Bozarth v. Tavern

• Decision Date: 07 February 2023
• Docket Number: 707-2021
• Parties: DENISE LYNN BOZARTH v. RAMS HEAD TAVERN, ET AL
• Court: Court of Special Appeals of Maryland

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DENISE LYNN BOZARTH v. RAMS HEAD TAVERN, ET AL

No. 707-2021

Court of Special Appeals of Maryland ^[*]

February 7, 2023

Circuit Court for Anne Arundel County Case No C-02-CV-19-003172

Wells C.J., Shaw, Zic JJ.

OPINION ^[**]

SHAW J.

This is an appeal and cross-appeal from the Circuit Court for Anne Arundel County.

Appellant, Denise Lynn Bozarth, appeals the grant of motions for directed verdicts in favor of Appellees, the City of Annapolis and 35 West, LLC. Ms. Bozarth presents two questions for our review:

1. Did the trial court err in granting The City of Annapolis' motion for directed verdict, finding the City's Charter, which requires three days prior written notice of the defect, is enforceable, is consistent with public policy and enforceable despite its clear conflict with state law, and the enabling provisions of state law?

2. Did the trial court err in granting 35 West, LLC's motion for directed verdict finding that 35 West, as the abutting landowner, has no duty to correct or warn of a hazardous condition on its sidewalk or on a hatch that provides access to its property?

The City cross-appeals the denial of its motion for summary judgment and presents three questions:

1. Whether the Court erred when it found that Anne Arundel Cnty. v. Fratantuono, 239 Md.App. 126 (2017) extended municipal liability to private property and waived the City's immunity in the absence of an employee as a party to a tort action to whom liability attaches in accordance with the Local Government Tort Claim[s] Act, Md. Code Ann., Cts. &Jud. Proc. § 5-303(e), where the City did not own, operate or control coDefendant 35 West LLC's basement access hatch which caused Plaintiff's injury?

2. Whether the City painting a warning on the corner of co-Defendant 35 West LLC's uneven basement access hatch with orange spray paint to warn pedestrians of a defect prevents the application of the Special Use Exception and absolves co-Defendant 35 West, LLC of liability for its lack of maintenance of [the] basement access hatch which caused Plaintiff's injury?

3. Whether Plaintiff's record evidence at Summary Judgment established a special relationship between her and the City, or presented sufficient evidence from which a jury could find that the City of Annapolis owned, possessed or controlled co-Defendant 35 West LLC's uneven basement access hatch that injured Plaintiff, therefore making the City liable for Plaintiff's injuries under Maryland law? For the foregoing reasons, we reverse in part, affirm in part, and find the City's crossappeal moot.

BACKGROUND

On December 10, 2017, while walking in the City of Annapolis ("City"), Denise Lynn Bozarth tripped on a basement access hatch cover surrounded by brick pavers located on the sidewalk in front of 35 West Street. Appellee, 35 West, LLC owns the commercial enterprise 35-37 West Street. It is leased to a coffee shop, a dry-cleaning business, and a restaurant, with residential tenants on the third floor. At the time of her accident, there were no hazard cones located nearby. Ms. Bozarth sustained multiple injuries, including a detached retina and partial blindness in her right eye.

Ms. Bozarth's counsel notified the City, in writing, of her claim on June 29, 2018. On October 7, 2019, Ms. Bozarth filed a Complaint for negligence in the Circuit Court for Anne Arundel County against Rams Head Tavern, WM Enterprises, Inc., The Rams Head Group (collectively "WM Enterprises, Inc."), and the City. Ms. Bozarth filed an Amended Complaint adding 35 West, LLC as a defendant on April 23, 2020. Ms. Bozarth filed a Second Amended Complaint adding Baltimore Gas and Electric Co. as a defendant on June 11, 2020. She alleged negligence against all defendants, asserting that they breached their duties by failing to adequately inspect or cover the sidewalk; failing to adequately repair the same; failing to warn of any defects in the same; and failing to protect the general public from the dangerous condition of the same. She alleged that as a direct and proximate result of the defendants' negligence, she suffered injuries. On July 6, 2020, WM Enterprises, Inc. moved for summary judgment and the circuit court granted the motion on October 26, 2020. Baltimore Gas and Electric Co. moved for summary judgment on March 4, 2021, and on March 12, 2021, the City filed its motion for summary judgment. The court held a hearing on the motions for summary judgment on May 10, 2021. Following argument, the court granted Baltimore Gas and Electric Co.'s motion for summary judgment and denied the City's motion.

The court stated:

And I don't find . . . that the City is absolved from or has absolute governmental immunity. I do think that there's a proprietary function when it comes to rights of way and sidewalks and this is different from a case where a police officer acts in a rogue fashion and the fact finder has to determine whether there was some form of actual malice or gross negligence or whether a driver acted with that degree of liability.

I do find that in a proprietary function where the actions or omissions of a governmental entity can't be localized to one person that that's different from an individual's degree of action and liability. And so I don't believe that the statute absolutely bars a municipality from liability. And to the extent that Mr. Braithwaite wishes to pursue that argument, he's certainly entitled to do so, but that would come in the form of a fact-finding function and the jury instruction conference that, ultimately, that the City has to have with the trial judge to determine whether that can be put to the jury in a meaningful way as a question of fact.

The court further expounded:

Yeah, the Court finds that the notice for the . . . in this case I do find that the actions of [Mr. Silwick] can be imputed to the City itself. That's not to say that his actions portend any liability, but for the notice provision I find that someone who indicated that he routinely placed such obvious preventive measures in place via the cones or the painting itself does constitute actual notice to the City.

The City invalidly filed a cross-appeal of the denial.

Trial commenced against the City and 35 West, LLC in June 2021. Ms. Bozarth testified that on the evening of the accident, she was walking down West Street towards Rams Head when she tripped and fell, and her face hit the pavement. She specified that she tripped over a corner of a metal plate that was in the sidewalk and she stayed on the ground for approximately ten minutes before she was able to get up. She testified that she noticed a change in her peripheral vision, but she thought it would go away and she did not "think it was anything major." She did not seek immediate medical care. The issues, however, with her peripheral vision persisted, and she sought medical treatment on December 14, 2017. It was determined that Ms. Bozarth had a detached retina, and she underwent surgery shortly thereafter. She, subsequently, had four surgeries and continues to have vision problems.

Jim Silwick, a City employee, testified that he had previously tripped over the same hatch. Afterwards, he reported the condition of the hatch to his supervisor, Phil Cook. He also painted the corner of the hatch a fluorescent orange and put cones there. He testified the cones would disappear because people would "take them and steal them and throw them in the street." Samuel Brice, the City's former Bureau Chief of Engineering and Construction, testified that he interviewed Mr. Silwick, who told him that he had been painting the hatch and putting out cones. Mr. Brice stated that such actions were not within Mr. Silwick's job duties. He testified that Mr. Silwick "saw what he identified as an issue, and he addressed it in a manner which would be - which he deemed to be appropriate." Neither Mr. Brice nor anyone that he knew attempted to stop Mr. Silwick from continuing his actions.

In April 2020, Mr. Brice inspected the hatch and basement and determined that 35 West, LLC owned the hatch. The City made a written demand upon 35 West, LLC to repair the hatch, which they did in May 2021. Mr. Brice testified that the hatch, located on the City's right-of-way, was a private improvement. According to him, in 1943, the City formally took ownership of the right-of-way via two straw-man deeds. The deeds specifically reference the City, becoming the owner of, inter alia, all of "West Street" with the "improvements thereupon." The trap door vault predated the formal title transfer, and the metal hatch cover likely originated in the 1970s. He testified that in 2004, the City renovated all of its sidewalks and hired a contractor to re-brick the sidewalk of West Street. The City's contractor integrated the new brick pavers in the existing hatch cover, and a landscaping plan determined the locations of tree plantings and streetlight areas.

Pamela Cole Finlay acquired 35 West, LLC in 2007. She testified that she did not know the hatch was broken until around 2020, she did pay for its repair, and never formally appealed the City's order to repair it. She also testified she did not know what the condition of the hatch was when she purchased the property because it was not in the deed or the final walk through. As of December 2017, the entire building located at 35-37 West Street was leased to others. In January 2007, one tenant took over the building's restaurant, and in later years another tenant opened a coffee shop and another tenant a dry-cleaning business. 35 West, LLC has no office within the building.

At the close of Ms. Bozarth's case, the City moved for a directed verdict, arguing, among other things, that if Ms Bozarth was injured by City property, there was no prior...