Whalen v. Mayor & City Council of Baltimore

• Decision Date: 16 September 2005
• Docket Number: No. 862,862
• Parties: Suzanne WHALEN v. MAYOR & CITY COUNCIL OF BALTIMORE.
• Court: Court of Special Appeals of Maryland

883 A.2d 228

164 Md. App. 292

Suzanne WHALEN v. MAYOR & CITY COUNCIL OF BALTIMORE.

No. 862, September Term, 2004.

Court of Special Appeals of Maryland.

September 16, 2005.

Simon Walton, Baltimore, for appellant.

Justin J. King (Ralph S. Tyler, City Solicitor, on brief), for appellee.

Panel MURPHY, C.J., HOLLANDER and JAMES R. EYLER, JJ.

HOLLANDER, J.

This appeal gives new meaning to the phrase, "an accident waiting to happen." Suzanne Whalen, appellant, who is blind, was injured when she fell into an uncovered utility hole while walking her guide dog within the boundaries of Leone Riverside Park (the "Park"), located directly across from the office of the National Federation of the Blind in Baltimore City. Appellant subsequently filed suit against the Mayor and City Council of Baltimore (the "City"), appellee. She claimed that the City, which owns and maintains the Park, was negligent in failing to assure that the hole was properly covered. Asserting defenses of governmental immunity, statutory immunity under a recreational land use statute, and lack of actual or constructive notice of the danger, the City moved for summary judgment. By Order dated June 9, 2004, the Circuit Court for Baltimore City granted the motion.

On appeal, Whalen poses one question that contains two distinct issues:

Whether summary judgment was inappropriate, based either upon common law sovereign [or governmental] immunity or the municipality's lack of actual or constructive notice of the defect.

To answer Whalen's inquiry as to governmental immunity, we must examine the dichotomy between governmental and proprietary functions of a municipality, and determine whether a public park may serve a dual purpose. Put another way, we must resolve whether the court below erred in deciding, as a matter of law, that because the accident occurred within the Park, the City is automatically protected by governmental immunity.

FACTUAL SUMMARY

Appellant, a resident of Texas, visited Baltimore City in February 2000, to attend a meeting at the National Federation of the Blind ("NFB"), whose office is located at 1800 Johnson Street, directly across from the Park. According to appellant, "the folks" at the NFB advised the attendees "to go to this park across the street" when their service dogs needed to relieve themselves. In her complaint, filed on February 11, 2003, appellant alleged that she left the NFB meeting at approximately noon on February 12, 2000, and "crossed the street with her dog to allow the dog to relieve itself." At that time, she "fell into an uncovered, cement-lined pit, approximately 19" × 19" and 41" deep."

According to appellant, the "hole" was "located exterior" to a chain link fence that surrounded a play area "within the Park." Appellant also averred that the hole was situated in a grassy area "adjacent to the sidewalk and pedestrian crossing that crosses Johnson Street at its intersection with Barney Street." Moreover, she averred that because "this area was mowed, it was an area that was frequented by City employees."

Whalen claimed that the City "failed to use reasonable care, in that their agents and/or employees failed to ensure that the abandoned pit or hole immediately adjacent to a public sidewalk, in a grassy area where the public and their pets could be expected to walk, was securely covered or filled in." As a result of the fall, appellant allegedly "sustained serious injuries to her back and right ankle, which necessitates the use of a wheelchair." "These impairments," asserted Whalen, "are especially disabling, because she is blind." She explained: "This new disability prevents her from teaching, which was her occupation prior to the injury."

Appellee moved for summary judgment on April 13, 2004, claiming that there was "no evidence legally sufficient to permit the plaintiff to recover against the City." The City submitted numerous exhibits to support its motion. These included "Plaintiff's Answers to Interrogatories"; appellant's deposition, taken on February 17, 2004; appellee's "Answers to Interrogatories," prepared by an Assistant City Solicitor; the deposition transcript of John Rekus, appellant's expert, taken on March 3, 2004; ten photographs, collectively titled "Suzanne Whalen — Pictures of Scene"; an undated Affidavit of Phillip Buddemeyer, Supervisor in the Baltimore City Office of Transportation, Field Survey Section, who prepared a survey; a plat prepared by J. Allen Jones of the Survey Control Section, "SHOWING THE LOCATION OF A CONCRETE BASE WITH A 1.6 FOOT BY 1.6 FOOT OPENING ON THE WEST SIDE OF RIVERSIDE PARK ACROSS FROM 1746 JOHNSON STREET"; and an Affidavit of March 30, 2004, signed by J. Allen Jones, a licensed property line surveyor and Supervisor of the Survey Computations Unit in the City's Office of Transportation. We shall refer to these exhibits in our discussion of the City's contentions.

In its motion, the City maintained that there was "no evidence that [it] had actual or constructive notice of the existence of the hole." The City also pointed out that appellant did not establish "how long the hole had been present prior to the plaintiff's fall and it is not known how the hole came to exist." Appellee also cited to its Answers to Interrogatories, in which it averred that it did not know when the alleged hole "became unguarded and uncovered."

In addition, the City asserted that it was "immune from suit for actions claiming negligence in the maintenance of public parks." Appellee explained that "the maintenance and operation of a park is a governmental function," and local governments enjoy immunity with respect to "alleged tortious conduct arising out of governmental, rather than proprietary, functions."

Further, the City relied on § 5-1103 of the Natural Resources Article ("N.R.") of the Maryland Code (2000 Repl.Vol.), to argue that it did not owe a duty of care to appellant. According to the City, the statute "provides that the owner of a park does not owe a duty of care to keep the premises safe for entry or use by others for any recreational or educational purpose, or to give any warning of a dangerous condition . . . on the premises to any person who enters on land for these purposes." Noting that "recreational purpose" is defined at N.R. § 5-1101(f) as "`any recreational pursuit,'" appellee argued that Whalen's use of the Park to allow her dog to relieve itself was "clearly a recreational purpose."

In her deposition testimony, appellant testified that she "stepped into the hole" when her dog pulled her while on his leash. In her Answers to Interrogatories, appellant explained:

Plaintiff extended the leash to permit the dog to relieve itself and stepped off of the sidewalk onto the grassy area immediately adjacent to the sidewalk so as to permit the dog to scamper more freely in the grass and also to ensure that she was not impeding the passage of other pedestrians. At this point, without any warning of danger, plaintiff stepped into the unguarded hole. . . .

To establish the location of the hole, the City relied on the deposition testimony of appellant's expert, John Rekus. He determined that the hole, which measured "19 by 19 by 41 inches deep," was located in a "grassy median strip" in the Park, "between the sidewalk and the basketball court." Rekus noted that the basketball court is located "to the east" of the hole, and the hole was approximately "five or six feet" east of the sidewalk. According to Rekus, the hole was in an area where "people would be walking," "[w]alking their pets, [and] playing with their children."

Although it is not clear when Rekus visited the site, he stated that, when he went to the Park after the accident, the cover for the pit was at the bottom of the hole, resting on top of "rubbish." Moreover, he opined that a "supporting lip" at one time "supported the cover," but it had "broken away and it was no longer able to support the cover." Based on the presence of rust, Rekus estimated that the supporting lip broke "a number of weeks or months" before he assessed the location.

Rekus took "many pictures" of the site, which appellee submitted as exhibits. The photographs show that the pit is located within a grassy area adjacent to the sidewalk. The grassy area is several feet wide, and is bounded on one side by a chain link fence that encloses a basketball court and on the other side by the sidewalk. The cement pit appears to be a few feet from the edge of the sidewalk.

In his affidavit, Buddemeyer, the City surveyor, agreed that the hole "was located in a grassy area on the east side of Johnson Street opposite East Barney Street." Similarly, Jones, who drafted a plat, stated that "the hole is located in Riverside Park, the edge of which is 3.6 feet east of the property line, also known as the Right of Way Line of Johnson Street."

In her opposition, appellant asserted that "[t]he City had notice of the hole, control over its condition, and the duty, opportunity and means to fill it." She insisted that "[t]he hole, which remained after an electrical transformer was removed, was known to exist by the City a long time before the plaintiff was injured." In her view, the length of time that the hole remained uncovered was a "triable" issue.

With her opposition, appellant submitted numerous exhibits, some of which were already submitted by the City. In addition, she included portions of the depositions of Blaine Lipski, taken on April 7, 2004; Anthony P. Wallnofer, Jr., taken on April 7, 2004; Phillip Buddemeyer, taken on April 13, 2004; and James Brown, taken on April 7, 2004. Lipski, an employee of the City's Department of Public Works ("DPW"), stated at his deposition that the "hole was apparently the abandoned base of a former electrical transformer. . . ." He explained that when he saw the hole in July 2003, he noted that it "was a former source of electric for the park," because "[t]here was a conduit sticking out of the base...