Smith v. Bernier

• Decision Date: 27 October 1988
• Docket Number: Civ. No. PN-87-2321,PN-87-2322.
• Citation: 701 F. Supp. 1171
• Parties: Jeffrey SMITH, et al. v. Richard Dennis BERNIER, Jr., et al. (Two Cases).
• Court: U.S. District Court — District of Maryland

701 F. Supp. 1171

Jeffrey SMITH, et al. v. Richard Dennis BERNIER, Jr., et al. (Two Cases).

Civ. Nos. PN-87-2321, PN-87-2322.

United States District Court, D. Maryland.

October 27, 1988.

Robert S. Gordon, Rockville, Md., for plaintiffs.

James R. Eyler, and Carol A. O'Day, Miles & Stockbridge, Baltimore, Md., and Alfred L. Scanlan, Jr., William G. Ohlhausen, David A. Rosenberg, and Levan, Schimel, Richman & Belman, P.A., Columbia, Md., for defendants Mattingly Const., Inc. and Sheila S. Mattingly, individually and trading as Mattingly Builders.

J. Joseph Curran, Jr., Atty. Gen. of Md., and Lawrence H. Norton and Carolyn Quattrocki, Asst. Attys. Gen. of Md., for defendants Wayne Clingan, Gene Straub, Wayne Bittinger and the State of Md.

OPINION

NIEMEYER, District Judge.

On the evening of September 25, 1984, William and Rose Smith, who were proceeding westward on Interstate Route I-70 in Frederick County, Maryland, collided with a dump truck which entered the highway from a crossover. They died as the result of their injuries. The truck was operated by Richard Bernier who was working as part of a construction effort involved in the paving of the highway.

Bernier was an employee of a trucking subcontractor of defendant Mattingly Construction Co. Mattingly was under contract with the Maryland State Highway Administration to conduct the paving operation on that portion of the highway at the time of the accident. Bernier was transporting materials to the paving operation when the accident occurred.

The Smiths' three sons brought suit for wrongful death and the Smiths' estate brought suit for the surviving negligence claim. They sued Bernier and his employer; Mattingly, the general contractor; and the State of Maryland and three of its officials who were involved in the repaving project. They filed an identical action in state court which is pending. In this action, Mattingly also filed a crossclaim against the state and its officials for indemnity or contribution if Mattingly is found responsible.

The claims of negligence against the State of Maryland and its officials are based on allegations that the state did not provide adequate lights, warning signs, cautionary instructions to trucks, and a "channelization device" for truck travel. The claims also allege that these defendants were negligent in their hiring Mattingly and that they are responsible for the acts of negligence of the other defendants under the doctrine of respondent superior. In response to a claim of immunity asserted by the state under the Eleventh Amendment to the Constitution, the plaintiffs allege additionally that the acts of negligence were wanton, callous and reckless and that therefore, in wrongfully causing the death of the Smiths, these defendants deprived the plaintiffs of life, liberty and property without due process of law and deprived plaintiffs of equal protection. Plaintiffs urge that these allegations properly state a claim under 42 U.S.C. § 1983.

The State of Maryland and its three highway administration officials who are named defendants have moved to dismiss the complaint. They also have moved to dismiss the crossclaim of Mattingly.

I.

As part of their negligence claims, plaintiffs allege that the state defendants, by failing to maintain adequate lighting, warning signs, and traffic control devices at the site of the accident, are liable to them for violation of various highway standards as set forth in the Manual on Uniform Traffic Control Devices (MUTCD), adopted at 23 C.F.R. §§ 655.601 and 655.603, which are promulgated under the Federal-Aid Highway Act, 23 U.S.C. § 101 et seq., and the Highway Safety Act, 23 U.S.C. § 401 et seq. The state defendants contend that these statutes and their accompanying regulations do not create a private cause of action for injuries resulting from their violation.

At least two courts have considered whether the federal highway statutes create an implied private cause of action. In Miller v. United States, 710 F.2d 656 (10th Cir.), cert. denied, 464 U.S. 939, 104 S.Ct. 352, 78 L.Ed.2d 316 (1983), the court reviewed the principles of Cort v. Ash, 422 U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975), to determine whether the Highway Safety Act creates an implied cause of action. In a well-reasoned opinion, the court considered not only the language of the relevant statutes and regulations but also their purpose and relevant legislative intent, and concluded that the Act did not create an implied private cause of action. Id. at 668.

The same analysis leads to the conclusion that the Federal-Aid Highway Act does not create a private cause of action. In Morris v. United States, 585 F.Supp. 1543 (W.D.Mo.1984), the court concluded that Miller and authorities cited therein "establish that neither the Federal-Aid Highway Act nor the Highway Safety Act create an implied private cause of action to recover damages for personal damages for personal injuries sustained as a result of an alleged violation of any standard set forth therein or in any regulation promulgated pursuant to either Act." Id. at 1548.

The Court is persuaded by the reasoning of these authorities and accordingly concludes that a private cause of action is not created under these statutes and the regulations promulgated under them.

II.

Plaintiffs' negligence claims against the state defendants, whether for violation of highway standards or common law negligence, are brought under the Maryland Tort Claims Act, State Gov't. Art., § 12-101 et seq., Md.Code (1987 Supp.).^* The complaint alleges that the state officials, acting at all relevant times in their official capacities as engineers of the State Highway Administration, negligently failed to require adequate lighting, warning, and traffic control devices at the accident site and negligently hired and entrusted their responsibilities to Mattingly, the construction contractor.

Defendants contend that all of these claims are barred by the Eleventh Amendment and that the state has waived its Eleventh Amendment immunity only as to suits brought in state court under the Maryland Tort Claims Act.

The Eleventh Amendment provides:

The Judicial Power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.

The Eleventh Amendment bars a suit for damages against a state in federal court, unless the state has waived its immunity or Congress has overridden the immunity. See Pennhurst State School & Hosp. v. Halderman, 465 U.S. 89, 98, 104 S.Ct. 900, 906, 79 L.Ed.2d 67 (1984). This bar extends to state officials who are sued, as in this case, for damages in their official capacity. Kentucky v. Graham, 473 U.S. 159, 169, 105 S.Ct. 3099, 3107, 87 L.Ed.2d 114 (1985).

Moreover, the Supreme Court "consistently has held that a State's waiver of sovereign immunity in its own courts is not a waiver of the Eleventh Amendment immunity in the federal courts." Pennhurst, 465 U.S. at 99 n. 9, 104 S.Ct. at 907 n. 9. As such, "a state statutory or constitutional provision will constitute a waiver of Eleventh Amendment immunity only if it contains an `unequivocal' statement of the state's intention to subject itself to suit in federal court." Westinghouse Electric Corp. v. West Virginia Dept. of Highways, 845 F.2d 468, 470 (4th Cir.) (emphasis in original) (citing Atascardero State Hosp. v. Scanlon, 473 U.S. 234, 241, 105 S.Ct. 3142, 3146, 87 L.Ed.2d 171 (1985)), cert. denied, ___ U.S. ___, 109 S.Ct. 143, 102 L.Ed.2d 116 (1988). A review of Maryland's statutes indicates that the state has not consented expressly to suits in federal court based on common law tort liability. In fact, the statutes clearly limit the state's waiver of immunity solely to actions brought in the Maryland state courts. For example, the Maryland Tort Claims Act in effect at the time of the accident stated that "nothing in this subtitle is intended to waive any right of or defense available to the State or any agency, official, or employee of the State in any action in the courts of the United States or the courts of any of Maryland's sister states, including, but not limited to, the defenses available under the Eleventh Amendment to the Constitution of the United States." Courts and Jud.Proc. Art., § 5-402(c), Md.Code (section in effect at time of accident) (emphasis added); see also State Gov't. Art., § 12-104, Md.Code (version presently in effect) ("the immunity of the State and of its units is waived as to a tort action, in a court of the State, to the extent of insurance coverage ...").

Plaintiffs have not directed the Court's attention to any waiver by the State of Maryland of its Eleventh Amendment immunity from actions for damages against it or its agents in federal court, nor have plaintiffs noted any act of Congress that has overridden the state's immunity. The acceptance and receipt by the state of federal highway funds does not operate as an implied waiver of the state's Eleventh Amendment immunity to negligence actions for damages in federal court. See Lumbermen's Mutual Casualty Co. v. Fugate, 569 F.2d 213, 214 (4th Cir.1978) (Virginia did not waive immunity by receiving and disbursing federal highway funds; "mere participation in a federal program does not establish consent on the part of a state to be sued in the federal courts"); see also Daye v. Commonwealth of Pennsylvania, 483 F.2d 294, 298 (3d Cir.1973), cert. denied, 416 U.S. 946, 94 S.Ct. 1956, 40 L.Ed.2d 298 (1974) ("we do not find such a waiver merely because Pennsylvania receives federal highway funds.").

Plaintiffs cite Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), Mayor and City Council of Baltimore v. Seidel, 44 Md.App. 465, 409 A.2d 747 (Md.App.1980), and other similar cases to argue that the state and its officials are not immune...