Walsh v. Potomac Airfield Airport , 31 F. App'x 818 ( 2002 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
MAUREEN E. WALSH, 
Plaintiff-Appellant,
v.
POTOMAC AIRFIELD AIRPORT; P. G.
AIRPARK ASSOCIATES, LIMITED
PARTNERSHIP; PRISCILLA MARBURY
RYAN HOFFER; CATHERINE LANCASTER
RYAN ERHARD; THOMAS A. ERHARD,
Defendants-Appellees,
and  No. 01-1126
AVALON AVIATION, INCORPORATED;
HANK GRIFFIOEN, Estate; FOAD
TALEBNEJAD; JOHN DOES, 1-10,
Defendants,
and
CRITTENDEN ADJUSTMENT COMPANY,
Movant,
NICHOLAS SHORT,
Third Party Defendant.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Frederic N. Smalkin, Chief District Judge.
(CA-00-328-A)
Argued: September 28, 2001
Decided: March 26, 2002
Before LUTTIG, TRAXLER, and KING, Circuit Judges.
2 WALSH v. POTOMAC AIRFIELD AIRPORT
Affirmed by unpublished opinion. Judge Luttig wrote the majority
opinion, in which Judge Traxler joined. Judge King wrote a dissenting
opinion.
COUNSEL
ARGUED: A. Thomas Morris, KIRKPATRICK & LOCKHART,
L.L.P., Washington, D.C., for Appellant. Teresa Lynne Graham,
DOMBROFF & GILMORE, P.C., Washington, D.C.; David Steele
Scott, SCOTT & SCOTT, Baltimore, Maryland, for Appellees. ON
BRIEF: Mark A. Dombroff, DOMBROFF & GILMORE, P.C.,
Washington, D.C., for Appellees.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
LUTTIG, Circuit Judge:
This diversity case arises from the crash of a Piper PA 28-140, a
four-seat aircraft, shortly after takeoff from the Potomac Airfield Air-
port in Fort Washington, Maryland. The Piper clipped trees on neigh-
boring property and crashed, killing the pilot, Hank Griffioen, and
injuring Maureen Walsh, one of the passengers. An autopsy revealed
marijuana in Griffioen’s lung fluid and urine, J.A. 741, and Walsh’s
expert acknowledged that Griffioen erred in failing to use proper short
field take-off procedures, given the density altitude that day and the
weight in the aircraft. J.A. at 186.
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
WALSH v. POTOMAC AIRFIELD AIRPORT 3
granted summary judgment for Potomac Airfield. For the reasons that
follow, we affirm.
I.
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 atmo-
1
The Piper’s accident report estimated the trees at the crash to be 80-
95 feet high, and the crash site was estimated to be one-half mile (2640
feet) from the departure end of the runway. J.A. 90. Walsh cites no legal
authority to suggest that "navigable airspace" could be that low.
2
"Cujus est solum, ejus est usque ad coelum et ad inferos." ("To
whomsoever the soil belongs, he owns also to the sky and to the
depths.")
4 WALSH v. POTOMAC AIRFIELD AIRPORT
sphere. 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") § 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 § 11.03.05.03 establishes the landowners’ duty of care.3
3
We do not construe COMAR § 11.03.05.03(B)(1), which prohibits
vegetation from growing "to such a height as to be an airport hazard," to
define the upward boundary of a landowner’s property under Maryland
law. Although it is a land-use regulation that prohibits owners from
growing vegetation to a certain height, that is different from saying that
the landowners do not own that airspace in which COMAR
§ 11.03.05.03(B)(1) tells them they cannot grow vegetation. If COMAR
were to be interpreted in such a manner, which declares to be in the pub-
lic domain all airspace above an owner’s land that the owner could
occupy or use, simply because that airspace is necessary for a nearby air-
port to operate, it would raise serious questions under the Fifth Amend-
ment’s takings clause, especially given the Supreme Court’s admonition
that a landowner "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." United
States v. Causby, 328 U.S. 256, 264 (1946) (emphasis added). Moreover,
it would no longer be necessary for a state to condemn easements (and
compensate the landowners) when a new airport is built, if all airspace
above the land of neighboring landowners were automatically deemed to
be in the public domain.
Even under what we believe to be the view of our dissenting col-
league, who likewise interprets COMAR § 11.03.05.03(B)(1) to be a
land-use regulation, the landowners still own the airspace that the trees
occupy, which renders Walsh an uninvited entrant on the landowners’
WALSH v. POTOMAC AIRFIELD AIRPORT 5
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 volun-
tarily enter the landowners’ property. Appellant’s Br. at 27-29. How-
ever, 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 reason-
able care.
The landowners’ duty to Walsh was not one of reasonable care,
but, rather, to refrain from wanton or wilful misconduct. Id. Because
Walsh’s complaint does not allege willful or wanton behavior by the
landowners, the district court’s dismissal of the counts against the
landowners was proper.
property. And this is true regardless of whether a regulation limiting the
growth of trees in airspace that the landowners own would constitute a
"regulatory taking" under Lucas v. South Carolina Coastal Council, 505
U.S. 1003 (1992). Regulatory taking or not, the landowners would still
own the airspace where the accident occurred, and Walsh would still be
a trespasser.
If, on the other hand, COMAR § 11.03.05.03(B)(1) were to be con-
strued to appropriate that airspace into the public domain, (which is the
only way Walsh can avoid the conclusion that the landowners owed her
nothing more than a duty to refrain from wanton or wilful misconduct),
the landowners would have suffered a physical ouster from that portion
of their airspace. Under that interpretation of COMAR
§ 11.03.05.03(B)(1), Lucas v. South Carolina Coastal Council, 505 U.S.
1003 (1992), on which Judge King relies, would not govern, because the
landowners would be dispossesed of a portion of their property. Lucas
only applies to regulatory deprivations of an owner’s rights in the use of
property that he still owns.
Accordingly, COMAR § 11.03.05.03(B)(1) does not alter our conclu-
sion that the accident in this case occurred on the landowners’ property
rather than in publicly-owned navigable airspace.
6 WALSH v. POTOMAC AIRFIELD AIRPORT
II.
As to Potomac Airfield, Walsh seeks to impose a duty under Mary-
land air regulations, arguing that the obstruction clearance slope to the
airport’s runway was less than the ratio required by the Maryland
Aviation Administration ("MAA"). Appellant’s Br. at 10, 43-46.
However, the COMAR regulations apply only to approach paths, not
departure paths. Maryland law imposes no duty on the airport to pro-
vide any particular obstacle clearance slope for takeoffs.
In arguing that COMAR imposes a duty of care regarding takeoffs,
Walsh relies on the definition of "hazard" in COMAR
§ 11.03.05.01(B)(7), which states as follows:
"Hazard" means any object which affects the area available
for landing, take-off, and maneuvering of aircraft, thus tend-
ing to impair or destroy the utility of an airport and present
a potential danger to users of the airport and residents of the
area.
(Emphasis added). However, this is merely a definition of "hazard,"
not a prohibition of hazard, and imposes no duty on an airfield or on
anyone else. The prohibited "hazard to air navigation" is defined more
narrowly in COMAR § 11.03.05.04(A):
An obstruction is a hazard to air navigation if it: (1) Is
greater than 200 feet above ground level and within 3 nauti-
cal miles of the established reference point of any public-use
airport licensed by the Administration; or (2) [p]enetrates
any imaginary surface specified in this regulation as applied
to any airport.
(Emphasis added). It is undisputed that the trees are less than 200 feet
high; thus, to be a "hazard to air navigation," the trees must penetrate
an "imaginary surface." However, "imaginary surface" applies only to
approach paths, not departure paths. COMAR § 11.03.05.01(B)(8)
states:
"Imaginary surfaces" means a series of planes or curved sur-
faces placed at various angles or arcs in relation to an air-
WALSH v. POTOMAC AIRFIELD AIRPORT 7
port’s runways and based on a runway’s classification and
most precise available or planned aircraft approach path
...
(Emphasis added).
Even though COMAR does not regulate departure paths, Walsh
asserts that the airport still violated COMAR regulations because the
trees that were hit penetrated an actual or hypothetical approach path
used by airplanes landing at the airfield. However, Walsh still cannot
establish a violation of a regulatory duty because Potomac Airfield
operated under an express waiver of the approach path requirements.
J.A. at 66, 86. The waiver provides that "[a] waiver to tree obstacles
in the approaches to both ends of the runway would not endanger
public safety and would be in the best interest of the aviation public."
J.A. at 67. Potomac Airfield therefore operated in full compliance
with Maryland air regulations, and did not violate any statutory or
regulatory duty owed to Walsh.
Even without the waiver, for a violation of a statute to be evidence
of negligence in Maryland, it must cause harm "to a person within the
class of persons the statute seeks to protect and the harm [must be]
the kind that the statute is designed to prevent." Hartford Insurance
Co. v. Manor Inn of Bethesda, Inc., 642 A.2d 219, 229 (1994).
Walsh’s aircraft was departing from, not landing at, Potomac Airfield.
Accordingly, her accident is not the kind of harm the regulations gov-
erning approach paths are designed to prevent.
Walsh could argue that the airport violated a common-law duty,
independent of Maryland regulations, to provide a safe departure
path. However, we do not believe, based on the record before us, that
a reasonable factfinder could find for Walsh against the airport in this
case. The record does not reveal, before the accident in question,
other instances of departing planes hitting (or even nearly missing)
the trees that might impose upon the airport a duty to provide for safer
takeoffs. J.A. at 386. While Walsh correctly notes that MAA regula-
tors recognized the trees as obstructions to approach surfaces when
performing inspections, and that the airport was aware of this, see
J.A. at 66, 74, 78, 80, 82, there is nothing in the MAA reports to sug-
gest that the trees posed a danger to aircraft departing the airfield.
8 WALSH v. POTOMAC AIRFIELD AIRPORT
Although plaintiff’s expert opines that the airport was not "reasonably
safe" for the occupants of Walsh’s plane, J.A. 189, there are no facts
in the record, disputed or otherwise, that would allow a reasonable
jury to conclude that the airport breached a duty to provide for safe
departures. A single crash involving a pilot who disregarded proper
short field takeoff procedures and operated the aircraft under the
influence of marijuana is not sufficient to allow a jury to find that the
airport failed to provide for safe departures.
Finally, Potomac Airfield strenuously argues that the pilot’s undis-
puted failure to use proper take-off techniques and gross misconduct
in operating the aircraft under the influence of marijuana should con-
stitute the superceding and sole proximate cause of the accident. We
find it unnecessary to reach this issue, because we hold that no rea-
sonable jury could find that Potomac breached a regulatory or
common-law duty owed to Walsh in the first place. Potomac Airfield
complied with Maryland air regulations, obtaining waivers where
necessary, and there is insufficient evidence in the record to impose
a duty regarding safe departures independent of that required by the
state regulatory authorities. Accordingly, the district court’s grant of
summary judgment for Potomac Airfield was not in error.
The judgment of the district court is affirmed.
AFFIRMED
KING, Circuit Judge, dissenting:
The panel majority today affirms the district court’s dismissal of
Walsh’s claims against the neighboring landowners (the "Landown-
ers") and its award of summary judgment to Potomac Airfield. With
all respect to my distinguished colleagues, I disagree on both
accounts. I write briefly to explain my positions.
I.
The majority opinion concludes that Walsh’s action against the
Landowners was properly dismissed because the trees into which
Walsh crashed were on the Landowners’ property rather than in
WALSH v. POTOMAC AIRFIELD AIRPORT 9
publicly-owned navigable airspace. Under such reasoning, Walsh was
an uninvited entrant onto the Landowners’ property and she was not
owed a duty of care. Walsh, however, asserts two viable theories of
negligence under which she might be owed a duty of care by the
Landowners.
First of all, under Maryland law "the violation of a statutory regula-
tion is evidence of negligence, and if such violation causes or contrib-
utes to the injuries complained of it constitutes negligence." Dennard
v. Green, 643 A.2d 422, 427 (Md. 1994) (internal citations and quota-
tions omitted). Pursuant to Section 11.03.05.03(B)(1) of the Code of
Maryland Regulations (the "Regulation"), "a person may not: Plant,
replant, or allow any vegetation to grow to such a height as to be an
airport hazard." The Landowners accordingly possess a legal obliga-
tion, under the Regulation, not to allow hazardous vegetation on their
land, and a violation of the Regulation is evidence of their negligence
as to Walsh. While acknowledging the existence of the Regulation,
the majority maintains that, under Maryland law, the Regulation can-
not be construed to define the upper boundary of the Landowner’s
property because to do so would raise "serious questions under the
Fifth Amendment’s Takings Clause." Ante at 4 n.3. Land-use regula-
tions, however, do not constitute unconstitutional takings unless they
deprive the owner of "all economically beneficial or productive use
of land." Lucas v. South Carolina Coastal Council, 505 U.S. 1003,
1015 (1992); see also Front Royal & Warren Co. Indus. Park Corp.
v. Town of Front Royal, 135 F.3d 275, 285 (4th Cir. 1998). The regu-
latory restriction on growing vegetation to a hazardous height does
not deprive the Landowners of any economically or productive use of
their land: their ability to reside on the property is intact, and they are
not precluded from grazing animals, farming, or undertaking a variety
of other activities thereon. As such, the Regulation cannot constitute
an unconstitutional taking.
Second, even absent the Regulation, the Landowners may still owe
a common-law duty of care not to endanger air travellers with their
tall trees. Under Maryland law, "an owner of property abutting on a
highway is under an obligation to use reasonable care not to endanger
travellers on the highway by objects so located on his premises that
they are likely to cause injury." Stottlemyer v. Groh, 94 A.2d 449, 453
(Md. 1953). And the Supreme Court has long analogized navigable
10 WALSH v. POTOMAC AIRFIELD AIRPORT
airspace to a "public highway." United States v. Causby, 328 U.S.
256, 261, 264 (1946). Thus, just as Maryland law obligates a land-
owner abutting a highway not to endanger vehicular travellers, it may
also require a landowner with tall trees neighboring navigable air-
space not to endanger air travellers. Whether the Landowners’ trees
bordered navigable airspace, i.e., the "public highway," thus creating
a common law duty of care, is a question that cannot be resolved on
a Rule 12(b)(6) motion to dismiss.*
In sum, the Landowners may have been in violation of the Regula-
tion, and they may have owed Walsh a common law duty of care. A
violation of the Regulation, or a breach of the common law duty of
care, constitutes evidence of negligence that might enable Walsh to
prevail in her action, if such violation or breach can also be shown
to have caused or contributed to her injuries. Dennard, 643 A.2d at
427. Regardless of whether Walsh may ultimately prevail in her case,
she has stated a claim, under Rule 12(b)(6), upon which relief can be
granted, and the district court’s dismissal of the Landowners should
be vacated.
II.
I also disagree with the majority on its affirmance of the summary
judgment awarded by the district court to Potomac Airfield. The
majority maintains that no reasonable factfinder could find that Poto-
mac Airfield breached its common law duty to provide Walsh with a
safe departure path. Ante at 7. The record, however, reflects that the
Maryland Aviation Administration ("MAA") specifically warned
Potomac Airfield about the tall trees neighboring the airport at least
three times prior to this accident — in May 1988, in August 1993, and
again in September 1997. Indeed, in its letter of September 12, 1997,
to the manager of Potomac Airfield regarding the tall trees, the MAA
*As a general matter, "a motion to dismiss for failure to state a claim
should not be granted unless it appears certain that the plaintiff can prove
no set of facts which would support its claim and would entitle it to
relief." Mylan Laboratories, Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir.
1993). In considering a Rule 12(b)(6) motion, "the court should accept
as true all well-pleaded allegations and should view the complaint in a
light most favorable to the plaintiff." Id.WALSH v. POTOMAC AIRFIELD AIRPORT 11
advised that "[w]e recommend that appropriate measures be taken to
correct these problems in order to improve the condition of the airport
and enhance safety." The majority has unduly minimized these warn-
ings because Walsh was injured during a take-off, and it maintains
that "there is nothing in the MAA reports to suggest that the trees
posed a danger to aircraft departing the airfield." Ante at 7. This con-
tention is simply not supported by the record. The MAA’s Airport
Data Inspection Summary, completed on September 5, 1997, indi-
cates that the tall trees obstructed the approach surface of Runway 06,
the very runway from which Walsh departed. And handwritten in the
margin of the Inspection Summary is the statement that the obstruc-
tion was "overflown by aircraft departing Runway 06." Thus, the
record plainly reflects that, eight months before Walsh was injured
departing from Runway 06, Potomac Airfield had been warned by the
MAA that tall trees obstructed departures from that Runway.
Because Potomac Airfield was repeatedly warned about the tall
trees, there is sufficient evidence of negligence in the record to enable
a reasonable factfinder to conclude that Potomac Airfield breached its
common law duty to provide Walsh with a safe departure path from
Runway 06. The award of summary judgment to Potomac Airfield
was therefore improper. It should be left to a proper array of Mary-
land jurors to decide whether Potomac Airfield is liable to Walsh.
III.
Because I would vacate the district court’s dismissal of the Land-
owners and its award of summary judgment to Potomac Airfield, I
respectfully dissent.