the circuit court err[] by granting Appellees' motion for summary judgment and determining that Damien was a bare licensee and not an invitee when he played on the welcome sign on the grounds of the residence in which his grandparents resided?

         We conclude, based on the material facts not in dispute in this case, that Damien was an invitee at the time he and his brother played on and around the community sign located in the common area of the condominium complex. Even allowing that Appellees owed Damien the highest duty as an invitee, we hold that the court decided correctly that Appellants failed to establish a prima facie case of negligence because the record reflects that Appellees did not have actual or constructive knowledge of any dangerous or defective condition, or that by the exercise of reasonable care, Appellees could have discovered the condition in time to warn Damien. Restatement (Second) of Torts § 343 (1965); Hansberger v. Smith, 229 Md.App. 1, 13, 21 (2016). Accordingly, we affirm the court's grant of summary judgment.


         The record evidence at summary judgment consisted primarily of the depositions of Damien and his parents, as well as some photographs of the community sign and surrounding area.[1] The following facts contained in the record were not disputed before the trial court.

         The Macias family made frequent visits to Waters House Condominium complex where Larry and Maria Ward, Damien's grandparents, have owned a unit in the complex since 2005. The condominium complex was, at the time of the incident, managed by Summit. The community sign faces an intersection and the area behind it is grassy and landscaped with several trees and bushes. There is no sign or fencing indicating that the community sign or the area around it is off limits to guests. A playground is located on the grounds on the side opposite of the grandparents' condominium from where the sign is located.

         Damien's father, Damien M. Macias, did not accompany the family to the Wards' condominium on July 6 because he had to work. While playing outside that day, Damien and his brother Gabrial, who was age six at the time, climbed atop the community sign, a five-foot-tall stone wall in which the flat stone sign was embedded.[2] Damien stated during his deposition that he wanted to sit on top of the wall so that he could watch cars passing on the street. He grabbed onto the top of the ledge and climbed up the back of the community sign. Gabrial followed and the two sat on top looking at cars for about 10 minutes before deciding that they wanted to go back inside. Gabrial was scared to jump off the wall, so Damien suggested that they climb down the front where there were more handholds and footholds available.

         When Damien went to dismount, he grabbed onto the top of the flat stone sign that was attached to the stone wall. Gabrial followed almost immediately after. Damien was able to push Gabrial out of the way to prevent him from being injured before the sign fell on top of Damien. No adult was outside with the boys directly supervising them at the time of the accident. Their mother, Mrs. Leticia Macias, stated in her deposition that she was inside cooking, but that her mother was outside with Olivia gardening and her father could see the boys playing from inside the condominium by looking out of the bay window.

         Mrs. Macias testified during her deposition that this was not the first time the boys had climbed on top of the community sign. She explained that their father had "frequently" sat the boys atop the wall to watch firetrucks pass by. She further testified that it was the habit of the boys to play outside in the area around the community sign because it was visible from the bay window inside the Ward's condominium.

         When prompted, Mrs. Macias admitted that she had never seen any children other than her own climbing the sign. She also agreed that, prior to the accident, she did not know of any defect in the construction of the community sign and there was no visible indication that it could present a danger. Damien also admitted, during his deposition, that his first indication that the community sign was dangerous occurred as he was climbing down the front of it and the flat stone began falling on top of him. He acknowledged that on previous ventures on and around the community sign, he had never heard any suspicious sounds or felt any movement that would suggest a problem. He also agreed that the community sign was in good shape visibly on the day of the accident.

         Damien's father explained during his deposition that the community sign "looked secure and safe" and that is why he allowed his children to play on it. He admitted that no one from the Council or Summit had given the children permission to climb on the community sign. He stated that, to his knowledge, no one else had ever been injured by coming into contact with the community sign, and he had no knowledge of the flat stone sign falling out of its stone framework on any prior occasion.

         The Complaint

         On July 18, 2017, Appellants filed a two-count complaint in the Circuit Court for Montgomery County asserting negligence claims against the Council and Summit.[3] They charged that Appellees breached their duty owed to Damien, as an invitee on the premises of Waters House, by failing to inspect the community sign and failing to warn of any foreseeable dangers. They also alleged that the law imposed a "more stringent duty of care" on Appellees under the doctrine of attractive nuisance.[4]

         Appellees filed an answer generally denying liability and asserting that the complaint failed to state a claim upon which relief could be granted. They also asserted nine affirmative defenses, including assumption of the risk and contributory negligence.

         Motion for Summary Judgment

         After the close of discovery, on April 6, 2018, Appellees filed a motion for summary judgment. Appellants filed an opposition, and the parties appeared in the circuit court for a hearing on June 19. In support of their motion, Appellees argued that Damien was a trespasser at the time he was injured because there was no invitation, express or implied, for Damien to climb the community sign. Appellees pointed out that neither Damien nor Mr. Macias testified that Appellees had in any way given Damien permission to play, or induced him to play, on the community sign. Relying on Osterman v. Peters, 260 Md. 313 (1971), Barnes v. Housing Authority of Balt. City, 231 Md. 147 (1963), and Levine v. Miller, 218 Md. 74 (1958), among other cases, Appellees averred they owed him no duty except to refrain from "willful or wanton misconduct and entrapment." Furthermore, they contended that, even if Damien was an invitee, thereby imposing a higher duty of care on Appellees, there was no evidence produced during discovery that Appellees had notice of any dangerous condition. They asserted: "it is undisputed that no one else had ever been injured climbing [the] wall[, ] . . . that the wall was not in poor or bad disrepair[, ] . . . and that [Appellees] did not know that any children or any individuals had ever climbed on [the] wall before." Appellees highlighted that the record lacked any evidence that they had knowledge of a defect in the construction of the community sign or that they had knowledge that the Macias children sometimes climbed on it. Appellees noted that all three deponents testified that they, also, did not have any notice of any danger or risk associated with the sign. Finally, Appellees asserted that Damien was contributorily negligent, or, in the alternative, that he assumed the risk of injury when he climbed down the front wall holding onto the flat stone in the sign.

         To the contrary, Appellants maintained that the community sign was located in the common area within the condominium complex and, therefore, Appellees had a duty to use reasonable care to ensure the sign was safe. Appellants analogized the duty of Appellees to that of a landlord, who has a duty to keep common areas safe, both for tenants and their guests. They argued that, because there were no warning signs or barriers to prevent climbing, there was an implied invitation for Damien to climb the community sign. They stressed that because Damien did not know of any risks associated with the community sign, he could not have been contributorily negligent, nor could he have assumed a risk that was not known. Considering these "many areas of dispute," Appellants asserted that the case should be resolved by the trier of fact rather than on summary judgment.

         The judge commenced his ruling from the bench in favor of Appellees, by observing that

an 8-year-old-boy is going to explore and he's going to climb on things . . . [i]t would be hard for me to find that there's a duty on the part of the landlord to say, put up a sign. Children if you want to play, don't play here. You got to . . . expect 8-year-olds and 6-year-olds to read it, comprehend it and understand it. And that's why the parents are responsible.

         But the judge also recognized, in commenting on the father's "passive approval" of the children climbing the sign, that it

probably does appear harmless if there is only about a five foot [sic] and it's a wall … [i]t doesn't have barbed wire, doesn't seem to have any electrical wires coming out of it. There's no road going right by it. So, to a dad, you're not saying, oh, no, don't go near that sign because you could jump on it, it could fall and can hit you, kind of thing that's a very freak thing.

         The judge then noted that the community sign was "not a designated climbing area. [] [N]o one's inviting children to play there. It's basically just advertising the complex." Accordingly, the judge announced that he would treat Damien as a bare licensee because he was on the community sign without the owner's consent. He steered away from calling Damien a "trespasser, which is a little harsh for a little guy[, ]" but noted that he understood the legal distinction "when you go from an authorized area to one that you're not authorized [sic]." Given that the only duty owed to a licensee or trespasser is to "refrain from willful injury or entrapment," the court found that there was "no indication that [] there was any willful injury or entrapment."

         The judge continued, however, by ruling that, even if Damien were "a social guest or licensee by invitation," there was no evidence in the record to support a finding that Appellees had knowledge or reason to know of "an unsafe condition or [that] anybody might get hurt there." With no evidence that Appellees knew or should have known of any potential danger, the court ruled that Appellees did not breach the duty to exercise reasonable care to make the premises safe or warn guests of a known danger. The judge reasoned:

There was no reported history of anybody else getting hurt. There was nothing visible, [no] nail sticking out, or anything like that that would put the owner on notice that it was a situation where someone could fall or get hurt or that the sign might give way if you jump on it. There was no indication that children traditionally jumped and played on that sign and swung on it. There was no indication [in] the record that there was any reason to believe that it was a dangerous situation.

         The judge observed that "It was a freak thing that happened and nobody, maybe even if you were a little older, would you think, you would appreciate that risk." He stated that he was not prepared to find that Damien, as an eight-year-old child, assumed the risk or that he was contributorily negligent as there was nothing in the record to show the community sign might pose a danger to anyone. The judge observed, "[y]ou know you get to those areas if, in fact, there's negligence." In conclusion, the court ruled: "I find that there was no genuine dispute of any material[] facts. And I find as a matter of law, there was no duty on the part of the landlord to do any more than what was done there." This appeal timely followed.



         A. Standard of Review

         We review the circuit court's grant of summary judgment without deference. Koste v. Town of Oxford, 431 Md. 14, 25 (2013) (quoting D'Aoust v. Diamond, 424 Md. 549, 574 (2012)). Maryland Rule 2-501(f) provides that a circuit court shall enter summary judgment in favor of the moving party "if the motion and response show that there is no genuine dispute as to any material fact" and the moving party "is entitled to judgment as a matter of law." Thus, we must first ascertain, independently, whether a dispute of material fact exists in the record on appeal. Hill v. Knapp, 396 Md. 700, 711 (2007); Richardson v. Nwadiuko, 184 Md.App. 481, 488 (2009). "[O]nly where such dispute is absent will we proceed to review determinations of law[, ]" and then we will "construe the facts properly before the court, and any reasonable inferences that may be drawn from them, in the light most favorable to the non-moving party." Remsburg v. Montgomery, 376 Md. 568, 579- 80 (2003) (citations omitted). When analyzing the decision of the circuit court, we consider only the grounds for granting summary judgment relied upon by the court. Landaverde v. Navarro, 238 Md.App. 224, 241, cert. denied sub nom., Parrish Servs. v. Landaverde, 461 Md. 502(2018); Deboy v. City of Crisfield, 167 Md.App. 548, 554 (2006).

         Maryland premises-liability law allows disposition on summary judgment when the pertinent historical facts are not in dispute. See, e.g., Hansberger, 229 Md.App. at 13, 21-24 (affirming a grant of summary judgment in favor of possessor of farm based on lack of any knowledge of late-night field party on the farm); Richardson, 184 Md.App. at 483-84 (affirming a grant of summary judgment in favor of defendants where, although the lower court erred in concluding that patient was a bare licensee, the court determined correctly that plaintiffs failed to establish a prima facie showing of negligence); see also Barnes, 231 Md. at 152-53 (affirming a directed verdict in favor of defendant on the issue of whether plaintiff was a trespasser or an invitee and instructing that when it is manifest that, "on the plaintiff's own showing and the uncontradicted evidence in the case, there is no rational ground on which a verdict for the plaintiff can be based, the court has the duty, on a proper motion by the defendant, to direct a verdict for him" (citing Landay v. Cohn, 220 Md. 24 (1959); Levine, 218 Md. 74)); but see Sutton-Witherspoon v. S.A.F.E. Management, Inc., 240 Md.App. 214, 218 (2019) (holding that circuit court erred in granting summary judgments in premises-liability case by failing to address plaintiffs' alternative theory of negligence set out in complaint).[5]

         Before we can set aside the trial court's ruling granting summary judgment in favor of Appellees, Appellants must show either that there was a material fact in dispute involving one of the elements of negligence, or that Appellees were not entitled to judgment as a matter of law. Wells v. Polland, 120 Md.App. 699, 709 (1997).



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