Anne Arundel Cnty. v. Fratantuono

• Decision Date: 01 November 2018
• Docket Number: No. 1, Sept. Term, 2017,1, Sept. Term, 2017
• Citation: 196 A.3d 25,239 Md.App. 126
• Parties: ANNE ARUNDEL COUNTY, Maryland v. Janine FRATANTUONO
• Court: Court of Special Appeals of Maryland

239 Md.App. 126

196 A.3d 25

ANNE ARUNDEL COUNTY, Maryland

v.Janine FRATANTUONO

No. 1, Sept. Term, 2017

Court of Special Appeals of Maryland.

November 1, 2018

Argued by: Phillip E. Culpepper (Nancy McCutchan Duden, County Atty., on the brief), Annapolis, MD, for Appellant.

Argued by: David M. Sheehan (Henry A. Andrews, Thomas & Libowitz PA, on the brief), Baltimore, MD, for Appellee.

Panel: Wright, Fader, James R. Eyler (Senior Judge, Specially Assigned), JJ.

Fader, J.

We are asked to determine whether a county enjoys governmental immunity from a negligence claim for injury occurring in an area that is (1) contiguous with and adjacent to, but not on, a paved public street or walkway, (2) used as a walkway by pedestrians even though there is a paved sidewalk on the opposite side of the street, and (3) not in a public park, swimming pool, or similar area. A jury awarded more than $50,000 in damages to the appellee, Janine Fratantuono, for injuries she suffered as a result of the negligence of the appellant, Anne Arundel County, in failing to follow its own requirements relating to the installation and maintenance of a water meter lid. We conclude that the County was not entitled to governmental immunity under these circumstances.

The County also argues that the circuit court erred in denying its request for a contributory negligence jury instruction and by entering judgment on an inconsistent jury verdict. We hold that the circuit court correctly concluded that the evidence did not support a contributory negligence instruction and that the jury verdict was not inconsistent. We therefore affirm.

BACKGROUND

At the center of this dispute is a water meter lid that the County installed and maintained in a grassy strip of land near the southwest corner of the intersection of Maple Road and Camp Meade Road in Linthicum. The grassy strip sits on the south side of Maple Road between the road and a property fence and stretches between the property's driveway and an area of sidewalk that begins at the corner. The lid is near the edge of the strip that abuts the beginning of the sidewalk. At trial, Ms. Fratantuono introduced the following pictures of (1) the lid and the area immediately around it:

and (2) the relevant area of the grassy strip as depicted on Google Street View:

On the morning of December 27, 2014, Ms. Fratantuono and her then-husband were out for a walk on the sidewalk on the north side of Maple Road, west of the intersection with Camp Meade Road, when they saw joggers coming in the opposite direction. To avoid a logjam, the couple crossed to the south side of Maple Road. Although there was a sidewalk on the south side of Maple at the point where they first crossed, eventually it ended. The Fratantuonos continued walking onto the grassy strip.

Ms. Fratantuono testified that she had walked on this same grassy strip at least 50 times before. This time, her right foot stepped on the lid, which flipped up and open. Her left foot and leg then fell approximately 30 inches into the newly-opened hole, causing her to sustain injuries.

Ms. Fratantuono filed this lawsuit against Anne Arundel County, alleging that her injuries resulted from the County's negligence and negligent supervision of its employees with respect to the construction, installation, and maintenance of the water meter lid. Before trial, the County filed a motion for summary judgment in which it unsuccessfully argued that Ms. Fratantuono's claim was barred by governmental immunity. At trial, Ms. Fratantuono introduced evidence that the County, through its Department of Public Works, had ignored the requirements of its own Design Manual regarding the selection and installation of the water meter lid. A jury entered judgment in favor of Ms. Fratantuono and awarded her damages of $50,806.00. The court denied the County's motion for judgment notwithstanding the verdict. This appeal followed.

DISCUSSION

The County challenges the circuit court's denial of its motion for summary judgment, its refusal to give a requested jury instruction, and its denial of a motion for judgment notwithstanding the verdict. We review denial of a motion for summary judgment and denial of a judgment notwithstanding the verdict for legal correctness. Sage Title Grp., LLC v. Roman , 455 Md. 188, 201, 166 A.3d 1026 (2017) ; Dashiell v. Meeks , 396 Md. 149, 163, 913 A.2d 10 (2006). We review the decision not to give a requested jury instruction for abuse of discretion. Woolridge v. Abrishami , 233 Md. App. 278, 305, 163 A.3d 850 (2017).

I. THE COUNTY IS NOT PROTECTED FROM MS. FRATANTUONO'S CLAIMS BY GOVERNMENTAL IMMUNITY .

The County argues that the circuit court erred in denying its motion for summary judgment on the basis of governmental immunity. Specifically, the County contends that although it does not enjoy immunity from claims arising out of its "maintenance of streets, walkways and areas contiguous to them used by the public to travel from one point to another," the strip of grass in which Ms. Fratantuono fell does not fit that description. Ms. Fratantuono responds that her claim falls within this exception because the strip of grass where the water meter lid was located was contiguous to the public street as well as the sidewalk and it was an area where she and others regularly walked.

Although the State enjoys absolute immunity from claims except to the extent it consents otherwise, counties generally enjoy immunity only when performing governmental, as opposed to proprietary, functions. Rios v. Montgomery County , 386 Md. 104, 124, 872 A.2d 1 (2005) ; Austin v. Mayor and City Council of Balt. , 286 Md. 51, 53, 405 A.2d 255 (1979) ; Zilichikhis v. Montgomery County , 223 Md. App. 158, 192, 115 A.3d 685 (2015). The distinction between when a local government acts in a governmental versus a proprietary capacity has been developed through case law. Relevant to our purposes here, our appellate courts have long recognized a distinction between the maintenance of public parks and swimming pools, which has been treated as a governmental function, and the government's obligation "to maintain its streets, as well as the sidewalks, footways and the areas contiguous to them, in a reasonably safe condition," which has been treated as proprietary. Higgins v. City of Rockville , 86 Md. App. 670, 679, 587 A.2d 1168 (1991).¹ This is sometimes known as the "public ways" exception to governmental immunity.

Four cases the Court of Appeals decided in the 1930s established the framework for the governmental immunity analysis our appellate courts continue to apply in this context. In Mayor & City Council of Balt. v. Eagers , the Court addressed a claim arising out of the death of a pedestrian who was walking down the center of a walkway when he was struck with a rotten branch that came from a tree being felled by a City work crew 20 feet away. 167 Md. 128, 129, 173 A. 56 (1934). The Court observed that the City had a statutory obligation to keep the walkways safe, including the obligation to remove trees "with reasonable care and skill, so as to do no injury to those on the sidewalks while exercising due care and caution according to the circumstances." Id. at 134, 173 A. 56. Whether the City could be sued, however, depended on whether the nature of its act was governmental or proprietary. The Court found that "the great weight of authority" established "that it is a private proprietary obligation of municipal corporations to keep their streets and public ways reasonably safe for travel in the ordinary manner, and to prevent and remove a nuisance affecting the use and safety of these public ways." Id. at 136, 173 A. 56. Moreover, the Court concluded, that duty "extends to the land immediately contiguous to these public ways." Id. Thus, although removal of a tree from an area outside of a public way would normally be a governmental function for which a local government would have immunity, that is not the case where negligence during that removal injures someone who is on a public way. Id. at 137, 173 A. 56.

Later that same year, the Court decided Mayor & Council of Hagerstown v. Hertzler , 167 Md. 518, 175 A. 447 (1934). Hagerstown had set aside a three-and-a-half-foot-wide grass strip in between a highway and a paved sidewalk. Id. at 519, 175 A. 447. The City then planted trees on the grass strip which, while young, were supported by "guy wires" extending out several feet from the trees. Id. The plaintiff's wife tripped on one of the guy wires and fell while she was walking from a portion of the road to the sidewalk. Id. at 519-20, 175 A. 447. Although observing that the duty of the City was lesser, and that of the pedestrian greater, on such a strip of grass than on a paved walkway, the Court held that the City was nonetheless "obliged to exercise care for the safety of the pedestrians against dangers, not from the customary, permissible uses or conditions, but dangers of a kind that would not be expected by foot passengers, dangers in the nature of traps." Id. at 521, 175 A. 447. Such dangers include "pipes or piles of stone on the ground, holes, and wires fencing off seeded portions." Id. Concluding that the guy wires could be found to constitute such a danger, the Court affirmed the judgment against the City. Id. at 522, 175 A. 447.

The following year, the Court was presented with a claim from the parents of a ten-year-old boy who had drowned while swimming in a natural stream at Gwynns Falls Park. Mayor & City Council of Balt. v. State, use of Ahrens , 168 Md. 619, 620, 179 A. 169 (1935). The plaintiffs presented evidence that the area in which the boy drowned was dangerous, that three others had drowned there in the prior five years, and that the City had nonetheless posted no warnings and taken no steps to make the area safer. Id. at 622, 179 A. 169. In rejecting the plaintiffs' claims that these facts gave rise to an actionable claim, the Court noted the distinction confirmed in Eagers between the...