Morris v. Wilson, 1085

• Decision Date: 01 September 1987
• Docket Number: No. 1085,1085
• Citation: 74 Md.App. 663,539 A.2d 1151
• Parties: Connie I. MORRIS, Personal Representative of the Estate of Irene May Ragland v. Ann G. WILSON et al. ,
• Court: Court of Special Appeals of Maryland

Page 663

74 Md.App. 663

539 A.2d 1151

Connie I. MORRIS, Personal Representative of the Estate of Irene May Ragland v. Ann G. WILSON et al.

No. 1085, Sept. Term, 1987.

Court of Special Appeals of Maryland.

April 12, 1988.

Certiorari Granted June 30, 1988.

Daniel F. Goldstein (Elizabeth M. Kameen and Brown and Goldstein, Baltimore, William Schildt and Strite, Schildt & Varner, Hagerstown, on the brief), for appellant.

Deborah A. Johnston, Landover, for appellee Myrna Binkley.

Lydia B. Duff, Staff Atty. (J. Joseph Curran, Jr., Atty. Gen., and Roberta M. Ward, Asst. Atty. Gen., Baltimore, on the brief), for appellee, Ann G. Wilson.

Argued before WILNER, ALPERT and KARWACKI, JJ.

ALPERT, Judge.

In March of 1982, Irene Ragland entered a program at the Western Maryland Adult Day Care Treatment Center (hereinafter "the Center"). She was 67 years old at the time and lived with her niece, Connie Morris. Apparently, Mrs. Ragland entered the program because of a combination of factors--her family was hesitant to leave her home alone all day, and Mrs. Ragland needed physical therapy, psychiatric counseling, and general physical care that could be provided by the Center.

The Center was adjacent to the Washington County Health Department (hereinafter "the Health Department") which provided, mental health services to clients of the Center who were brought to the department by the Center's staff members. Mrs. Ragland was one of the clients who received mental health services.

On May 6, 1982, Mrs. Ragland was wheeled in a wheelchair from the Center to the Health Department for counseling. Mary Shain, the aide who wheeled Mrs. Ragland to the Health Department, left Mrs. Ragland there and asked the second floor receptionist, Carol Hastings, to call her when Mrs. Ragland was ready to be brought back to the Center. Some time later, Ms. Shain was contacted and informed that Mrs. Ragland was ready. After a delay of several minutes, Ms. Shain left the Center and went to get Mrs. Ragland.

At the trial, Ms. Shain testified that when she went outside she observed Mrs. Ragland sitting unattended in her wheelchair outside the Health Department. She said that she started to run to her, looked down and when she looked up, Mrs. Ragland's chair had rolled down an access ramp for the handicapped and Mrs. Ragland had slid forward onto the pedals of the wheelchair. ¹

In a deposition prior to her death, Mrs. Ragland said she waited 15 or 20 minutes for someone to get her. When no one did, she wheeled herself to the elevator, took the elevator down to the first floor and waited by the door. She said that the receptionist at the door offered to take her over to the Center. According to Mrs. Ragland, the receptionist opened the door and pushed the wheelchair outside. The receptionist then allegedly ran back inside to answer a phone call, leaving Mrs. Ragland unattended. Appellee Ann Wilson has identified herself as the first floor receptionist at the Health Department at the time of the accident. Ms. Wilson contends, however, that Mrs. Ragland had merely asked her to open the doors for her so that she could sit outside and wait for someone to return her to the Center. It was undisputed that the wheelchair brake was not on and that the chair ultimately rolled forward down a slight incline.

Mrs. Ragland filed suit in the Circuit Court for Washington County. She named as defendants Myrna Binkley, who was the Director of the Western Maryland Adult Day Care Treatment Center; Mary Shain who transported her to the Health Department and who was responsible for bringing her back to the Center; and Ann G. Wilson, the Health Department receptionist who allegedly pushed Mrs. Ragland outside at her request. Mrs. Ragland died prior to trial of causes unrelated to the occurrence, and her niece, Connie Morris, continued the suit as the Personal Representative of Mrs. Ragland's estate.

The trial judge granted a motion for judgment on behalf of Mary Shain. The jury returned a verdict in favor of the other two defendants. Connie Morris then filed this appeal.

I.

Appellant claims that the trial judge erred in refusing to admit evidence of prior and subsequent hospital procedures for transporting patients to and from the Health Department. Appellees preliminarily argue that, assuming arguendo the evidence should have been admitted, the error was not reversible. Appellees assert, and we concur, that the evidence regarding prior and subsequent hospital procedures goes to the issue of the primary negligence of the appellees--whether, in fact, they exercised due care for Mrs. Ragland. They argue that inasmuch as the jury found that Mrs. Ragland had assumed the risk of injury and/or been contributorily negligent, ² exclusion of evidence that goes to the primary negligence of the defendants cannot be reversible error. We agree, see Erdman v. Johnson Brothers Radio and Television Co., 260 Md. 190, 271 A.2d 744 (1970), but because we shall reverse on other grounds, we will also address the admissibility of the evidence for the issue will probably arise on remand. ³

The evidence offered by appellant alleged that the Center had a particular procedure for the transportation of its patients, and that the Center changed that procedure, only to reinstitute it after Mrs. Ragland's accident. For the reasons that follow, we conclude that the evidence as to the Center's prior and subsequent procedures demonstrates a pattern of conduct that makes those procedures relevant and admissible.

A. Admissibility of Subsequent Procedures

Appellant sought to introduce evidence at trial that the Center changed its procedure after Mrs. Ragland's accident and required staff members to remain with patients taken to the Health Department until they completed their appointments. The trial judge refused to admit this evidence. ⁴

Under the common law, when remedial measures are taken following an accident, injury, or event for the purpose of making the event less likely to recur, evidence of those remedial measures is not admissible as an admission of negligence, culpable conduct, or liability in connection with the event. Maryland ostensibly follows the common law rule. Thus, evidence of such subsequent remedial measures as repairs, changes in procedure, changes in material or personnel, and other precautionary actions may not be received as admissions of negligence or culpability.

L. McLain, 5 Maryland Practice: Maryland Evidence, § 407.1 at 407-08 (1987) (footnotes omitted).

On appeal, appellant contends that Maryland case law permits the introduction of remedial actions taken after an accident to establish the applicable standard of care. Conversely, appellee argues that the evidence was inadmissible "to establish the existence of a dangerous condition, Defendant's knowledge or notice of the condition as well as the proper standard of care."

The first Maryland case to address the issue fully was American Paving and Construction Co. v. Davis, 127 Md. 477, 96 A. 623 (1916). The plaintiff in that case alleged that sparks from a steam shovel operated by the defendant ignited a fire on the roof of plaintiff's home. On appeal, the defendant claimed that the judge erred when he permitted testimony that thedefendant put a wire screen over the smokestack of the shovel immediately after the fire and that the sparks were reduced considerably by the safety measure. The Court of Appeals held the evidence was clearly admissible "not only for the purpose of showing that the fire was caused by the sparks from the steam shovel, but also as tending to show negligence on the part of the defendant." Id. at 483, 96 A. 623. The court went on to note that although the subsequent repair measures "would not be admissible for the purpose of establishing an admission of liability by the defendant," it was admissible "as reflecting upon the question whether the defendant had exercised proper care and caution to avoid injury to the plaintiff's property." Id. at 483-84, 96 A. 623.

Following this line of reasoning, the United States District Court for the District of Maryland permitted the introduction of evidence that the Federal Government deepened a drainage ditch along a portion of the Suitland Parkway after an accident occurred there. Jennings v. United States, 207 F.Supp. 143 (D.Md.1962), aff'd, 318 F.2d 718 (4th Cir.1963). The plaintiff alleged that the grading of an area adjacent to the scene of the accident caused water to collect on the roadway, which froze in the wintertime and created a hazardous condition. Citing American Paving, the court held the evidence of subsequent remedial measures was admissible to show "whether the defendant had exercised proper care and caution." Id. at 148.

The Court of Appeals reiterated this position in Blanco v. J.C. Penney Co., 251 Md. 707, 248 A.2d 645 (1968). The plaintiff in Blanco sued for injuries suffered when she walked through a plate glass panel, apparently thinking it was an open door. The Court of Appeals held that the subsequent installation of decals on the glass panels was admissible. The court repeated that although the installation of the decals did not constitute an admission, the installation was admissible to establish whether the defendant had exercised "proper care and caution to avoid causing injuries such as those sustained by the [plaintiff]." Id. at 709, 248 A.2d 645.

The exception to the general rule against admissibility carved out in American Paving and Blanco has generated some confusion. One commentator noted that the Blanco exception, which permitted introduction of subsequent repairs to establish "that the applicable standard of care had not been met" provides for "indirect proof of causation." L. McLain, 5 Maryland Practice: Maryland Evidence, § 407.1 at 410. Professor McLain went on to opine that "this exception 'swallows the rule.' " Id.

Other cases, however, have limited somewhat the holding in American Paving and...