Michael Ciamaichelo | White and Williams LLP | June 11, 2019
Property owners owe a duty of reasonable care to avoid causing harm to neighboring properties. When a property owner knows or should know about a condition that poses a risk of danger to neighboring properties, the property owner must exercise reasonable care to make the condition safe. The Court of Special Appeals of Maryland recently held that, where hundreds of discarded cigarette butts had accumulated in a bed of mulch over an extended period of time prior to the fire at issue, the owner of the property with the mulch beds owed a duty of care to its neighbors to prevent a foreseeable fire.
In Steamfitters Local Union No. 602 v. Erie Insurance Exchange, 2019 Md. App. LEXIS 430 (May 30, 2019), a fire originated in a strip of mulch at property owned by the Steamfitters Local Union No. 602 (Union) and caused damage to neighboring properties. The fire occurred when an unknown person discarded a cigarette butt into the mulch. Following the fire, investigators found “hundreds, if not thousands of cigarettes” in the mulch where the fire originated. A representative for the Union acknowledged that there were more butts in the mulch “than there should have been” and that, “[i]n the right situation,” a carelessly discarded cigarette could cause a fire. The Union, however, had no rules or signs to prohibit or regulate smoking at the property, where apprentices would often gather prior to class.
The insurance companies for the damaged neighbors filed subrogation actions alleging that the Union, as the property owner, failed to use reasonable care to prevent a foreseeable fire. A jury found in favor of the subrogating insurers and against the Union.
On appeal, the court held that, under the circumstances of the case, a reasonable jury could conclude that the Union knew or should have known that cigarettes were regularly being discarded in the mulch, which created a foreseeable risk of a fire that could damage neighboring properties. Although the use of mulch, by itself, did not create the Union’s duty to protect its neighbors from a careless smoking fire, the court held that the Union owed a duty of care to its neighbors because it knew that a large number of cigarette butts were discarded in the mulch over a period of time prior to the fire. Because it was foreseeable that the dangerous condition created by the practice of throwing cigarette butts into the mulch would damage neighboring properties, the court held that the Union owed its neighboring property owners a duty of care.
In addition to discussing the duty the Union owed to neighboring property owners, the court considered, among other things, whether the subrogating insurers needed expert testimony to prove their case. The court held that, because habitually discarding cigarettes in a combustible substance is a matter of common knowledge, the plaintiffs did not need expert testimony to establish the standard of care associated with maintaining the Union’s property.
As this case establishes, a defendant can, in some situations, be held liable for a careless smoking fire even if the defendant does not have a duty to control the actions of third parties and is not vicariously liable for the third party’s actions. Thus, when subrogation professionals deal with a careless smoking case, they should consider whether the defendant, such as a landowner, can be held liable because it owed a duty of care – such as the duty owed by a landowner – to the injured plaintiff that does arise from controlling the smoker’s actions or being vicariously liable for his or her activities.