Maryland Trial Courts Generally
Statute of Limitations
Selected Immunities
Insurance
Selected Theories of Liability
Children: Claims, Liabilities and Related Issues
Animals
Compensatory Damages for Bodily Injury
Punitive Damages
Survival Actions and
Wrongful Death Actions
Maryland Uniform Contribution Among Joint Tortfeasors Act

 

Law Summary

V. SELECTED THEORIES OF LIABILITY

  1. Negligence:

    Maryland's definition of negligence, utilizing as it does principles of ordinary care and proximate cause, is essentially the same as that employed in other jurisdictions. The essential elements of a cause of action for negligence are:
    • A duty recognized by the law which requires conformance to a certain standard of conduct;
    • A breach of that duty;
    • A causal connection between the breach of that duty and the resulting injury; and
    • Actual damage suffered.


    Moscarillo v. Professional Risk Management Services, Inc., 398 Md. 529, 921 A.2d 245 (2007);Muthukumarana v. Montgomery County, 370 Md. 447, 805 A.2d 372 (2002).

    1. What is the effect of the contributory negligence of a plaintiff? Under Maryland law a plaintiff's contributory negligence is a complete bar to recovery as the trier of fact is not permitted to apportion fault between a plaintiff and a defendant on a percentage basis. Harrison v. Montgomery County Bd. of Educ., 195 Md. 442, 456 A.2d 894 (1983). The standard of care imposed on a person in a contributory negligence analysis is that of a reasonable person under similar circumstances. Kassoma v. Magot, 368 Md. 113, 792 A.2d 1102 (2002). The Maryland courts have held that any change in Maryland law to adopt a comparative negligence standard should be made by the Maryland Legislature. Maryland law does utilize the concept of joint and several liability. See section XI below.

    2. Is a plaintiff's assumption of the risk a complete bar to recovery? Yes. Under Maryland law a plaintiff who, with both knowledge and understanding of a danger or risk, voluntarily exposes himself to that risk is barred from a recovery. Morgan State v. Walker, 397 Md. 509, 919 A.2d 21 (2007); Blood v. Hamami, 143 Md. App. 375, 795 A.2d 135 (2002). The standard to be applied in judging whether the plaintiff had knowledge and appreciation of the risk is an objective one. As stated by the Maryland courts, "a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him." Crews v. Hollenbach, 358 Md. 627, 751 A.2d 481 (2000).

    3. Negligent Entrustment: Maryland has adopted § 390 of the Restatement (Second) of Torts to the effect that:

      One who supplies directly or through a third person a chattel for use of another whom the supplier knows or has reason to know to be likely because of his youth, inexperience or otherwise, to use it in a manner involving unreasonable risk of physical harm to himself and to others whom the supplier should expect to share in or be endangered by its use, is subject to liability for physical harm resulting to them. Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436 (1997).

      The key element is the right of the supplier to control the chattel and in Maryland, the right of control is measured at the time of the negligent act of the "entrustee" not at the time the chattel is entrusted. Thus, for example, when the parents of an adult child, knowing of the child's extreme incompetence, gave the child an automobile that was then titled in the child's name, they were nonetheless held not liable on a negligent entrustment theory when the child negligently injured another. Broadwater v. Dorsey, 344 Md. 548, 688 A.2d 436 (1997) (absent from this scenario, in the court's analysis, was the element of control: i.e., in Maryland it is only when the entrustor has the power to control the vehicle or the operator or both that a negligent entrustment arises).

    4. Negligent Hiring: In Maryland, an employer may be held liable to a third person for injuries caused by an employee under a negligent hiring theory if the employee posed an unreasonable risk of harm to members of the public and the employer knew or should have known of such a risk. Henley v. Prince George's Co., 305 Md. 320, 503 A.2d 1333 (1986).

      1. Ordinarily, is an employer required to search for and consider the criminal record of a potential employee? No. Evans v. Morsell, 284 Md. 160, 395 A.2d 480 (1978); Athas v. Hill, 300 Md. 133, 476 A.2d 710 (1984);

      2. Is it a good idea for an employer to search for and consider the criminal record of a potential employee especially where that employee will be required to deal closely with members of the public? Yes. Although it did not expressly overrule Evans and Athas, dicta in the 1985 case of Cramer v. Housing Opportunities Commission suggests that such a duty of inquiry may exist in cases where the potential employee, in that case a housing inspector, may have access to either the premises of tenants or personal information regarding tenants. Cramer, 304 Md. 705, 401 A.2d 35 (1985);

      3. NOTE: In Evans v. Morsel it was held that, in Maryland, "there is a rebuttable presumption that an employer uses due care in hiring an employee."

    5. Admission of negligence does not establish liability: The mere admission of negligence without a concession on damages suffered cannot establish liability as a matter of law. Therefore, where a motorist who rear-ended another but disputed damages obtained a verdict in his favor because the jury did not find that the Plaintiff sustained an injury, that verdict was affirmed. Hurt v. Chavis, 128 Md.App. 626, 739 A.2d 924 (1999).

      1. Nor is jury obliged to accept plaintiff's unrebutted claim of injury: Not an abuse of discretion for trial judge to deny motion for new trial where, in a case in which liability was accepted, the jury rejected the medical expert testimony of plaintiff's witness and refused to award damages. Edsall v. Huffaker, 159 Md. App. 337, 859 A.2d 274 (2004).

    6. Acts in Emergencies: A sudden and real emergency may excuse an otherwise negligent driver's conduct where the trier of fact finds that choice[s] made by the driver are the same as those that would be made by a reasonably prudent driver under the same circumstances. Rustin v. Smith, 104 Md.App. 676, 657 A.2d 412 (1995).

      1. The sudden emergency instruction (to the jury) is not available to a defendant whose negligence created the emergency. Baker v. Shettle, 194 Md. 666, 72 A.2d 300 (1950);

      2. In Maryland, the question of whether or not conduct is excused by a sudden emergency is in all but the rarest of cases, a question for the jury. Warnke v. Essex, 217 Md. 183, 141 A.2d 728 (1958).

    7. Unavoidable accident: Maryland does not recognize unavoidable accident as a separate defense in a motor claim. As a consequence, a party arguing unavoidable accident is not entitled to a jury instruction explaining the defense. Fry v. Carter, 375 Md. 341, 825 A.2d 1042 (2003).

    8. Violations of Statutory Provisions as Evidence of Negligence: In Maryland, the violation of a statute which is a cause of a plaintiff's injury is evidence of negligence never negligence per se. Absolon v. Dollahite, 376 Md. 547, 831 A.2d 6 (2003); Richmond Joint Venture 4 v. Brunson, 335 Md. 661, 645 A.2d 1147 (1994).

      In order for the violation to be evidence of negligence the statute must have been enacted for the purpose of protecting the public from the wrongful act of which the plaintiff complains. Joseph v. Bozzuto, 173 Md. App. 305, 918 A.2d 1230 (2007). For example, the absence of statutorily required brake lights may be evidence of negligence in a motor tort case but the absence of a statutorily required driver's license will not be so.

      1. By statute in Maryland, the failure of an individual to use a seatbelt as required by Maryland law may not be considered evidence of negligence, limit the liability of a party or an insurer or diminish a recovery of damages. Maryland Transportation Code Annotated § 22-412.3(h).

    9. Employer's Vicarious Liability for the Acts of its Employees: Under Maryland law, it is well-settled that conduct is within the scope of employment only when it advances the interests of the employer. Sawyer v. Humphreys, 322 Md. 247, 587 A.2d 467 (1991). The test for determining scope of employment focuses on the allegedly wrongful conduct and whether that conduct advanced the employer's interest, not on where or when that conduct occurred. That is, even if improper acts are "during normal duty hours and at an authorized locality," there are not within the scope of employment where the employee "is acting to protect his own interests" rather than furthering the employer's business. Sawyer, 322 Md. 247, 587 A.2d 467 (1991).

      For example, if a truck driver, in the employ of a transit company, negligently causes a loss in an automobile accident, his employer may well be liable for the ensuing harm as its interest, the transportation of goods, was precisely being furthered in and by the very conduct that negligently brought the harm. If an employee harms another by his intentional and criminal conduct, however, not in fulfillment of his duties and responsibilities but, rather, in advance of some personal agenda, liability cannot be imposed on the employer in accordance with Maryland law. By way of example, see LePore v. Gulf Oil Corporation, 237 Md. 591, 207 A.2d 451 (1965) (a bill collector stepped outside of the scope of employment when he assaulted an employee of the business from whom he was collecting a debt).

      1. Are there circumstances under which an employer may be held liable for an employee's use of physical force against another? Yes. Maryland appellate courts have historically affirmed the view, found in the Restatement (Second) of Agency, § 245, that an employer's liability for an employee's use of force against another depends on whether or not that use of force was foreseeable to the employer because the employment is such as to likely "bring the servant into conflict with others." An example of the application of this principle can be found in the decision of the Maryland Court of Special Appeals in Market Tavern v. Bowen, 92 Md.App. 622, 610 A.2d 295 (1992), where the court held that precisely because the employees in Market Tavern were employed as "bouncers" with the authority to "break up fights, restore order, and defend themselves or others," the question of whether or not an assault by these employees on a customer could be considered within the scope of employment was a question for the jury to resolve.

      2. Effect of off-duty police officer's public official immunity on negligence claim against business employing officer as a security guard: Person who acts negligently in the scope of his employment, even an off-duty public official such as a police officer employed as a security guard, is not entitled to public official immunity. Even if he could be considered a public official entitled to immunity, that immunity would not extend to the business that employed the officer as a security guard. Lovelace v. Anderson, 366 Md. 690, 785 A.2d 726 (2001), reversing Maryland Court of Special Appeals that had held that a hotel guest's claim against the hotel was barred by the public official immunity of its security guard, an off-duty police officer.

    10. Maryland does not have a dram shop law: No Maryland statute imposes liability on the seller of alcoholic beverages for injuries caused by the purchaser of such beverages. Veytsman v. New York Palace, 170 Md. App. 104, 906 A.2d 1028 (2006); Wright v. Sue & Charles, Inc., 131 Md. App. 466, 749 A.2d 241 (2000); Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981);

      1. Nor does Maryland common law impose such a liability. Moran v. Foodmaker, Inc., 88 Md.App. 151, 594 A.2d 587 (1991);

        1. Even if sold to a minor in violation of state law. Felder v. Butler, 292 Md. 174, 438 A.2d 494 (1981); and

        2. Even if sold to intoxicated patrons. Moran v. Foodmaker, Inc., 88 Md.App. 151, 594 A.2d 587 (1991).

    11. Automobile Guest Statute: Maryland has no such statute. As a consequence, the rule in Maryland is that the operator of a motor vehicle owes an invited guest a duty to use ordinary and reasonable care so as to avoid injury to the guest. Kaffl v. Moran, 233 Md. 473, 197 A.2d 240 (1964).

    12. Exculpatory Agreements: Generally, in Maryland, exculpatory agreements are treated as contracts and are valid in the absence of a public policy to the contrary. Boucher v. Riner, 68 Md.App. 539, 514 A.2d 485 (1986) (exculpatory agreement in favor of parachuting club enforceable). "It is quite possible for the parties expressly to agree in advance that the defendant is under no obligation to care for the benefit of the plaintiff, and shall not be liable for the consequences of conduct which would otherwise be negligent." Winterstein v. Wilcom, 16 Md.App. 130, 293 A.2d 821 (1972) (exculpatory agreement in favor of drag racing track enforceable); Seigneur v. National Fitness Institute, Inc., 132 Md.App. 271, 752 A.2d 631 (2000) (unambiguous exculpatory clauses are generally held to be valid).

      1. Exceptions: Maryland law recognizes two exceptions to this general rule:

        1. Where the relationship of the parties is such that one party has an obvious bargaining disadvantage: See Boucher v. Riner, 68 Md. App. 539, 514 A.2d 485 (1986) (no such disadvantage found where parachuting student joined the club voluntarily and could have avoided the waiver by choosing to pay an additional fee);

        2. Where the transaction is affected by public interest, e.g., a service of great importance or practical necessity, subject to public regulation, etc. Boucher v. Riner.

          NOTE: Evidence of gross negligence, defined in Maryland as conduct reflecting "a premeditated decision" amounting to a "wanton or reckless disregard for human life," will negate an otherwise valid exculpatory clause. Boucher v. Riner.

    13. Landlord duty of care: A landlord's duty of care with respect to a dangerous or defective condition depends upon the existence of three circumstances: (1) the landlord controlled the dangerous or defective condition; (2) the landlord knew or should have known of the condition; and (3) the harm suffered was a foreseeable result of that condition. Rhaney v. UMES, 388 Md. 585, 880 A.2d 357 (2005); Hemmings v. Pelham Wood Ltd., 375 Md. 522, 826 A.2d 443 (2003).

  2. Products Liability:

    1. Generally:

      1. In Maryland, as elsewhere, a product may be considered defective in any one of three ways: because of a defect in the product's design; because of a defect in the manner in which the particular product was manufactured; or in the manufacturer's failure to adequately warn of the risk of hazard associated with the product. Hood v. Ryobi North America, Inc., 17 F.Supp. 2d 448 (D.Md. 1998);

      2. Typically such claims are advanced through any or all of the following theories: negligence (design, manufacturing, warning); strict products liability (design, manufacturing, warning); and, breach of express or implied warranties under the Maryland Commercial Law Code Annotated (design, manufacturing, warning).

    2. Negligence:

      1. Generally: fundamental negligence principles apply: duty, breach, causal relationship and damages. Banks v. Iron Hustler Corp., 59 Md.App. 408, 475 A.2d 1243 (1984);

      2. Negligent design and manufacture: a manufacturer has a duty to exercise reasonable care in the design and manufacture of a product to ensure that the product is safe for any reasonably foreseeable use;

        1. In addition to proof of a specific defect, the plaintiff must prove that the manufacturer must have known or through the exercise of reasonable care would have been able to discover the defect. Frericks v. General Motors Corp., 274 Md. 288, 336 A.2d 118 (1975);

        2. Compliance with a statutory standard is evidence of due care but does not preclude a finding of negligence for the failure to take additional precautions. Ellsworth v. Sherne Lingerie, Inc., 303 Md. 581, 495 A.2d 348 (1985).

      3. Negligent failure to warn: where despite reasonable efforts to do so, a product still cannot be made safe for its reasonably foreseeable use, a manufacturer who knew or should have known of the risk has a duty to provide a warning of the danger.

        1. A manufacturer has no duty to warn of an open and obvious danger in its product. Emory v. McDonnell Douglas Corp., 148 F.3d 347 (4th Cir. 1998);

        2. In determining whether a manufacturer should have known of a hazard in its product, the manufacturer is held to the knowledge of an expert in the field. The manufacturer is charged with the responsibility of keeping abreast of scientific knowledge, discoveries and advances. Higgins v. Diversey Corp., 998 F.Supp. 598 (D.Md. 1997);

        3. Maryland law recognizes a continuing duty to warn of product defects which the manufacturer discovers after the time of sale. This duty may arise even if the product was reasonably safe for use at the time of its manufacture and sale. U.S. Gypsum Co. v. Mayor and City Council of Baltimore, 336 Md. 145, 647 A.2d 405 (1994); and despite the fact that the manufacturer may no longer manufacture and sell the particular product. Ragin v. Porter Hayden Co., 133 Md.App. 116, 754 A.2d 503 (2000).

    3. Strict Products Liability:

      1. Generally: to recover in an action based on strict liability, the plaintiff must establish that (1) the plaintiff was the user or consumer of an alleged defective product; (2) the defendant was the seller of the product and at the time of sale was engaged in the business of selling such a product; (3) at the time of sale the product was defective; (4) the product reached the plaintiff without substantial change in the condition in which it was sold; (5) the defect made the product unreasonably dangerous to the plaintiff; and (6) the defect proximately caused the plaintiff's injuries. Lloyd v. GM, 397 Md. 108, 916 A.2d 257 (2007);

      2. The strict liability action is distinguishable from a negligence action in two respects: (1) the burden of proof for a plaintiff injured by a defective product is eased by eliminating the need to establish negligence on the part of the manufacturer and (2) the contributory negligence of the plaintiff will not bar a recovery. Ellsworth v. Sherne Lingerie, Inc., 60 Md.App. 104, 481 A.2d 250 (1984);

        1. The focus in a strict liability action is not on the conduct of the manufacturer but on the product itself. Binakonsky v. Ford Motor Co., 133 F.3d 281 (4th Cir. 1998).

    4. Warranty:

      1. Generally: claims related to allegedly defective products may also be advanced under any or all of the following warranties which are set forth in the Maryland Commercial Law Code: breach of express warranty, § 2-313; breach of an implied warranty of merchantability, § 2-314; and, breach of an implied warranty of fitness for a particular use, § 2-315;

      2. Breach of express warranty: in order to recover the plaintiff needs to establish that the product sold did not conform to the representation of the warranty at the time it left the control of the defendant. Sheeskin v. Giant Food, Inc., 20 Md.App. 611, 318 A.2d 874 (1974);

        1. No defect other than a failure to conform to the warrantor's representations need be shown in order to establish a breach of an express warranty. McCarty v. E.J. Korvette, Inc., 28 Md.App. 421, 347 A.2d 253 (1975);

        2. Failure to conform to the warranty must, however, be the proximate cause of the injuries. Reed v. Sears Roebuck & Co., 934 F.Supp. 713 (D.Md. 1996).

      3. Implied warranty of merchantability: Maryland law provides that "a warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind." Maryland Commercial Law Code Annotated § 2-314. The warranty is that the product is fit for its ordinary purpose. Fellows v. USV Pharmaceutical Corp., 502 F.Supp. 297 (D.Md. 1980);

        1. Under § 2-314, the serving of food or drink to be consumed either on the premises or elsewhere is a sale. As a consequence, under Maryland law there is an implied warranty that restaurant food, eaten on the premises or taken out, is fit for its ordinary purpose. Yong Cha Hong v. Marriott Corp., 656 F.Supp. 445 (D.Md. 1987) (carry-out fried chicken);

        2. In order to recover, a plaintiff must show: (a) that the warranty existed; (b) that the warranty was broken; and, (c) that the breach of warranty was the proximate cause of the injury. Sheeskin v. Giant Food, Inc., 20 Md.App. 611, 318 A.2d 874 (1974);

        3. Although, as in an action grounded on negligence, proximate cause must be established, an action for breach of warranty is generally less burdensome for a plaintiff because knowledge of a defect and lack of care on the part of the seller need not be proved. Rather, the plaintiff is burdened only with establishing nonconformity with the representation. Frericks v. General Motors Corporation, 274 Md. 288, 336 A.2d 118 (1975);

        4. In an action based on a breach of warranty (express or implied) in which a recovery is sought for personal injury, privity is not required. That is, it is not necessary to establish a direct contractual relationship between the seller and the plaintiff. Maryland Commercial Law Code Annotated § 2-318; Copiers Typewriters Calculators v. Toshiba Corp., 576 F.Supp. 312 (D.Md. 1983).

      4. Fitness for a particular purpose: a seller is obligated to provide goods which meet the buyer's particular purpose which are made known to the seller by the buyer at the time of sale. Maryland Commercial Law Code Annotated § 2-315. Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A.2d 855 (1969);

        1. As with other warranties, negligence need not be proved, only nonconformity with the representation. Sheeskin v. Giant Food, Inc., 20 Md.App. 611, 318 A.2d 874 (1974);

        2. As with other warranties, the right of the seller to disclaim or otherwise limit warranties arising from the sale of consumer goods has been eliminated. Maryland Commercial Law Code Annotated § 2-316.1; Phipps v. General Motors Corporation, 278 Md. 337, 363 A.2d 955 (1976).

    5. Products liability defenses:

      1. The plaintiff's contributory negligence is a defense to a products liability action grounded on negligence but not to an action based on strict liability. Valk Manufacturing v. Rangaswamy, 74 Md.App. 304, 537 A.2d 622 (1988); Baltimore v. Utica Mutual, 145 Md. App. 256, 802 A.2d 1070 (2002)(contributory negligence a defense in a negligent failure to warn case);

      2. Plaintiff's assumption of risk is a defense to a products liability action grounded on strict liability as well as such an action grounded on negligence. Sheehan v. Anthony Pools, 50 Md.App. 614, 440 A.2d 1085 (1987);

      3. Although it has not specifically been held in Maryland, dicta in two decisions suggests that the Maryland appellate courts would approve of the exercise of the assumption of risk and contributory negligence defenses in products liability claims grounded on a breach of warranty. Mattos, Inc. v. Hash, 279 Md. 371, 368 A.2d 993 (1997); Erdman v. Johnson Brothers, 260 Md. 190, 271 A.2d 744 (1970);

      4. Misuse of the product and/or a failure to read or follow the product's warnings and instructions may be defenses in all products liability actions. Collins v. Li, 176 Md. App. 502, 933 A.2d 528 (2007); Lightolier v. Hoon, 387 Md. 539, 876 A.2d 100 (2005);

      5. Sealed container defense: By statute, Maryland provides a sealed container defense which provides as follows:

        Elements of defense to action against product's seller. - It shall be a defense to an action against a seller of a product for property damage or personal injury allegedly caused by the defective design or manufacture of a product if the seller establishes that:

        1. The product was acquired and then sold or leased by the seller in a sealed container or in an unaltered form;

        2. The seller had no knowledge of the defect;

        3. The seller in the performance of the duties he performed or while the product was in his possession could not have discovered the defect while exercising reasonable care;

        4. The seller did not manufacture, produce, design or designate the specifications for the product which conduct was the proximate and substantial cause of the claimant's injury; and

        5. The seller did not alter, modify, assemble, or mishandle the product while in the seller's possession in a manner which was the proximate and substantial cause of the claimant's injury. Maryland Courts & Judicial Proceedings Code Annotated § 5-405(b);

    6. Limitations: By statute, Maryland law provides that a cause of action based on a breach of warranty must be brought within four years after the cause of action accrues. Maryland Commercial Law Code Annotated § 2-725(2). A cause of action for breach of warranty generally accrues when a nonconforming product is tendered (i.e., as a general matter, when sold). Washington Freightliner, Inc. v. Shantytown Pier, Inc., 351 Md. 616, 719 A.2d 541 (1998). Thus, where a personal injury claim is based on the breach of an implied warranty of merchantability, the period of time in which to sue may expire before any harm occurs to the person. Mills v. International Harvester Co., 554 F.Supp. 611 (D.Md. 1982).

  3. Premises Liability:

    1. General Principles: In Maryland, the liability of owners of real property to an individual on their property is dependent upon the standard of care owed to that individual which in turn is dependent upon the individual's status while on the property. Deboy v. City of Crisfield, 167 Md. App. 548, 893 A.2d 1189 (2005). In this respect, Maryland law follows that of most other jurisdictions. In brief, the various standards applied to the different classes of individuals may be summarized as follows:

      1. A trespasser is one who intentionally and without consent or privilege enters another's property: the duty is to refrain from willfully or wantonly injuring the intruder;

        1. The so-called "attractive nuisance doctrine" which permits the trier of fact to excuse a young child's trespasser status when that child is injured by a condition on the land "attractive" to children has not been adopted in Maryland. Valentino v. On Target, Inc., 112 Md.App. 679, 686 A.2d 636 (1996).

      2. A licensee is one who is privileged by consent to enter another's property for his own purpose or convenience. There are two (2) types of licensees:

        1. A bare licensee takes the property as he finds it: like a trespasser the duty is to refrain from willfully or wantonly injuring;

        2. A licensee by invitation is a social guest who takes the premises as her host used them: the duty is to exercise reasonable care to make the premises safe or warn of known dangerous conditions that cannot reasonably be discovered and which in fact are not discovered by the guest;

      3. An invitee is one invited or permitted to enter or remain on another's property for purposes connected with or related to the owner's business: the duty is to use reasonable and ordinary care to keep the premises safe for the invitee and to protect the invitee from injury caused by an unreasonable risk which the invitee, by exercising ordinary care for his own safety, will not discover. Bramble v. Thompson, 264 Md. 518, 287 A.2d 265 (1972).

        1. Application of "implied invitation" theory: Invitee status can also be established under the so-called "implied invitation" theory. Deboy v. City of Crisfield, 167 Md. App. 548, 893 A.2d 1189 (2005) (where person enters the premises because of the landowner's apparent "holding out of the premises for a particular use by the public" either through the owner's custom or acquiescence in a particular use or by the general arrangement or design of the premises.)

    2. The business invitee: Customers of all grocery stores, restaurants and similar retail establishments are going to be considered business invitees under Maryland law. In this regard, Maryland law has adopted the following standard:

      A possessor of land is subject to liability for physical harm caused to his invitees by a condition on the land if, but only if, he:

      1. Knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and

      2. Should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and

      3. Fails to exercise reasonable care to protect them against danger. Honolulu Ltd. v. Cain, 244 Md. 590, 224 A.2d 433 (1966).

      The historic application of these principles by the Maryland appellate courts has generated some corollary principles:

      1. The burden is on the customer to show that the proprietor created the dangerous condition or had actual or constructive knowledge of its existence. Joseph v. Bozzuto, 173 Md. App. 305, 918 A.2d 1230 (2007); Maans v. Giant of Maryland, LLC, 161 Md. App. 620, 871 A.2d 627 (2005); Moulden v. Greenbelt Consumer Services, Inc., 239 Md. 227, 210 A.2d 724 (1965);

      2. Constructive knowledge or notice is not established absent evidence to show how long the condition existed so as to provide a basis for the jury's consideration of the question of whether or not the proprietor should have known/discovered the condition. Carter v. Shoppers Food Warehouse MD Corporation, 126 Md.App. 147, 727 A.2d 958 (1999); Leannarda v. Lansburgh's Department Store, 260 Md. 701, 273 A.2d 149 (1971);

      3. Even if actual or constructive knowledge can be established, liability cannot attach unless the evidence shows that the knowledge was gained in sufficient time to give opportunity to remove or warn of danger. Rehn v. Westfield America, 153 Md. App. 586, 837 A.2d 981 (2003).

      4. There is no liability in negligence for a condition that is obvious even though it could produce injury. Hagan v. Washington Suburban Sanitary Commission, 20 Md.App. 192, 314 A.2d 699 (1979);

      5. Ownership of the property is not determinative in that one who possesses a property, such as under a lease, carries the same duty to business invitees. Baltimore Gas & Electric Co. v. Lane, 338 Md. 34, 656 A.2d 307 (1995).

    3. Public employees as business invitees: Public employees such as postal workers, sanitary and building inspectors, garbage men and tax collectors are considered to be invitees. Rivas v. Oxon Hill, 130 Md.App. 101, 744 A.2d 1076 (2000).

    4. Customer use of employee toilet facility in retail establishment: Under Maryland law, a retail establishment that allows a customer to use a toilet facility that is not a public toilet facility is immune from civil suits arising from injuries incurred in the toilet facility so long as the alleged act or omission 1) is not willful or grossly negligent; and 2) occurs in an area of the retail establishment that is not accessible to the public. Maryland Courts and Judicial Proceedings Code Annotated § 5-635. The "not accessible to the public" requirement is highly fact intensive. For example, the Maryland Court of Appeals has held that a grocery store owner was not immune from suit as a matter of law where evidence established that customer was injured in storage area while looking for the restroom; that the restroom was the only one on the premises that was handicapped-accessible; that no toilets were available for customers in the retail space; that up to 3,000 customers annually used the restroom; and that customers were not required to request permission to use the restroom. Houston v. Safeway, 346 Md. 503, 697 A.2d 851 (1997).

    5. May a Business Owner Be Held Liable for Injuries to Customers Caused by the Criminal Acts of Third Parties? Generally, no.

      In Maryland, a private person is under no special duty to protect another from the criminal acts of a third person in the absence of a statute or a recognized special relationship. Montgomery v. Remsburg, 147 Md. 564, 810 A.2d 14 (2002); Valentine v. On Target, Inc., 353 Md. 544, 727 A.2d 947 (1999); Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976) (landlord did not have duty to protect tenants from criminal acts of third parties committed in the common areas of leased premises that were within the landlord's control). The rule enunciated in Scott v. Watson remains the law of Maryland today. Valentine v. On Target, Inc.

      1. The only special relationship which the Maryland courts recognize as automatically giving rise to such a duty is that of the common-carrier/passenger. Rhaney v. UMES, 388 Md. 585, 880 A.2d 357 (2005); Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976). The application of "special relationship" principles has been expanded to that of innkeeper/guest. Corinaldi v. Columbia Courtyard Inc., 162 Md. App. 207, 873 A.2d 483 (2005).

      2. A storekeeper and a business invitee do not have such a special relationship. Smith v. Dodge Plaza, 148 Md. App. 335, 811 A.2d 881 (2002); Tucker v. KFC National Management Co., 689 F.Supp. 560 (D.Md. 1988) (fast food retail store has no duty under Maryland law to provide security for the protection of its customers). Nor does the landlord and tenant's invitee relationship give rise to a special duty. Smith v. Dodge Plaza Limited Partnership, 148 Md. App. 335, 811 A.2d 881 (2002).

        But see, Moore & Jimel Inc., 147 Md. App. 336, 809 A.2d 10 (2002) where Court of Special Appeals, while upholding the general "no duty" rule, nonetheless affirmed the notion that a forseeability of risk based on prior incidents of criminal activity on those particular premises might create a special duty.

      NOTE: Maryland law draws a distinction between a duty to protect an invitee from the criminal acts of third parties and the duty to render aid to an invitee in distress. With respect to the latter, Maryland has adopted § 314A of the Restatement (Second) of Torts and has held that a storeowner has a legal duty to come to the assistance of an endangered business invitee so long as there is no risk of harm to the proprietor or his employees. Southland Corp. v. Griffith, 332 Md. 704, 633 A.2d 84 (1993) (jury entitled to consider negligence of store employee in failing to call police when requested to do so by an off-duty police officer being assaulted on store premises).

    6. Issues Related to Detention of Shoplifters:

      1. Merchant's liability to shoplifter for false arrest: By statute in Maryland, a merchant who detains or causes the arrest of a person may not be held civilly liable for detention, slander, malicious prosecution, false imprisonment or false arrest so long as the merchant had probable cause to believe that the person had committed the crime of theft. Maryland Courts & Judicial Proceedings Code Annotated § 5-402; Montgomery Ward v. Wilson, 101 Md.App. 535, 647 A.2d 1218 (1994) ("probable cause consists of a reasonable ground of suspicion supported by circumstances strong enough to warrant a cautious person's belief that the accused is guilty."). Similarly, Herrington v. Red Run Corporation, 148 Md. App. 357, 811 A.2d 894 (2002);

      2. Storeowner's liability for injury to invitees caused by one fleeing apprehension as a shoplifter: A storeowner cannot be held liable under such circumstances absent evidence that the attempt to detain the shoplifter presented an unreasonable risk of harm to customers. Giant Food, Inc. v. Mitchell, 334 Md. 633, 640 A.2d 1134 (1994) (holding based in part on acknowledgment of store owner's privilege to detain pursuant to § 5-402 of the Maryland Courts & Judicial Proceedings Code Annotated as well as the storeowner's privilege to use reasonable force in retaining a shoplifter).

    7. Attractive Nuisance

      Maryland has not adopted the attractive nuisance doctrine. Murphy v. Baltimore Gas & Elec. Co., 290 Md. 186, 428 A.2d 459 (1981).
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