Khosmukhamedov et al v. Potomac Electric Power Company

Filing 67

MEMORANDUM OPINION. Signed by Judge Alexander Williams, Jr on 02/19/2013. (bas, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
SOUTHERN DIVISION

IZATULLO KHOSHMUKHAMEDOV et al.,
Plaintiffs,
v.
Civil Action No. 8:11-cv-00449-AW
POTOMAC ELECTRIC POWER
COMPANY,
Defendant.

MEMORANDUM OPINION
Pending before the Court are the Parties’ Cross-Motions for Summary Judgment. The
Court has reviewed the record and finds a hearing unnecessary. For the reasons that follow, the
Court GRANTS Defendant’s Motion for Summary Judgment and DENIES Plaintiffs’ CrossMotion for Summary Judgment.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Izatullo Khosmukhamedov and Zoulfia Issaeva are the owners of the

real property and improvements located at 12909 Brushwood Terrace, Potomac, Maryland
(“Property”). Plaintiffs have sued Defendant Potomac Electric Power Company for failing to
disconnect electric power to the Property, thereby allegedly causing it to sustain considerable
water damage.
Although Plaintiffs’ primary residence is in Moscow, Plaintiffs typically come to the
United States twice a year and stay at the Property for a few weeks and sometimes longer.

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Plaintiffs have retained Mikhail Immerman to watch over the Property when they are gone and
regard him as their agent.
Plaintiffs purchased the Property in 2005 and opened an account with Defendant for
electric power in August 2005. See Doc. No. 61-7. Plaintiffs kept their account open from
August 2005 to November 2008, during which time Defendant provided an uninterrupted supply
of power to the Property. See id. The pipes did not freeze and break during the winters of 20052007, and Plaintiffs evidently heated the Property during this time. See Doc. No. 61-4 at 20–21;
Doc. No. 61-5 at 7–8.
Plaintiffs stayed at the Property in the fall of 2008 for about a month. Plaintiffs left the
Property on October 26, 2008. Doc. No. 61-9 at 5. Plaintiffs’ agent contacted Defendant in
November 2008 to close Plaintiffs’ account. Plaintiffs assert that their agent submitted a written
request to disconnect the power and that, additionally, Defendant orally agreed that it would do
so. By contrast, Defendant contends that Plaintiffs, through their agent, merely asked it to
discontinue electric service, which, in its estimation, does not include disconnecting the service
such that the Property receives no power.
Despite leaving the Property in the fall of 2008, Plaintiffs concede that they took no
action to maintain heat at the Property. Doc. No. 61-4 at 21. Plaintiffs also concede that they
failed to drain the water pipes or shut off the water supply to the Property. See id. at 22–23.
Furthermore, Plaintiffs’ agent concedes that he took no action to maintain heat, shut off the water
supply, or drain the water pipes at the Property, and that Plaintiffs never asked him to do so. See
Doc. No. 61-5 at 6–8.
In the winter of 2008–09, no later than February 7, 2009, the water pipes in the Property
froze and broke. Plaintiffs allege that the water pipes failed due to freezing, and Anthony

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Bocchichio, Plaintiff’s own expert, agrees with their allegation to a reasonable degree of
engineering certainty. See Doc. No. 12 ¶ 18; Doc. No. 61-11 at 12.
Due to the bursting of the pipes, Plaintiffs’ Property sustained considerable water
damage. Defendant contends that the freezing and bursting of the pipes caused the water damage.
Plaintiffs counter that the energization of the water pump is largely to blame for the water
damage. Specifically, they assert that most of water in the system would have been expelled
through the Property’s garage and that not nearly as much water would have flooded the
Property had Defendant disconnected the power. Defendant’s expert, Robert Bryant, authored a
report in which he concludes that “not operating the heat in the residence and failing to properly
winterize the plumbing system to prevent freezing resulted in the loss.” Doc. No. 61-12 at 6.
When presented with Bryant’s conclusions, Plaintiffs’ expert stated that he would not disagree
with them. Doc. No. 61-11 at 8–9.
Plaintiffs filed the case in state court and Defendants removed the case on the basis of
diversity. Plaintiffs lodged an Amended Complaint on March 22, 2011. Doc. No. 12. Plaintiffs
assert claims for negligence, breach of contract, and promissory estoppel. The case went into
discovery. Defendant filed a Motion to Consolidate, seeking to consolidate this case with 8:12CV-00820-AW. The Court denied this Motion in October 2012, partly because discovery was
over in this case. See Doc. No. 62.
Meanwhile, Defendant moved for summary judgment. Doc. No. 61. Plaintiffs filed their
Cross-Motion for Summary Judgment a month later. Doc. No. 63. Briefing on the Parties’ CrossMotions for Summary Judgment is complete.

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II.

STANDARD OF REVIEW
Summary judgment is appropriate only “if the movant shows 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(a); see Celotex Corp. v. Catrett, 477 U.S. 317, 323–25 (1986). The Court must
“draw all justifiable inferences in favor of the nonmoving party, including questions of
credibility and of the weight to be accorded to particular evidence.” Masson v. New Yorker
Magazine, Inc., 501 U.S. 496, 520 (1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
255 (1986)). To defeat a motion for summary judgment, the nonmoving party must come
forward with affidavits or similar evidence to show that a genuine issue of material fact exists.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A disputed fact
presents a genuine issue “if the evidence is such that a reasonable jury could return a verdict for
the nonmoving party.” Anderson, 477 U.S. at 248. Material disputes are those that “might affect
the outcome of the suit under the governing law.” Id.
Although the Court should believe the evidence of the nonmoving party and draw all
justifiable inferences in his or her favor, the nonmoving party cannot create a genuine dispute of
material fact “through mere speculation or the building of one inference upon another.” See Beal
v. Hardy, 769 F.2d 213, 214 (4th Cir. 1985). Further, if a party “fails to properly support an
assertion of fact or fails to properly address another party’s assertion of fact as required by Rule
56(c), the court may consider the fact undisputed for purposes of the motion.” Fed. R. Civ. P.
56(e)(2). Finally, hearsay statements or conclusory statements with no evidentiary basis cannot
support or defeat a motion for summary judgment. See Greensboro Prof’l Firefighters Ass’n,
Local 3157 v. City of Greensboro, 64 F.3d 962, 967 (4th Cir. 1995).

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III.

LEGAL ANALYSIS

A.

Negligence
Defendant attacks Plaintiffs’ negligence claim on multiple grounds. Defendant argues

that Plaintiffs’ negligence claim fails because Plaintiffs failed to designate an expert to testify as
to the applicable standard of care. Defendant also argues that Plaintiffs cannot show that its
failure to turn off the power was either the but-for or legal cause of the water damage. Further,
Defendant asserts that Plaintiffs were contributorily negligent and that such negligence
completely bars liability. Finally, Defendant contends that the defense of assumption of the risk
bars Plaintiffs’ negligence claim. The Court need not address all of these arguments as some of
them are meritorious and constitute complete bars to recovery in and of themselves.
“To establish a cause of action in negligence a plaintiff must prove the existence of four
elements: a duty owed to him (or to a class of which he is a part), a breach of that duty, a legally
cognizable causal relationship between the breach of duty and the harm suffered, and damages.”
Jacques v. First Nat’l Bank of Md., 515 A.2d 756, 758 (Md. 1986).
Maryland continues to recognize the doctrine of contributory negligence. See Harrison v.
Montgom. Cnty. Bd. of Educ., 456 A.2d 894, 905 (Md. 1983). Thus, it is well-established that “a
plaintiff who fails to observe ordinary care for his own safety is contributorily negligent and is
barred from all recovery, regardless of the quantum of a defendant’s primary negligence.” Id. at
898 (citations omitted). “In measuring contributory negligence the standard of care imposed
upon a person for his own protection is that of a reasonable man under like circumstances . . . .”
Craig v. Greenbelt Consumer Servs., Inc., 222 A.2d 836, 837 (Md. 1966). “The Maryland courts
have not hesitated to find a plaintiff contributorily negligent as a matter of law where common

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experience reveals the foreseeable dangers of the plaintiff's actions.” Reid v. Wash. Overhead
Door, Inc., 122 F. Supp. 2d 590, 593–94 (D. Md. 2000) (citations omitted). It is well-settled,
both in Maryland and other jurisdictions, that a property owner can reasonably foresee the
danger that water pipes may freeze in the winter and breaches the duty of ordinary care by failing
to adequately heat and/or drain them. See Commercial Realty Co. v. Nat’l Distillers Prods.
Corp., 76 A.2d 155, 157 (Md. 1950) (affirming trial judge’s decision that landlord negligently
caused water pipes to freeze and burst where landlord knew that water ran through the pipes and
failed to provide heat in the building in winter); E. Beck & Co. v. Hanline Bros., 89 A. 377, 381–
83 (Md. 1913) (affirming jury verdict that defendants negligently allowed water pipe to freeze
and burst in winter, partly because of pipe’s proximity to room without heat and defendants’
failure to drain water from the pipes).1 “While contributory negligence is ordinarily a jury

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See also Powers v. Coates, 203 A.2d 425, 428 (D.C. 1964) (“Ordinarily the water in the pipes, radiators
and other fixtures in a dwelling house will not freeze unless through negligence proper precaution is not
taken to prevent it.”); Evans v. Kirson, 106 S.E. 647, 650 (W.Va. 1921) (“[T]he owner of a building, . . .
who permits the water to remain in the pipes . . . must exercise such reasonable precaution as will tend to
prevent its freezing when the temperature probably may endanger it.”); Moroder v. Fox, 143 N.W. 1040,
1042 (Wis. 1913) (“Knowing that the premises were vacant and unheated, and that the water pipes . . .
were uncovered and unprotected from frost, it was negligence to allow them so to remain during the
winter time.”); Wise v. Wise, 964 N.E.2d 464, 466 (Ohio Ct. App. 2011) (“[A] reasonable person certainly
could foresee injury [by freezing pipes] to a vacant rental property if he ordered the gas company to turn
off the gas, the only source of heat to the home, during the winter months.”); Bloomingdale State Bank v.
Capitol Bank of Chi., 451 N.E.2d 599, 602 (Ill. App. Ct. 1983) (“[I]t was reasonably foreseeable that the
failure to turn off the water while failing to turn on the heat could result in damages to the premises . . .
.”); Woodruff v. Oleite Corp., 192 N.Y.S. 189, 199 A.D. 772, 774, (N.Y. App. Div. 1922) (“It is a wellunderstood physical fact that in this climate water in the pipes in an unheated building will freeze and
burst the pipes in the winter season.”); Peru Heating Co. v. Lenhart, 95 N.E. 680, 684 (Ind. Ct. App.
1911) (“In turning off said hot water heat, appellant was chargeable with knowledge of the character of
the climate in which it was operating said business, and of the injurious results that might flow from the
creating of a dead end in said pipes filled with water; that on account there of the pipes so filled with said
water were liable to freeze and burst, when freezing weather came; and that in such case injury would, in
all probability, result to the occupants of said building.”); Muller Boat Works, Inc. v. Unnamed 52%2C
House Barge, 464 F. Supp. 2d 127, 146 (E.D.N.Y. 2006) (“Plaintiff, knowing that freezing weather in
New York was likely during December through March and that pipes with water could freeze and rupture,
negligently permitted the pipes in the vessel to do so.”); Sovereign Chem. & Petroleum Prods., Inc. v.
Ameropan Oil Corp., 148 F.R.D. 208, 212–13 (N.D. Ill. 1992) (citing cases) (“[I]t was certainly
reasonably foreseeable that lack of heat in Chicago during late December or January could cause pipes to
burst due to freezing of water.”); Whitelegg v. Standard Acc. Ins. Co., 271 N.Y.S.2d 492, 498 (N.Y. Sup.

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question, the Maryland Court of Appeals has established that a plaintiff can be contributorily
negligent as a matter of law when there is no genuine dispute as to the plaintiff’s own
negligence.” See Reid v. Wash. Overhead Door, Inc., 122 F. Supp. 2d 590, 593–94 (D. Md.
2000) (citing Driver v. Potomac Elec. Power Co., 230 A.2d 321 (Md. 1967)).
“It is a basic principle that ‘[n]egligence is not actionable unless it is a proximate cause of
the harm alleged.’” Falade v. Beverage Capital Corp., Civil Action No. 8:10–cv–02047–AW,
2012 WL 1405720, at *3 (D. Md. Apr. 20, 2012) (alteration in original) (quoting Pittway Corp.
v. Collins, 973 A.2d 771, 786 (Md. 2009)). “Under Maryland law, proximate cause has two
separate requirements.” Id. “It must be both a ‘cause in fact’ and ‘a legally cognizable cause.’”
Id. (quoting Collins, 973 A.2d at 786).
“Causation-in-fact concerns the threshold inquiry of whether defendant’s conduct
actually produced an injury.” Collins, 973 A.2d at 786 (citation and internal quotation marks
omitted). “Two tests have developed to determine if causation-in-fact exists, the but for test and
the substantial factor test.” Id. (citation omitted). “The ‘but for’ test applies in cases where only
one negligent act is at issue.” Id. Under this test, “a party must show that the event ‘would not
have occurred absent or “but for” the defendant’s negligent act.’” Falade, 2012 WL 1405720, at
*3 (quoting Collins, 973 A.2d at 786–87).

Ct. 1966) (“[I]t could reasonably have been foreseen seen that, if in freezing weather . . . the heat supply
[was] . . . cut off, the water in the heating and plumbing systems would freeze and burst the pipes.”);
Jobar, Inc. v. Perkins Old Chi., Inc., No. Civ.A. CV-01007, 2001 WL 1807303, at *2 (Me. Super. Ct.
Dec. 3, 2001) (“It is reasonably foreseeable that disabling a heating system in winter in Portland could
cause frozen water pipes to burst.”); McCartney v. Pawtucket Mut. Ins. Co., No. 301572, 1994 WL
723056, at *3 (Conn. Super. Ct. 1994) (“The court finds [against] the plaintiff [because she] did not use
reasonable care to maintain heat in her vacant and unoccupied house . . . .” ).

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“When two or more independent negligent acts bring about an injury, however, the
substantial factor test controls.” Collins, 973 A.2d at 787. Under this test, “[c]ausation-in-fact
may be found if it is ‘more likely than not’ that the defendant’s conduct was a substantial factor
in producing the plaintiff’s injuries.” Id. (citations omitted). The following considerations are
important, either individually or collectively, in determining whether the actor’s conduct is a
substantial factor in bringing about harm to another:
(a) the number of other factors which contribute in producing the harm and the
extent of the effect which they have in producing it;
(b) whether the actor’s conduct has created a force or series of forces which are in
continuous and active operation up to the time of the harm, or has created a
situation harmless unless acted upon by other forces of which the actor is not
responsible;
(c) lapse of time
See id. (citation omitted).
Once causation-in-fact is established, the inquiry shifts to whether the cause-in-fact is the
legally cognizable cause of the harm. Id. To determine whether the factual cause is the legally
cognizable cause, courts ask “whether the actual harm to a litigant falls within a general field of
danger that the actor should have anticipated or expected.” Id. at 786–87. Although causation—
both cause-in-fact and legal cause—is generally a question for the jury, “it becomes a question of
law in cases where reasoning minds cannot differ.” Id. at 792 (citation and internal quotation
marks omitted).
In this case, a reasonable juror could only conclude that Plaintiffs failed to observe
ordinary care to avoid the water damage. Plaintiffs left the Property on October 26, 2008.
Plaintiffs concede that they took no action to maintain heat at the Property. Plaintiffs also
concede that they failed to drain the water pipes or shut off the water supply to the Property.

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Furthermore, Plaintiffs’ agent concedes that he took no action to maintain heat, shut off the water
supply, or drain the water pipes at the Property, and that Plaintiffs never asked him to do so.
There is no dispute that the pipes failed due to freezing; Plaintiffs so allege and their own expert
agrees to a reasonable degree of engineering certainty. Likewise, Defendant’s expert concludes
that “not operating the heat in the residence and failing to properly winterize the plumbing
system to prevent freezing resulted in the loss.” Doc. No. 61-12 at 6. When presented with
Bryant’s conclusions, Plaintiffs’ expert stated that he would not disagree with them. These
undisputed facts, coupled with the longstanding rule that the danger that undrained pipes will
freeze and burst in the winter is reasonably foreseeable, compel a reasonable juror to conclude
that Plaintiffs failed to exercise ordinary care to protect themselves from the harm at issue.
Accordingly, the Court grants Defendant’s Motion for Summary Judgment as to Plaintiffs’
negligence claim.
Plaintiffs’ negligence claim would fail even had they not acted with contributory
negligence. No reasonable juror could conclude that Defendant’s failure to shut off the power at
the Property was either the factual or legal cause of the damage. In terms of factual causation, the
Court will apply the substantial factor test as Plaintiffs allege that Defendant’s failure to turn off
the electricity constituted negligence. Thus, for the purposes of argument, one could regard it as
a second negligent act. Under Collins, courts may give controlling force to “whether the actor’s
conduct has created a force or series of forces which are in continuous and active operation up to
the time of the harm, or has created a situation harmless unless acted upon by other forces of
which the actor is not responsible.” See 973 A.2d at 787 (citation omitted). Here, Plaintiffs have
created a force or series of forces which are in continuous and active operation up to the time of
the harm. Plaintiffs concede that they made no effort to maintain heat, shut off the water supply,

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or drain the water pipes at the Property. According to Defendant’s expert, with whose
conclusions Plaintiffs’ expert does not disagree, these forces induced the pipes to rupture.
Although Plaintiffs allege that the energized water pump exacerbated this harm by pushing water
throughout the Property, Defendant’s provision of electricity is “harmless unless acted upon by
other forces of which the actor is not responsible.” See id. (citation omitted). Indeed, Plaintiffs
maintained electricity at the Property during the winters of 2005–07 without incident. The
damage occurred only after Plaintiffs failed to heat the Property and drain the pipes, causing the
pipes to burst. Defendant is not responsible for these actions, and the alleged damage that the
provision of electricity caused is ancillary to the pipes’ bursting. Thus, the provision of
electricity was harmless until Plaintiffs’ negligence acted on it. For these reasons, it was not a
cause-in-fact of the damage.
Assuming that providing electricity was a cause-in-fact of the damage, it still would not
constitute the legal cause; it does not fall within a general field of danger that Defendant should
have anticipated or expected. Plaintiffs’ own expert acknowledges that keeping electric on was
presumably necessary to provide heat to the Property. Doc. No. 61-11 at 80–81. And, as
discussed, it is common knowledge that providing heat to a home in cold winter climates is
usually necessary to keep water pipes from failing. Therefore, Defendant had no reason to
anticipate that supplying the Property with power would cause the pipes to break. Furthermore,
as stated, Defendant provided electric to the Property for the prior three winters without incident.
Thus, Defendant had no particular reason to believe that continuing to provide electric despite
Plaintiffs’ request to disconnect service would cause the pipes to break. Accordingly,
Defendant’s provision of electricity was not the legal cause of the complained-of harm.

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Plaintiffs’ counterarguments lack merit. The only opposition Plaintiffs raise to
Defendant’s contributory negligence argument is that Plaintiffs believed that, by disconnecting
the power to the Property, water from the pipes would drain back into the underground well,
thereby precluding the possibility of their freezing and bursting. The salient flaw in this
argument is that “the standard of care imposed upon a person for his own protection is that of a
reasonable man under like circumstances.” Craig, 222 A.2d at 837. Therefore, Plaintiffs’
subjective view about whether disconnecting the power displayed ordinary care is irrelevant. See
id.; see also In re Methyl Tertiary Butyl Ether ("MTBE'') Prods. Liab. Litig., 559 F. Supp. 2d
424, 438 (S.D.N.Y. 2008) (litigants’ “state of mind plays no role in determining whether they . . .
acted as a reasonably prudent person”).
As for causation, Plaintiffs make two distinct arguments. First, Plaintiffs argue that the
energization of the pump caused the pipes to become overpressurized, which in turn caused them
to burst. This argument fails because Plaintiffs’ own expert repeatedly repudiated it. See Doc.
No. 65-3 at 4–6, 8, 12. Plaintiffs’ second argument is that, had Defendant disconnected the
power, the vast volume of the water from the system would have been expelled through the
Property’s garage and that not nearly as much water would have flooded the Property. Although
the Court agrees that there is a factual dispute over how much water would have leaked into the
Property had Defendant disconnected the power, this dispute fails to present a genuine issue of
causation for trial. For reasons stated at length, it is unforeseeable that supplying a house with
electricity in the winter would result in water damage, let alone substantial flooding. If anything,
a reasonable person would anticipate that shutting off the power in winter would cause the
heating system to stop functioning, thereby creating a danger that water pipes will burst.
Therefore, no reasonable juror could conclude that the alleged damages are within the general

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field of danger that Defendant should have expected through its failure to turn off electric service
at the Property.
In light of the preceding considerations, Plaintiffs’ negligence claim presents no genuine
factual disputes for trial. Accordingly, the Court grants Defendant’s Motion for Summary
Judgment as to Plaintiffs’ negligence claim.
B.

Breach of Contract
Plaintiffs predicate their breach of contract claim on alternative theories of relief. First,

Plaintiffs argue that there was a contract between them and Defendant for the provision of
electric service, and that one of its terms required the disconnection of the service upon customer
request. Alternatively, Plaintiffs assert that a separate contract was created when Plaintiffs’ agent
attempted to have the electric turned off and one of Defendant’s representatives orally agreed to
turn off the service.
Defendant attacks Plaintiffs’ breach of contract claim on several grounds, including that
no reasonable juror could conclude that its failure to disconnect the power caused the
consequential damages Plaintiffs allege. Despite filing memoranda totaling over sixty pages in
connection with the Parties’ Cross-Motions for Summary Judgment, Plaintiffs fail to respond to
this argument. As this argument is meritorious, the Court declines to consider the remainder of
Defendant’s arguments.
“Under Maryland law, the elements of a breach of contract are 1) a contractual obligation
and 2) a material breach of that obligation.” Chubb & Son v. C & C Complete Servs., LLC, Civil
Action No. 8:12–cv–01127–AW, 2013 WL 336718, at *7–8 (D. Md. Jan. 23, 2013) (citation and
internal quotation marks omitted). Once these elements are satisfied, “the non-breaching party
may recover damages for 1) the losses proximately caused by the breach [and] 2) that were

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reasonably foreseeable.” Hoang v. Hewitt Ave. Assocs., LLC, 936 A.2d 915, 934 (Md. Ct. Spec.
App. 2007) (citation omitted). Maryland applies the proximate cause standard for negligence
claims to breach of contract claims. CR-RSC Tower I, LLC v. RSC Tower I, LLC, 56 A.3d 170,
195 (Md. 2012). Thus, as with negligence claims, recovery for breach of contract is predicated
on “whether the actual harm to a litigant falls within a general field of danger that the actor
should have anticipated or expected.” Id. Likewise, the nonbreaching party may recover
consequential damages only if the parties could reasonably foresee that a breach of contract
might result in the complained-of harm. See id. at 188–89.
Here, regarding Plaintiffs’ negligence claims, the Court held that a reasonable juror could
only conclude that Defendant’s provision of electricity to the Property was not the proximate
cause of the damage to Plaintiffs’ Property. As the standard of proximate causation for breach of
contract claims mirrors the standard of proximate causation for negligence claims, the Court
incorporates its previous analysis by reference and concludes that no reasonable juror could find
that Defendant’s failure to disconnect the power proximately caused Plaintiffs’ damages. The
Court further holds that a reasonable juror could only conclude that the Parties could not have
reasonably foreseen that failing to turn off the electricity would result in the water damage at
issue. Reasonable people could not have contemplated that providing power to a home in the
winter—which is presumably necessary to keep pipes from freezing—would result in pipes’
bursting or in exacerbating preexisting damage caused by pipes that had already burst due to a
homeowner’s heedless choice to turn off the heat in the winter. Accordingly, the Court grants
Defendant’s Motion for Summary Judgment as to Plaintiffs’ breach of contract claim.

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C.

Promissory Estoppel
Plaintiffs also assert a promissory estoppel claim that fails as a matter of law. Under

Maryland law, the elements of promissory estoppel are as follows:
1. a clear and definite promise;
2. where the promisor has a reasonable expectation that the offer will induce
action or forbearance on the part of the promisee;
3. which does induce actual and reasonable action or forbearance by the promisee;
and
4. causes a detriment which can only be avoided by the enforcement of the
promise.
Pavel Enters., Inc. v. A.S. Johnson Co., Inc., 674 A.2d 521, 532 (Md. 1996) (citation omitted).
The trial court, and not a jury, must determine whether binding the promisor is necessary to
prevent injustice. Id. at 533–34.
In this case, although genuine factual disputes arguably exist regarding the first three
elements, the Court disagrees that injustice will occur if it does not bind Defendant. The alleged
promise is to turn off the Property’s power. It makes little sense to enforce the promise to
disconnect the power because doing so obviously could not prevent the extra flooding that
Plaintiffs contend Defendant’s broken promise caused. Hence, this case contrasts with the typical
case in which a promisee relies on a promise detrimentally by making an investment or
foregoing an economic opportunity. In such cases, enforcing the promise figures to enable the
promisee to defray the investment or recoup, at least partially, the lost opportunity. Here,
however, enforcing the promise would result in the pointless outcome of disconnecting the
power years after the fact (in the winter to boot) when Plaintiffs presumably need power at the
Property. Plaintiffs might respond that the Court should contemplate what would have happened
had Defendant shut off the power at the relevant time. In this way, Defendant would compensate
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them for the extra water damage that the water pump’s operation allegedly engendered. But this
argument ignores that Plaintiffs’ negligence in failing to maintain heat and/or drain the pipes at
the Property was the moving force behind the water damage. Had Plaintiffs not neglected to take
these steps to protect the pipes from freezing, it is exceedingly unlikely that they would have
burst. And had they not burst, the operation of the water pump would have been
nonconsequential. Given the hands-on role Plaintiffs played in causing the water damage, they
lack sufficiently “clean hands” for equitable relief. See id. (internal quotation marks omitted).
Accordingly, the Court grants Defendant’s Motion for Summary Judgment as to Plaintiffs’
promissory estoppel claim.
IV.

CONCLUSION
For the foregoing reasons, the Court GRANTS Defendant’s Motion for Summary

Judgment and DENIES Plaintiffs’ Cross-Motion for Summary Judgment. A separate Order
follows.

February 19, 2013
Date

/s/
Alexander Williams, Jr.
United States District Judge

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