HERRING v. CHRISTENSEN, 252 Md. 240 (1969)

249 A.2d 718

HERRING, ET AL. v. CHRISTENSEN, ET UX.

[No. 36, September Term, 1968.]Court of Appeals of Maryland.
Decided February 4, 1969.

TORTS — Trespasser Or Licensee — Only Duty Owed By Land Owner To Such Person Is To Refrain From Wilful Or Wanton Misconduct And Entrapment — No Greater Duty Owed To Trespasser Of Tender Years. pp. 241-242

J.A.A.

Decided February 4, 1969.

Appeal from the Circuit Court for Prince George’s County (POWERS, J.).

Suit by Jeff Herring, a three year old infant, by his father and next friend Roger L. Herring, and Roger L. Herring, individually, to recover damages for personal injuries that the infant sustained when he wandered onto the property of Edwin O. and Edna F. Christensen, and was burned by a trash fire. From an order sustaining the defendants’ demurrer without leave to amend, the plaintiffs appeal.

Judgment affirmed, costs to be paid by appellants.

The cause was argued before HAMMOND, C.J., and MARBURY, FINAN, SINGLEY and SMITH, JJ.

Alfred S. Fried, with whom was Harold J. Rogers on the brief, for appellant.

Page 241

Albert D. Brault, with whom were Brault, Scott Brault on the brief, for appellees.

PER CURIAM.

Appellant, Jeff Herring, a three year old infant, by his father and next friend, Roger L. Herring, and appellant Roger L. Herring, individually, brought suit in the Circuit Court for Prince George’s County on August 23, 1967, to recover damages for personal injuries that the infant sustained when he wandered onto the property of the appellees, Edwin O. and Edna F. Christensen, and was burned by a trash fire that the appellees maintained on their unfenced premises. The lower court sustained the appellees’ demurrer without leave to amend on the ground that under Maryland law appellees owed no duty to the child who was a trespasser or at best a bare licensee.

It is well established law in Maryland that “the owner of land owes no duty to a trespasser or licensee, even one of tender years, except to abstain from wilful or wanton misconduct and entrapment.” Levine v. Miller, 218 Md. 74, 79, 145 A.2d 418, 421. See Carroll v. Spencer, 204 Md. 387, 104 A.2d 628; Benson v. Baltimore Traction Co., 77 Md. 535, 26 A. 973; Duff v. United States, 171 F.2d 846 (4th Cir.). Appellants agree that this is a correct statement of the law, but urge this Court to adopt a new rule of law as set forth in Restatement (Second) of Torts, Section 339 (1965), a liberal version of the attractive nuisance doctrine.

The problem of injury to trespassing children has been before this Court on many occasions. Since 1894 in Mergenthaler v. Kirby, 79 Md. 182, 28 A. 1065, we have uniformly rejected any exception to the rule that trespassers and bare licensees take the premises as they find them. Levine v. Miller, Carroll v. Spencer, both supra; State v. Fidelity Warehouse Co., 176 Md. 341, 4 A.2d 739; State v. Machen, 164 Md. 579, 165 A. 695 State v. Longeley, 161 Md. 563, 158 A. 6; Balto. City v. De Palma, 137 Md. 179, 112 A. 277. As this Court said in Weisner v. Bd. of Education, 237 Md. 391, 395, 206 A.2d 560, 562:

“In our view the rule of the Weddle [94 Md. 334,

Page 242

51 A. 289] case is too firmly established and has been too long unchanged by the Legislature in the face of repeated reminders of its role in the matter in the opinions of the Courts . . . to be changed judicially, assuming that it should be changed at all. If there is to be a change, we think the Legislature should make it.”

That statement is equally applicable to the instant case. To adopt appellants’ position would eliminate the consistency and stability in this Court’s rulings which are necessary for our citizens to know their respective rights and obligations.

The judgment of the lower court must be affirmed.

Judgment affirmed, costs to be paid by appellants.