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Hartford Insurance Co. v. Manor Inn of Bethesda Inc.6/9/1994
or Inn on the petitioner's claim against Manor Inn could not properly be entered, neither Manor Inn nor the petitioner having sought summary judgment as to that claim. Nevertheless, we shall decide the issue as to Manor Inn's liability "to avoid the expense and delay of another appeal." Maryland Rule 8-131(a). There being nothing in the record to indicate that the absence of any motion for summary judgment by Manor Inn was a tactical decision by it, were we to reverse and remand, it is likely that Manor Inn would simply file a motion for summary judgment against the petitioner and a second appeal presenting the same issue between those parties would be almost inevitable.
IV.
"Negligence ... is conduct which falls below the standard [of care] established by law for the protection of others against unreasonable risk [of harm]." William L. Prosser, Handbook of The Law of Torts § 43, at 250 (4th ed. 1971). The elements of a negligence action are well settled in this State:
First, the defendant must be under a duty to protect the plaintiff from injury . Second, the defendant must fail to
discharge that duty. Third, the plaintiff must suffer actual loss or injury proximately resulting from that failure.
Lamb, 303 Md. at 241, 492 A.2d at 1300. See Scott v. Watson, 278 Md. 160, 165, 359 A.2d 548, 552 (1976); Peroti v. Williams, 258 Md. 663, 669, 267 A.2d 114, 118 (1970); Myers v. Montgomery, 253 Md. at 291, 252 A.2d at 861. The first element - duty - the subject of this portion of the opinion, "has been defined as 'an obligation, to which the law will give recognition and effect, to conform to a particular standard of conduct toward another;'" it "is not sacrosanct in itself, but is only an expression of the sum total of those considerations of policy which lead the law to say that the particular plaintiff is entitled to protection." Ashburn v. Anne Arundel County, 306 Md. 617, 627, 510 A.2d 1078, 1083 (1986), quoting W. Page Keaton, Prosser and Keaton on The Law of Torts, § 53, at 164 (5th ed. 1984). As to it, we have observed:
There can be no negligence where there is no duty that is due; for negligence is the breach of some duty that one person owes to another. It is consequently relative and can have no existence apart from some duty expressly or impliedly imposed. In every instance before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which duty would have averted or avoided the injury .... As the duty owed varies with circumstances and with the relation to each other of the individuals concerned, so the alleged negligence varies, and the act complained of never amounts to negligence in law or in fact; if there has been no breach of duty.
West Va. Central R. Co. v. Fuller, 96 Md. 652, 666, 54 A. 669, 671 (1903). We have also recognized that the concept of duty as owing to all persons the exercise of reasonable care to protect them from harm has to be limited if liability for unreasonably remote consequences are to be avoided. Henley v. Prince George's County, 305 Md. 320, 333, 503 A.2d 1333, 1340 (1986). One of the mechanisms that has been utilized to accomplish that limitation is, and has been, application of the variable, foreseeability, to the determination of whether a duty
exists. Ashburn, 306 Md. at 627, 510 A.2d
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