Bell v. Heitkamp, Inc.

SALMON, Judge. This case arises out of a wrongful death/survival action where, for purposes of this appeal, it was conceded that the defendants breached their duty of care owed to the deceased. The central issue presented is whether the plaintiffs — when responding to defendants’ motion for summary judgment — set forth sufficient evidence from which a trier of fact could find that the defendants’ breach of duty was the proximate cause of the decedent’s injuries. The trial judge was of the view that the plaintiff could not prove proximate cause.

He also ruled that the res ipsa loquitur doctrine was inapplicable and, accordingly, granted summary judgment in favor of all defendants on the issue of liability. In addition, he granted summary judgment as to two subsidiary issues. The four questions raised by plaintiffs/appellants in this appeal are: 1. Did the trial court err in granting the defendants’ motion for summary judgment on the ground that plaintiffs had insufficient proof that defendants’ breach of duty was the proximate cause of the decedent’s injuries? 2.

Did the trial court err when it ruled that the doctrine of res ipsa loquitur has no application in the case sub judice? 3. Did the trial court err in granting defendants’ motion for summary judgment regarding the issue of punitive damages? 4. Did the trial court err in granting summary judgment as against the minor plaintiff on the ground that he had no right under the wrongful death statute to bring a wrongful death action? ²¹⁶ I. FACTS A. Background The facts are set forth in the light most favorable to the plaintiffs/appellants. Md. Rule 2-501.

Many of the facts are disputed by appellees. On August 22, 1995, Jabbouri McClamb’s corpse was found lying, face up, under two feet of water in a hole that had been dug recently by an employee of Jaci General Contractors, Inc. (hereafter “Jaci”). Jabbouri McClamb (hereafter “McClamb, Sr.”) had been last seen alive approximately thirteen hours prior to the discovery of his body. The deceased was single, twenty-three years old, and survived by, inter alia, his mother, Maxine Bell — one of the appellants.

Approximately seven months after McClamb, Sr.’s death, Jabbouri McClamb, Jr. (hereafter “McClamb, Jr.”) was born. According to McClamb, Jr.’s mother, Sharon Baker, the father of the child was McClamb, Sr. The hole where McClamb, Sr.’s body was found (hereafter “Hole No. 3”) was situated on a strip of land that was located between Muncy Road and Martin Luther King Highway in Landover, Maryland. The owner of the land was Prince George’s County. Washington Suburban Sanitary Commission (WSSC) had an easement to use the strip for maintenance of its underground pipes.

The strip was 20 feet wide and 227 feet long and was used by members of the public as a footpath between the aforementioned two roadways. The footpath was one foot wide, and portions of the path were surrounded by woods. At all times here pertinent the landscape surrounding the path was marred by garbage, trash, and other debris. The WSSC, on June 24, 1993, contracted with Heitkamp, Inc. (“Heitkamp”), to do some repair work to its lines located beneath the strip.

Heitkamp, in turn, subcontracted with Jaci to dig three holes in the strip. Two of the holes were dug, repairs were made, and the holes covered without incident. Hole No. 3, the last of the three holes dug, was approximately nine feet deep, eight feet wide, and six feet long. The hole was dug on August 18, 1993.

On the same day the hole was ²¹⁷ created, workers employed by Heitkamp shored up the hole by bracing the walls with wooden supports and installing a “shoring box” at the hole’s bottom. Dirt was piled up on both sides of the hole in depths varying between two and four feet. The hole and the dirt that surrounded it were enclosed by a plastic orange mesh fence that was four feet in height. 1 The fence was supported by six foot iron poles that were driven into the ground. No lights or warning signs were put up near the hole, and the hole was uncovered.

Herman Malone (“Mr. Malone”) lived at 7702 Muncy Road in Landover, which is only one lot away from the pathway that runs between Muncy Road and Martin Luther King Highway. Prior to the accident, Mr. Malone talked to two of the men who had dug Hole No. 3. He told the men that he felt it was dangerous for them to leave Hole No. 3 uncovered when they were not in the vicinity because many people, including children, used the pathway. Showing unusual foresight, Mr. Malone warned the workmen, “Something is going to go wrong here sooner or later.” Thereafter — Mr. Malone does not rémember the exact date except that it was before McClamb, Sr.’s death — he took numerous Polaroid pictures showing work that WSSC had done in or near the accident site.

Included among the photographs are several depicting Hole No. 3 and the area that surrounded it. B. Happening of the Accident Curtis Malone (“Curtis”), son of Herman Malone, spent Saturday, August 21, 1993, in the company of McClamb, Sr. After attending an outdoor barbeque and a basketball game together, the two returned to Curtis’s father’s home located at 7702 Muncy Road, where they stayed for an hour or two. Next, in the late hours of August 21st or the early hours of the 22 nd, they decided to take a ride in an automobile that was on ²¹⁸ loan to Curtis. Curtis drove to Route 202 where he stopped at a traffic light.

About that time, Curtis noticed five or six police cars tailing him — albeit with neither their lights nor sirens activated. After the light turned green, Curtis made a “U” turn and accelerated back toward his home. The police cars then activated their lights and sirens and gave chase. Curtis elected to try to elude the police because (according to his deposition testimony) he feared a police beating if he were stopped in an isolated area where there were no civilian witnesses.

While the police were chasing the vehicle, McClamb, Sr., told Curtis that he did not want to be stopped by the police because he feared that he would be arrested because (he thought) there was an outstanding warrant for his arrest. After a short chase, Curtis came to a stop in front of his father’s home where several persons, including Herman Malone, had gathered. The police immediately arrested Curtis, but McClamb, Sr., got out of the vehicle and ran down the footpath toward Hole No. 3. The pathway was pitch dark.

McClamb, Sr., was last seen being chased down the footpath by a Prince George’s County police officer — who had his gun drawn. After seven to ten minutes, the officer who had chased McClamb, Sr., returned empty handed to the area where Curtis had been apprehended. Curtis was then taken to police headquarters, kept for several hours, and charged with numerous traffic offenses — including fleeing and eluding a police officer. When Curtis was released by the police, he tried to get in contact with McClamb, Sr., by paging him but got no response.

On Sunday, August 22 nd, between 11 a.m. and 1 p.m., Curtis’s father, Herman Malone, was walking on the path between Muncy Road and Martin Luther King Highway. When he approached Hole No. 3, he noticed a baseball cap within the fenced area surrounding the hole. He kept on walking toward a Mobil station located on Martin Luther King Highway. After purchasing soft drinks at the station, he retraced his steps, walking on the footpath back toward Hole No. 3.

When he arrived at the hole, he looked around for a ²¹⁹ stick to retrieve the baseball cap. While doing so, he noticed McClamb, Sr.’s body at the bottom of the hole. He also noticed that there was a “break” in the orange plastic mesh fence. In Herman Malone’s words, the break was from the “top to the bottom” of the fence.

He was not precise as to exactly where the tear was located (at least in the portion of the record that was before the motions court), but he said that, if one were using the path going from Muncy Road to Martin Luther King Highway, the break in the fence would be on the right and on the side closest to Muncy Road. 2 On August 23, 1993, an autopsy was performed on McClamb, Sr.’s body. It showed that the deceased was 5’8” and weighed 185 pounds. A test revealed that his urine contained 0.06% alcohol. Time of death was not estimated.

The cause of death was listed as “drowning, complicating head injuries.” The autopsy report said that McClamb, Sr., had numerous injuries and/or abnormalities, viz: 1. Blood in the right external auditory canal with possible skull fracture. 2. Abrasions on the protuberant parts of the face. 3. Chipped right upper front tooth. 4.

Lacerations of the lower lip. 5. Laceration of the internal oral mucosa opposite the upper lip. All constant with marks from subject on teeth. 6. A subgalcal hemorrhage in the right temporo-parietal intracranial area. 7.

Lacerations of the back. 8. Abrasion of the left anterior forearm. 9. Abrasion from the left elbow. ²²⁰ 10. Abrasion at base of the left thumb, posterior hand and wrist. 11.

Abrasion of the right thigh. 12. Abrasion of the left thigh. 13. Abrasion of the left medial ankle. 14. Markedly edematous lungs weight 800 grams (right), and 780 grams (left). 15.

Pleural effusion bilaterally. 16. Pulmonary parenchyma was red-purple, exuding marked amounts of blood and frothy fluid. The assistant medical examiner who authored the autopsy report concluded: OPINION: This 22 [sic] year old, Black male, JABBOURI MCCLAMB, died of drowning while running from the police having slammed into the irregular hard wall of a construction ditch which contained water, struck his head, became unconscious and ended up face up under the water at the bottom. The multiple abrasions on the head and extremities were consistent with this course of events.

The manner of death is ACCIDENT. The deceased had been consuming alcoholic beverages prior to death. C. Procedural History On October 24,1994, Maxine Bell, individually and as guardian of McClamb, Jr., filed a Complaint against Heitkamp for wrongful death. She also brought a survival action as the personal representative of the estate of McClamb, Sr. The complaint alleged that Heitkamp, a general contractor, was responsible for supervising, controlling, and maintaining the construction excavation in which McClamb, Sr.’s body was found.

On March 18, 1996, an Amended Complaint was filed substituting Sharon Baker as mother and next friend of McClamb, Jr. The Amended Complaint also named WSSC and Jaci as additional defendants. ²²¹ After conducting substantial discovery, Heitkamp filed a Motion for Summary Judgment, arguing, inter alia, (i) the plaintiffs were unable to establish a causal nexus between any alleged acts or omissions by the defendants and McClamb, Sr.’s death; and (ii) McClamb, Jr., did not have a cause of action for wrongful death under Maryland law. Shortly thereafter, WSSC and Jaci joined in Heitkamp’s Motion for Summary Judgment. On August 14, 1997, a Second Amended Complaint was filed that alleged that the defendants had intentionally failed to “cover or plate” Hole No. 3. The Personal Representative of McClamb, Sr.’s estate characterized the negligence of the defendants as constituting “implied malice” and prayed for an award of $30,000,000 in punitive damages.

WSSC and Jaci subsequently filed motions to dismiss the claim for punitive damages; Heitkamp, in turn, filed a Motion for Partial Summary Judgment as to the punitive damage issue. On December 4, 1997, the trial judge granted the various defense motions concerning punitive damages, the wrongful death claim on behalf of McClamb, Jr., and ultimately granted summary judgment to all defendants as to liability after determining that there was insufficient evidence to establish that any breach of duty by the defendants was a proximate cause of the death of McClamb, Sr. II. STANDARD OF REVIEW A trial court may grant summary judgment only if “the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-501(e). In reviewing a summary judgment motion, we consider the facts, and any reasonable inferences drawn from those facts, in the light most favorable to the non-moving party.

See Dobbins v. Washington Suburban Sanitary Comm’n, 338 Md. 341, 345 , 658 A.2d 675 (1995); Richman v. FWB Bank, 122 Md.App. 110, 146 , 712 A.2d 41 , cert. granted, 351 Md. 285 , 718 A.2d 233 (1998). To defeat a motion ²²² for summary judgment, the non-moving party must establish that a genuine dispute exists as to a material fact by proffering facts that would be admissible in evidence. See A.J. Decoster Co. v. Westinghouse Elec. Corp., 333 Md. 245, 261 , 634 A.2d 1330 (1994); Moura v. Randall, 119 Md.App. 632, 640 , 705 A.2d 334 , cert. denied, 349 Md. 495 , 709 A.2d 140 (1998).

The appellate court determines whether there was a genuine issue of material fact and whether the trial court was legally correct. See Decoster, 333 Md. at 261 , 634 A.2d 1330 ; Richman, 122 Md.App. at 147 , 712 A.2d 41 ; Woodward v. Newstein, 37 Md.App. 285, 290 , 377 A.2d 535 (1977). In reviewing a grant of summary judgment, the appellate court ordinarily reviews only the grounds relied upon by the trial court. See Post v. Bregman, 349 Md. 142, 158-59 , 707 A.2d 806 (1998); Kimmel v. SAFECO Ins.

Co., 116 Md.App. 346, 354 , 696 A.2d 482 (1997).

III

A. Proximate Cause The trial judge assumed, for purposes of the summary judgment motion only, that all three defendants had breached their duty to the decedent when they (1) failed to cover Hole No. 3 and (2) failed to warn McClamb, Sr., of the danger posed by the uncovered hole. But a defendant’s breach of duty, standing alone, does not mean that a defendant is negligent. The breach of duty must proximately cause injury to the plaintiff. Medina v. Meilhammer, 62 Md.App. 239, 247 , 489 A.2d 35 (1985) (citing Campbell v. State, Use of Dix, 203 Md. 338, 346 , 100 A.2d 798 (1953); Dalmo Sales of Wheaton, Inc. v. Steinberg, 43 Md.App. 659, 672-73 , 407 A.2d 339 (1979)). “[Njegligence is the proximate cause of an injury when the injury is the natural and probable result or consequence of the negligent act or omission.” Id.

According to appellees: Appellants set forth absolutely no facts which would establish that either the failure to cover the hole or the failure to warn McClamb played any part in McClhmb’s entering the ²²³ hole. Without such facts, the [a]ppellants are unable to establish the causation element of their claim. Indisputably, appellants did not prove by direct evidence when McClamb, Sr., died or the mechanics of how he ended up at the bottom of Hole No. 3. The question then becomes whether plaintiffs/appellants presented to the motions court circumstantial evidence from which a trier of fact could infer how the accident occurred and, if so, whether, based on those inferred facts, defendants’ (assumed) breaches of duty proximately caused McClamb, Sr.’s drowning death.

The problem here presented is somewhat similar to the one that faced the Court in Unsatisfied Claim and Fund Bd. v. Bowles, 25 Md.App. 558 , 334 A.2d 532 (1975). In Bowles , the plaintiff was injured while walking along the shoulder of a highway when all of a sudden he was rendered unconscious (“the lights went out”). Id. at 559 , 334 A.2d 532 . Prior to being struck, the plaintiff heard nothing, and there were no witnesses to the accident.

Id. at 560, 334 A.2d 532 . The plaintiff was discovered, unconscious, two to three feet off the traveled portion of the highway by a passing motorist. He had sustained a severe laceration to his right thigh, a fractured femur and right wrist, and multiple lacerations to his legs. Id.

One of the defenses raised in Bowles was that the plaintiff had failed to show that his injuries were proximately caused by the defendant. Id. at 562 , 334 A.2d 532 . The defendant pointed out that, in order to successfully sue the Unsatisfied Claim and Judgment Fund Board, plaintiff was required to prove that he had been injured by a motor vehicle. It argued that, for all that was shown in the record, plaintiff could have been injured by a mugger or by a horse or a bicycle or some other non-motorized instrumentality.

This argument was rejected. Id. The Bowles Court said: The defendant claimed [in Otis Elevator Co. v. LePore, 229 Md. 52 , 181 A.2d 659 (1962),] the plaintiff had failed to show that its negligence had been a proximate cause of his injuries. The Court affirmed the judgment and stated what is known as the “more probable than not” rule: ²²⁴ “Prosser; Torts (2 nd ed.), § 44, sets forth the true test concerning the legal sufficiency of evidence on this point as follows: ‘Plaintiff is not, however, required to ... negative entirely the possibility that the defendant’s conduct was not a cause, and it is enough that he introduces evidence from which reasonable men may conclude that it is more probable that the event was caused by the defendant than that it was not.

The fact of causation is incapable of mathematical proof, since no man can say with absolute certainty what would have occurred if the defendant had acted otherwise.’ ” Otis Elevator v. LePore, supra at 58, 181 A.2d 659 . It is thus clear that a plaintiff need not exclude every possible cause of his injury other than the defendant’s negligence. Peterson v. Underwood, 258 Md. 9, 17 , 264 A.2d 851 (1970). In the case at bar the evidence clearly shows that it was more probable than not that a motor vehicle was responsible for appellee’s injury.

Any other conclusion would be contrary to common sense and the facts. We therefore find that appellee produced sufficient evidence to go to the jury on this issue. Id. at 562-63, 334 A.2d 532 . The “more probable than not” rule is implemented by the use of inferences.

The test for the legitimacy of an inference was explained by the late Judge Charles Orth in C & P Tel. Co. v. Hicks, 25 Md.App. 503 , 337 A.2d 744 (1975), as follows: The test for the legitimacy of an inference is often expressed in this way: “where from the facts most favorable to the plaintiff the nonexistence of the fact to be inferred is just as probable as its existence (or more probable than its existence), the conclusion that it exists is a matter of speculation, surmise, and conjecture, and a jury will not be permitted to draw it.” Id. This test is directed to the court’s function and not to the jury’s. “The court must determine whether the existence of fact A (which has been ²²⁵ testified to) is more probable than not, as a generalization, attended by the coexistence of fact B. If the court makes the initial determination in favor of the legitimacy of the inference, the issue goes to the jury to determine whether upon the preponderance of the evidence in this case they find (a) that fact A probably did exist and, if so, whether fact B probably did exist (again, in this case).” [2 F. Harper & F. James, The Law of Torts § 19.4], pp. 1068-1069. This view was adopted by the Court of Appeals in Short v. Wells, 249 Md. 491, 495-496 , 240 A.2d 224 [1968].

Id. at 524-25 , 337 A.2d 744 (footnote omitted). In the case at hand, at least three possible scenarios fail the “more probable than not” test. It is theoretically possible, as appellees suggested below, that the police officer who was chasing McClamb, Sr., threw him in Hole No. 3. 3 Common sense tells us that this scenario is not probable. The officer did not know McClamb, Sr., and would have no conceivable motive to act in such a bizarre manner.

Why would a police officer throw a stranger into a deep hole and then abandon him? No facts suggest he did so. As pointed out in Bowles , the appellants were not required to negate bizarre possibilities of this sort. It is also “possible” that McClamb, Sr., fell into the hole during daylight hours, many hours after the police chase.

But this is also unlikely in the extreme because the hole was surrounded by a fence and the danger of the hole in daylight is open and obvious. During daylight hours, McClamb, Sr., would have to have been blind, or nearly so, for him to have fallen accidentally into the hole — and nothing in the record suggests that McClamb, Sr.’s eyesight was defective. Another ²²⁶ possibility — according to appellees — is that the decedent may have intentionally jumped into the hole to hide from the police. This possibility is also unlikely.

McClamb, Sr., did not live anywhere near the place where he died, and there is nothing to suggest that he knew that a hole existed. Moreover, according to appellants’ proffered evidence, it was “pitch black” in the vicinity of the hole. If it was pitch black, it follows that he could not have even seen the hole. 4 Additionally, the type and number of lacerations and abrasions received by the decedent would be unlikely if he intentionally jumped to the bottom of the hole. Appellees argue that the appellants were unable to prove: [T]he date the decedent entered the hole; the time he entered the hole; how the decedent came to enter the hole (jumped, tripped, pushed, thrown, etc.); whether the decedent was walking or running when he entered the hole; the direction from which the decedent entered the hole (from Muncy Road, Martin Luther King Boulevard, or one of the two sides); the physical point of entry into the hole; and, the manner of entry into the hole (head-first, feet-first, etc.).

In our view, the facts that were proven were sufficient for a jury to infer properly that the accident occurred in the manner that the writer of the autopsy report believed it did. As mentioned earlier, the medical examiner opined that the multiple abrasions to the decedent’s head and extremities were consistent with the theory that McClamb, Sr., was running when he slammed into the wooden side of Hole No. 3. If he had been walking, it seems unlikely that he would have