Assurance Company of America v. York International, Incorporat
UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
ASSURANCE COMPANY OF AMERICA; RICK DANSEY, individually, Plaintiffs - Appellants, v. YORK INTERNATIONAL, INCORPORATED; DAVID W. DEWITT, t/a Dewitt Plumbing, Heating and Air Conditioning; DAVID W. DEWITT; GREGORY D. MORTIMER PROPERTIES, INCORPORATED, Defendants - Appellees.
Appeal from the United States District Court for the District of Maryland, at Baltimore. Andre M. Davis, District Judge. (1:05cv-01301-AMD)
December 2, 2008
January 6, 2009
Before GREGORY and AGEE, Circuit Judges, and Rebecca Beach SMITH, United States District Judge for the Eastern District of Virginia, sitting by designation.
Affirmed by unpublished opinion. Judge Gregory opinion, in which Judge Agee and Judge Smith joined.
ARGUED: William C. Parler, Jr., PARLER & WOBBER, Towson, Maryland, for Appellants. Brian W. Casto, MILES & STOCKBRIDGE, P.C., Baltimore, Maryland; Robert L. Hebb, SEMMES, BOWEN & SEMMES, Baltimore, Maryland, for Appellees. ON BRIEF: Phillip S. Anthony, PARLER & WOBBER, Towson, Maryland, for Appellants. Timothy L. Mullin, Jr., MILES & STOCKBRIDGE, P.C., Baltimore, Maryland, for Appellee York International, Incorporated; David
P. Bokow, LAW Maryland, for Incorporated.
OFFICES OF GUIDO Appellee Gregory
PORCARELLI, Hunt Valley, D. Mortimer Properties,
Unpublished opinions are not binding precedent in this circuit.
GREGORY, Circuit Judge: Assurance Co. of America ("Assurance") and Rick Dansey
(hereinafter "Plaintiffs") appeal the district court's decision granting the Defendants' motion for summary judgment on the
Plaintiffs' products liability and negligence claims.
reasons set forth below, we affirm the decision of the district court.
I. This lawsuit arises out of a November 17, 2004, fire that damaged the vacation home of Rick Dansey. At the time of the
fire, the Dansey vacation home was still under construction, but it had been substantially completed. Two furnaces serviced the
home at the time of the fire--one serviced the first and second levels of the home ("the East Furnace") and the other serviced the basement ("the West Furnace"). Both furnaces were installed The Plaintiffs
in a utility room in the basement of the home.
allege that the fire originated in the interior of the East Furnace and was caused by a defect in the furnace. The East
Furnace was manufactured by York International, Inc. ("York"), and was installed in the home by David W. Dewitt, the HVAC subcontractor for the construction project. Gregory D. Mortimer
Properties, Inc. ("MPI"), was the general contractor for the construction of the home. 3
Carl Lee, MPI's project manager, first contacted Dewitt in August 2004 to install the two furnaces. purchased the furnaces and converted them Accordingly, Dewitt from natural gas
sources to propane sources. the home on at August that 15, time.
Dewitt then took the furnaces to 2004, In but early he did not Lee make them
contacted On October
Dewitt to complete the installation of the furnaces.
17, 2004, Dewitt connected the furnaces to the home's propane supply. At that time, Dewitt performed a "three test system" in
which he turned each furnace's thermostat on and off three times in succession to ensure that they were running properly. undisputed that the furnaces were properly installed. During the installation of the subject furnaces, Dewitt did not advise any MPI employees that they should not operate the furnaces while completing the construction of the home. Dewitt It is
admitted that he had read the York installation manual, which states that "[t]he furnace is not to be used for temporary (J.A.
heating of buildings or structures under construction." 1606.)
Dewitt claimed that he had advised MPI of the York
manual's warning during previous installations, but he was aware that MPI nonetheless routinely used the furnaces during the
final phase of home construction.
On the other hand, both Lee
and Gregory Mortimer testified that Dewitt never told them that
ongoing. After Dewitt completed the installation of the furnaces, MPI began using them as a heating source in the home. According
to Mortimer, the furnaces were left in the automatic position to control the environment within the home to allow for the curing of drywall compound and to acclimatize wood finish products. Mortimer further indicated that, while he sometimes replaced
filters on furnaces during construction, he could not recall whether he or any of his employees replaced the filters for these furnaces. The fire at the Dansey vacation home was discovered by an MPI employee in the early morning hours of November 17, 2004. Deputy State Fire Marshal Jamie Rodeheaver and Deputy State Fire Marshal Ryan Chapman responded to the scene and investigated the fire. Both Rodeheaver and Chapman concluded that the fire
originated in the interior of the East Furnace.
In support of
this conclusion, the fire marshals noticed that there was burn damage caused on the the floor to directly cave in above towards the the East Furnace, room. which In
addition, the fire marshals noted a distinct difference between the condition of the interior of the East Furnace and the West Furnace. The interior of the East Furnace had extensive warping
and melting, whereas the interior of the West Furnace "had very 5
limited damage," and a paper manual inside the West Furnace was undamaged by the fire. (J.A. 1498.) In making the determination that the fire originated in the interior of the East Furnace, the fire marshals did a cursory inspection of potential ignition sources and did not undertake a detailed examination of the electrical arcing found on wiring throughout the utility room. Indeed, Chapman acknowledged that
the fire marshals' primary job in investigating these types of fires is to rule the out arson as did the not cause of the any fire. defect
within the furnace that may have caused the fire nor suggest any theories about how the fire may have started, as such questions are outside of their expertise. Following the fire marshals' investigation, the Plaintiffs engaged the services of Robson Forensic, Inc. ("Robson"), a
forensic engineering company, to examine the fire scene, analyze the East Furnace, and produce expert opinions regarding the
cause of the fire.
Dale Cagwin, a Robson engineer, wrote an
initial report (the "Cagwin report") concerning the cause of the fire; however, that report did not identify any specific defect within the East Furnace that caused the fire. Instead, the
Cagwin report was limited to opinions regarding the negligence of MPI and Dewitt.
Dewitt to follow the York manual's instructions regarding the use of the furnace and their failure to properly maintain and inspect the furnace were breaches of the standard of care and caused the fire. should have Further, the Cagwin report stated that Dewitt prevented MPI from operating the furnace
until construction was complete or ensured that the furnace was being maintained, to the and his failure Daryl to take either another action Robson
engineer, had similar opinions regarding the negligence of MPI and Dewitt. 1 Seven months after the Cagwin report was issued, Cagwin and Ebersole were deposed. espoused a more During these depositions, both experts causation theory and identified a
specific defect within the furnace that they claimed was the cause of the fire. 2 In their depositions, the Robson experts
first opined that the fire originated in the interior of the
Gary Tucker, a Robson expert, had previously written a report in which he opined that the fire started when the East Furnace's induction fan motor overheated and ignited surrounding flammable materials. Daryl Ebersole initially subscribed to the theory, but the theory was eventually abandoned by the Plaintiffs and repudiated by Ebersole. Because the experts' deposition testimony was substantially identical, we will consolidate the experts' opinions and note the instances where the opinions diverge.
furnace, most likely in the vicinity of the induced draft fan. In support of this opinion, the experts relied on the fact that there was significant fire damage inside the furnace, with the most severe damage in the location of the induced draft fan. The experts also relied on evidence that the underside of the deck of the home was charred in the area where the combustion byproducts were released into the outside air. According to the
experts, this evidence demonstrates that the furnace was running at the time of the fire and that the fire occurred as a result of elevated temperatures within the furnace. Regarding the cause of the fire, the experts posited what has been termed the "clogged filter" theory. According to this
theory, MPI's use of the furnace in the home during construction first led to the return air the filter becoming in the clogged. furnace, gas This which
clogged caused a
airflow in the
Next, the high temperature limit switch failed to shut down the furnace. Finally, the combustion gas became so hot that it
ignited a polymer component in the combustion gas system, most likely the induced draft fan. As part of the Robson experts' "clogged filter" theory of causation, they identified the high temperature limit switch as the particular defect within the furnace that caused the fire. The high temperature limit switch 8 is a temperature-sensing
temperature of the combustion air and the circulating air get too high, and it should activate at a temperature range between 150 degrees and 200 degrees Fahrenheit. The high temperature
limit switch is located on the top edge of the furnace. The Robson experts gave two alternative explanations for the failure of the high temperature limit switch to shut down the East Furnace: (1) the location of the switch did not allow
it to sense the increase in temperature (a design defect), or (2) the sensor component in the to switch the malfunctioned experts, the (a high
temperature limit switch was destroyed in the fire, and thus they could not limit determine switch whether was due the to a failure design of the high or a
manufacturing defect. On carrier, May 13, 2005, Dansey this and his homeowner's against insurance in the On
United States District Court for the District of Maryland.
May 25, 2006, the Plaintiffs filed an amended complaint, adding MPI and Dewitt as defendants. The Plaintiffs alleged the
following causes of action against York:
liability, defect in design, defect in manufacture, defect in warning, breach of express warranty, breach of implied warranty, and violation of the Maryland 9 Consumer Protection Act. The
Plaintiffs breach of
negligence, and breach
against both MPI and Dewitt. the expert testimony of
The Defendants moved to exclude and Ebersole and moved for
summary judgment on all claims. The district court excluded the experts' testimony based on the "clogged filter" theory because the court found the experts' opinions unreliable. Moreover, the district court found that
the Plaintiffs could not alternatively rely on an "indeterminate defect" theory to prove a product defect. Accordingly, the
district court granted summary judgment to the Defendants on the products summary liability judgment claims. in favor The of district on the court also granted claim,
finding that the Plaintiffs failed to show that MPI's improper use of the furnace proximately caused the fire. In addition,
the district court granted summary judgment in favor of Dewitt on the negligence claim because it found that Dewitt did not have a duty to control MPI's use of the furnace. appeal. II. We review the district court's grant of summary judgment de novo, applying the same legal standards as the district court. Catawba Indian Tribe of S.C. v. City of Rock Hill, 501 F.3d 368, 370-71 (4th Cir. 2007); Nguyen v. CNA Corp., 44 F.3d 234, 236 10 The Plaintiffs
pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. In deciding a motion for
v. Catrett, 477 U.S. 317, 324 (1986).
summary judgment, the district court must view all reasonable inferences drawn from the evidence in the light that is most favorable to the non-moving party. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 255 (1986); Laber v. Harvey, 438 F.3d 404, 415 (4th Cir. 2006) (en banc). A. The Plaintiffs first challenge the district court's grant of summary judgment to the Defendants on the products liability claims, contending that they put forth evidence from which a reasonable juror could find the existence of a defect in the East Furnace. of to In the particular, fire the Plaintiffs the claim that the was
theory of proving a product defect. Under Maryland law, a plaintiff in a products liability action must establish three evidentiary "basics" regardless of the theory of recovery: attribution of the "1) the existence of a defect; 2) the to the seller; and 3) a causal
relation between the defect and the injury." Motors accord 1976). Corp., Phipps 437 v. A.2d Gen. 242, Motors 247 (Md. Ct. 363
Jensen v. Am. App. 1981); (Md.
A product defect may be shown by putting forth one or "(1) direct proof the context of the
more of three different types of evidence: based on the nature of the accident in
particular product involved; (2) circumstantial proof based on an inference of a defect from a weighing of several factors; and (3) direct affirmative proof through opinion testimony by an expert witness." Shreve v. Sears, Roebuck & Co., 166 F. Supp. "Proof of a defect must arise
2d 378, 407-08 (D. Md. 2001).
above surmise, conjecture, or speculation; and one's right to recovery may not rest on any presumption from the happening of an accident." Jensen, 437 A.2d at 245 (internal citation
omitted); accord Virgil v. "Kash N' Karry" Serv. Corp., 484 A.2d 652, 656 (Md. Ct. Spec. App. 1984). Nevertheless, the addition
of any facts that provide proof of a defect beyond that of conjecture or speculation may be sufficient to withstand summary judgment. C & K Lord, Inc. v. Carter, 536 A.2d 699, 709-10 (Md.
Ct. Spec. App. 1988); see Jensen, 437 A.2d at 244. Initially, the Plaintiffs attempted to provide direct proof of a product defect through the testimony of the Robson experts. Once the district court excluded the experts' opinions based on the "clogged filter" theory, the Plaintiffs next attempted to 12
prove the existence of a product defect through circumstantial evidence. Maryland has adopted the so-called "indeterminate
defect" theory, which uses circumstantial evidence to prove a product defect. See Harrison v. Bill Cairns Pontiac, Inc., 549
A.2d 385, 390 (Md. Ct. Spec. App. 1988). Under the "indeterminate defect" theory, first articulated by the Maryland Court of Special Appeals in Harrison, "[a]n
inference of a defect may be drawn from the happening of an accident, where circumstantial evidence tends to eliminate other causes, Harrison such as product misuse or five alteration." factors that Id. must The be
considered in determining whether a plaintiff can avail itself of the "indeterminate defect" theory: "(1) expert testimony as
to possible causes; (2) the occurrence of the accident a short time after the sale; (3) same accidents in similar products; (4) the elimination of other causes of the accident; (5) the type of accident that does not happen without a defect." Id.; see Ford
Motor Co. v. Gen. Accident Ins. Co., 779 A.2d 362, 371 & n.16 (Md. 2001) (adopting the Harrison five-factor test). Although
there is no precise formulation as to how to consider these factors on a motion for summary judgment, "[t]o the extent that a plaintiff's showing on one or more of these factors cuts
against these conclusions, then the strength of the inference of a defect weakens and plaintiff 13 risks the entry of summary
judgment for defendant."
Shreve, 166 F. Supp. 2d at 408-09; see
also Crickenberger v. Hyundai Motor Am., 944 A.2d 1136, 1145 (Md. 2008) (affirming the granting of summary judgment to the defendants on the "indeterminate defect" theory); Harrison, 549 A.2d at 391-92 (same). The district court determined that the Plaintiffs could not prevail under the "indeterminate defect" theory as a matter of law, both because the Plaintiffs' allegations of product misuse precluded Plaintiffs majority, unnecessary the application to of put the of the theory evidence and because the the it in
failed if to any,
establishing We court find erred
concluding that the Plaintiffs' allegations of product misuse precluded the application of the "indeterminate defect" theory, for we agree with the district court that the Plaintiffs failed to put forth evidence from which a reasonable juror could infer the existence of a defect. With regard to the first Harrison factor--expert testimony as to possible causes of the fire--the Plaintiffs contend that the district court did not exclude the Robson expert testimony regarding possible causes of the fire but rather excluded only their opinion that the use of the furnace during construction clogged the furnace This filter and led to It is an increase from in the
district court's memorandum opinion that the court excluded all opinions of the Robson experts that were related in any way to the "clogged filter" theory, including opinions regarding the failure of the high temperature limit switch. district court, the experts "opine (without According to the a scintilla of
evidence) that the high temperature limit switch failed to shut down the furnace because of a defect or improper placement." (J.A. 2316 (emphasis added).) "[P]laintiffs lack any The district court continued: evidence that the high
temperature limit switch was defective; nor does their theory explain how or if the other temperature sensing safety devices failed. Plaintiffs' experts essentially suggest that because (J.A. 2321.)
there was a fire, the switch must have failed."
Indeed, the district court later noted that the Plaintiffs could not rely on any of the Robson experts' opinions because they had "put all their On eggs in the the `clogged-filter' did not basket." argue (J.A. the
district court erred in its exclusion of the Robson experts' opinions, 3 and we will not accept the alternative argument that the district court did not mean what it said.
The Plaintiffs point out that they did in fact give notice of appeal on the district court's exclusion of the Robson experts' opinions. However, the Plaintiffs failed to address this argument in both the Opening Brief and Reply Brief, and thus this argument has been abandoned. Cf. United States v. Al(Continued) 15
testimony, the Plaintiffs cannot establish the first Harrison factor. The Plaintiffs contend that the determination by the
fire marshals that the fire originated inside the East Furnace qualifies as expert testimony regarding possible causes of the fire. Even taking this evidence in the light most favorable to
the Plaintiffs, it is not the type of evidence that satisfies the first Harrison factor. In cases in which courts have found
the first factor to have been satisfied, plaintiffs put forth expert testimony of possible causes of the fire, not merely
possible origins of the fire.
See, e.g., Shreve, 166 F. Supp.
2d at 410 (snow thrower continued to rotate after auger drive lever was released); Harrison, 549 A.2d at 386 (defect in
automobile's electrical system).
The fire marshals' opinions
were limited to the origin or source of the fire, and opinions regarding causation were outside their field of expertise. In
fact, the only expert testimony that the district court admitted regarding causation was that proffered by the Defendants, which refuted the contention that the fire was caused by a defect in
Hamdi, 356 F.3d 564, 571 n.8 (4th Cir. 2004) ("It is a well settled rule that contentions not raised in the argument section of the opening brief are abandoned."); accord Edwards v. City of Goldsboro, 178 F.3d 231, 241 n.6 (4th Cir. 1999).
the East Furnace.
The Plaintiffs are thus left with no expert
testimony identifying any possible causes of the fire. Turning to the second Harrison factor--the occurrence of the accident a short time after the sale--there are several
dates of importance.
First, the subject furnace was shipped
from York to its distributor on March 17, 2004, eight months before the fire. The furnace was sold to Dewitt on August 12, After
2004, a little more than three months before the fire.
Dewitt purchased the furnace, he converted the furnace from a natural gas to a propane furnace. The furnace was installed in
the basement of the Dansey vacation home on August 15, 2004, approximately three months before the fire, and it was connected on October 17, 2004, one month before the fire. Although there are no "hard-and-fast" rules regarding what length of time is sufficient to satisfy this factor, the
Harrison case suggested that in most of the cases where courts have found the factor to be satisfied, the accidents occurred within two to three months of the time that the products left the control of the manufacturer. 549 A.2d at 391.
Nevertheless, the Harrison court cited a case in which a court found the factor to be satisfied even though the product was purchased approximately eight and one-half months before the
accident, see id., and thus it is conceivable that the eight
months between the time the furnace left York's control to the time of the fire would satisfy the second Harrison factor. With regard to the third Harrison factor--evidence of the same types of accidents they in have similar no products--the of Plaintiffs similar
accidents involving this York furnace model.
contend that this factor does not weigh against the application of the "indeterminate not have a defect" pass theory from because liability Br. factor 40). among a manufacturer its first the be
(Appellant's included this
However, those to
considered and did not suggest that any one factor was more or less important than another. Therefore, the lack of similar
accidents involving this York furnace model cuts against the application of the "indeterminate defect" theory. The fourth Harrison factor--the elimination of other causes of the fire--also has not been sufficiently established by the Plaintiffs. The Plaintiffs attempt to rely on the
investigations of the fire marshals and Ebersole to satisfy this factor. However, the evidence shows that the fire marshals did
little more than a cursory examination of other possible causes of the fire, as their main investigatory function was to rule out arson as a cause. Moreover, the fire marshals did not
perform a detailed examination of any electrical appliances or 18
the wiring in the utility room. undertake an appropriate
Ebersole, for his part, did not to rule out other
potential causes of the fire. 4
Although Ebersole tested other
mechanisms within the furnace to determine whether any of those internal mechanisms may have caused the fire, his testing
assumed the very premise that the fourth Harrison factor was designed to validate: of the fire besides that there were no other potential causes a defect in the furnace. In essence,
Ebersole assumed the outcome of his investigation--a defective furnace--without causation. Turning to the final factor--the type of accident that does not happen without a defect--the parties disagree about how this factor should be interpreted. appropriate inquiry is According to the Plaintiffs, the a fire could occur in the testing and excluding alternate theories of
interior of a furnace without a defect, whereas the Defendants argue that the appropriate inquiry is whether a fire could occur in a utility room without a defect in the furnace. We do not need to decide which of these formulations is correct, because the Plaintiffs have failed to satisfy this
Because Ebersole's testimony in this regard does not appear to be based on the "clogged filter" theory, we will assume that this testimony was not among the evidence excluded by the district court.
First, room and
running through the furnace, and it is quite possible that a fire could originate in the furnace even though the electrical wiring was the cause. Moreover, the furnace itself had been
converted from a natural gas furnace to a propane furnace, and the fire could have resulted from a faulty conversion. Finally,
the furnace was improperly used by MPI for at least a month prior to the fire, and this improper use may have been the cause of the fire. For all of these reasons, the fire could have
originated inside the furnace absent a defect. Examining all of the Harrison factors, only one of the
factors--whether the accident occurred a short time after the sale--has Plaintiffs' been established to by the Plaintiffs. testimony Given as to the the
possible causes of the fire, their failure to eliminate other possible causes of the fire, and the lack of evidence of similar accidents involving this York furnace model, a reasonable juror could not infer that the fire was caused by a defect in the York furnace. Therefore, the district court did not err in granting
summary judgment on the products liability claims. B. The Plaintiffs next challenge the district court's grant of summary judgment in favor of MPI on the negligence claim, which 20
was based on its determination that the Plaintiffs had put forth no evidence from which a reasonable juror could conclude that MPI's improper use of the furnace was a proximate cause of the fire. In response, MPI contends that the Plaintiffs have not
provided evidence that MPI breached the standard of care or that its actions caused the fire, and thus the decision of the
district court should be affirmed on either ground. In order to prevail on a negligence claim, the plaintiff must show the following: duty to protect the "(1) that the defendant was under a from injury, (2) that the
defendant breached that duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury
proximately resulted from the defendant's breach of the duty." Rosenblatt v. Exxon Co., U.S.A., 642 A.2d 180, 188 (Md. 1994); accord Valentine v. On Target, Inc., 727 A.2d 947, 949 (Md. 1999). In order to prove that a professional, such as a
homebuilder, breached the standard of care, the plaintiff must put forth evidence of the standard of care that the professional should have followed as well as evidence that the professional failed to exercise the requisite care. Cf. Crockett v.
Crothers, 285 A.2d 612, 613-14 (Md. 1972) (describing the proof required for a plaintiff to prevail on a negligence claim
against an engineer).
Here, the Robson experts testified that the standard of care for homebuilders required MPI to follow use all of of the
installed in the home. that MPI employees
Further, the Robson experts testified this standard of care when they
began using the furnace in the Dansey vacation home contrary to the instructions in the York manual. Assuming that the district
court did not exclude this testimony, a reasonable juror could have concluded from this evidence that MPI breached the standard of care. Even if MPI breached the standard of care, after the
district court excluded the expert testimony that was based on the "clogged filter" theory, the Plaintiffs had no evidence that MPI's use of the furnace during construction proximately caused the fire, except for the bare assertions of the Robson experts. The Plaintiffs' theory of causation was inextricably linked to the "clogged filter" theory, and the only evidence the district court admitted regarding the plausibility of the "clogged
filter" theory was that of a York expert who testified that it was impossible for the fire to have started due to a clogged filter. Even though the issue of proximate causation is generally left to a jury, if the evidence can lead to no other conclusion, then causation can be decided as a matter of law. 22 See May v.
Giant Food, Inc., 712 A.2d 166, 175 (Md. Ct. Spec. App. 1998) (citing Baltimore Gas & Elec. Co. v. Lane, 656 A.2d 307, 316 (Md. 1995)). the Here, actions the of Plaintiffs MPI with put the forth fire in no evidence Dansey
Accordingly, the district court was correct in
granting summary judgment to MPI on the negligence claim. C. Finally, the Plaintiffs contend that the district court
erred in granting summary judgment to Dewitt on the negligence claim. According to the Plaintiffs, Dewitt was negligent when
he made the furnace system operational knowing that MPI had a practice of using of do its not furnaces for temporary heat prior to the the
projects. as much,
component of their negligence claim is that Dewitt had a duty to prevent MPI from operating the furnace system while construction was ongoing. On the other hand, Dewitt argues that he owed no
such duty under Maryland law, and thus the granting of summary judgment was proper. To maintain are a negligence to show claim that against Dewitt Dewitt, owed the a
legally cognizable duty. 611 (Md. 2005);
See Dehn v. Edgecombe, 865 A.2d 603, 727 A.2d at 949. A duty, in
negligence cases, is defined as "an obligation, to which the law 23
will give recognition and effect, to conform to a particular standard of conduct toward another." Ashburn v. Anne Arundel
County, 510 A.2d 1078, 1083 (Md. 1986) (quoting Prosser & Keeton on the Law of Torts § 53 (5th ed. 1984)) (internal quotations omitted). The existence of a legally cognizable duty is a
question of law to be decided by the court. Wood Ltd. Liab. Ltd. P'ship, 826 A.2d 805
Hemmings v. Pelham 451 (Md. 387 2003); (Md.
Muthukumarana v. Montgomery 2002).
The Plaintiffs failed to identify any duty owed by Dewitt to prevent MPI from operating the furnace during construction. Maryland has adopted the Restatement (Second) of Torts, which "articulates the general rule that `there is no duty so to
control the conduct of a third person as to prevent him from causing physical harm to another unless (a) a special relation exists between the actor and the third person which imposes a duty upon the actor to control the third person's conduct, or (b) a special relation exists between the actor and the other which gives to the other a right to protection.'" Lamb v.
Hopkins, 492 A.2d 1297, 1300 (Md. 1985) (quoting Restatement (Second) of Torts § 315 (1965)); see also Remsburg v.
Montgomery, 831 A.2d 18, 31 (Md. 2003) (discussing Maryland's adoption of the Restatement (Second) of Torts regarding this issue). The Restatement (Second) of Torts lists the types of 24
special relations to which such a duty attaches, see §§ 314A, 316-320, 5 and notably this list does not include two parties in a contractual relationship such as that between Dewitt and MPI. Further, the Plaintiffs have not identified any Maryland
decisions supporting their contention that an installer of a product has a duty to prevent an experienced homebuilder from improperly using the installed product. Since the Plaintiffs cannot show that Dewitt owed a duty to control MPI's use of the furnace, the district court did not err in granting summary judgment in favor of Dewitt on the
III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED
The types of special relations include: common carrier and passenger (§ 314A(1)), innkeeper and guest (§ 314A(2)), possessor of land open to the public and person who enters the land (§ 314A(3)), parent and child (§ 316), master and servant (§ 317), landlord and tenant (§ 318), caretaker and person known to have dangerous propensities (§ 319), and custodian and ward (§ 320).
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