Anne Arundel Cnty. v. Fratantuono

Panel: Wright, Fader, James R. Eyler (Senior Judge, Specially Assigned), JJ. Fader, J. ¹²⁹ We are asked to determine whether a county enjoys governmental immunity from a negligence claim for injury occurring in an area that is (1) contiguous with and adjacent to, but not on, a paved public street or walkway, (2) used as a walkway by pedestrians even though there is a paved sidewalk on the opposite side of the street, and (3) not in a public park, swimming pool, or similar area. A jury awarded more than $50,000 in damages to the appellee, Janine Fratantuono, for injuries she suffered as a result of the negligence of the appellant, Anne Arundel County, in failing to follow its own ¹³⁰ requirements relating to the installation and maintenance of a water meter lid. We conclude that the County was not entitled to governmental immunity under these circumstances.

The County also argues that the circuit court erred in denying its request for a contributory negligence jury instruction and by entering judgment on an inconsistent jury verdict. We hold that the circuit court correctly concluded that the evidence did not support a contributory negligence instruction and that the jury verdict was not inconsistent. We therefore affirm. BACKGROUND At the center of this dispute is a water meter lid that the County installed and maintained in a grassy strip of land near the southwest corner of the intersection of Maple Road and Camp Meade Road in Linthicum.

The grassy strip sits on the south side of Maple Road between the road and a property fence and stretches between the property's driveway and an area of sidewalk that begins at the corner. The lid is near the edge of the strip that abuts the beginning of the sidewalk. At trial, Ms. Fratantuono introduced the following pictures of (1) the lid and the area immediately around it: ^{28 131} and (2) the relevant area of the grassy strip as depicted on Google Street View: On the morning of December 27, 2014, Ms. Fratantuono and her then-husband were out for a walk on the sidewalk on the north side of Maple Road, west of the intersection with Camp Meade Road, when they saw joggers coming in the opposite direction. To avoid a logjam, the couple crossed to the south side of Maple Road.

Although there was a sidewalk on the south side of Maple at the point where they first crossed, ¹³² eventually it ended. The Fratantuonos continued walking onto the grassy strip. Ms. Fratantuono testified that she had walked on this same grassy strip at least 50 times before. This time, her right foot stepped on the lid, which flipped up and open.

Her left foot and leg then fell approximately 30 inches into the newly-opened ²⁹ hole, causing her to sustain injuries. Ms. Fratantuono filed this lawsuit against Anne Arundel County, alleging that her injuries resulted from the County's negligence and negligent supervision of its employees with respect to the construction, installation, and maintenance of the water meter lid. Before trial, the County filed a motion for summary judgment in which it unsuccessfully argued that Ms. Fratantuono's claim was barred by governmental immunity. At trial, Ms. Fratantuono introduced evidence that the County, through its Department of Public Works, had ignored the requirements of its own Design Manual regarding the selection and installation of the water meter lid.

A jury entered judgment in favor of Ms. Fratantuono and awarded her damages of $50,806.00. The court denied the County's motion for judgment notwithstanding the verdict. This appeal followed. DISCUSSION The County challenges the circuit court's denial of its motion for summary judgment, its refusal to give a requested jury instruction, and its denial of a motion for judgment notwithstanding the verdict.

We review denial of a motion for summary judgment and denial of a judgment notwithstanding the verdict for legal correctness. Sage Title Grp., LLC v. Roman , 455 Md. 188 , 201, 166 A.3d 1026 (2017) ; Dashiell v. Meeks , 396 Md. 149 , 163, 913 A.2d 10 (2006). We review the decision not to give a requested jury instruction for abuse of discretion. Woolridge v. Abrishami , 233 Md. App. 278 , 305, 163 A.3d 850 (2017). ¹³³ I. THE COUNTY IS NOT PROTECTED FROM MS.

FRATANTUONO'S CLAIMS BY GOVERNMENTAL IMMUNITY . The County argues that the circuit court erred in denying its motion for summary judgment on the basis of governmental immunity. Specifically, the County contends that although it does not enjoy immunity from claims arising out of its "maintenance of streets, walkways and areas contiguous to them used by the public to travel from one point to another," the strip of grass in which Ms. Fratantuono fell does not fit that description. Ms. Fratantuono responds that her claim falls within this exception because the strip of grass where the water meter lid was located was contiguous to the public street as well as the sidewalk and it was an area where she and others regularly walked.

Although the State enjoys absolute immunity from claims except to the extent it consents otherwise, counties generally enjoy immunity only when performing governmental, as opposed to proprietary, functions. Rios v. Montgomery County , 386 Md. 104 , 124, 872 A.2d 1 (2005) ; Austin v. Mayor and City Council of Balt. , 286 Md. 51 , 53, 405 A.2d 255 (1979) ; Zilichikhis v. Montgomery County , 223 Md. App. 158 , 192, 115 A.3d 685 (2015). The distinction between when a local government acts in a governmental versus a proprietary capacity has been developed through case law. Relevant to our purposes here, our appellate courts have long recognized a distinction between the maintenance of public parks and swimming pools, which has been treated as a governmental function, and the government's obligation "to maintain its streets, as well as the sidewalks, footways and the areas contiguous to them, in a reasonably safe condition," which has been treated as proprietary.

Higgins v. City of Rockville , 86 Md. App. 670 , 679, 587 A.2d 1168 (1991). 1 This is ³⁰ sometimes known as the "public ways" exception to governmental immunity. ¹³⁴ Four cases the Court of Appeals decided in the 1930s established the framework for the governmental immunity analysis our appellate courts continue to apply in this context. In Mayor & City Council of Balt. v. Eagers , the Court addressed a claim arising out of the death of a pedestrian who was walking down the center of a walkway when he was struck with a rotten branch that came from a tree being felled by a City work crew 20 feet away. 167 Md. 128 , 129, 173 A. 56 (1934). The Court observed that the City had a statutory obligation to keep the walkways safe, including the obligation to remove trees "with reasonable care and skill, so as to do no injury to those on the sidewalks while exercising due care and caution according to the circumstances." Id. at 134 , 173 A. 56 . Whether the City could be sued, however, depended on whether the nature of its act was governmental or proprietary.

The Court found that "the great weight of authority" established "that it is a private proprietary obligation of municipal corporations to keep their streets and public ways reasonably safe for travel in the ordinary manner, and to prevent and remove a nuisance affecting the use and safety of these public ways." Id. at 136 , 173 A. 56 . Moreover, the Court concluded, that duty "extends to the land immediately contiguous to these public ways." Id. Thus, although removal of a tree from an area outside of a public way would normally be a governmental ¹³⁵ function for which a local government would have immunity, that is not the case where negligence during that removal injures someone who is on a public way. Id. at 137 , 173 A. 56 .

Later that same year, the Court decided Mayor & Council of Hagerstown v. Hertzler , 167 Md. 518 , 175 A. 447 (1934). Hagerstown had set aside a three-and-a-half-foot-wide grass strip in between a highway and a paved sidewalk. Id. at 519 , 175 A. 447 . The City then planted trees on the grass strip which, while young, were supported by "guy wires" extending out several feet from the trees.

Id. The plaintiff's wife tripped on one of the guy wires and fell while she was walking from a portion of the road to the sidewalk. Id. at 519-20 , 175 A. 447 . Although observing that the duty of the City was lesser, and that of the pedestrian greater, on such a strip of grass than on a paved walkway, the Court held that the City was nonetheless "obliged to exercise care for the safety of the pedestrians against dangers, not from the customary, permissible uses or conditions, but dangers of a kind that would not be expected by foot passengers, dangers in the nature of traps." Id. at 521 , 175 A. 447 .

Such dangers include "pipes or piles of ³¹ stone on the ground, holes, and wires fencing off seeded portions." Id. Concluding that the guy wires could be found to constitute such a danger, the Court affirmed the judgment against the City. Id. at 522 , 175 A. 447 . The following year, the Court was presented with a claim from the parents of a ten-year-old boy who had drowned while swimming in a natural stream at Gwynns Falls Park.

Mayor & City Council of Balt. v. State, use of Ahrens , 168 Md. 619 , 620, 179 A. 169 (1935). The plaintiffs presented evidence that the area in which the boy drowned was dangerous, that three others had drowned there in the prior five years, and that the City had nonetheless posted no warnings and taken no steps to make the area safer. Id. at 622 , 179 A. 169 . In rejecting the plaintiffs' claims that these facts gave rise to an actionable claim, the Court noted the distinction confirmed in Eagers between the proprietary function of "the maintenance of streets and highways" and "the exercise of various governmental or political functions necessarily incident to municipal ¹³⁶ government." Id. at 625 , 179 A. 169 .

Based on that distinction and important public policy concerns-the Court feared that imposing liability on local governments for negligence in maintaining parks would discourage the expansion and development of such parks-the Court held that "that the maintenance, control, and operation of Gwynns Falls Park ... is a governmental duty, discretionary in its nature, performed in its political and governmental capacity as an agency of the state." Id. at 628 , 179 A. 169 . The City thus enjoyed immunity for actions related to its maintenance of the park. Id. Two years later, the Court decided Blueford , which involved the drowning of an 11-year-old girl in a swimming pool maintained by the City of Baltimore. 173 Md. at 268, 195 A. 571 .

The Court began by recognizing the general rule that a local government "is not liable in a civil action for any default or neglect in the performance of a purely governmental function," as well as the exception that applied to the entity's "failure to keep the public highways under its management and control in a reasonably safe condition." Id. at 273, 195 A. 571 . Observing that it was already established that maintenance of a park was a governmental function, the Court held that maintaining a swimming pool must be as well. Id. at 274, 195 A. 571 . Although it acknowledged that there was no universally-accepted rule for determining whether a function was governmental or proprietary, the Court concluded that a function is governmental where it "is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest." Id. at 276, 195 A. 571 .

Maintaining a public swimming pool, the Court concluded, meets that standard. Id. at 274, 195 A. 571 . The Court introduced a twist on the "public way" exception to governmental immunity in Haley v. Mayor & City Council of Baltimore , 211 Md. 269 , 127 A.2d 371 (1956). There, in separate incidents, two plaintiffs were injured while walking on steps within an urban park that was maintained by the City ¹³⁷ of Baltimore.

Id. at 271 , 127 A.2d 371 . Although the walkway at issue was within the park, the Court determined that its function, and not its location, was dispositive. Id. at 272-73 , 127 A.2d 371 . Because the steps were part of a public path connecting two pedestrian sidewalks, and that path was frequently used "in order to travel between points which were outside the park and not for recreational purposes," the Court held that "the steps constitute[d] a public highway of the City." Id. at 273 , 127 A.2d 371 .

The ³² Court thus reversed the trial court's conclusion that Baltimore City enjoyed immunity from the claims. Id. at 274 , 127 A.2d 371 . Three years after Haley , the Court decided Pierce v. City of Baltimore , 220 Md. 286 , 151 A.2d 915 (1959). When Mr. Pierce alighted from a bus at a city bus stop where there was no sidewalk, he, like other passengers, had been required to walk "along an unpaved strip of ground" parallel to the road to get to a sidewalk.

Id. at 288 , 151 A.2d 915 . While doing so, he caught his foot under a metal plate covering a drain, fell, and sustained damages. Id. Summarizing the state of the law, the Court concluded that where "the municipality has actual or constructive notice" of a defect that "is not to be expected and is substantial ... generally recovery is allowed, even though the area involved is one not actually or formally dedicated to pedestrian use." Id. at 291, 151 A.2d 915 . 2 There, the evidence was such that a "jury properly could have concluded that the City had violated a duty owed Pierce to have anticipated that pedestrians would" walk on the unpaved strip rather than "in the street with their backs to traffic," and so that one of them "might injure himself on the drain or the plate." Id.

Although the City's duty of care with respect to the unpaved strip was less than it would have been on a paved surface, the City still ¹³⁸ was required to make it "reasonably safe for persons having occasion to walk upon [it]." Id. at 292, 151 A.2d 915 . In Higgins , this Court considered whether the City of Rockville had immunity from a claim for damages a pedestrian sustained while walking from a City-maintained parking lot to a City-maintained athletic field along a walkway the City had created by chaining off a portion of the parking lot. 86 Md. App. at 674 , 587 A.2d 1168 . We held that because the City had set aside a portion of the lot as a walkway, maintenance of that portion of the lot became a proprietary function under the "public way" exception and the City thus could not claim governmental immunity. Id. at 686 , 587 A.2d 1168 .

The most recent addition to Maryland's delineation of the scope of the public ways exception to governmental immunity was Mayor & City Council of Baltimore v. Whalen , 395 Md. 154 , 909 A.2d 683 (2006). There, a blind plaintiff who was on a walk on a public right-of-way located within a public park veered slightly off the right-of-way and fell into an uncovered utility hole. Id. at 157 , 909 A.2d 683 . The City argued that it enjoyed governmental immunity because the accident occurred in a public park, the maintenance of which case law had long since established as governmental in nature.

Id. at 162, 909 A.2d 683 . The plaintiff, by contrast, argued that this fell within the exception for the "maintenance of streets, public ways, and the areas contiguous and adjacent to them ...." Id. Placing dispositive importance on the fact that the plaintiff was inside the boundaries of the public park at the time of the accident, the Court found Ahrens and its progeny controlling. Id. at 164, 909 A.2d 683 .

Although Eagers and cases on which it relied had established that dangers that originate from within public parks could give rise to liability of