Jennings v. United States

Decision Date22 December 1959
Docket Number9064,9313.,Civ. A. No. 9063
PartiesAnna JENNINGS, administratrix of Stewart Earl Jennings, deceased v. UNITED STATES. STATE of Maryland to use of Anna JENNINGS, surviving wife, Anna Frances Jennings, a minor, Russel Earl Jennings, a minor, Gregory Stewart Jennings, a minor, and the unborn child or children, enventre sa mère, of Stewart Jennings v. UNITED STATES. Margaret M. JENNINGS in her own right as mother and next friend of Donald S. Jennings and Donald S. Jennings in his right v. UNITED STATES.
CourtU.S. District Court — District of Maryland

COPYRIGHT MATERIAL OMITTED

Hugh Lynch, Jr., (Macleay, Lynch & McDonald), John J. Pyne, Washington, D. C., John H. Bolgiano (Clark, Smith & Prendergast), Baltimore, Md., Paul R. Connolly, Jr., and Jeremiah C. Collins (Hogan & Hartson), and George A. Chadwick, Jr., Washington, D. C. (Frost & Towers), Washington, D. C., for plaintiffs.

Leon H. A. Pierson, U. S. Atty., and Martin A. Ferris, Asst. U. S. Atty., Baltimore, Md., for defendant.

Defendant's Motion for New Trial Overruled December 22, 1959.

R. DORSEY WATKINS, District Judge.

On Monday, January 23, 1956, at approximately 7:30 a. m., an automobile operated by Stewart Earl Jennings (Stewart) in which his brother, Donald S. Jennings (Donald) was a passenger, was involved in a collision on Suitland Parkway, property of the United States, and under the control of the National Capitol Park Bureau, Department of the Interior. Stewart was killed, and Donald sustained serious and permanent injuries. On the claim of alleged negligence of the United States, three suits have been filed under the Federal Tort Claims Act, United States Code, Title 28, § 1346(b).

In Civil Action No. 9063 the Administratrix of the estate of Stewart Earl Jennings sues to recover under Maryland Code of Public General Laws (1951) Article 93, § 111,1 for Stewart's alleged conscious pain and suffering; for total loss of Stewart's automobile; and for funeral and burial expenses. (Administratrix's suit.)

In Civil Action No. 9064, suit is brought in the name of the State of Maryland to the use of Stewart's widow and four children (including a posthumous child), under Maryland Code of Public General Laws (1951)2 Article 67, § 1 et seq. (the Maryland Lord Campbell's Act) for damages for alleged wrongful death of Stewart. (Death suit.)

In Civil Action No. 9313, Margaret M. Jennings, in her own right, and as mother and next friend of Donald S. Jennings, sues for loss of Donald's services, and to recover for Donald's pain, suffering, permanent disability, and medical and hospital expenses. At the time of trial Donald had become of age, and pursuant to oral motion and order, the suit has been entered to the use of Margaret M. Jennings and Donald S. Jennings, as their interests may appear. (Donald's suit.)

Questions of primary negligence, contributory negligence, and measure and amount of damages are presented. While the decision of the court in accordance with this opinion will manifestly represent the court's belief as to the correct solution of the problems, the probability of disagreement by one or both sides with some or all of the decision, and the possibility (remote as the court devoutly believes it to be) of some disagreement, on appeal, with the court's decision, leads the court to a somewhat detailed treatment of the voluminous evidence (the trial lasted ten days) and an effort to pass upon all points; with the hope that, if error be found, it can be corrected on appeal without remanding for a new trial.

The Problem of Liability

The plaintiffs claim that as Stewart was driving in a westerly3 direction on Suitland Parkway, having left his home on Forestville Road, and was proceeding toward his place of employment, at the Naval Gun Factory in Washington, D. C., as a result of an accumulation of ice on the travelled portion of the road about seven-tenths of a mile west of the intersection of Forestville Road with Suitland Parkway, his automobile skidded out of control and collided in the eastbound lane with an automobile being driven in an easterly direction on Suitland Parkway.

Suitland Parkway stretches from South Capitol Street Bridge in Washington, D. C. to Andrews Air Base in Maryland, a distance of approximately nine miles. Suitland Parkway was originally opened in December 1944 as a military highway for the United States Army Engineers. It was designed for a dual highway, but only a portion, at the Washington, D. C. end has been completed. The road involved is a two-lane highway, with no center strip, the lanes being twelve feet wide, of concrete construction, with concrete curbs three inches high and six inches wide. At and near the vicinity in question, the road curves slightly; has about a one inch crown, and slopes slightly from north to south, and runs through a slight cut, with trees on both sides. About six to eight feet off the road on the north side there is a "swale" or slightly depressed drainage ditch through sod at the foot of a bank, designed to drain into a field ditch. Along the curbing on each side of the highway are curb drains; but as the road slope is from north to south, there is no north curb drain within some 1,500 feet of the critical point. On the south side, curb drains are located at a distance of about 300 feet apart within this area.

Plaintiffs' theories are that the United States negligently caused or permitted ice to accumulate in a dangerous location on the highway, and that thereafter, with actual knowledge or constructive notice of such ice and of the danger thereby created, failed to use reasonable care to eliminate such dangers by sanding or salting or to give notice of the condition by signs, flares, or other warnings.

Plaintiffs in their complaints attributed the collection of ice in the location in question to poor drainage, particularly in an area shaded by banks and trees. One of the specific claims was that the highway, together with its adjacent and adjoining drainage and landscaping, was negligently constructed.

This was discussed at a pretrial conference held at the end of 1957, in which the Government was given thirty days to state whether or not it would claim that questions of "construction" of the highway, as distinguished from maintenance and patrol, fell within the discretionary exceptions of the Federal Tort Claims Act. No formal statement of position by the Government was made, and no memorandum was filed. To avoid any problems arising sub silentio, at the last pretrial conference before trial, in July 1959, this aspect was discussed, and the pretrial order reads, with respect thereto:

"(4) The Government makes no claim that it is immune in these cases on the ground that the alleged negligent conduct falls within the discretionary exceptions of the Federal Tort Claims Act."

On the third day of the trial a Government witness, called by the plaintiffs, was interrogated by plaintiffs' counsel as to certain matters relating to original drainage grades, and as to answers to interrogatories relating to work done after the accident. The court thought that these were primarily intended to lay a foundation for showing that the final contours would ordinarily lead to water drainage across the road in heavy rains or melting snows, with the possibility or probability of freezing (or failing to melt) in the shielded, protected area in question. On resumption of the trial on the fourth day, the United States Attorney for the District of Maryland, with understandable reluctance, stated that he had been instructed to interpose the defense of discretionary conduct to any questions relating to original or present construction. This presented several serious questions, such as whether under United States Code, Title 28, § 2680(a), the absence of a nondiscretionary function was jurisdictional and hence could not be waived; whether, under Indian Towing Co., Inc. v. United States, 1955, 350 U.S. 61, 76 S.Ct. 122, 100 L.Ed. 48, and Rayonier, Inc. v. United States, 1957, 352 U.S. 315, 77 S.Ct. 374, 1 L.Ed. 2d 354; Somerset Seafood Co. v. United States, 4 Cir., 1951, 193 F.2d 631, and Hernandez v. United States, D.C.D. Hawaii 1953, 112 F.Supp. 369, the conduct in question would fall within the ambit of the Tort Claims Act; and whether under the applicable Maryland law, the lack of care and skill in designing the road was "so great as to constitute negligence." Mayor and City Council of Cumberland v. Turney, 1939, 177 Md. 297, 310-311, 9 A.2d 561, 567. At the end of the case the court was, and after a review of all the evidence still is, of the conviction that the evidence as to original construction and present condition of the highway and its approaches was intended, and was admissible, only to indicate the probability of icing at the point in question, the consequent obligation of the Government to anticipate this probability;4 and as showing that the affirmative testimony as to the presence of ice on this and other occasions was not completely implausible despite the testimony of highway patrolmen who did not observe icing at this point at the time in question, or at any time when icing was not generally prevalent on the entire highway.

Plaintiffs' counsel accepted the court's position and construction as to the purpose and evidentiary value of this evidence, and in the closing argument expressly stated that liability was not being claimed on any theory of negligent design or construction, but upon actual knowledge or constructive notice of the icy condition, and negligent failure to warn or remove. The court will accordingly, in accordance with its construction and ruling, and plaintiffs' concession, consider primary negligence from these aspects.

(a) Constructive notice, generally.

A heavy snow had fallen on the Thursday preceding Monday, January 23, 1956. The highway had been sanded at about midnight Thursday...

To continue reading

Request your trial
28 cases
  • Brooks v. United States
    • United States
    • U.S. District Court — District of South Carolina
    • September 15, 1967
    ...happen in the future. The earnings of the deceased might have increased or diminished had they lived." Cf., also, Jennings v. United States (D.C.Md.1959), 178 F.Supp. 516, (rev. on other grounds, 4 Cir., 291 F.2d 880 and reinstated 4 Cir., 318 F.2d 718), where the Court said that possible p......
  • Meehan v. Central Railroad Company of New Jersey
    • United States
    • U.S. District Court — Southern District of New York
    • January 12, 1960
    ...to work, based upon all the evidence in the case." (SM 743) It is true that in a recent federal court decision, Jennings v. United States, D. C.D.Md., 1959, 178 F.Supp. 516, 532, Judge R. Dorsey Watkins "The Government contends that the amount available to Stewart and his family for all pur......
  • Jennings v. United States
    • United States
    • U.S. Court of Appeals — Fourth Circuit
    • May 4, 1961
    ...questions, together with the findings of the District Judge, are set forth in the Judge's comprehensive opinion. Jennings v. United States, D.C.Md.1959, 178 F.Supp. 516. Damages in the sum of $850 were awarded in the Administratrix's suit, $83,700 in the wrongful death action, and $21,978 i......
  • Cincotta v. United States
    • United States
    • U.S. District Court — District of Maryland
    • June 18, 1973
    ...in wrongful death cases; and in such a cause of action a plaintiff may recover damages for pecuniary losses Jennings v. United States, 178 F.Supp. 516, 530 (D.Md.1959), rev'd on other grounds, 291 F.2d 880 (4th Cir. 1961), decision after remand aff'd, 318 F.2d 718 (4th Cir. 1963); Baltimore......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT