Montague v. Mayor & City Council of Balt.

• Decision Date: 10 March 2020
• Docket Number: No. 0127,0127
• Parties: DARRYL E. MONTAGUE v. MAYOR AND CITY COUNCIL OF BALTIMORE
• Court: Court of Special Appeals of Maryland

DARRYL E. MONTAGUE v. MAYOR AND CITY COUNCIL OF BALTIMORE

No. 0127

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2019

March 10, 2020

Circuit Court for Baltimore City

Case No. 24C17006619

UNREPORTED

Meredith, Wells, Wright, Alexander, Jr. (Senior Judge, Specially Assigned), JJ.

Opinion by Wright, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

This appeal follows a judgment entered by the Circuit Court for Baltimore City granting a motion for summary judgment in favor of the Mayor and City Council of Baltimore.

Following the fatal car accident of Dr. Idoreyin Montague, her father, Darryl E. Montague, filed suit against the Mayor and City Council, alleging fault in the construction and maintenance of that section of West Cold Spring Lane where Dr. Montague lost her life. The Mayor and City Council filed a motion to dismiss the charges, and an initial hearing was held before the Honorable Yvette Bryant. The singular point of contention in this initial hearing was whether Dr. Montague's father had failed to provide timely notice of his claim. Potential claimants were obligated by statute to submit notice of their claim within six months of injury; Dr. Montague's father, however, had not consulted an attorney or submitted notice of the claim until nearly a year after the accident. Judge Bryant ultimately determined that good cause had been shown so as to excuse the failure to strictly supply timely notice and denied the motion to dismiss.

The Mayor and City Council subsequently filed a motion for summary judgment. A second hearing was held, this time before the Honorable Lawrence Fletcher-Hill. Judge Fletcher-Hill revisited the issue of good cause and found, to the contrary, that good cause could not be established under the circumstances. On that basis, he granted the motion for summary judgment.

Taking issue with the contrary judgment, Dr. Montague's father filed this timely appeal presenting two questions for our review,¹ which we have rephrased and condensed for clarity as follows:

Did the circuit court err in granting the Mayor and City Council's Motion for Summary Judgment?

Finding the circuit court's analysis to be inadequate on the issue of good cause, we vacate its judgment and remand the case for further proceedings.

BACKGROUND

I. UNDERLYING INCIDENT

At about 7:25 p.m. on the evening of December 24, 2014, Dr. Idoreyin Montague ("Decedent") was traveling westbound in the 2300 block of West Cold Spring Lane in Baltimore City. The road conditions were rainy and wet. As Decedent attempted to negotiate a sweeping turn to the right, she lost control of her vehicle and slid across the center line, exposing the passenger side of her vehicle to oncoming traffic in the eastbound lanes. A driver in the eastbound lane, unable to stop, struck Decedent's vehicle on the passenger side. Decedent's vehicle completed almost a full rotation, coming to rest facingnorthbound while still in the eastbound lanes. Decedent was transported from the scene of the accident to the emergency room at Sinai Hospital with serious injuries and in critical condition. At or about 11:54 p.m., she succumbed to her injuries and was pronounced dead. Decedent was the only fatality resulting from the accident.

Shortly after, a detective with the Baltimore Police Department responded to the scene. He, in turn, notified Decedent's mother, Barbara Montague-Nicholls ("Mother"), about the incident. Mother was contacted by the attending doctor at Sinai hospital when Decedent was pronounced dead. Decedent's father and appellant Darryl E. Montague ("Father") was notified shortly thereafter. Notably, both Mother and Father reside out-of-state; Mother is a resident of New Jersey, while Father lives in North Carolina.

In December of 2015, Father contacted an attorney, who proceeded, via December 16, 2015 mailing, to place the City on notice of a potential claim. On December 22, 2017, Father, both individually and as personal representative of Decedent's estate, filed his Complaint and Election for Jury Trial in the Baltimore City Circuit Court. The Complaint named the Mayor and City Council of Baltimore, the State of Maryland, and the Maryland Department of Transportation, among others, as defendants. Shortly before the first motions hearing, Father dismissed all State of Maryland defendants from the suit. Consequently, the matter proceeded with the Mayor and City Council of Baltimore ("the City") as the sole defendants.

II. CIRCUIT COURT PROCEEDINGS

A. THE FIRST PROCEEDING

The first motions hearing took place on April 2, 2018. There, the circuit court addressed the City's motion to dismiss. The defense focused principally upon the requirements of the Local Government Tort Claims Act ("LGTCA"), and even more specifically upon Father's failure to provide notice of his claim within the 180-day period then specified by statute. The City also presented supplemental arguments directed toward the statutory basis for excuse of the notice requirement—that is, the existence of good cause and prejudice to the defendant.²

As to the subject of notice, the City's counsel argued:

Approximately a year [after the accident] in December of 2015 the City received its first notice of this claim from [Father]. And as Your Honor knows, the requirements of the [LGTCA] in 2014-2015 required that within six months of the action that the City would require notice of such claim. And in this instance . . . the notice of the claim to the City took place approximately a year after the actual accident. And as shown in [Father's] opposition, there is no argument that . . . notice was not [sic] actually given to the City. So, as it relates to whether or not notice was given within the actual time requirements, that is not in dispute.

Moving, then, to a discussion of good cause, counsel argued, in pertinent part:

[T]here does not appear to be any basis to constitute good cause for the lack of notice to the City. Now, Your Honor is aware there are instances in which good cause can be shown. . . . [However] the basis that was given by [Father] for the good cause was that prior to putting the City on notice of the claim, he was waiting for the police report to be given to him.

Now this is undercut in a variety of ways. First and foremost, [Father] actually gave notice to the City four months before even receiving the police report. But also, the basis of the complaint . . . what he considers to be defects: failing to place appropriate road signs, failing to properly warn of curves, failing to properly maintain roadways. . . . All of these are open and obvious and could have been easily ascertained by [Father] without the necessity of a police report.

Finally, reaching prejudice, counsel argued as follows:

[T]he City . . . was prejudiced in this case just by the delay in and of itself of the ability to investigate this claim. . . . [T]he ability for the City to timely investigate this matter is of critical essence. And as Your Honor knows, one of the claims here is failing to maintain roadways. And just during that . . . 180 day time period in which [Father] should have provided notice to the City, there was some roadway resurfacing and other work that was done in that area. So for all those reasons, Your Honor, basically the ability to know of a claim, the ability to investigate that claim in a timely manner by the City officials, the City was prejudiced by the lack of notice.

Father, conversely, maintained that there was good cause to justify an excuse of the notice requirement. In making his argument, Father first addressed the notice issue, directing the court to the subsequent amendment to the statute extending the statutory notice period from six months to one year. Noting that the change, by the explicit terms of the statute, would not apply retroactively, Father nonetheless contended that the shift was "the legislature's acknowledgment that 180 [days'] notice is a harsh rule that even in the exercise of due diligent care, it's difficult to make notice within 180 days."

Then, shifting attention to good cause, Father's counsel addressed the various factors Maryland courts have identified as relevant to the determination. Taking each factor in turn, Father's counsel argued:

The first factor is whether it was excusable neglect. . . . Your Honor, [Father's] daughter had just passed away. He was grieving for his daughter during that time. A month later he requested the police report to figure outwhat happened. . . . He waited for this police report and was in contact with the police department trying to figure out how to get the police report. How they waited almost a year. That's when [Father], a resident of North Carolina, decided to contact a local attorney and figure out why he wasn't receiving the police report. At that point the local attorney immediately put the City on notice of a potential claim. . . . [U]nder those circumstances, I think a father grieving for his daughter, trying to obtain more facts in an out-of-town location before immediately putting the City on notice signifies reasonable diligence under the circumstances.

The second [factor] is whether the location [was] out-of-state. [Father] is located out-of-state. In this case, [Father] lives in North Carolina. He does not live in the state. He can't just pop by West Cold Spring Lane and look at the conditions of the road. . . . He has to rely on people out-of-state to do this.

The third factor is the inability to retain counsel in cases involving complex litigation. Your Honor, again, we're not saying that there was a pothole in the road. We're saying that it wasn't engineered properly and proper signage wasn't put up. This requires expert testimony. . . . This is not a simple case of there's a pothole or, you know, they allowed the

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