Ditto v. Stoneberger, 2374

• Decision Date: 28 August 2002
• Docket Number: No. 2374,2374
• Citation: 145 Md. App. 469,805 A.2d 1148
• Parties: Ruth DITTO, Personal Representative of the Estate of Victor C. Ditto, Sr. v. David W. STONEBERGER, et al.
• Court: Court of Special Appeals of Maryland

805 A.2d 1148

145 Md. App. 469

Ruth DITTO, Personal Representative of the Estate of Victor C. Ditto, Sr. v. David W. STONEBERGER, et al.

No. 2374, Sept. Term, 2000.

Court of Special Appeals of Maryland.

August 28, 2002.

John J. O'Neill, Rockville, for appellant.

Stephen L. Prevas (Prevas and Prevas on the brief), Baltimore, for appellees.

Argued before SALMON, SONNER and CHARLES E. MOYLAN, JR. (Ret., Specially Assigned), JJ. SALMON, Judge.

On July 25, 1998, Edward Stoneberger was hit in the head and killed by a metal pipe that fell from the roof of a two-story feed mill building owned by Richard and Helen Reynolds. At the time of the accident, the building was being demolished by Victor Ditto.

Mr. Stoneberger was survived by a sister, forty-four year old Mary Stoneberger, and a niece, sixteen year old Candi Blessing. The personal representatives of Mr. Stoneberger's estate filed a survivorship action in the Circuit Court for Washington County against Mr. Ditto and the owners of the building; joined in the same suit was a claim for wrongful death filed by Mary Stoneberger individually and as the mother of Candi Blessing.

After a trial, the jury absolved the owners of any responsibility for the accident but found that Mr. Ditto's negligence caused Mr. Stoneberger's death. Damages were awarded to the estate as follows:

Medical expenses: $ 45,673.35 Funeral expenses: 3,146.75 Pain and suffering: 300,000.00 ___________ Total: $348,820.10

In addition, the jury awarded Mary Stoneberger and Candi Blessing $50,000 each on their respective wrongful death claims.

In this appeal, appellant, Ruth Ditto, as personal representative of the estate of Victor Ditto, raises six issues:

1. Whether, at the time of his death, either Mary Stoneberger or Candi Blessing was substantially dependent on Edward Stoneberger;

2. Whether the trial court erred in failing to instruct the jury concerning the duty, or lack thereof, owed to a trespasser;

3. Whether sufficient evidence was presented to support a finding that Edward Stoneberger endured conscious pain and suffering as a result of the subject accident;

4. Whether the trial court erred in accepting Roger Campbell as an expert on the subject of occupational safety and the operation of cranes;

5. Whether the trial court erred in allowing counsel for the appellee to use misleading photographs; and

6. Whether the trial court erred in allowing Patsy Hays, the caregiver for Mary Stoneberger, Candi Blessing, and the deceased to introduce Social Security Administration records.

I. UNDISPUTED FACTS

Victor Ditto was hired by Richard and Helen Reynolds to demolish a two-story feed mill that the Reynoldses owned. The feed mill was located at the intersection of Railroad Lane and Main Street in Smithsburg, Washington County, Maryland. The front of the building faced Main Street, and railroad tracks ran along the side of the building opposite Railroad Lane.

Edward Stoneberger lived on Main Street near the feed mill. Residing with him was his sister, Mary Stoneberger, and Mary's teen-aged daughter, Candi Blessing.

On the afternoon of July 25, 1998, Mr. Ditto, age 82, was operating a crane, using the boom of the crane to knock down the feed mill building. According to Mr. Ditto's deposition testimony that was introduced at trial,¹ Mr. Ditto was manipulating the boom to knock down the roof of the feed mill building when he struck a long, angled metal pipe. About five minutes before the pipe was struck, Edward Stoneberger had stopped on property located across the street from where the demolition was taking place to speak with Clarence Miller. Miller was one of the people hired by Mr. Ditto to spray the feed mill in order to dampen the dust caused by the demolition. Mr. Stoneberger and Miller commenced talking while standing in the backyard of a brownstone located directly across Railroad Lane from the demolition site. When the boom struck the long metal pipe, the pipe broke loose, slid down one side of the feed mill roof, and fell, landing on Railroad Lane, bouncing up, and then striking Mr. Stoneberger in the head. Mr. Stoneberger was transported to Washington County Hospital where, after a 16 day interlude, he died.

II. THE CONSTRUCTION SITE

There was conflicting testimony presented at trial as to whether barriers, caution tape, and "No Trespassing" signs were in place around the demolition site. Randall Schroyer, another man hired by Mr. Ditto to hose down the feed mill during the demolition, testified that barricades and tape were placed across Railroad Lane and Main Street. According to Mr. Schroyer, there were also "No Trespassing" signs in the front windows of the brownstone and feed mill buildings.

Robert Rogers, Jr., the manager of the Smithsburg Market, located close to the intersection of Railroad Lane and Main Street, testified that he saw a trestle and tape across Railroad Lane. The trestle was about six feet long and was placed in the center of the road. The ribbon or tape blocking the roadway was attached to one end of the trestle and to the feed mill building. Richard Grove, who was at the intersection of Railroad Lane and Main Street on the morning of July 25, 1998, saw trestles across Railroad Lane and ribbon strung across Railroad Lane on the Main Street side. He also remembered seeing a "No Trespassing" sign on the feed mill building.

John Morin, the office manager for Victor Ditto Steel Erectors and Riggers, testified that Mr. Ditto called him on the evening of July 24, 1998, asking him to bring "No Trespassing" signs and caution tape to the demolition site. Mr. Morin did as requested that same evening.

Clarence Miller, who was chatting with Edward Stoneberger when the accident occurred, testified that he did not recall any barricades or tape across Railroad Lane. Jason Sturm, the paramedic who came to the scene immediately after the accident testified that he saw no barriers when he arrived. Ann Boswell, a neighbor of the Stonebergers, testified that around 8:00 a.m. on July 25, 1998, she left her house to buy a newspaper. On her way back home, she saw no barriers or caution tape. Timothy Beal, a safety professional who was visiting a friend in Smithsburg between 9 a.m. and 10 a.m. on July 25, 1998, testified that there was a barricade present, but it was not blocking traffic on Railroad Lane.

III. EVIDENCE REGARDING DAMAGES

Edward Stoneberger, who was mentally retarded, was forty-seven years old when he died. The house he lived in was given to him and his sister, Mary Stoneberger, and Candi Blessing, by Edward Stoneberger's mother.

Mary Stoneberger is also retarded. She was forty-four and her daughter, Candi, was sixteen at the time of Edward's death. All three were recipients of Social Security Disability benefits.

A neighbor, Patsy Hays, managed the financial affairs of Edward and Mary Stoneberger and Candi Blessing. The Social Security Administration mailed Edward and Candi's checks directly to Ms. Hays, in her capacity as their caregiver. Mary's check was mailed to her, but Ms. Hays accompanied Mary to the bank to ensure it was deposited in the correct account.

Edward's monthly check was approximately $527, Mary's was $580, and Candi's was $354. Ms. Hays made sure that the three social security benefit checks were deposited in the bank each month. Once every third month, she would use the monies of one of the three checking accounts to pay certain of the household bills of all three individuals. Ms. Hays tried to split the fixed expenses evenly among the three as best she could, but Candi's check, because it was the smallest, was used only toward groceries, fuel, and electricity. When it was Candi's turn for her funds to be used, they had to be supplemented with monies from either Edward's or Mary's accounts.

Mary and Candi did the house cleaning, and sometimes Edward would help. Mary cooked the meals, and each took turns doing the grocery shopping with Ms. Hays's assistance.

Ms. Hays gave an estimate of the bills she paid for Edward, Mary, and Candi each month:

1) Fuel: $122.00

2) Telephone: $40.00

3) Cable: $30.00

4) Electric: $80.00-85.00

5) Water: $30.00

6) Groceries/Household Expenses: $600.00

In addition, on behalf of the three and out of common funds, she paid real estate taxes of $600 per year and fire insurance of $85 annually.

Total fixed monthly expenses were approximately $964. In addition to the fixed expenses, Edward, Mary, and Candi each had individual expenses for things like clothing, entertainment, medication, and hair cuts.

According to Ms. Hays, the deceased was "like a father-figure" to Candi; he took her for walks, bought her treats, etc.

IV. MOTIONS BY APPELLANT

Prior to trial, appellant filed a motion in limine and/or motion to dismiss and/or motion for summary judgment seeking to dismiss the wrongful death action brought by Mary Stoneberger, individually, and as parent of Candi Blessing. The motion asserted that Mary and Candi were not substantially dependent on Edward, because both were receiving social security disability benefits and were self-supporting. Therefore, appellant argued, they had "no standing" to bring a wrongful death action. The trial court denied the motions.

After plaintiffs' case-in-chief and again at the close of all evidence, appellant made motions for judgment on the wrongful death counts. Appellant contended that no evidence had been admitted showing that either Mary or Candi were substantially dependent on the deceased. Appellant also argued that social security law prohibits anyone from using disability benefits to support another, and therefore it would be impermissible to allow the jury to decide the dependency issue. The trial court denied the motion.

V. ANALYSIS

ISSUE 1: Whether Mary Stoneberger or Candi Blessing Were Substantially Dependent on Edward Stoneberger

Appellant phrases this issue in terms of whether the "trial court err[ed] in failing to grant [a]ppel...