Date: 03-27-2002

Case Style: Maureen E. Walsh v. Potomac Airfield Airport, et al.

Case Number: 01-1126

Judge: Luttig

Court: United States Court of Appeals for the Fourth Circuit

Plaintiff's Attorney: A. Thomas Morris, KIRKPATRICK & LOCKHART, L.L.P., Washington, D.C., for Appellant.

Defendant's Attorney: Teresa Lynne Graham, DOMBROFF & GILMORE, P.C., Washington, D.C.; David Steele Scott, SCOTT & SCOTT, Baltimore, Maryland, for Appellees.

Description: Having settled with Griffioen's estate and employer, Walsh now sues the neighboring landowners for maintaining the tall trees on their property and the Potomac Airfield for operating its runway in an unsafe location. The district court dismissed Walsh's complaint against the landowners pursuant to Fed. R. Civ. P. 12(b)(6) and granted summary judgment for Potomac Airfield. For the reasons that follow, we affirm.

Under Maryland law, the duty owed by an owner or occupier of land depends on the plaintiff's status as an invitee, invited licensee, bare licensee, or trespasser. See Wells v. Pollard, 708 A.2d 34, 39 (Md. 1998). The district court held that Walsh was a trespasser, or, at best, a bare licensee, to whom the landowners owed no duty of rea- sonable care. J.A. at 6.

On appeal, Walsh asserts that premises liability law should not apply, because contact with the trees occurred in publicly-owned "navigable airspace," and not on the landowners' property. Appel- lant's Br. at 30-33. Although she cites no legal authority to establish precisely where the landowners' property ends and where "navigable airspace" begins,1 Walsh argues that the landowners' trees are like trees encroaching on public highways on land. Id. The district court rejected this argument, holding that the crash occurred on the land- owners' property, and not in publicly-owned "navigable airspace." J.A. at 37. We agree.

The Supreme Court of the United States has recognized that the common law ad coelum doctrine2 "has no place in the modern world." United States v. Causby, 328 U.S. 256, 261 (1946). Nevertheless, Maryland law holds that "[t]he landowner owns at least as much of the space above the ground as he can occupy or use in connection with the land." Friendship Cemetery v. Baltimore, 81 A.2d 57, 62 (Md. 1951); see also Causby, 328 U.S. at 264 ("[I]t is obvious that if the landowner is to have full enjoyment of the land, he must have exclusive control of the immediate reaches of the enveloping atmosphere. Otherwise buildings could not be erected, trees could not be planted, and even fences could not be run."). Therefore, declaring the space occupied by the trees to be publicly-owned would be inconsis- tent with Maryland law.

Walsh further argues that the landowners' duty of care should be defined according to the Code of Maryland Aviation Regulation ("COMAR") S 11.03.05.03(B)(1), which prohibits vegetation from growing "to such a height as to be an airport hazard." Appellant's Br. at 20-23. However, the violation of a statute or ordinance confers no right of action on a trespasser or a bare licensee. See Osterman v. Peters, 272 A.2d 21, 23 (Md. 1971) ("A trespasser can acquire no such right except in case of willful injury. The mere violation of a statute would not give it."). Given Walsh's status as an uninvited entrant on the landowners' property, we reject appellant's argument that COMAR S 11.03.05.03 establishes the landowners' duty of care.

Walsh finally argues, relying on Baltimore Gas & Electric Co. v. Flippo, 684 A.2d 456 (Md. Ct. Spec. App. 1996), that she should not be regarded as a trespasser because she did not intentionally or voluntarily enter the landowners' property. Appellant's Br. at 27-29. However, on appeal in Flippo, the Maryland Court of Appeals expressly declined to hold that a trespass must consist of an intentional or vol- untary act. See Baltimore Gas & Electric Co. v. Flippo, 705 A.2d 1144, 1151. Instead, the court held that Flippo was not a trespasser because he was a licensee by invitation on the real property through which the electric company's easement ran. Id. at 1153. Flippo does not help Walsh, as she was not a social guest on the real property where the accident occurred. Hence, she was owed no duty of reasonable care.

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Click the case caption above for the full text of the Court's opinion.

Outcome: The judgment of the district court is affirmed.

Plaintiff's Experts: Unavailable

Defendant's Experts: Unavailable

Comments: None