Rhaney v. UMES
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Anthony F. Rhaney, Jr. v. University of Maryland Eastern Shore , No. 118, Sept. Term 2004. Opinion by Harrell, J. TORTS - NEGLIGENCE - DUTY OWED BY UNIVERSIT Y TO STUDENT REGARDING CONDUCT OF DORM ITORY ROOMMATE There is generally no duty owe d, in a landlord/tenant relationship, by a university to an enrolled student in the assignment of a dormitory roommate or to anticipate that the roomm ate might assault and batter the plaintiff stud ent. T he af firm ative duty o wed by a landlord to a tenant d oes not ex tend gene rally to include the intentiona l torts or crimina l acts of a third party tortfeasor. A duty may be found in narrow contexts when a physical condition within a common area contributes to the occurrence of an intentional tort or criminal activity if the landlord has actual knowledge or should have forese en the harm suffered by the victim. In this case, the alleged physical condition does not include the intentional tortfeasor, an enrolled student randomly assigned to the victim's on-campus dormitory room. Where the University knew of one prior disciplinary infraction for fighting by the tortfeaso r, which inc ident did not involve the current victim or o ccur in a dormitory setting, the subject assault and battery in the dormitory roo m was n ot sufficien tly foreseeable to justify imposing a duty on the University to take action to have prevented the harm or be liable. TORTS - NEGLIGENCE - PREM ISES LIABILITY - STATUS OF PLAINTIFF A business invitee is a visitor invited to enter the premises in connection with some business dealings with the possessor of the land. The university student in this case, who lived and was assaulted/battered in his on-campus dormitory room, is a tenant as evinced by a signed Residence Hall Agreement and not ne cessarily a busin ess invitee of the univers ity when in his dormitory room. There could be no breach of duty of reasonable care, even when analyzed under a business owner/invitee relationship, because the university student/victim in this case knew of the extent of the tortfeasor s prior inciden t on camp us, the unive rsity knew of no sufficient pattern of prior vio lence, and th e university did not act unre asonably in readmitting the tortfeasor after he took a course addressing conflict resolution. Circuit Co urt for Som erset Cou nty Case # 19-C-00-007649 IN THE COURT OF APPEALS OF MARYLAND No. 118 September Term, 2004 ANTHONY F. RHANEY, JR. v. UNIVERSITY OF MARYLAND EASTERN SHORE Bell, C.J. Raker Wilner Cathell Harrell Battaglia Greene, JJ. Opinion by Harrell, J. Filed: August 15, 2005 A damaged fishtan k, a sucker punch f rom its owner, and the resultant broken jaw prompted this litigation initiated by Anthony F. Rhaney, Jr., a student at the time at the University of Maryland Eastern Shore ("UMES" or "University"). On 29 October 1998, Ennis Clark, another student enrolled at UMES, began moving his personal items from the randomly-assigned dormitory room that he share d with Rhane y into a different dormitory room. When Clark left the room, Rhaney moved Clark's fish tank (which yet awaited transport to the new dormitory room) and noticed it began leaking. Clark returned as Rhaney was attempting to stop the leak. He demanded that Rhaney explain what happened to the fish tank. Clark punched Rhaney in the jaw after Rhaney denied repeatedly that he had cracked the fish tank as he mo ved it. Clark had been disciplined once by UMES for fighting before the 29 October 1998 incident with Rhaney. He was involved in two altercations with other students, first at an oncampus party on 13 March 1998 and at a subseque nt, related, figh t at a campu s dining ha ll on 14 March 1998. 1 UMES suspended Clark after he pled guilty before the Judicial C ouncil of UMES to fighting and disorderly conduct regarding the 14 March incident. The University instructed Clark that the suspension could be lifted if he participa ted in "professional counseling related to con flict resolutions." Thereafter, Clark attended a Save Our Streets ("S.O .S.") program in Wash ington, D.C . and offe red that experience in satisfaction of the scho ol's requireme nt for his re-a dmission. UMES, for better or worse, permitted Clark to retu rn after rece iving docu mentation of his particip ation in that program. 1 The record does not reflect that Rhaney was involved in the 13 - 14 March incidents. After the 29 October 1998 battery, Rhaney filed a complaint in the Circuit Court for Somerset County, alleging, among other things, two counts against UMES.2 Count III pled that UMES either negligently failed to disclose to Rhaney Clark's dangerous tendencies or negligently assigned Clark to be Rhaney's roommate. Count IV stated that UMES breached its duty to Rhaney under premises liability principles, alleging that Rhaney was a business invitee. UM ES m oved f or sum mary jud gmen t, arguin g that U MES , as a landlord, did not violate a known duty to Rha ney as a business invitee or tenant and asserting that a special relationship (a pre-requisite to UMES owing a duty to con trol the cond uct of a third party (Clark)) did not exist between UMES and Rhaney. The judge denied the motion. At the end of a trial, t he jury retu rned a v erdict ag ainst U MES . UMES ap pealed to the Court of Special Appeals. Univ. of Md. E. Shore v. Rhaney, 159 Md. App . 44, 858 A.2d 49 7 (2004) (en banc) (hereinafter "UMES"). The Court of Special Appeals's majority reversed the judg ment of the Circuit C ourt, observing that there could be no breach of duty owed to Rhaney as a business invitee or tenant where the "evidence of Mr. Clark's prior m isconduc t was insuf ficient to establish the foreseeability that he would assault the othe r person assigned to his do rmitory room." UMES, 159 Md. App. at 60, 858 A.2d at 506. The intermediate appellate court refused to address the special relationship theory interjected by UME S becaus e it had not b een alleged by Rhaney in h is 2 The complaint also pled two counts of intentional torts (Counts I and II, assault and battery, respectively) against Clark. A default judgment was entered against Clark on 7 February 2002. Clark is not a party to this appeal. 2 complaint as a theo ry of reco very. Id. at 47 - 48 n. 2, 858 A.2d at 499 n. 2 (citing Bourexis v. Carroll County Narcotics Task Force, 96 Md. App. 459, 473, 625 A.2d 391, 398 (1993)). We granted Rhaney's petition and issued a writ of certio rari, Rhaney v. University of Maryland Eastern Shore, 384 M d. 448, 863 A.2d 99 7 (2004), to consider th e following questions: I. Did the Court of Spe cial Appeals err by imposing an incorrect standard of foreseeability of harm which unduly restricts causes of action against business hosts and landlords for their failure to protect in vitee s or te nants fro m crimin al ac tivity? II. Did the Court of Special Appeals improperly inject into the case law of premis es liability applicable to this case its views of proper public p olicy rega rding p roper c ollege a dmissio n, readmission, and disciplinary procedures? We also granted the conditional cross-petition of UMES possibly to consider the following: III. Did the University owe a duty to protect Rhaney from the student who punched him when the University had not taken charge or custody of either student and when the Un iversity undertook no affirmative act to protect Rhaney upon which Rha ney co uld reaso nably rely? We are persuaded to affirm the Court of Special Appeals's judgment, but upon different grounds. Because Rhaney shall not preva il as to any of his q uestions pro perly raised in his petition for writ of certiorari, the question pres ente d in U ME S's cross-petition shall not be reached or decided. 3 I. A. Clark matriculated initially at UME S in the fall of 1997 as a first semester freshman. After completing his first semester, he was involved in an on-campus altercation at the Student Development Center on the night of 13 March 1998. The fight re-erupted on the fourteenth of March in front of a campus dining h all. Clark and several others were detained by campus police; Clark and one other student were suspended as a result. The remaining students inv olved in the fracas rece ived on-ca mpus pu nishmen t. Clar k's suspension was not necessarily infinite. UMES prescribed in a letter, dated 24 March 1998, that Clark could apply for readmission for the fall 1998 semester if he completed "professional counseling sessions related to conflict resolutions." If he did so, Clark could be re-adm itted under a one acad emic year pro bationary perio d subjec t to immedia te and indefinite suspension for any future disciplinary violations. According to a letter, dated 11 June 1998, from the UMES Vice Pres iden t for Stud ent A ffai rs, C lark's participation in the S.O.S. program 3 satisfied the counseling requirement attached to the March 1998 suspension, although the "one academ ic year" probation ary period w ould rema in in effect sho uld Clark apply for re-admission . Clark applied f or re -adm issio n the same day; 3 An associate director of S.O.S., in her letter to UMES, dated 1 June 1998, stated that Clark had "successfully participated" in a S.O.S. "program." Referencing a program description included with the letter, the associate director stated that some of the goals of the S.O.S. program included teaching court-referred Washington, D.C., youths (who had been charged with weapons offenses) how to "resolve conflict verbally, without resorting to violence, to develop more favorable attitudes toward law-abiding behavior, and to make positive choices in response to conflict." 4 he was re-admitted on 29 June 1998. After being randomly assigned as ro ommate s, Clark and Rhaney co -existed pea cefully until the Octob er 1998 f ishtank incid ent. 4 UMES did not inform Rhaney of Clark's prior disciplinary decision, although Rhaney testified that he knew of the March 1998 incident within a few w eeks of the start of the fall sem ester.5 On 29 October 1998, while Clark moved his personal belongings from the room he shared with Rhaney to another dormitory room, Rhaney and a friend began to rearrange the remaining furn iture in the roo m. T hey m oved Clark's fish tank from the top of a desk. The tank cracked and began leaking. As Rhaney attempted to stop the leak and clean-up the spilled water, Clark returned to the room. A heated argument arose. Rhaney denied continuou sly that he h ad brok en the f ishtank . During a pause in the purely vocal altercation to that point, Cla rk punch ed Rhan ey in the jaw. In the resultant surgery, Rhaney's mouth was wired shut. He incurred significant medical expenses.6 Rhaney eventually comp leted his first semester at UM ES, but withdrew before receiving his de gree. Clark withdrew from UM ES a fter h is battery o f Rh aney. 4 Clark's move to a new dormitory room on 29 October 1998 was to be with old friends. 5 The parties agree that UMES could not disclose Clark's prior disciplinary record to Rhaney, even had Rhaney made a specific request for disclosure. 20 U.S.C.S § 1232g (b) (1) (I) (1998) (prohibiting the disclosure of disciplinary records at the risk of losing federal funds except in "connection with an emergency . . . if the knowledge of such information is necessary to protect the health or safety of the student or other persons."). Section 1232g (b) (1) (I) was amended to permit the disclosure of disciplinary proceedings that occurred after 7 October 1998. 6 The jury awarded $74,385.00 in compensatory damages to Rhaney. 5 B. Rha ney's complaint alleged against UMES essentially the following theories of recovery in negligence: 29. [UMES] was negligent in that it failed to disclose to [Rh aney] that his roommate, [Clark], had dangerous and violent propensitie s, which were known to [UM ES] or its agents, servants, and employees. The likelihood of an assault by Clark on [Rhaney], or others, was foreseeable. 30. [UMES] was further negligent in that it assigned [Clark] to be a roomm ate of [Rhaney], under circumstances when it knew or should have kn own that [Clark] had dangerous propensities including a history of assau lt. 31. [UMES] breached its duty of reasonable care by permitting [Clark] to be in proximity to [Rhaney], and as a result of the negligence of [U MES ], [Rhaney] was injured and sustained damages. *** 35. [UMES] is an institution of higher learning maintaining a campus at Princess Anne, Somerset County, Maryland, for the purpose of educating and housing students, among its other functions. 36. [Rhaney] was properly enrolled as a full-time student and residing in a dormitory provided b y [UMES ]. 37. While lawfully on the portion of the premises to which he was invited and expected to be by [UMES], [Rhaney] was assaulted and battered by [Clark] as set forth above. 38. [Rhaney] was an invitee of [UMES s] property, and [UMES] breached its duty of reaso nable and ordin ary care to maintain the premises safely for [Rhaney], and to protect [Rhaney] against injury caused by unreasonable risk w hich [Rhaney], exercising 6 due care, could not disco ver. 39. [UM ES] brea ched its duty of care by perm itting [Clark] to be in proxim ity with [R haney]; by fai ling to protec t [Rh aney] from [Clark s] dangerou s propensity; and by failing to warn [Rhaney] of Clark s dangerous propensities. In UMES's memorandum supporting its motion for summary judgment, it argued that "there is no duty to control a third person's condu ct so as to prevent persona l harm to another, unless a 'special relationship' exists between the actor and the third person or between the actor and the person injured." Ashburn v. Anne A rundel C ounty, 306 Md. 617, 628, 510 A.2d 1078, 1083 (19 86) (citations omitted). It explained that the univ ersity/student relation ship by itself did not constitute a special relationship at law. UMES further contended that, for purposes of the motion, neither a business owner/invitee nor a landlord/tenant status (assuming one or the other existed between UMES and Rhaney) created a legally cogniz able duty in this case. Even if a duty were re cognized , UME S alternatively ass erted that that d uty was one of reasonable care and was not breached by UMES based on the undisputed material facts of this case. As noted earlier, the trial court denied UMES's motion. At trial at the close of Rhaney's case-in-chief and again at the close of all of the evidence, UME S move d for judg ment, repe ating its summ ary judgmen t arguments. Rhaney's counsel retorted only that UMES owed a legal duty to Rhaney as a landlord would a tenant or a busin ess ow ner to a b usiness invitee. T he trial court denied UMES's motions and submi tted the c ase to th e jury. 7 The jury was instruc ted on the d uty of a landlo rd to a tenant, a business owner to an invitee, and the duty arising in a special relationship, if one is found to exist, to control a third pers on's conduct. Rhaney's counsel objected to the special relationship jury instruction, which had been proposed by UMES, but did not offer one of his own regarding a special relation ship the ory of rec overy. Following jury instructions, Rhaney's counsel argued in closing that a duty existed between UMES and Rhaney as a business owner to an invitee or as a landlord to a tenant and that UM ES b reac hed that d uty. UME S's counsel a rgued on ce again tha t UME S owed no duty to Rhaney for Clark's intentional torts, absent a special relationship, which did n ot exist. In rebuttal, Rhaney's counsel explained that UMES owed a duty both to control Clark and protect Rhaney (and all other UMES students) through administration of its judicial discipline system. The jury ultimately found that UM ES breached a duty of reasonable care owed to Rhaney and that the breach was the proximate cause of Rhaney's injuries. On UME S's appeal, the intermediate appellate co urt held that there was insufficient evidence to establish that Clark's battery of Rhaney in the dormitory room was fore seeable by UMES and overturned the judgment in favor of Rhan ey. UMES, 159 Md. App. at 60, 858 A.2d at 506. The intermediate appellate court determined that, based on the single prior disciplinary action regarding the March 1998 dining hall fracas, there could be no breach of a legal duty because UMES could not have foreseen th at Clark later w ould attack his roommate. The Court of Special A ppeals explaine d tha t UM ES's duty to Rh aney a s Cla rk's 8 dormitory roomm ate, under eith er a busines s owner/in vitee or landlord/ten ant relationsh ip theo ry, was no greater than UMES's duty owed to any UMES student on campus or any dormitory-housed student. Id. at 59, 858 A.2d at 506. Rhaney's legal premise, allowing that it was not u nreasona ble for UMES to permit Clark to re-attend classes and enter other oncampus buildings, but that it was unreasona ble to allow Clark to sha re a dormitory room w ith Rha ney, was re jected. Id. at 60, 858 A.2d at 506. The intermediate appellate court also refused to consider whether a special relationship existed because that theory of recovery was not plead by Rhaney. It also noted that other jurisdictions considered similar situations under landlord /tenant a nd/or b usiness owne r/invitee mode ls for an alysis. Id. at 47-48 n. 2, 858 A.2d a t 499 n. 2 . II. Rha ney's main thesis a dvanced before us is that the Court of Special Appeals applied inapprop riately a foreseeability standard to d etermine w hether a bre ach of a k nown d uty existed here under either a business owner/invitee or landlord/tenant analysis. UMES counters that the known duty of reasonable care, under either theory, does not apply in the first instance becau se U ME S lac ked suff icien t kno wledge to en able it to f ores ee C lark's battery of Rhaney predicated on the incident that occurred earlier in 1998 in other than a dormitory setting. Furthermore, UMES asserts that a duty did not exist under any legal theo ry off ered by Rh aney. 7 7 As a threshold matter, UMES argues that Rhaney briefed questions before us that are not (continued...) 9 Before examining the contentions, it is appropriate to reiterate briefly the principles applied in Maryland in tort cases regarding whether a duty exists. A cause of action in negligence must demonstrate "(1) that the defendant was under a duty to protect the 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." E.g., Muth ukuma rana v. M ontgom ery Cou nty, 370 Md. 447, 486, 805 A.2d 372, 395 (2002). It is the burden of the plaintiff, in the first instance, to adduce evidence of a duty tha t was b reache d and p roxima tely cause d the inju ries susta ined. In this regard, we embrace Judge C ardo zo's iteration of the social policy to narrow "the conce pt of duty to em brace only those persons or classes of persons to whom harm of some type might reas onably have been fore seen as a re sult of the particular tortious condu ct." Henley v. Prince G eorge's Co unty, 305 Md. 320, 333-34, 503 A.2d 1333, 1340 (1986) (citing Palsgraf v. Long Island R. Co., 162 N.E. 99 (N .Y. 1928) ); see Doe v. Pharmacia & Upjohn Co., ___Md.___,___A.2d__ _(2005) (Misc. No. 13, Sept. 2004 Term, filed 11August 2005). Absent a duty owed to the plaintiff, as established by the plaintiff, there can b e no liability 7 (...continued) identical to those raised in his successful petition for certiorari. UMES asserts that we should dismiss entirely Rhaney's appeal because it does not comply with Md. Rule 8-504 (a) (5) (stating a brief shall include "[a]rgument in support of the party's position."). Ordinarily, we consider only those issues raised in a petition for certiorari (or a cross-petition) that are preserved properly for appellate review. Md. Rule 8-131 (b). In what can only be characterized as a close call, we find sufficient substance in Rhaney's brief responding to the issues decided by the Court of Special Appeals. Those aspects of Rhaney's brief pertaining to any question not raised in his petition for writ of certiorari will not be addressed. Md. Rule 8-131 (b); Renbaum v. Custom Holding, Inc., 386 Md. 28, 33 n. 2, 871 A.2d 554, 557 n. 2 (2005). 10 in negligence and the defendant is entitled to judgment as a matter of law. Remsburg v. Montgomery, 376 Md. 56 8, 581, 831 A.2d 18, 25 (2003); Southlan d Corp. v . Griffith, 332 Md. 704, 712, 633 A.2d 84, 88 (19 93); West Va. Cent. & Pittsburgh Ry. Co. v. Fuller, 96 Md. 652, 666, 54 A. 669, 671-72 (1903) ("before negligence can be predica ted of a giv en act, back of the act must be sought and found a duty to the individual complaining, the observance of wh ich duty w ould ha ve ave rted or a voided the injur y."). Only after establishing that a duty does indeed exist mu st we consider what that duty is and whether sufficient evidence exists to prove that a defe ndant, by a ction or inactio n, breach ed th at du ty. There is no duty gene rally to control the c onduct of a third perso n so as to pre vent him or her from causing p hysical harm b y criminal acts or intentional torts, absent a special relationship. Horridge v. St. Mary's County Dept. of Social Svcs., 382 Md. 170, 183, 854 A.2d 1232, 12 39 (2004 ); Lamb v. Hopkins, 303 Md. 236, 242, 492 A.2d 1297, 1300 (1985) (quoting Restatement Seco nd (Torts) § 315 (19 65)). In contrast to, and distinct from, the general rule regarding liability for the acts of third parties, there are distinct affirmative duties8 associated with being an owner or occupier of real property. Our review of the relevant case law leads us to conclude that UM ES, if a land lord, had no cognizab le duty to Rhaney as a tenant on the leased premises under the circumstances of this case and that Rha ney's negligence claims may not be categorized properly as those of a business invitee 8 We will use the term special relationship, an exception to the generally accepted rule that a party owes no duty to the victims of intentional torts of third-party tortfeasors, separate from the distinct affirmative duties arising out of the legal relationship of the property owner and the victim. 11 for a tort occurring within the University's premises on the basis tha t he, as a stude nt, effectively leased the dorm room as his temporary domicile. A. Duty of a Landlord to a Tenant in the Leased Premises A landlord's duty to a tenant within the common areas generally is one of reason able care to prote ct again st know n, or rea sonab ly foresee able, risk s. Scott v. W atson, 278 Md. 160, 169, 359 A.2d 548, 554 (1976 ). In Hemmings v. Pelham Wood Ltd. Liab. L td. P'ship, 375 Md. 522, 537, 826 A.2d 443, 452 (2003), we articulated the genera l principle that a landlord "has no obligation to maintain the leased premises for the safety of the tenant." In certain circumstances, a duty to a tenant in the leased premises may arise out of dangerous and defective conditions within the common areas controlled by the landlord, but only in a narrow context th e landlord m ust have actual knowledge of activity taking place in the common areas that may affect th e demised premises o r, in the alternativ e, the landlord should have had such knowle dge and f oreseen th e harm suf fered. Id. at 546, 826 A.2d at 457; Shields v. Wagman, 350 Md. 666, 681, 714 A.2d 881, 888 (1998) (assessing liability of landlord based on the know ledge or fo reseeability of inju ry); see Henley, 305 Md. at 334, 503 A.2d at 1340 (observing that f oreseeability gen erally limits a duty to on ly "'identifiable plaintiffs,' i.e., those within a foreseeable zone of danger whose identities are known in advance"). Mindf ul of the ne ed to avoid makin g a la ndlo rd the insurer of its tena nt's safe ty, Scott, 278 M d. at 169, 35 9 A.2d a t 554, and in conjunction with the direction to construe questions of duty so as to avo id unlimite d or ov erly broad liability, Henley, 305 Md. at 333- 12 34, 503 A.2d at 1340, the analysis of whether the assumed landlord owes a duty in the present case rests on the threshold determinations of whether Clark constituted a "dangerous condition" and whether the h arm to Rhaney w as a result of UMES's actual knowledge of Clar k's propensity to assault and batter his future roommate or, in the alternative, if UMES should have foreseen the harm suffer ed by Rha ney based on th e knowledge of C lark's relevant past activities. We cannot agree with Rhaney that C lark's alleged pro pensity to batter h is roomm ate may be characterized properly as a dangerous or defective condition within the meaning of Hemmings. In Hemmings, the dange rous cond ition within th e comm on areas, giv ing rise to a duty, was a physical one the duty to maintain lighting deemed, in that case, essential for security of the apartment building. 375 Md. at 548, 826 A.2d at 458. The apartment building owner had installed exterior lighting in comm on areas o utside the bu ilding that cea sed to function at some po int. An unid entified intruder entered forcibly into the Hemmings' apartmen t, destroying the aluminum-framed, sliding glass door that separated the Hemmings' apartment from the e xterior balco ny. The ow ner-supplie d "Charlie B ar," a horizon tally mounted security bar that p hysically prevents the sliding glass door from opening fully or at all, was absent when a contractor arrived to repair the d oor n ine d ays afte r the forc ed en try. Id. at 529, 826 A.2d at 447. The majority's analysis in Hemmings was base d partly on Scott v. Watson, an opinion replying to certified questions from the United States District Court for the District of 13 Maryland. In Scott, we held that a landlord had a duty of reaso nable care to its tenants whe re the landlord had knowledge of criminal activities occurring within the common areas of the premises. 278 Md. at 169, 359 A.2d at 554. We did not state, nor imply, however, that such criminal acts occurring in the common areas themselves constituted a "dangerous or defective condition." We did n ot make the landlord an insurer of its tenants against these criminal acts; rather, a landlord has a duty to "take reasonab le measures, in view of the existing circumstances, to eliminate those conditions contributing to the crimina l activity." Id. at 169, 359 A.2d at 554 (second emphasis added). The conditions in Scott and Hemmings, not present here, were physical ones that contributed to or facilitated the commission of tortious acts- not the tortious acts themselves or the tortfeasors . Such a co nclusion is consistent with the general rule that there is no duty to control the tortious a cts of a third person.9 Even if Clark fairly could be characterized as a "dangerous condition," UMES argues persuasive ly that it neither had knowledge nor could have foreseen that Clark would batter his roommate in their shared dormitory room. UMES possessed records of only one disciplinary action against Clark, an inadequate basis from w hich to ma ke the harm to 9 Taken to the extreme, were we to conclude that Clark personally amounted to a "dangerous condition," UMES could owe a duty to every occupant of each dormitory as Clark might move from room to room. Under this extreme scenario, a floating duty, anchored only by Clark's presence, would follow him as he moved into an area where a potential plaintiff could demonstrate UMES controlled the premises. 14 Rhaney foreseeable.10 Clark's disciplinary action was a result of an ongoing altercation between students at a social event on campus that continu ed into the d ining hall the n ext d ay. There is nothing otherwise in the record to suggest that Clark had a propensity for violence nor that UMES had knowledge, or reason to believe, that Clark was more than a one-time, youthful offender of the student disciplinary system.11 In comparis on, the strong est factor be aring on the role of fore seeability and the imposition of a duty in Scott and Hemmings was the police records of multiple crimes in the geograp hic vicinity. Scott noted 56 c rimes again st property and 16 crimes against persons on or near the apa rtment p remise s. 278 M d. at 163 -64, 35 9 A.2d at 551. We also noted that the defendant had no knowledge of any crimes resulting in physical harm against pers ons in the months p recedin g the fa tal assau lt in its und ergrou nd park ing gar age. Id. at 164, 359 A.2d at 551. The record in Hemmings identified complaints from tenants about violent crimes at the apartm ent comp lex, including burglaries w here intruders entered ap artments 10 One could argue theoretically that some type of harm inevitably would fall upon any future roommate that could raise Clark's ire sufficiently for Clark to batter him or her. Our view of foreseeability is not nearly wide enough to include a possible result, but deals more with the probability of that result. Without more than the one incident in this record, which involved multiple people in a social setting (student dining hall and social hall) incongruous with our facts (one person, roommate), the probability of Clark assaulting his prospective roommate at the time UMES assigned Rhaney and Clark as roommates was not high. See Brown v. Dermer, 357 Md. 344, 358, 744 A.2d 47, 55 (2000) (quoting Henley, 305 Md. at 336, 503 A.2d at 1341 (observing that foreseeability "'involves a prospective consideration of the facts existing at the time of negligent conduct'")). 11 During the March 1998 proceedings before the Judicial Council, Clark stated that the 14 March 1998 fight was a continuation of an altercation from a party on 13 March 1998. The Judicial Council reported that Clark claimed that he was confronted by eight individuals and had gotten involved in an attempt to "break-up the fight." That report also stated that one student had been advised to seek medical treatment for scratches and bruises received from the altercation. 15 after forcing the ir way through a rear patio door or sliding glass door. 375 Md. at 531, 826 A.2d at 448. Even in Matthews v. Amberwood Assocs. Ltd . P'ship, 351 Md. 544, 549-50, 719 A.2d 119, 121 (1998), a case where a landlord was held liable for a fatal attack on a small child by a Stafford shire Bull T errier in an apartment (regulated by a lease with a "no dogs" provision), evidence was presented to the jury that numerous people had warned the landlord that the dog exhibited aggressive behavior towards humans on multiple occasions. B. No Du ty Under Business O wner/Invitee Standa rd A business owner has an affirmative duty to its invitees "a duty to use reasonable and ordinary care to keep the premises safe and to protect the invitee from injury caused by an unreason able risk which the invitee, by exercising ord inary care for his ow n safety, will not discov er." Southlan d Corp. v . Griffith, 332 Md. 704, 715-16, 633 A.2d 84, 89 (1993) (citing Sherman v. Suburban Trust Co., 282 Md. 238, 242, 384 A.2d 76, 79 (1978)). Liability for breach of this affirmative duty may arise from a defective or unsafe condition or from dangers associated with employees or other invitees when that business owner, "as a reasonab ly prudent person . . . should have anticipated the possible occurrence and the probable results of such acts." Eyerly v. Baker, 168 Md. 599, 607, 178 A. 691, 694 (19 35). We consider first whether Rhaney was a business invitee of UMES at the time of the attack. Beyond his matriculation generally as a stu dent at UM ES, Rha ney s specific contractual relationship w ith UM ES as to his occupancy of the dormitory room was governed by a distinct R esidence H all Agreem ent. Rhan ey, while inside the dormitory building, was 16 a tenant of a landlord, but not necessarily a business invitee. Business invitees are visitors invited to enter the premises in connection with som e business d ealings w ith the possessor. Burkert v. Smith, 201 M d. 452, 456 , 94 A.2d 4 60, 461 (1 953); Res tatement (S econd) T orts § 332 (1 965); D an B. D obbs, The Law of Torts, § 234 at 599-602 (2000). Maryland tort law embraces the analytical premise that a person's status on the land at the time of the incident generally controls his or her le gal statu s and th e lando wner's a ttendan t duty. Crown Cork & Seal Co. v. Kane, 213 M d. 152, 156 - 59, 131 A .2d 470, 47 2-75 (195 7); Gordo n Sleeprite Corp. v. Waters, 165 Md. 354, 356 - 60, 168 A.2d 846, 847-48 (1933); Restatement (Second) Torts § 332, cmt. l. Rhaney may have been a business invitee as a student on the UMES campus generally in its common areas, dining halls, and academic buildings, but, upon entering his dormitory building his legal status vis à vis UM ES was regu lated more specifically by the Reside nce Hall A greemen t, and thus he was a tenant of UMES at the time of the battery by Clark.12 12 UMES and Rhaney analyze and argue the duty question under both business owner/invitee and landlord/tenant relationships using decisions from other jurisdictions. Our review of those cases confirms our belief that Rhaney's status was, at best, that of a tenant, not a business invitee. Other states' cases cited by the parties are inapposite because the incidents occurred either outside a dormitory or in jurisdictions no longer adhering to the premise that legal status of victims on the pertinent property determines premises liability questions. E.g., Johnson v. State, 894 P.2d 1366, 1370 (Wash. Ct. App. 1995) (incident occurred outside dormitory classified as invitee); Nero v. Kansas State Univ., 861 P.2d 768, 779 (Kan. 1993) (issue before the court on appeal from summary judgment classified properly as a landlord/tenant relationship when criminal act occurred in dormitory common area); Mullins v. Pine Manor College, 449 N.E.2d 331, 337 (Mass. 1983) (disregarding cases from jurisdictions relying on status of landowner to victim and relying on special relationship to form a special duty). We disagree with those jurisdictions that hold the proper analysis is that of a business invitee when the incident occurs within a dormitory. Williams v. Louisiana, 786 So.2d 927, 932 (La. Ct. App. 2001). 17 Even were Rhaney s relationship with UMES at the time of the attack analyzed as one of business invitee/business owner, he would not prevail. There was insufficient evidence of a breach of the duty of reasonable and ordinary care to keep the premises safe or to protect Rhaney from injury caused by an unreasonable risk which Rhaney, through the exercise of ordinary care for his own safety, could not discover. As noted previously, Rhaney knew, within a few weeks of the start of the Fall 1 998 semester, of Clark s involvement in the March 1998 incident. That apparently did not give him sufficient pause to request assignment to a new room or roommate. Essentially then, Rhaney knew what UMES knew about any propensity on Clark s part and appa rently saw no reason to act to protect h imself against any foreseeable danger. UMES did not act unreasonably in readmitting Clark, where it established a prerequisite for education in conflict resolution, which Clark produced evidence of satisfying. There being no pattern of sufficient prior violence on C lark s part in circumstances similar to what ultimately happened to Rhaney, UMES could not be said to be responsible for reason ably foreseein g what h appened and, theref ore, to have a duty to forestall its occurrence or stand liable for the consequences. III. Because Rhaney shall not prevail on the issues pro perly raised in his p etition for w rit of certiorari that were briefed and argued before us, we need not, and shall not, reach or decide the issue raised in UMES s conditional cross-petition. 18 JUDGMENT OF THE COURT OF SPECIAL APPEALS AFFIRMED; COSTS TO BE PA ID BY PETITIONER. 19
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