By Lisa Spitulnik
On August 17 the Maryland Court of Appeals decided Douglas Wietzke, et ux. v. The Chesapeake Conference Association, et al., 2011 Md. Lexis 520. In this matter, land owners (the “Wietzkes”) claimed that construction activity on the adjacent Church’s property caused flooding to their home which was located down the hill from the Church’s property.
The Court reviewed the standard for a nuisance case in the State of Maryland. Following other decisions in Maryland, the Court of Appeals stated that there are two types of nuisances: (1) a “public nuisance,” which is an injury to the public at large or to all persons who come in contact with it, and (2) a “private nuisance” which is an injury to an individual or a limited number of individuals only. Private nuisance is split into two categories: (1) a nuisance per se, or a nuisance at law, which involves the use of one’s land which is so unreasonable that it is deemed to constitute an actual nuisance “at all times and under any circumstances” (typically motivated by malice), and (2) a nuisance in fact, which arises when considering the surrounding circumstances, a particular land use constitutes a nuisance even though the conduct might not be a nuisance in another locality, or another time, or under some other circumstances.
The Wietzkes’ case was a private nuisance per se matter. The jury ruled in favor of the Church on the issue of nuisance. The Wietzkes appealed and argued that the trial court failed to include certain jury instructions including that (i) strict liability was the appropriate standard that the court should consider in determining liability, and (ii) county approval or the existence of other sources that may have contributed to the damage does not absolve a defendant of nuisance liability. They also argued that the trial court erred in dismissing their negligence claim based on violation of a statute.
The Court of Appeals held that the doctrine of private nuisance is one that balances the conflicting rights of land owners. The court is obligated to balance the benefit versus the harm caused by an offending land owner’s use of its property, leaving to the jury the question of whether the offending land owner has used its property reasonably. Therefore, the jury instruction that required a finding of “unreasonable conduct” was appropriate. The Court of Appeals stated that county approval of improvements to property would not insulate the property owner from liability from a private nuisance, nor would water flowing from multiple sources. However, the Court of Appeals held that county approval and multiple sources were not at issue in this case and did not warrant a jury instruction in that regard.
The Wietzkes also claimed negligence per se on the part of the Church. In this case, there was a Montgomery County statute that stated, inter alia, “a person must not engage in any land-disturbing activity or by any action cause or permit any soil, earth, sand, gravel, rock, stone, or other material to be deposited upon or to roll, flow, or wash upon or over the premises of another in a manner to cause damage to the premises without the express written consent of the owner of the premises affected.” (Section 19-16(a) of the Montgomery County Code). Montgomery County inspectors issued a violation notice to the Church subsequent to the flooding to the Wietzkes’ property. The violation notice referred to Section 19-16(a) and stated that sediment left the Church’s property after a storm and there was flooding of the house. The inspector also noted that the Church’s property was not in compliance with the plans submitted to the County for storm water management and that various items had not been completed.
Although conflicting evidence was presented at trial regarding the cause of the flooding, the trial court dismissed the negligence claim, reasoning that the Wietzkes introduced no evidence that Section 19-16(a) was designed to prevent the type of harm claimed. The Court of Appeals however, held that a prima facie case of negligence may be established by proof that an individual violated an applicable statue or ordinance. In order to establish negligence based on violation of the statue, claimants must show both that they are “within the class of persons sought to be protected,” and “that the harm suffered is of a kind which the drafters intended the statute to prevent.” The Court of Appeals stated that the purpose of Section 19-16(a) was to prevent the type of harm that the Wietzkes were complaining of, and the Wietzkes were a protected class, being private land owners in Montgomery County. If proven, the evidence could have supported a negligence claim based on violation of the statute. Therefore, there was a prima facie case of negligence. Accordingly, the Court of Appeals reversed the judgment in favor of the Church solely as to the negligence count and remanded the case to the trial court to determine the issue of negligence.
Lisa Spitulnik is with the Baltimore firm of Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC