UNPUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

BENJAMIN FENNINGER; ALESIA
FENNINGER,
Plaintiffs-Appellants,

v.
                                                                No. 98-2526
HARRIS CRAB HOUSE, INCORPORATED,
d/b/a Harris Seafood; SHIP'S STORE,
INCORPORATED, d/b/a Red Eye's
Dock Bar,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Andre M. Davis, District Judge.
(CA-97-3894-AMD)

Argued: March 2, 2000

Decided: March 20, 2000

Before MOTZ and KING, Circuit Judges, and
Jackson L. KISER, Senior United States District Judge
for the Western District of Virginia, sitting by designation.

_________________________________________________________________

Affirmed by unpublished per curiam opinion.

_________________________________________________________________

COUNSEL

ARGUED: William Davidson Evans, Jr., Washington, D.C., for
Appellants. Kristine Ann Crosswhite, CROSSWHITE, MCKENNA
& LIMBRICK, L.L.P., Baltimore, Maryland, for Appellee Ship's
Store; Michael C. Rosendorf, LAW OFFICES OF TIMOTHY P.
MCGOUGH, Baltimore, Maryland, for Appellee Harris Crab House.
ON BRIEF: Warren K. Rich, RICH & HENDERSON, Annapolis,
Maryland, for Appellants.

_________________________________________________________________

Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).

_________________________________________________________________

OPINION

PER CURIAM:

Benjamin and Alesia Fenninger, Pennsylvania residents, brought
this action against David Scott Watts, a Maryland resident, and two
Maryland corporations, Harris Crab House, Inc. and Ship's Store,
Inc., d/b/a Red Eye's Dock Bar. After the district court dismissed the
claim against Watts for lack of service, it granted summary judgment
to Harris and Red Eye's. The Fenningers appeal. Finding no error, we
affirm.

I.

This is a premises liability action. Although some of the facts are
in dispute, we resolve any such disputes in favor of the Fenningers as
non-movants. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986); Nguyen v. CNA Corp. , 44 F.3d 234, 237
(4th Cir. 1995).

Harris and Red Eye's are restaurant-bar establishments located at
Kent Narrows, Maryland, in a marina on navigable waters. Each res-
taurant owns the wharf/pier area directly outside of its respective
establishment. Harris owns the docking area used by patrons to access
both establishments on which the altercation that gave rise to this law-
suit took place.

                    2
On August 20, 1995, the Fenningers docked their pleasure boat at
the Harris docking area and dined at Harris. Watts also moored his
pleasure boat in the docking area and entered Red Eye's. Although
the evidence is in some dispute, the Fenningers assert "upon informa-
tion and belief" that Red Eye's failed to obtain proper identification
from Watts before serving him alcoholic beverages. Watts allegedly
left Red Eye's in an intoxicated state and subsequently became
involved in an altercation with Benjamin Fenninger, who had returned
from dinner and was sitting in the Fenningers' docked boat. In the
course of the altercation, Watts jumped from the pier onto the Fen-
ningers' boat and assaulted Benjamin Fenninger. On February 13,
1996, Watts entered an Alford plea to a charge of battery in the Cir-
cuit Court for Queen Anne's County.

On November 14, 1997, the Fenningers filed this action. Attempt-
ing to invoke the district court's diversity and maritime jurisdiction,
the Fenningers alleged that Harris and Red Eye's owed them a duty
of reasonable care. After the Fenningers failed to conduct discovery
or to respond to discovery requests in violation of the scheduling
order, the district court granted the Harris and Red Eye's motions for
summary judgment, finding that the Fenningers had failed to present
any evidence from which a jury could reasonably find that Benjamin
Fenninger's injuries were proximately caused by the acts or omissions
of the corporate defendants, in violation of an applicable standard of
care. The Fenningers then moved under Fed. R. Civ. P. 59(e) for
reconsideration, or alternatively, for a stay in order to take discovery.
The district court denied that motion, finding that the Fenningers had
not provided a sufficient explanation for their failure to complete dis-
covery in a timely fashion in accordance with the scheduling order.
The Fenningers appeal.

II.

Under Maryland law, a duty to protect a private person from the
conduct of a third person arises only when a "special relationship"
exists, such as that between a common carrier and passenger. See
Valentine v. On Target, Inc., 353 Md. 544, 552-53, 727 A.2d 947,
950-51 (1999). A business owner and patron do not have a "special
relationship." See Tucker v. KFC Nat'l Management Co., 689 F.
Supp. 560, 562 (D. Md. 1988), aff'd per curiam , 872 F.2d 419 (table),

                     3
1989 WL 27484 (4th Cir. March 15, 1989). Rather, a business owner
only owes its invitees a duty to maintain its premises in a reasonably
safe condition; a business owner is not an insurer of the safety of its
invitees. See id. (citing Lloyd v. Bowles, 260 Md. 568, 572, 273 A.2d
193, 195-96 (1971)).

The Fenningers maintain that Harris had a common law duty to
patrol, monitor, and protect its patrons, as invitees, from the criminal
conduct of third parties by providing adequate security services on its
premises. They urge us to reverse the district court's conclusion that
no evidence suggested that the corporate defendants failed to exercise
reasonable care based on (1) Benjamin Fenninger's declaration that
Red Eye's is an "unruly" bar, that patrons from Red Eye's often enter
onto the Harris pier and docking area, and that Harris is aware of the
risk to its patrons and failed to secure its pier and docking area, and
(2) the Fenningers' late-filed evidence of general crime patterns in the
area.

Reasonable measures do not necessarily require a business owner
to provide security service for its invitees even if there is evidence of
criminal history on its premises. See id. at 563 (Maryland law
imposes no duty on an owner of a small fast food retail store in high
crime area to provide security service for its invitees); Nigido v. First
Nat'l Bank, 264 Md. 702, 705-06, 288 A.2d 127, 128-29 (1972) (dic-
tum) (bank's duty of reasonable care may not require it to provide
security protection despite a history of bank robberies). Furthermore,
a business owner is not required to take precautions against a sudden
attack from a third person that it has no reason to anticipate, nor is
it required to take any actions until it knows or has reason to know
that a business invitee is endangered. Restatement (Second) of Torts
§ 314A cmts. e & f (1965).

The standard of reasonable care does not require Harris to provide
security services on its pier and docking area. Even considering all of
the Fenningers' evidence, there is no record evidence of a history of
heightened criminal activity on Harris's premises. Rather, the only
evidence the Fenningers submitted regarding a pattern of criminal
activity on Harris's premises prior to the altercation is Benjamin Fen-
ninger's declaration, which vaguely maintains that Red Eye's'
"rowdy" customers, "many of whom are intoxicated, travel across the

                     4
Harris [pier and docking area]." Assuming that this statement is true,
the Fenningers' late-filed criminal activity evidence--five incidents
occurred on Harris premises during a 3 year period after the
altercation--hardly suggests a duty, much less a need, to provide
security services. Nor does the evidence suggest that Harris should
have anticipated this specific altercation, as both Watts and the Fen-
ningers had frequented these establishments prior to the altercation
without incident.

As for the liability of Red Eye's, the Fenningers did not patronize
Red Eye's and the altercation occurred on the Harris docking area.
Thus the Fenningers were not invitees or licensees of Red Eye's.
Nonetheless, the Fenningers maintain that Red Eye's is liable to them
on two theories.

First, the Fenningers contend that Red Eye's was aware of its long
history of assaults and disorderly conduct on and near its premises,
and thus it had a duty to control its intoxicated invitees, so as to pre-
vent them from causing intentional injury to persons on adjoining
premises. The Fenningers fail to cite any statute or case that requires
business owners to provide security services for the protection of non-
patrons. They rely instead on cases that hold a landowner has a duty
to exercise reasonable care to prevent injury to persons on adjoining
premises. See e.g., Toy v. Atlantic Gulf & Pacific Co., 176 Md. 197,
4 A.2d 757 (1940) (deposits in water); Frenkil v. Johnson, 175 Md.
529, 3 A.2d 479 (1939) (explosion). These cases, however, involve
migration of contaminants onto adjoining land or excavation and
blasting activities and are inapposite here.

Second, the Fenningers urge us to apply a "but for" test. That is,
"but for" Red Eye's allowing Watts to become intoxicated, leave the
bar, and enter onto the Harris docking area, the altercation would not
have occurred. The "but for" test, however, is inapplicable here.
Although a number of states have Dram Shop Acts authorizing civil
damage actions against tavern owners for the tortious acts of their
intoxicated patrons, Maryland remains aligned with the minority of
states that prohibit such actions. Maryland courts have consistently
held that "the law recognizes no relation of proximate cause between
a sale of liquor and a tort committed by a buyer who has drunk the
liquor." Felder v. Butler, 292 Md. 174, 177, 438 A.2d 494, 496

                     5
(1981) (internal quotation marks and citation omitted). Since Mary-
land law imposes no liability on tavern owners for negligent acts of
their patrons, it can hardly be interpreted to impose such liability for
their intentional acts, as the Fenningers urge us to do here.

In sum, the district court did not err in granting Harris and Red
Eye's summary judgment on the Fenningers' state law claim.* Nor
did the court err in denying the Rule 59 motion. The denial of such
motions is reviewed for abuse of discretion. See Pacific Ins. Co. v.
American Nat'l Fire Ins. Co., 148 F.3d 396, 402 (4th Cir. 1998).
There was no abuse here. The Fenningers' late submission--the crim-
inal activity information--does not qualify as new evidence appropri-
ately introduced in a Rule 59(e) motion because this evidence could
have been, but was not, presented in opposition to summary judg-
ment. See Small v. Hunt, 98 F.3d 789, 798 (4th Cir. 1996) (requiring
a party seeking to present new evidence in a Rule 59(e) motion to
"produce a legitimate justification for not presenting the evidence dur-
ing the earlier proceeding" (internal quotation marks and citation
omitted)). Moreover, as noted within, this late-filed evidence details
criminal activity after the altercation, not before it, and so is irrele-
vant.

III.

For all of these reasons, the judgment of the district court is

AFFIRMED.
_________________________________________________________________
*On appeal, the Fenningers also insist that the district court erred in
failing to recognize that they have stated a viable maritime claim. The
Fenningers do allege in their complaint "admiralty and maritime jurisdic-
tion" as well as diversity jurisdiction. But the factual allegations in the
complaint fail to state a viable maritime claim, and the Fenningers have
not cited any authority that establishes a duty under maritime law that
was conceivably breached in this case. Thus we see no error in the dis-
trict court's treatment of their asserted maritime claim.




                     6
