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Moore v. Jimel9/27/2002
lant remained in the restroom for two or three minutes and then returned to the deck, where she informed her fiancé that she had been raped.
The only other exhibit before Judge Byrnes, as he made his ruling on summary judgment, was the affidavit of one of the owners of Hightopps, attesting, inter alia, to the fact that,
t no time prior to this alleged October 4, 1998, incident were there any incidents of physical or sexual assault against a female patron in the Hightopps premises, much less in any of the bathrooms, nor had there been any crimes against persons committed in this facility, other than minor altercations between patrons.
No General Duty to Protect Patrons From Crimes by Third Persons
We hold that Judge Byrnes was not in error in granting summary judgment in favor of the appellee on the ground that Hightopps owed no duty to its customers to protect them from the criminal acts of third persons while on the premises of the bar and grill. We find to be absolutely dispositive the opinion of Chief Judge Murphy for the Court of Appeals in Scott v. Watson, 278 Md. 160, 359 A.2d 548 (1976).
In Scott v. Watson, the plaintiff had "claimed that the defendants had breached a duty owed to Scott as one of their tenants to protect him from criminal acts of third parties committed in common areas within their control." 278 Md. at 161. Following a transfer of the case to federal court, the United States District Court certified to the Court of Appeals three questions of law, the first two of which are pertinent to the case before us.
"(1) Does Maryland law impose upon the landlord of an urban apartment complex a duty to tenants to protect them from the criminal acts of third parties committed in common areas within the landlord's control and, if so, what is the extent of such duty?
"(2) If no such duty exists generally, would such a duty be imposed if the landlord has knowledge of increasing criminal activity on the premises or in the immediate neighborhood?" 278 Md. at 161-62.
Although the first question was posed in the context of a landlord's duty to a tenant, the answer would also apply with respect to a merchant's duty to a patron. In Nigido v. First National Bank, 264 Md. 702, 288 A.2d 127 (1972), a bank customer, wounded in the course of a bank robbery, sued the bank for negligently failing to provide adequate security. In affirming the dismissal of the suit, as a matter of law, the Court of Appeals expressly analogized the absence of a special duty in that case to the absence of such a special duty by a shopkeeper to his customer.
Appellants have not cited, nor have we found, any authority for the notion that the bank owed Salvatore "a special duty" to protect him against robbers. We think he was an invitee to whom was owed the same duty a shopkeeper owes his customer, i.e., to use reasonable care for his protection. 264 Md. at 704 (emphasis supplied).
In Tucker v. KFC National Management Co., 689 F. Supp. 560 (D. Md. 1988), a customer sued Kentucky Fried Chicken, alleging that "it did not provide an adequately safe place for its business invitees" and that it negligently "had failed to have a security guard on the premises." 689 F. Supp. at 561. In granting summary judgment in favor of KFC, Judge Niemeyer made it clear that "the applicable law is that of Maryland." 689 F. Supp. at 562. He cited as authoritative both Scott v. Watson and Nigido v. First National Bank, as he held:
The duty to protect patrons against conduct of third persons does not exceed the general duty of care and duty to warn of hidden dangers. A higher duty to protect a private person from the
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