Kent Village Associates Joint Venture v. Smith

• Decision Date: 01 September 1994
• Docket Number: No. 413,413
• Citation: 104 Md.App. 507,657 A.2d 330
• Parties: KENT VILLAGE ASSOCIATES JOINT VENTURE, et al. v. Kimberly SMITH, a Minor, etc., et al. ,
• Court: Court of Special Appeals of Maryland

Page 507

104 Md.App. 507

657 A.2d 330

KENT VILLAGE ASSOCIATES JOINT VENTURE, et al. v. Kimberly SMITH, a Minor, etc., et al.

No. 413, Sept. Term, 1994.

Court of Special Appeals of Maryland.

Decided April 26, 1995.

Jeffrey R. Schmieler (Steven B. Vinick and Saunders and Schmieler, on the brief) Silver Spring, for appellants

Geoffrey S. Gavett, Rockville (Rhoda S. Barish and Gavett and Datt, P.C., Rockville, Stewart C. Economou, J. Casey Forrester, Ronald A. Ray and Economou and Forrester, Alexandria, VA, on the brief), for appellees.

Argued before WILNER, C.J., and MOYLAN and CATHELL, JJ.

WILNER, Chief Judge.

This appeal arises from a tragic accident that occurred on October 27, 1988. Four-year-old Kimberly Smith was playing on a refuse bin located near the playground in the apartment development where she lived when the bin fell over on her, causing very serious and permanent injuries and leaving her a paraplegic.

In April, 1991, the State of Illinois, Kimberly's guardian, filed suit in the Circuit Court for Prince George's County against Kent Village Associates Joint Venture (Kent Village), the owner of the apartment development; Southern Management Corp. (Southern), an allied company, which acted as management agent for Kent Village; and Consolidated Waste Industries, Inc. (Consolidated), which provided waste removal services for Kent Village and which owned the refuse bin. Two causes of action were submitted to a jury--negligence and violation of Federal Consumer Product Safety Act (15 U.S.C. § 2051 et seq.). The jury (1) found against all three defendants on both counts, (2) assessed damages against each in the amount of $14,640,000, and (3) determined that Kent Village and Southern were not entitled to indemnification from Consolidated. Upon motion of the defendants, the court applied the provisions of Md.Code Cts. & Jud.Proc. art., § 11-108 and reduced the $2,300,000 component of the verdict awarded for non-economic damages to $350,000, thus reducing the aggregate verdict to $12,690,002.

Kent Village and Southern have appealed the judgments entered against them and the subsequent refusal of the court to "annuitize" the judgment in accordance with Md.Code Cts. & Jud.Proc. art., § 11-109. Kimberly has cross-appealed the $1,950,000 reduction in the jury's verdict. Consolidated has not appealed. Five issues are presented by Kent Village and Southern:

(1) Whether there was legally sufficient evidence that they knowingly violated the Consumer Product Safety Act, and that any such violation was the proximate cause of the accident;

(2) Whether the court erred in allowing into evidence and the jury to consider certain standards promulgated by the American National Standards Institute (ANSI);

(3) Whether the court erred in allowing a life care planner, Estelle Davis, to render opinions concerning Kimberly's future medical condition and treatment;

(4) Whether the court misinterpreted Md.Code Cts. & Jud.Proc. art., § 11-109 in refusing to approve appellants' proposed "annuitization" of Kimberly's future medical expenses; and

(5) Whether the court erred in entering judgment for Consolidated on appellants' cross-claim for contribution.

In her cross-appeal, Kimberly raises the single issue of whether Federal preemption precludes the application of Maryland's statutory $350,000 "cap" on non-economic damages to an award based on a violation of the Consumer Product Safety Act.

We shall deal with these issues in the order presented.

CONSUMER PRODUCT SAFETY ACT

The Consumer Product Safety Act is found in 15 U.S.C. §§ 2051-2083. One of its purposes, enunciated by Congress in § 2051(b), is to protect the public against unreasonable risks of injury associated with consumer products. A "consumer product" is defined in § 2052(a) as including a product produced or distributed for sale to a consumer for use in or The Act creates the Consumer Product Safety Commission and authorizes it, among other things, to promulgate consumer product safety standards and rules declaring a product that is distributed in commerce and presents an unreasonable risk of injury to be a "banned hazardous product." §§ 2056, 2057. On June 13, 1978, the Commission adopted a rule declaring as banned hazardous products certain refuse bins of metal construction, having an actual internal volume of one cubic yard or greater, which tip over when subjected to a horizontal force of 70 pounds or a vertical downward force of 191 pounds. 16 C.F.R. Part 1301.

around a residence. Appellants do not dispute that the refuse bin that crushed Kimberly Smith was a consumer product.

Section 2068(a)(2) of title 15 makes it unlawful for any person to distribute in commerce a banned hazardous product. Sections 2069, 2070, and 2071 provide civil and criminal penalties for the violation of § 2068 and for injunctive relief. Section 2072(a) provides, additionally, in relevant part:

"Any person who shall sustain injury by reason of any knowing (including willful) violation of a consumer product safety rule, or any other rule or order issued by the Commission may sue any person who knowingly (including willfully) violated any such rule or order in any district court of the United States in the district in which the defendant resides or is found ..., shall recover damages sustained, and may, if the court determines it to be in the interest of justice, recover the costs of suit, including reasonable attorneys' fees ... and reasonable expert witness' fees...."

The basis of Kimberly's claim under the Consumer Product Safety Act was the contention that (1) until February, 1986, Kent Village and Southern performed the waste removal services for the Kent Village complex, (2) Kent Village then owned the bin that fell over on her, (3) in February, 1986, the bin was a banned hazardous product, (4) in that month, Kent Village or Southern contracted with Consolidated to perform the waste removal services for the apartment complex and, as part of that contract, sold Consolidated the bins Kent Village Kent Village and Southern offer a two-part defense to this claim: first, that State courts have no jurisdiction over claims made under the Consumer Product Safety Act; and second, that the evidence was insufficient to show that the bin that fell on Kimberly was a banned hazardous product. We find no merit in either assertion.

/Southern were then using, including the bin that injured Kimberly, and (5) through that sale, Kent Village/Southern distributed a banned hazardous product in commerce.

Jurisdiction

As noted, § 2072(a) allows a person injured by reason of any knowing violation of a rule or order of the Commission to sue the violator "in any district court of the United States in the district in which the defendant is found...." Appellants treat this statute as conferring exclusive jurisdiction on the Federal courts and thus precluding such suits in State courts.

The principles governing this issue were well and succinctly stated in Gulf Offshore Co. v. Mobil Oil Corp., 453 U.S. 473, 101 S.Ct. 2870, 69 L.Ed.2d 784 (1981), where the Court found concurrent State jurisdiction over actions under the Outer Continental Shelf Lands Act. There, as here, the Federal District Courts were given express jurisdiction over claims arising under the Act, but the Court, at 479, 101 S.Ct. at 2875, made clear that "the mere grant of jurisdiction to a federal court does not operate to oust a state court from concurrent jurisdiction over the cause of action." Earlier in the Opinion, the Court declared:

"The general principle of state-court jurisdiction over cases arising under federal laws is straightforward; state courts may assume subject-matter jurisdiction over a federal cause of action absent provision by Congress to the contrary or disabling incompatibility between the federal claim and state-court adjudication....

In considering the propriety of state-court jurisdiction over any particular federal claim, the Court begins with the presumption that state courts enjoy concurrent jurisdiction....

.... Congress, however, may confine jurisdiction to the federal courts either explicitly or implicitly. Thus, the presumption of concurrent jurisdiction can be rebutted by an explicit statutory directive, by unmistakable implication from legislative history, or by a clear incompatibility between state-court jurisdiction and federal interests."

Id. at 477-78, 101 S.Ct. at 2875 (citations omitted); see also Tafflin v. Levitt, 493 U.S. 455, 458-60, 110 S.Ct. 792, 794-95, 107 L.Ed.2d 887 (1990), recognizing concurrent State court jurisdiction over civil RICO claims.

Applying these principles, the Supreme Court of Minnesota, after reviewing the legislative history of the Consumer Product Safety Act, held that the State courts had concurrent jurisdiction over claims under § 2072. Swenson v. Emerson Elec. Co., 374 N.W.2d 690 (Minn.1985), cert. denied, 476 U.S. 1130, 106 S.Ct. 1998, 90 L.Ed.2d 678 (1986). At 697, the Court reasoned:

"Section 2072 contains no explicit grant of exclusive jurisdiction to the federal courts. Our review of the legislative history of the CPSA does not reveal any consideration of the jurisdictional question.... Finally, it is unlikely that Congress intended federal courts to have exclusive jurisdiction over private actions under the CPSA because most actions in which CPSA claims are asserted would also include claims of state common law violations such as negligence, breach of warranty, and strict product liability. Any intent by Congress to require all of these actions to be brought in federal courts would have to be explicit."

(Citations omitted.) The New York courts have reached a similar conclusion. See Howard v. Poseidon Pools, Inc., 133 Misc.2d 43, 506 N.Y.S.2d 519 (1986), aff'd in part, rev'd in part on other grounds, 134 A.D.2d 926, 522 N.Y.S.2d 388 (1987). We are unaware of any decisions to the contrary; none have been cited by appellants.

Having...