Higgins v. City of Rockville

• Citation: 86 Md.App. 670,587 A.2d 1168
• Decision Date: 03 April 1991
• Docket Number: No. 853,853
• Parties: John F. HIGGINS, et ux. v. CITY OF ROCKVILLE, et al. Sept. Term 1990.
• Court: Court of Special Appeals of Maryland

Page 670

86 Md.App. 670

587 A.2d 1168

John F. HIGGINS, et ux. v. CITY OF ROCKVILLE, et al.

No. 853 Sept. Term 1990.

Court of Special Appeals of Maryland.

April 3, 1991.

Michael F. Flynn, Jr. (Christopher C. Fogleman and Gleason and Flynn, Chartered, on the brief), Rockville, for appellants, Higgins.

Alexander H. Gillespie and Jackson and Campbell, P.C., on the brief, Washington, D.C., for appellant, Group Hospitalization Medical Services, Inc.

John M. Quinn (Quinn & McAuliffe, on the brief), Rockville, for appellees.

Argued before MOYLAN, BLOOM and DAVIS, JJ.

MOYLAN, Judge.

The plaintiff-appellants, John F. Higgins (Higgins); Margaret M. Higgins, his wife; and Group Hospitalization Medical Services, Inc., appeal from the granting by the Circuit Court for Montgomery County of a judgment at the close of the plaintiffs' case in favor of the appellees, City of Rockville (City) and Gregory A. Bayor (Bayor). Upon this appeal, the appellants raise the following four contentions:

1. That the trial court erred in holding that the appellees enjoyed sovereign immunity because the maintenance and operation of the public walkway involved the exercise of a governmental function;

2. That the trial court erred in holding that the appellants had failed to adduce legally sufficient evidence of negligence 3. That the trial court erred in holding that the appellant, John F. Higgins, was contributorially negligent as a matter of law; and

4. That the trial court erred in excluding appellants' evidence of subsequent remedial measures.

When a defendant moves for judgment at the close of the plaintiff's evidence, the court must consider all evidence and inferences in the light most favorable to the plaintiff. Md.Rule 2-519(b); Pahanish v. Western Trails, Inc., 69 Md.App. 342, 353, 517 A.2d 1122 (1986). The facts in the case, viewed in that light, are as follows.

The former Broome Junior High School in Rockville and its surrounding campus are owned by Montgomery County (County). In October, 1986, the former school housed the Alcoholic Treatment Center and an Autistic Education program. From January, 1984, until the time of the accident, the County leased the school's athletic field to Rockville. In effect, the former campus was split into two roughly equal parcels. That part which had been the school's athletic fields, located essentially behind the school building, was leased to the City of Rockville to use for municipal recreational purposes. Its management was assigned by the City to its Department of Recreation and Parks. It was designated as the Broome Athletic Park. The remainder of the former campus, fronting on Twinbrook Parkway and containing the school building proper, some tennis courts, parking lots and driveways and surrounding lawn, remained in the possession of Montgomery County. As one of the conditions of the lease, the City agreed to maintain that part of the original campus which remained in the possession of the County, including the parking lots and driveways.

Specifically, the City and the County agreed that the City would be responsible for maintaining the driveway, which led from the parking lot off Twinbrook Parkway and circled around behind the school, in front of the athletic field, and returned to Twinbrook Parkway. The driveway was used by "voters dropping off their ballots," ¹ waste trucks picking up trash dumpsters, and other maintenance vehicles. It was also regularly utilized by pedestrians for various purposes, but primarily for access to the athletic fields. Although the County refused permission, the City nonetheless installed bollards and chains on the driveway at the two rear corners of the building in March, 1985, through the Department of Recreation and Parks (Department). At that time, Gregory Bayor was the director of the Department.

On Friday, October 10, 1986, Higgins took his four sons, ranging from 10 to 3 years of age, to his wife Margaret's softball game at the Broome Athletic Park. He arrived at approximately 7:55 p.m., when it was dark, parking the car in the unlit parking lot on the school campus just off Twinbrook Parkway. He and the boys proceeded from the parking lot down an unlit driveway, apparently the primary route to the athletic field. Three of the boys, including the three-year old, moved ahead of him. Fearing that the youngest would fall down the stairs leading to the field, Higgins increased his pace to a trot or a run down the driveway. Although occasionally glancing to his side or behind him (at one of the boys), he "was primarily looking straight ahead." As he ran, Higgins felt something come into contact with his leg, just below his knee, tripping him and causing him to break his elbow. The object causing the fall was a chain or cable (cable gate), approximately 10 feet in length, strung between two posts, or bollards, with white tubing covering the middle section. Higgins saw no warning signs; nor did he see the cable gate.

Only a matter of minutes before, Michelle Buterbaugh had also tripped over the cable gate, but sustained no injuries. She had been walking at a normal pace, looking straight ahead, and still failed to see the cable gate.

Higgins sued the City and the County, alleging negligence in failing to provide a safe walkway, in failing to warn of a dangerous condition and in failing to correct a known, dangerous condition. Higgins' injuries caused him to undergo three operations and prevented him from working for six months, thereby losing one-third of his base pay and his usual overtime. The damages asked for included lost wages, lost earning capacity, past and future medical expenses, and pain and suffering. He and his wife also sued for loss of consortium. The complaint was amended to include Bayor ² as a defendant. Group Hospitalization Medical Services, Inc. known as Blue Cross and Blue Shield of the National Capital Area, intervened, claiming subrogation for the medical expenses incurred by Higgins.

On May 14, 1990, the case proceeded to trial before a jury. The court refused to permit evidence that the City had subsequently installed a light above the cable gate and had covered the cable with fluorescent orange tubing. At the close of the plaintiffs' case, the defendants moved for judgment, arguing that a prima facie case of negligence had not been established, that Higgins was contributorially negligent as a matter of law, and that they enjoyed governmental immunity. The motion was granted on all three grounds.

The appellants appeal the lower court's decision only as to the City of Rockville and Bayor.

Governmental Immunity

A. As to the City of Rockville:

The appellants contend that the City and Bayor are not immune from liability. They argue that the trial court misapplied the sovereign or governmental immunity doctrine in finding that the City was acting in its governmental capacity.

The difference between the broad sovereign immunity enjoyed by the State of Maryland and the more limited governmental immunity enjoyed by a county or municipal corporation within the state was well spelled out by Judge Eldridge, in Maryland-Nat. Capital Park and Planning Com'n v. Kranz, 308 Md. 618, 622, 521 A.2d 729 (1987):

"As this Court has often pointed out, the doctrine that the State of Maryland and state agencies are generally immune from suits, unless the immunity has been waived by the General Assembly, 'is firmly embedded in the law of Maryland.' On the other hand, counties and municipalities do not possess this general immunity. Instead, counties and municipalities have never been given immunity in contract actions, and, in tort actions, they are not immune with regard to those matters categorized as 'proprietary' but are immune with regard to those matters categorized as 'governmental.' " (citations omitted).

See also Mayor and City Council of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 271, 195 A. 571 (1937); Burns v. City of Rockville, 71 Md.App. 293, 297-298, 525 A.2d 255 (1987).

Where a municipal corporation is performing a governmental function, it enjoys the same immunity as the state itself. Mayor and City Council of Baltimore v. State, ex rel. Blueford, supra, fully explained this concept, at 173 Md. 271-272, 195 A. 571:

"That immunity extends to such agencies of the state as have no separate corporate existence but are employed by it merely as hands or instruments to execute its will, but not to its creatures, such as municipal corporations, except when exercising some governmental function of the state itself. Where, however, a municipality is engaged in the performance of a governmental function as an agent of the state, the same principle which protects the state from liability also protects the municipality. So that, where that principle of immunity is invoked in behalf of a municipality charged with a tort, the primary and essential inquiry is whether the tortious act was done in the course of the performance of some governmental duty or function." (citations omitted).

Blueford provided the guidelines for determining when the actions of a municipality are governmental in nature, at 173 Md. 276, 195 A. 571:

"Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature."

The Blueford case also established unequivocally that the maintenance of a public park by a municipality is a governmental function enjoying sovereign immunity:

"[T]he maintenance of a public park is a governmental function, and ... the municipality is not liable for any default or neglect of its agents or employees in the management thereof."

173 Md. at 272, 195 A. 571. See also City of Baltimore v. State, Use of Ahrens, 168 Md. 619, 626, 179 A. 169 (1935). And see Haley v....