Connors v. Oaks

• Citation: 642 A.2d 245,100 Md.App. 525
• Decision Date: 01 September 1993
• Docket Number: No. 1237,1237
• Parties: Anna CONNORS, et al. v. Willie James OAKS, et al. ,
• Court: Court of Special Appeals of Maryland

Page 525

100 Md.App. 525

642 A.2d 245

Anna CONNORS, et al. v. Willie James OAKS, et al.

No. 1237, Sept. Term, 1993.

Court of Special Appeals of Maryland.

June 6, 1994.

Phillips P. O'Shaughnessy, Baltimore (Joseph A. Miklasz and Richard J. Gregson, on the brief), Glen Burnie, for appellants.

Paul D. Bekman, Daniel M. Clements, Scott R. Scherr and Israelson, Salsbury, Clements & Bekman, Baltimore, for amicus curiae, Maryland Trial Lawyers Ass'n.

Margaret Fonshell Ward (William J. Jackson, P.C. and Semmes, Bowen & Semmes, on the brief), Baltimore, for appellee, Oaks.

Charles E. Gallagher, Jr. (Neil J. MacDonald and DeCaro, Doran, Siciliano, Gallagher, Sonntag & DeBlasis, on the brief), Lanham, for appellee Giant Food Inc.

Sidney S. Campen, Jr. and Campen & Walsworth, P.A., Easton, on the brief, for appellee, State.

Argued before MOYLAN, ALPERT and WENNER, JJ.

WENNER, Judge.

Appellant, Anna Connors, was injured on 5 July 1989 when the van in which she was riding was struck by a car driven by appellee, Willie James Oaks (Oaks). Oaks lost control of his car due to a combination of his excessive speed and an inordinate amount of water that had accumulated on the roadway following a heavy rain. Anna Connors and her husband, Herbert Connors, who is an invalid, filed a complaint in the Circuit Court for Anne Arundel County against Oaks; Oaks's employer, Giant Food Inc. (Giant); and the State of Maryland (the State). ¹ Giant's Motion for Judgment was granted at the end of Oaks's case. A judgment was entered on a jury verdict against both Oaks and the State in favor of the Connorses. For her injuries, Anna Connors was awarded $84,200 in economic damages and $350,000 in noneconomic damages. Anna and Herbert Connors were awarded $130,000 for loss of consortium.

On Motion for Remittitur filed by the State, the State's liability was reduced to $50,000 pursuant to the Maryland Torts Claim Act. On Motion for Remittitur filed by Oaks, the trial judge determined that the noneconomic damage cap of $350,000 mandated by Maryland Code, § 11-108 of the Courts and Judicial Proceedings Article (CJP), applied in the aggregate to the award of noneconomic damages to Anna Connors and the award of damages to Anna and Herbert Connors for loss of consortium. The trial judge then vacated the award for loss of consortium and reduced it to zero.

On appeal, the Connorses present us the following questions:

I. Did the trial court err in granting appellee Giant Food's Motion for Judgment at the end of appellants' case by ruling that appellee Oaks was not acting in furtherance of appellee Giant's interests at the time of the accident?

II. Did the trial court err in applying the noneconomic damage cap found in CJP § 11-108 to the instant case because:

a. The Connorses proved up to $130,000 in economic injuries in the form of the loss of household services, which are not within the damage cap?

b. Anna Connorses' claims for her own personal injuries are a distinct claim for damage cap purposes from the couples' joint claim for loss of consortium? ²

c. The damage cap is unconstitutional as it violates the equal protection clause of the fourteenth amendment to the U.S. Constitution and Article 24 of the Maryland Declaration of Rights?

As we shall explain, the trial judge erroneously determined that Giant was not liable to the Connorses on the theory of respondeat superior. Moreover, we also conclude that the damage cap mandated by CJP § 11-108 applies separately to the individual award of noneconomic damages to Anna Connors and to the award of damages for loss of consortium to Anna and Herbert Connors. Consequently, we shall remand this case to the Circuit Court for Anne Arundel County for entry of judgment against Giant and reinstatement of the award of damages for loss of consortium.

Giant Food

At the time of the accident, Oaks was employed by Giant as an ATM Sergeant in Giant's loss prevention department. His duties and responsibilities included standing guard for Giant in its various stores while the ATM machines were repaired. Oaks was required to provide a vehicle for his transportation to and between job assignments. Giant reimbursed Oaks on a mileage basis for this business use of his vehicle ("business mileage").

There was also evidence that Oaks may have been eligible for mileage reimbursement while traveling to and from work ("travel mileage"). As explained on its Mileage Voucher form, Giant's mileage policy was as follows:

For associates regularly traveling for Giant (an average of two or more days a week) you may report the mileage from your nearest Giant store, all business mileage in between, plus mileage back to the originating nearest store. An assignment to one location for more than two months does not constitute travel; it is a commuting expense, and may not be claimed for mileage reimbursement.

An employee's nearest or "home" Giant store is used solely in calculating mileage. It is not necessary for an associate receiving travel reimbursement actually to stop at the home store on the associate's journey to or from the associate's work assignments.

On the date of the accident, Oaks was required to report to Giant's facility in Jessup to receive his daily work assignments. The Connorses contend that Oaks was entitled to travel mileage en route to Jessup. On the other hand, Giant contends that Oaks had been assigned to Jessup for more than two months at the time of the accident, so that his travel between home and Jessup was considered commuting, not business travel. It is undisputed, however, that when the accident occurred Oaks was en route to work in Jessup and had "passed" his home store.

In Dhanraj v. Potomac Electric Power Co., 305 Md. 623, 506 A.2d 224 (1986), an employee of PEPCO was temporarily assigned to a six week training course. As the training facility was farther from the employee's home than his permanent work location, the employee was entitled to a travel allowance under a union contract. On his way to the training facility during the fifth week of training, the employee was involved in a serious automobile accident. An injured third party sued both the employee and PEPCO. The Court of Appeals held that PEPCO's payment of a travel allowance for the difference in distance between the employee's usual work location and the temporary training assignment did not, in itself, make PEPCO vicariously liable for the employee's negligence.

The Court of Appeals reviewed the application of the doctrine of respondeat superior in the context of the use of an automobile:

The doctrine, which has long been recognized in Maryland, holds an employer vicariously liable for the tortious conduct of an employee when the employee is acting within the scope of the employment relationship. It is thus the general rule "that a master is liable for the acts which his servant does with the actual or apparent authority of the master, or which the servant does within the scope of his employment, or which the master ratifies with the knowledge of all the material facts." The rule, however, has been to some extent narrowed with respect to automobiles. "[O]n account of the extensive use of the motor vehicle with its accompanying dangers, the courts have realized that a strict application of the doctrine of respondeat superior in the modern commercial world would result in great injustice." "It is now held by the great weight of authority that a master will not be held responsible for negligent operation of a servant's automobile, even though engaged at the time in furthering the master's business unless the master expressly or impliedly consents to the use of the automobile, and ... had the right to control the servant in its operation, or else the use of the automobile was of such vital importance in furthering the master's business that his control over it might reasonably be inferred."

The application of the doctrine "rests upon the power of control and direction which the superior has over the subordinate, and ... does not arise when the servant is not actually or constructively under the direction and control of the master." In other words, the doctrine may be properly invoked if the master has, "expressly or impliedly, authorized the [servant] to use his personal vehicle in the execution of his duties, and the employee is in fact engaged in such endeavors at the time of the accident." Normally, therefore, while driving to and from his job site, an employee is not acting within the scope of his employment. It is essentially the employee's own responsibility to get to or from work. Thus, the general rule is that absent special circumstances, an employer will not be vicariously liable for the negligent conduct of his employee occurring while the employee is traveling to or from work.

Id. at 628, 506 A.2d 224 (citations omitted) (alterations and emphasis in original).

The appellants in Dhanraj argued that payment of the travel allowance was a special circumstance, removing the case from the general rule. The Court of Appeals rejected this argument, holding that PEPCO "did not expressly or impliedly consent to the use of the automobile; it had no right to control [the employee] in its operation, and the use of the automobile was not of such vital importance in furthering PEPCO's business that the control over it might reasonably be inferred." Id. at 631, 506 A.2d 224. The Court explained why the payment of a travel allowance did not invoke the doctrine of respondeat superior:

There was no consent, express or implied, by PEPCO to the use of [the employee's] automobile as the means of transportation to the training facility; PEPCO was not concerned with how he got there or how he got home at the close of the workday. ... He used his automobile by his own choice and for his personal convenience; he was under no instruction, direction or duty to use it. ... In short, he could travel to and from the facility as he...