Schreiber v. Cherry Hill Const. Co., Inc.

• Decision Date: 01 September 1994
• Docket Number: No. 1516,1516
• Citation: 660 A.2d 970,105 Md.App. 462
• Parties: Gayle Ann SCHREIBER v. CHERRY HILL CONSTRUCTION COMPANY, INC. ,
• Court: Court of Special Appeals of Maryland

Page 462

105 Md.App. 462

660 A.2d 970

Gayle Ann SCHREIBER v. CHERRY HILL CONSTRUCTION COMPANY, INC.

No. 1516, Sept. Term, 1994.

Court of Special Appeals of Maryland.

June 29, 1995.

Janet M. Truhe (Ward, Janofsky & Truhe, P.A.), Towson, and E. Suzan Miller, Westminster, for appellant.

Geoffrey S. Gavett (Rhoda S. Barish, Gavett and Datt, P.C., on the brief), Rockville, for appellee.

Argued before MOYLAN, BISHOP, and SALMON, JJ.

BISHOP, Judge.

Appellee, Gayle Ann Schreiber ("Schreiber"), filed a five-count complaint and two amended complaints in the Circuit Court for Baltimore County against Pamela K. Benton ("Benton"), Johnson, Mirmiran & Thompson, P.A. ("JMT"), and appellant, Cherry Hill Construction, Inc. ("Cherry Hill"). In her second-amended complaint, Schreiber sought damages resulting from injuries she sustained while performing her duties as a Maryland State Trooper. Schreiber alleged that, while she was investigating an automobile accident at a road construction site monitored and supervised by JMT and Cherry Hill, Benton's car struck her, throwing her approximately sixty feet. Schreiber avers in her complaint that Benton drove in a careless and negligent manner (Count I), that JMT breached its duty to monitor and inspect the construction site in a prudent and safe manner (Count II), that Cherry Hill breached its duty to engineer, design, supervise, and monitor the construction site in a safe and prudent manner (Count III), that JMT was grossly negligent and blatantly disregarded the dangerous condition of the construction site (Count IV), and that Cherry Hill was grossly negligent and blatantly disregarded the dangerous condition of the construction site (Count V).

In addition to the complaint filed by Schreiber, JMT filed a third-party complaint against Earth Engineering Sciences Inc. ("EESI"), an inspection firm that supplied employees to JMT on a subcontractor basis. JMT also filed cross-claims against Cherry Hill and Benton. Cherry Hill filed cross-claims against Benton, JMT, and EESI, and Benton filed cross-claims against JMT and Cherry Hill. Schreiber, however, settled with Benton, JMT, and EESI prior to trial; therefore, Benton, JMT, and EESI are not parties to this appeal.

Cherry Hill filed a motion to dismiss Schreiber's claim for punitive damages, and a motion for summary judgment. The trial court denied both of these motions. Prior to submitting the case to the jury, however, the trial court granted Cherry Hill's motion to dismiss the punitive damages claim.

The jury returned a verdict in favor of Schreiber on her negligence claim against Cherry Hill and found that JMT and EESI negligently performed their inspection services. The jury awarded Schreiber $22,989.83 in stipulated medical expenses, $100,000 for lost wages/earning capacity, and $50,000 for pain and suffering. The trial court entered judgment in favor of Cherry Hill on its cross-claims against Benton, JMT, and EESI.

Schreiber filed a motion for judgment notwithstanding the verdict and/or new trial, as to damages only, contending that the jury's verdict was tainted by the admission of certain evidence. The trial court denied the motion.

Issues

Schreiber raises five issues on appeal, and Cherry Hill raises two issues on cross-appeal. For clarity and convenience, we shall address Cherry Hill's issues first.

Cherry Hill's Issues:

I. Whether Schreiber's claims are barred by the Fireman's Rule?

II. Whether the trial court erred in refusing to instruct the jury on active/passive negligence.

Schreiber's Issues:

III. Did the trial court err when it admitted evidence of Schreiber's receipt of disability pension benefits where there was no evidence of malingering?

IV. Did the trial court err when it admitted evidence that Schreiber should be required to obtain a graduate degree to enhance her wage-earning potential and mitigate her damages?

V. Did the trial court err in allowing Cherry Hill's vocational rehabilitation expert to testify concerning the existence of higher paying jobs which he thought may be available to Schreiber?

VI. Should Schreiber's claim for punitive damages have been submitted to the jury?

VII. Did the trial court err when it denied Schreiber's motion for judgment notwithstanding the verdict as to the liability of JMT and ESSI?

Facts

On the afternoon of July 4, 1989, Schreiber responded to the scene of a motor vehicle accident on eastbound I-695 in Anne Arundel County. The accident occurred in the right, eastbound lane of I-695, just past the Route 3 exit ramp. Trooper Leroy Truitt, who arrived on the scene before Schreiber, had set up a flare line to provide a zone of safety for rescue personnel. Benton, who was travelling in the right, eastbound lane of I-695, approached the accident scene, saw the flares, and tried to slow her vehicle and move to the left lane; however, she lost control of her car, which caromed off a jersey barrier, crossed the two eastbound traffic lanes, and struck Schreiber. When Benton's vehicle struck Schreiber, Schreiber was within the safety zone established by Trooper Truitt. Schreiber was thrown sixty feet and sustained a closed head injury, contusions to the head, two black eyes, a contusion to the left elbow, a hematoma to the left buttock, a separated shoulder, a sprained left ankle, and a left tibia fracture that extended into her kneecap.

The evidence showed that, prior to the accident, Benton had been driving for approximately one year. Benton's license had a restriction requiring that she use a driving knob because extensive brain surgery, which she had undergone as a child, left her unable to control her vehicle at all with her left arm. The Motor Vehicle Accident Report indicated that, on the day of Schreiber's accident, it was raining, and that, prior to Benton's losing control of her vehicle, she was driving fifty-five miles per hour, the posted speed limit. Additionally, the Motor Vehicle Accident Report revealed that Benton was "under medication for seizures."

When Schreiber's accident occurred, Cherry Hill, a contractor hired by the State Highway Administration ("SHA"), was building the I-97/I-695 Interchange. Schreiber's accident occurred along the second curve of a reverse "S" curve, constructed by Cherry Hill as a temporary crossover, which took eastbound traffic past the Route 3 exit ramp and joined it with westbound traffic. The entire road project, including the temporary crossover, was to conform with design plans prepared by the Greiner Engineering Company ("Greiner"). Cherry Hill's contract with the SHA required preparation of an alternative plan for any construction that did not conform to Greiner's design plans and submission of the alternative plan for review and approval by the State Traffic Engineer, Larry Elliott. Construction of any area of the roadway could not proceed without prior approval by the State Traffic Engineer.

According to Schreiber, the reverse "S" curve, where her accident occurred, did not conform to Greiner's design plans, because those plans did not provide for any curves, and therefore, Cherry Hill did not have an approved alternative plan for the construction of the reverse "S" curve. Schreiber's expert witness, Andrew E. Ramisch, testified concerning the design of the "S" curve:

[Mr. Ramisch]: In this particular case the radius of the curve was 135 feet on the curve where Ms. Schreiber was hit. The 42 degree curve that I talked about is a little bit different measurement. In highway engineering a cord [sic], which is a straight line, to a point on a curve is struck. Where that curve is one hundred feet long the angle subtended by the one hundred foot curve was measured, in this case it was 42 degrees. For a gentle curve like this for a interstate standard the same cord of one hundred feet gives a much, much smaller angle. I believe it is something like three degrees. So. radius and angle are interrelated as are radius and other factors, but the sharper the radius, the more of a kink it is. It is a quick, abrupt curve. That's the best that I can explain it.

Q: And this curve was 135 feet and 42 degrees?

[Mr. Ramisch]: Yes.

Q: And design standards dictated by AASHTO would have dictated what type of radius for a 55 mile per hour speed?

[Mr. Ramisch]: I believe I calculated it out to 1600 and some feet.

Q: Which would be what in degrees?

[Mr. Ramisch]: Three degrees.

According to a mathematical formula, which gives the design speed for any given radius, the design speed for a forty-two degree "S" curve is thirty miles per hour. Additionally, Schreiber asserted that the curve was banked improperly and that there were no advance warning signs. According to Cherry Hill, however, "[t]he undisputed evidence at trial established that significant site considerations limited the manner in which Cherry Hill could configure the geometrics of the crossover." Cherry Hill also maintained that signs could not be posted and the speed limit could not be changed without the express direction and approval of the State.

Cherry Hill conceded that its contract with the SHA required it to post appropriate signs, in accordance with the Manual on Uniform Traffic Control Devices, on all roadways under its construction. Also, Cherry Hill conceded that it had a duty to set and keep the jersey barriers in proper alignment. Schreiber argued that the jersey barriers along the reverse "S" curve were constantly misaligned, and therefore, any vehicle that struck a misaligned barrier, inevitably would be deflected across the roadway, in the same manner as was Benton's vehicle.

Schreiber maintained, at trial, that Cherry Hill knew of, but ignored, the safety hazards that the forty-two degree, reverse "S" curve posed to motorists. Schreiber specifically pointed to the increased number of automobile accidents in the road construction area after Cherry Hill had built the reverse "S" curve. Cherry Hill's Grade Foreman, Jim Rogers, its Superintendent,...