Miller v. U.S., No. CIV. S-01-597.

• Court: U.S. District Court — District of Maryland
• Writing for the Court: Gauvey
• Citation: Miller v. U.S., 308 F.Supp.2d 604 (D. Md. 2004)
• Decision Date: 18 March 2004
• Docket Number: No. CIV. S-01-597.
• Parties: Jason G. MILLER v. UNITED STATES of America.

308 F.Supp.2d 604

Jason G. MILLER v. UNITED STATES of America.

No. CIV. S-01-597.

United States District Court, D. Maryland.

March 18, 2004.

COPYRIGHT MATERIAL OMITTED

Thomas Jay Althauser, Eccleston and Wolf PC, Baltimore, MD, for Plaintiff.

Larry D. Adams, Paul Edwin Soeffing, Stephen M. Schenning, Thomas M. DiBiagio, Office of the United States Attorney, Baltimore, MD, for Defendant.

MEMORANDUM AND ORDER

GAUVEY, United States Magistrate Judge.

This is a Federal Tort Claims Act case, in which a participant in a staged wrestling event at the Aberdeen Proving Ground is suing, pursuant to the substantive law of Maryland, to recover damages for a serious injury he sustained during that event. This case was tried on January 13-14, 2003. Pursuant to FED.R.CIV.P. 52, the Court makes the following findings of fact and conclusions of law.

I. The Federal Tort Claims Act and Choice of Law

The Federal Tort Claims Act provides a limited waiver of the United States' sovereignty to suits in tort. 28 U.S.C. § 1346(b), 2671 et seq. See also United States v. Orleans, 425 U.S. 807, 813, 96 S.Ct. 1971, 48 L.Ed.2d 390 (1976).

Pursuant to this act, federal courts have exclusive jurisdiction over claims for money damages for negligence of employees of the United States, acting within the scope of their employment, "under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred." 28 U.S.C. § 1346(b).

Since the negligent act or omission is alleged to have occurred in Maryland, Maryland law governs the United States' liability in this case. See, e.g., Richards v. United States, 369 U.S. 1, 8-9, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962), aff'd, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed.2d 492 (1962). Maryland follows the lex loci delicti choice of law rule in tort cases, which requires a tort action to be governed by the substantive law of the state where the wrong occurred. In re: Sabin Oral Polio Vaccine Prod. Liab. Litig., 774 F.Supp. 952, 954 (D.Md. 1991), aff'd, 984 F.2d 124 (4th Cir.1993).

II. Negligence

A. Burden and Standard of Proof

In Maryland, a plaintiff must establish the elements of negligence by a preponderance of the evidence. Baltimore & O.R.R. v. Plews, 262 Md. 442, 278 A.2d 287 (1971).

B. The Elements of Negligence

The Plaintiff must show: (1) that a duty was owed by Defendant United States to Plaintiff Jason G. Miller; and (2) that Defendant breached that duty; and (3) that Defendant's breach was the proximate cause of the injuries sustained by Plaintiff. Myers v. Montgomery Ward & Co., 253 Md. 282, 252 A.2d 855 (1969); W.B. Bradley, Inc. v. N.H. Yates & Co., 218 Md. 263, 268, 146 A.2d 433 (1958); Keitz v. Nat'l Paving & Contracting Co., 214 Md. 479, 134 A.2d 296 (1957).

C. Premises Liability & the Duty Owed by the Landowner

The responsibility of those who own or possess property to people injured on their property depends upon the standard of care owed to the injured person. The standard of care depends upon the injured person's status on the property. Maryland Civil Pattern Jury Instructions, 24:1 (4th ed.2002). See also Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 705 A.2d 1144 (1998), aff'd, 348 Md. 680, 705 A.2d 1144 (1998).

An invitee is a person who is invited or permitted to be on another's property for purposes related to the owner's or occupier's business. MPJI-Cv 24:2. See also Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 705 A.2d 1144 (1998).

The defendant conceded that plaintiff was an invitee under the mutual benefit doctrine. The Court agrees and so finds that plaintiff, as a member of the group calling itself the Semi-Professional Wrestling Federation, was invited to put on a show for the dependent children of Aberdeen Proving Ground in exchange for the opportunity to use the facility and perform for an audience. Therefore, the Court concludes that plaintiff was an invitee under the mutual benefit doctrine. Howard County Bd. of Educ. v. Cheyne, 99 Md. App. 150, 636 A.2d 22 (1994).

The owner owes invitees a duty to exercise reasonable and ordinary care to protect against known or should be known dangers. Pahanish v. Western Trails, Inc., 69 Md.App. 342, 517 A.2d 1122 (1986). Moreover, this duty extends to conditions caused by other persons where a reasonable person would anticipate the occurrence and its probable result. Eyerly v. Baker, 168 Md. 599, 178 A. 691 (1935); Dolma Sales of Wheaton, Inc. v. Steinberg, 43 Md.App. 659, 407 A.2d 339 (1979).

Mr. Kegley was the sports specialist of Youth Center facility at the Aberdeen Proving Ground at the time of the accident. It is not disputed that he was acting within the scope of his employment when he approved the use of the Youth Center facility for a staged wrestling performance for the entertainment of the Aberdeen Proving Ground community. Mr. Kegley had twelve years of experience in similar jobs, holds a bachelor's degree in physical education, and had completed a sports director's course at the time of plaintiff's injury. Mr. Kegley was the custodian of the mats used for the activity during which plaintiff was injured. Mr. Kegley testified that he allowed Mr. Green, the organizer of the show, to use the mats. He testified that Mr. Green knew that they were gymnastic mats, but had looked at them and said they were fine. Mr. Kegley was familiar with the nature of the wrestling event, having observed two events put on by plaintiff's group prior to the one in which plaintiff was injured. Mr. Kegley acknowledged that the activity that occurred during the match at which plaintiff was injured was substantially similar to that which took place at the two events Mr. Kegley had previously observed and that he was fully aware of the tendency of the mats to shift and separate during the wrestlers' activities. Therefore, the Court concludes that Mr. Kegley had a duty to use reasonable and ordinary care to protect Mr. Miller against known dangers when he agreed that the wrestling event could be held in the Youth Center, using youth center equipment, for the benefit of the Aberdeen Proving Ground community. That duty included providing safe and suitable equipment, particularly where, as here, he knew the nature of the activity and indeed admitted to observing the shifting and separating of the mats. A reasonable sports specialist in Mr. Kegley's position should have anticipated that one of the participants could lose his footing and cause injury to either himself or another participant as a result of the use of the inappropriate mats that the youth center provided to the Semi-Professional Wrestling Federation.

Defendant argued that plaintiff's co-wrestlers, pursuant to an alleged agreement between Mr. Kegley and Mr. Green, were to stand at each corner of the "ring" and ensure that the mats did not separate, but the Court finds that there was no such agreement. While Mr. Kegley testified to such an arrangement, neither Mr. Miller nor Mr. Green remembered such an agreement. Additionally, the video of the subject event did not reflect such monitoring of the four corners of the mats. Furthermore, even if there had been such an agreement, the Court concludes that defendant would remain liable for any failure on the part of plaintiff's co-wrestlers to exercise reasonable care to keep the mats safe. Eyerly v. Baker, 168 Md. 599, 178 A 691 (1935); Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.App. 659, 407 A.2d 339 (1979). While defendant was free to delegate performance of its duty owed to an invitee, defendant cannot thereby avoid or delegate the risk of nonperformance of its duty. Rowley v. Mayor & City Council of Baltimore, 305 Md. 456, 466, 505 A.2d 494 (1986), aff'd, 305 Md. 456, 505 A.2d 494 (1986). Therefore, the Court concludes that defendant owed a duty to plaintiff-invitee to ensure that the equipment used for the event during which plaintiff was injured was reasonably safe.

D. The "Good Samaritan" Doctrine (Alternate Source of Duty)

(1) RESTATEMENT (SECOND) OF TORTS § 323 provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for protection of the other's person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if

(a) his failure to exercise such care increases the risk of such harm, or

(b) the harm is suffered because of the other's reliance upon the undertaking.

Id.

(2) RESTATEMENT (SECOND) OF TORTS § 324A also provides:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if

(a) his failure to exercise reasonable care increases the risk of such harm, or

(b) he has undertaken to perform a duty owed by the other to the third person, or

(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

Id.

While Maryland appellate courts have not explicitly adopted these two sections of the Restatement, case law holds that they are recognized as part of Maryland law. See, e.g., Heinrich v. Goodyear Tire & Rubber Co., 532 F.Supp. 1348, 1353 (D.Md. 1982) (§ 323); E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 423, 633 A.2d 485 (1993) (§ 324A).

The Court finds that Mr. Kegley, on behalf of defendant, expressly undertook to provide mats for the activity at which plaintiff was injured. The Court also finds that his failure to exercise reasonable care, that is, to provide appropriate mats that did not shift and separate during the activity, increased the risk that the wrestlers might lose their footing and thus cause or sustain injury. Therefore, the...