Bell v. Heitkamp, Inc.

Decision Date28 April 1999
Docket NumberNo. 460,460
Citation728 A.2d 743,126 Md. App. 211
PartiesMaxine BELL, Individually, etc. v. HEITKAMP, INC., et al.
CourtCourt of Special Appeals of Maryland

Kathy Brissette-Minus (James H. Taylor on the brief), Largo, for appellants.

Timothy J. Mulreamy (Anderson & Quinn, on the brief for appellee, Heitkamp, Inc.), Rockville; George M. Church (Church & Houff, P.A., on the brief for appellee, Jaci), Townson; John O'Neill, Jr., Rockville, for appellee Washington Suburban Sanitary Commission.

Argued before SALMON, BYRNES and JOHN J. BISHOP, Jr., (Ret., Specially Assigned), JJ.

SALMON, Judge.

This case arises out of a wrongful death/survival action where, for purposes of this appeal, it was conceded that the defendants breached their duty of care owed to the deceased. The central issue presented is whether the plaintiffs—when responding to defendants' motion for summary judgment— set forth sufficient evidence from which a trier of fact could find that the defendants' breach of duty was the proximate cause of the decedent's injuries. The trial judge was of the view that the plaintiff could not prove proximate cause. He also ruled that the res ipsa loquitur doctrine was inapplicable and, accordingly, granted summary judgment in favor of all defendants on the issue of liability. In addition, he granted summary judgment as to two subsidiary issues. The four questions raised by plaintiffs/appellants in this appeal are 1. Did the trial court err in granting the defendants' motion for summary judgment on the ground that plaintiffs had insufficient proof that defendants' breach of duty was the proximate cause of the decedent's injuries?

2. Did the trial court err when it ruled that the doctrine of res ipsa loquitur has no application in the case sub judice?

3. Did the trial court err in granting defendants' motion for summary judgment regarding the issue of punitive damages?

4. Did the trial court err in granting summary judgment as against the minor plaintiff on the ground that he had no right under the wrongful death statute to bring a wrongful death action?

A. Background

The facts are set forth in the light most favorable to the plaintiffs/appellants. Md. Rule 2-501. Many of the facts are disputed by appellees.

On August 22, 1995, Jabbouri McClamb's corpse was found lying, face up, under two feet of water in a hole that had been dug recently by an employee of Jaci General Contractors, Inc. (hereafter "Jaci"). Jabbouri McClamb (hereafter "McClamb, Sr.") had been last seen alive approximately thirteen hours prior to the discovery of his body. The deceased was single, twenty-three years old, and survived by, inter alia, his mother, Maxine Bell—one of the appellants. Approximately seven months after McClamb, Sr.'s death, Jabbouri McClamb, Jr. (hereafter "McClamb, Jr.") was born. According to McClamb, Jr.'s mother, Sharon Baker, the father of the child was McClamb, Sr.

The hole where McClamb, Sr.'s body was found (hereafter "Hole No. 3") was situated on a strip of land that was located between Muncy Road and Martin Luther King Highway in Landover, Maryland. The owner of the land was Prince George's County. Washington Suburban Sanitary Commission (WSSC) had an easement to use the strip for maintenance of its underground pipes. The strip was 20 feet wide and 227 feet long and was used by members of the public as a footpath between the aforementioned two roadways. The footpath was one foot wide, and portions of the path were surrounded by woods. At all times here pertinent the landscape surrounding the path was marred by garbage, trash, and other debris.

The WSSC, on June 24, 1993, contracted with Heitkamp, Inc. ("Heitkamp"), to do some repair work to its lines located beneath the strip. Heitkamp, in turn, subcontracted with Jaci to dig three holes in the strip. Two of the holes were dug, repairs were made, and the holes covered without incident. Hole No. 3, the last of the three holes dug, was approximately nine feet deep, eight feet wide, and six feet long. The hole was dug on August 18, 1993. On the same day the hole was created, workers employed by Heitkamp shored up the hole by bracing the walls with wooden supports and installing a "shoring box" at the hole's bottom. Dirt was piled up on both sides of the hole in depths varying between two and four feet. The hole and the dirt that surrounded it were enclosed by a plastic orange mesh fence that was four feet in height.1 The fence was supported by six foot iron poles that were driven into the ground. No lights or warning signs were put up near the hole, and the hole was uncovered.

Herman Malone ("Mr. Malone") lived at 7702 Muncy Road in Landover, which is only one lot away from the pathway that runs between Muncy Road and Martin Luther King Highway. Prior to the accident, Mr. Malone talked to two of the men who had dug Hole No. 3. He told the men that he felt it was dangerous for them to leave Hole No. 3 uncovered when they were not in the vicinity because many people, including children, used the pathway. Showing unusual foresight, Mr. Malone warned the workmen, "Something is going to go wrong here sooner or later." Thereafter—Mr. Malone does not remember the exact date except that it was before McClamb, Sr.'s death—he took numerous Polaroid pictures showing work that WSSC had done in or near the accident site. Included among the photographs are several depicting Hole No. 3 and the area that surrounded it.

B. Happening of the Accident

Curtis Malone ("Curtis"), son of Herman Malone, spent Saturday, August 21, 1993, in the company of McClamb, Sr. After attending an outdoor barbeque and a basketball game together, the two returned to Curtis's father's home located at 7702 Muncy Road, where they stayed for an hour or two. Next, in the late hours of August 21 st or the early hours of the 22 nd, they decided to take a ride in an automobile that was on loan to Curtis. Curtis drove to Route 202 where he stopped at a traffic light. About that time, Curtis noticed five or six police cars tailing him— albeit with neither their lights nor sirens activated. After the light turned green, Curtis made a "U" turn and accelerated back toward his home. The police cars then activated their lights and sirens and gave chase. Curtis elected to try to elude the police because (according to his deposition testimony) he feared a police beating if he were stopped in an isolated area where there were no civilian witnesses. While the police were chasing the vehicle, McClamb, Sr., told Curtis that he did not want to be stopped by the police because he feared that he would be arrested because (he thought) there was an outstanding warrant for his arrest. After a short chase, Curtis came to a stop in front of his father's home where several persons, including Herman Malone, had gathered. The police immediately arrested Curtis, but McClamb, Sr., got out of the vehicle and ran down the footpath toward Hole No. 3. The pathway was pitch dark. McClamb, Sr., was last seen being chased down the footpath by a Prince George's County police officer—who had his gun drawn.

After seven to ten minutes, the officer who had chased McClamb, Sr., returned empty handed to the area where Curtis had been apprehended. Curtis was then taken to police headquarters, kept for several hours, and charged with numerous traffic offenses—including fleeing and eluding a police officer. When Curtis was released by the police, he tried to get in contact with McClamb, Sr., by paging him but got no response.

On Sunday, August 22 nd, between 11 a.m. and 1 p.m., Curtis's father, Herman Malone, was walking on the path between Muncy Road and Martin Luther King Highway. When he approached Hole No. 3, he noticed a baseball cap within the fenced area surrounding the hole. He kept on walking toward a Mobil station located on Martin Luther King Highway. After purchasing soft drinks at the station, he retraced his steps, walking on the footpath back toward Hole No. 3. When he arrived at the hole, he looked around for a stick to retrieve the baseball cap. While doing so, he noticed McClamb, Sr.'s body at the bottom of the hole. He also noticed that there was a "break" in the orange plastic mesh fence. In Herman Malone's words, the break was from the "top to the bottom" of the fence. He was not precise as to exactly where the tear was located (at least in the portion of the record that was before the motions court), but he said that, if one were using the path going from Muncy Road to Martin Luther King Highway, the break in the fence would be on the right and on the side closest to Muncy Road.2

On August 23, 1993, an autopsy was performed on McClamb, Sr.'s body. It showed that the deceased was 5'8" and weighed 185 pounds. A test revealed that his urine contained 0.06% alcohol. Time of death was not estimated. The cause of death was listed as "drowning, complicating head injuries." The autopsy report said that McClamb, Sr., had numerous injuries and/or abnormalities, viz:

1. Blood in the right external auditory canal with possible skull fracture. 2. Abrasions on the protuberant parts of the face.

3. Chipped right upper front tooth.

4. Lacerations of the lower lip.

5. Laceration of the internal oral mucosa opposite the upper lip. All constant with marks from subject on teeth.

6. A subgalcal hemorrhage in the right temporo-parietal intracranial area.

7. Lacerations of the back.

8. Abrasion of the left anterior forearm.

9. Abrasion from the left elbow.

10. Abrasion at base of the left thumb, posterior hand and wrist.

11. Abrasion of the right thigh.

12. Abrasion of the left thigh.

13. Abrasion of the left medial ankle.

14. Markedly edematous lungs weight 800 grams (right), and 780 grams (left).

15. Pleural effusion bilaterally.

16. Pulmonary parenchyma was red-purple, exuding marked amounts of blood and frothy fluid.

The assistant medical examiner who authored the autopsy report...

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