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contractplaintiffdefendantdamagesnegligenceliabilitytrialverdictmotion
defendantnegligenceliabilityverdictmotionwill

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Ott v. Washington Gas Light Co., 205 F.Supp. 815

Facts

The plaintiff, a three-and-a-half-year-old boy, was burned by an open flame from a flare pot set out by the defendant J. H. De Veau & Son, Inc. during street repairs ordered by the Washington Gas Light Company. The flare pots were intended to warn passersby of the excavation but were left burning for more than three hours after sunrise. The accident occurred in a suburban area where children frequently played, and the defendants had a practice of extinguishing the flares after sunrise, which was not followed on the day of the incident.

The salient facts may be briefly summarized. The defendant, Washington Gas Light Company, is a public utility engaged in the business of supplying illuminating gas in the city of Washington and the metropolitan area surrounding the city.

Issue

Was the defendant J. H. De Veau & Son, Inc. negligent in failing to extinguish the flare pots within a reasonable time after sunrise, and is the Washington Gas Light Company liable for the actions of De Veau?

Was the defendant J. H. De Veau & Son, Inc. negligent in failing to extinguish the flare pots within a reasonable time after sunrise, and is the Washington Gas Light Company liable for the actions of De Veau?

Rule

Under Maryland law, the use of flare pots with open flames for warning purposes is not inherently negligent, but users must exercise due care in their use. The doctrine of attractive nuisance is not recognized in Maryland, meaning that the standard of care owed to children is the same as that owed to adults.

It is also the law of Maryland that the use of flare pots burning open flames for the purpose of warning the public of the presence of repair work and barricades on highways, is not negligence and that it is lawful to use devices of this type with this objective in view.

Analysis

The court analyzed whether the defendant De Veau exercised due care in allowing the flare pots to burn for over three hours after sunrise. It noted that while the use of flare pots is lawful, the failure to extinguish them in a timely manner could constitute negligence. The court found that there was a question for the jury regarding whether the duration of the burning flares was unreasonable, especially given the practice of extinguishing them after sunrise.

The ultimate question in this case, therefore, is whether there is any basis for a contention that the defendant De Veau was guilty of any failure to exercise due care in connection with employing these flares, and whether there is substantial evidence of lack of due care to justify the submission of the question to the jury.

Conclusion

The court granted the motion for a directed verdict in favor of the Washington Gas Light Company, concluding it was not liable for De Veau's actions. However, the motion for a directed verdict by De Veau was denied, allowing the case to proceed to trial on the issue of damages.

Accordingly, the Court is of the opinion that there is a question to be submitted to the jury, namely, whether the flares in this case were permitted to burn for more than a reasonable time after sunrise, and whether failure to extinguish them within a reasonable time constituted lack of due care and negligence.

Who won?

Washington Gas Light Company prevailed in the case because the court found no basis for liability against it, as it did not control the actions of De Veau and was not responsible for the negligence of an independent contractor.

The Court is therefore of the opinion that no basis of liability whatever has been shown as against the Washington Gas Light Company and its motion for a directed verdict will be granted.

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