Assurance Company of America v. York International, Incorporat, No. 08-1411 (4th Cir. 2009)

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UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 08-1411 ASSURANCE COMPANY OF AMERICA; RICK DANSEY, individually, Plaintiffs - Appellants, v. YORK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) Argued: December 2, 2008 Decided: 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 Affirmed by unpublished opinion.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. wrote the 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 OFFICES OF GUIDO Appellee Gregory PORCARELLI, Hunt Valley, D. Mortimer Properties, Unpublished opinions are not binding precedent in this circuit. 2 GREGORY, Circuit Judge: Assurance Co. of America ( Assurance ) and Rick Dansey (hereinafter Plaintiffs ) appeal the district court s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 Plaintiffs products liability and negligence claims. on the For the 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 in a utility room in the basement of the home. The Plaintiffs 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 sources to propane sources. the home on operational August at 15, that time. converted Accordingly, Dewitt them from natural gas Dewitt then took the furnaces to 2004, but In he early did October, not make Lee them contacted Dewitt to complete the installation of the furnaces. On October 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. It is 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 admitted that he had read the York installation manual, which states that [t]he furnace is not to be used for temporary heating of buildings or structures under construction. 1606.) (J.A. 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 final phase of home construction. the furnaces during the On the other hand, both Lee and Gregory Mortimer testified that Dewitt never told them that 4 they should not operate the furnaces while construction was 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 originated in the interior of the East Furnace. that the fire In support of this conclusion, the fire marshals noticed that there was burn damage on the caused the floor floor to directly above cave towards in the the East Furnace, utility 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 Furthermore, rule the out fire arson as marshals did the cause not of identify 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, cause of the fire. and produce expert opinions regarding the 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. 6 According to the Cagwin report, the failure of MPI and 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 either prevented MPI from operating the furnace until construction was complete or ensured that the furnace was being maintained, contributed to and the his fire. failure Daryl to take Ebersole, either action another 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 detailed 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 1 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. 2 Because the experts deposition testimony was substantially identical, we will consolidate the experts opinions and note the instances where the opinions diverge. 7 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 clogged caused to filter a the return restricted temperature air filter the increase becoming clogged. This airflow in the furnace, in combustion gas the which system. 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 switch that is designed to shut down the furnace if the 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 manufacturing component defect). in the According switch to the malfunctioned experts, the (a high temperature limit switch was destroyed in the fire, and thus they could temperature not determine limit switch whether was the due failure to a design of the defect high or a manufacturing defect. On carrier, May 13, 2005, Assurance, Dansey filed and this his homeowner s lawsuit against insurance York in the United States District Court for the District of Maryland. On May 25, 2006, the Plaintiffs filed an amended complaint, adding MPI and Dewitt as defendants. The Plaintiffs following causes of action against York: alleged the negligence, strict liability, defect in design, defect in manufacture, defect in warning, breach of express warranty, breach of implied warranty, and violation of the Maryland Consumer 9 Protection Act. The Plaintiffs alleged claims breach express warranty, of of negligence, breach and of against both MPI and Dewitt. the expert testimony of breach of contract, implied warranty The Defendants moved to exclude Cagwin 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 MPI on the court also negligence 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. The Plaintiffs 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 (4th Cir. 1995). Summary judgment is appropriate if the 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. v. Catrett, 477 U.S. 317, 324 (1986). In deciding a motion for 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. testimony of sufficient In the to particular, fire avail the marshals themselves Plaintiffs and of the the claim Robson that the experts was indeterminate defect 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 defect to the 11 seller; and 3) a causal relation between the defect and the injury. Motors Corp., 437 accord Phipps v. 1976). A.2d Gen. 242, Motors 247 (Md. Corp., Ct. 363 Spec. A.2d App. 955, 1981); 958 (Md. A product defect may be shown by putting forth one or more of three different types of evidence: based Jensen v. Am. on the nature of the accident in (1) direct proof the context of the 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. 2d 378, 407-08 (D. Md. 2001). Proof of a defect must arise 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 decision product misuse identified or alteration. five factors Id. that 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 the Plaintiffs majority, application failed if unnecessary any, to to of decide of the theory put forth the Harrison whether and the the establishing evidence because the factors. district We court find it erred in 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 temperature. furnace This filter contention and led fails. 14 to It an is increase clear 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: affirmative 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 there was a fire, the switch must have failed. (J.A. 2321.) Indeed, the district court later noted that the Plaintiffs could not rely on any of the Robson experts opinions because they had put all 2325.) their On eggs appeal, in the the clogged-filter Plaintiffs did not basket. argue (J.A. that 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. 3 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 Without the benefit of the excluded Robson expert 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 possible origins of the fire. causes of the fire, not merely See, e.g., Shreve, 166 F. Supp. 2d at 410 (snow thrower continued to rotate after auger drive lever was released); Harrison, automobile s electrical system). 549 A.2d at 386 (defect in 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). 16 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 dates of importance. after the sale--there are several 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, 2004, a little more than three months before the fire. After 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 17 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 acknowledge of accidents that they in similar have no products--the evidence of accidents involving this York furnace model. Plaintiffs prior similar The Plaintiffs contend that this factor does not weigh against the application of the should indeterminate not defective Harrison have a free product. decision defect theory pass from (Appellant s included this because liability Br. factor 40). among a manufacturer for its first However, those to the be 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 investigation potential causes of the fire. 4 to rule out other 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: that there were no other potential causes of a the fire besides defect in the furnace. In essence, Ebersole assumed the outcome of his investigation--a defective furnace--without testing and excluding alternate theories of 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 whether a fire could occur in the 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 4 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. 19 factor there even was under their electrical formulation wiring of the inquiry. throughout the utility 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 been Plaintiffs established failure to by provide the Plaintiffs. expert 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 plaintiff 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 against an engineer). 21 on a negligence claim Here, the Robson experts testified that the standard of care for homebuilders manufacturer s instructions installed in the home. that MPI required employees MPI to regarding follow the use all of of the products Further, the Robson experts testified breached 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)). connecting Here, the the actions vacation home. Plaintiffs of MPI with put the forth fire no in evidence the 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 completion of Plaintiffs do furnaces its not for temporary construction explicitly heat prior projects. state as to Although much, a the the necessary 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 Plaintiffs are a negligence required legally cognizable duty. 611 (Md. 2005); to show claim that against Dewitt Dewitt, owed the Dansey a See Dehn v. Edgecombe, 865 A.2d 603, Valentine, 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 question of law to be decided by the court. Wood Ltd. Liab. Ltd. P ship, Muthukumarana v. Montgomery 826 A.2d County, is a Hemmings v. Pelham 443, 805 duty A.2d 451 (Md. 372, 2003); 387 (Md. 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 negligence claim. III. For the foregoing reasons, we affirm the judgment of the district court. AFFIRMED 5 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). 25

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