Davis v. Board of Education for Prince George's County

²⁵³ DEBORAH S. EYLER, J. On September 1, 2009, 13-year-old Ashley Davis was hit by a car as she was crossing the street to board a school bus. She died of her injuries two weeks later. In the Circuit Court for Prince George’s County, the appellants — Ashley’s mother, Nycole Davis, individually and as personal representative of Ashley’s estate, and Ashley’s father, Jerome Bradley — filed a survival suit and wrongful death action, in negligence, against the Prince George’s County Board of Education (“the Board”), the appellee. 1 The appellants alleged that the Board owed a duty of care to provide Ashley a bus stop on her side of the street, that the Board breached that duty, and that the breach proximately caused Ashley’s injuries and death. The case was tried to a jury, which found the Board negligent and awarded the appellants a total of $90,357,776.12 in damages. 2 The Board filed a motion for judgment notwithstanding the verdict (“JNOV”), which the appellants opposed.

After a hearing, the court granted that motion and vacated the jury’s verdict. It found that the Board did not owe Ashley a duty of care in tort and, even if it did, Ashley and Nycole were contributorily negligent as a matter of law. It further found that, if its grant of the JNOV motion were to be reversed on appeal, then, as to damages, the Board was immune from liability for damages over $100,000 under Md. Code (1974, 2006 Repl. Vol.), section 5-518 of the Courts and Judicial Proceedings Article (“CJ”), and therefore the judgment would be reduced to that amount; if CJ section 5-518 does not apply, the verdict shocked the conscience of the court and would be remitted to $166,000; and the judgment would further be ²⁵⁴ reduced by $20,000, the amount paid in settlement of the appellants’ claims against the driver who struck Ashley.

On appeal, the appellants ask whether these rulings were legally incorrect. 3 FACTS AND PROCEEDINGS The facts adduced at trial, viewed in the light most favorable to the appellants, are as follows. In August of 2009, Ashley was living in the Brinkley Manor Apartments (“Brinkley Manor”), at 3016 Brinkley Road, with Nycole’s mother and grandfather (i.e., Ashley’s grandmother and great-grandfather). 4 Nycole and Jerome each had their own residences elsewhere. Nycole sometimes stayed with Ashley at Brinkley Manor. Ashley was enrolled as a freshman in Crossland High School, in Temple Hills.

The first day of school was August 24, 2009. Prior to the start of school, Nycole received a letter from the Prince George’s County Public School system about school transportation for Ashley. It stated, as relevant: Students should use the bus stop to which they have been assigned, and must be at the stop approximately ten (10) minutes before the scheduled bus arrival time. Students should continue to wait at the stop until the bus arrives. ²⁵⁵ Please be aware that it is common to experience an adjustment period the first few days as drivers, schools, and the students become familiar with new routes.

Thus, during this period, buses may be slightly off schedule. The [bus assignment] information below is based on data provided by schools as of August 5, 2009. The route numbers or times may change somewhat as we receive new enrollment information from schools. You can view the latest bus stop information on our website (www.pgcps.org).

Each school has a complete UPDATED list of bus assignments for every student, and personnel at the school will be available to answer your questions, or you can contact the Transportation Department at (301) 952-6570, or by e-mail at [email protected]. The e-mail will be monitored from 6 a.m. to 6 p.m. weekdays. The letter identified Ashley’s bus assignment. She was to ride Bus # 674, which was scheduled to pick her up 7:09 a.m., in the parking lot at Brinkley Manor, next to the north side of Brinkley Road, where Ashley was living.

The only other nearby bus stop for Crossland High School students was directly across the street, on the south side of Brinkley Road, in front of the Brinkley House Apartments (“Brinkley House”). Bus # 661 picked up students at that stop at 7:07 a.m. On the first day of school, Ashley waited for Bus # 674 at her assigned bus stop on the north side of Brinkley Road. The bus never came.

Ashley’s great-grandfather drove her to school that day, and she arrived late. Nycole learned of this on the day it happened, and thought that Ashley was supposed to take Bus # 661, across Brinkley Road, in front of Brinkley House. Nycole testified: [F]or years there was only one bus for [Crossland High School students residing in] Brinkley Manor and Brinkley House and my cousin went to that school, other neighbors, other parents all affirmed the same thing that there was only one bus stop. So because the notice said Brinkley ²⁵⁶ Manor I made her wait there.

But when the bus didn’t come then it, you know, it was just that there wasn’t, there was only bus and plus the, the notice said that changes were subject to be made. So. Nycole did not contact the school district with any issues concerning Bus # 674. She acknowledged that “it was [her] decision” to have Ashley cross Brinkley Road to catch Bus # 661, but explained that Ashley “didn’t have a choice” because Bus # 674 never came.

In the past, Nycole had not allowed Ashley to cross Brinkley Road unaccompanied because the “road is dangerous.” Before Ashley crossed Brinkley Road unaccompanied for the first time, Nycole told her “to please be careful.” Kendric Pringle also was a student at Crossland High School and also was assigned to Bus # 674. Ashley’s assigned bus stop at Brinkley Manor was the last stop on the route before Bus # 674 was to turn around and drive straight to the high school. Pringle’s bus stop also was on the north side of Brinkley Road and was the one before Ashley’s stop. Pringle testified that every day from the first day of school through the day of the accident Bus # 674 turned around in a shopping center before the Brinkley Manor stop and drove straight to the high school.

In other words, the bus driver did not go to the Brinkley Manor bus stop at all. Tajuana Tate was the driver assigned to Bus # 661. She had not been assigned that route before. She was given a routing list that showed where the bus stops were located and the number of children who were to get on the bus at each stop.

She was not given a list of the children’s names. Tate testified that she arrived on time at the Brinkley House bus stop every day beginning on August 24, 2009, and that Ashley got on the bus at that stop. Although she recognized Ashley, Tate did not know her name and was unaware that she lived at Brinkley Manor, across Brinkley Road. Tate never saw Ashley crossing the street to get to the bus, and did not know that she was doing so.

Tate answered affirmatively when asked if she “would have instructed [Ash ²⁵⁷ ley] not to [cross the street] and [would have] told the Transportation Department” of the Board if she had known that Ashley was crossing Brinkley Road to take Bus # 661. Tate did not witness the accident. Larry Walker and Jesse Strange were students at Cross-land High School. They witnessed the accident, and their versions of what happened essentially were the same.

The weather was sunny and clear. As Ashley walked from her apartment to Brinkley Road, she was talking on her cell phone. - When she reached the curb, before entering the street, she put her phone in her purse and looked both ways. There were no vehicles in view coming from either direction. Ashley proceeded to walk across the westbound lanes of Brinkley Road.

As she reached the center line, but before stepping into the eastbound lanes, a car driving east struck her. Tammi Morris is employed by the Board in its Transportation Department. She is in charge of bus scheduling. She testified that the Board has a “block policy,” which is a computer generated route established for buses.

The block policy in effect at the time of the accident established a bus stop on the north side of Brinkley Road, in the Brinkley Manor parking lot, and on the south side of Brinkley Road, in front of Brinkley House. There were bus stops established on both sides of Brinkley Road because it was a busy road and was not safe for children to cross. Morris testified that the bus driver assigned to Bus # 674 would have been violating the block policy if he failed to go to the Brinkley Manor bus stop to pick up children. She also testified that it would be a violation of the Board’s policies for a bus driver to create a situation in which a student was not able to board a bus assigned to her side of the street, but would have to cross the street to take a bus to school.

Morris testified that, although the Board’s handbook for bus drivers said that they should know the students assigned to their bus routes by name, and should greet them, the bus drivers on the large school buses, %.e., all of them except buses ²⁵⁸ for special education students, were not given lists of the names of the students assigned to their routes. She explained that in times past the bus drivers had been given a list of names. When the bus routing was changed to the “block policy,” through application of a computer program, that was changed, in part because there can be transfer or other students who are permitted to ride to school on buses, but are not actually assigned to a particular bus, and the bus drivers still should allow them on the bus and not leave them behind. Andrew Ramisch testified for the appellants as an expert in accident reconstruction.

He opined that Brinkley Road is a four-lane highway and that, pursuant to COMAR 13A.06.07.13C, the Board was required to have buses pick up and discharge students on both sides of that street, so they would not have to cross the street to get the bus to school or to return home from school. He further opined that if a bus driver repeatedly fails to drive to a bus stop on his assigned route, that is tantamount to there not being a bus stop at that location at all. Based on the facts in evidence, Ramisch opined that that is what happened here. The driver for Bus # 674 repeatedly failed to go to the Brinkley Manor bus stop, instead turning around before reaching that stop.

That was the equivalent of there not being any bus stop at Brinkley Manor. The case was sent to the jury on a special verdict. The jurors found that “the Board ... was negligent and that its negligence was a proximate cause of [Ashley’s] accident”; Ashley was not contributorily negligent; and Ashley did not assume the risk of her injury. They awarded damages of $90,357,776.12.

On April 12, 2013, the court entered judgments in accordance with the verdict. Four days later, the Board filed a motion for JNOV, in which it argued that it did not owe a legal duty of care to Ashley; that Ashley was contributorily negligent as a matter of law; and that Ashley had assumed the risk of her injuries as a matter of law. It also argued, alternatively, that the amount of the verdict was “shocking, grossly ²⁵⁹ excessive and inordinate” and that the verdict should be reduced because the Board’s liability was limited to $100,000 by CJ section 5-518. The appellants filed an opposition, arguing that the Board “owed a duty to Ashley Davis to provide a safe bus stop and safe transportation services,” and breached that duty by failing “to provide safe transportation services” and because Ashley “was not picked up on her side of the roadway”; and that contributory negligence and assumption of the risk were issues that were properly submitted to the jury for decision.

On July 26, 2013, the court held a hearing on the Board’s motion for JNOV. The court granted the motion by a memorandum opinion and order entered on February 25, 2014. As we have explained, the court ruled: 1) the Board did not owe Ashley a duty of care in tort; 2) if the Board did owe Ashley a duty of care, Ashley and Nycole were contributorily negligent as a matter of law; 3) if the court’s rulings on duty and contributory negligence were to be reversed on appeal, then as to damages: a) under CJ section 5-518, the board is immune from liability for damages above $100,000; b) if CJ section 5-518 does not apply, the verdict shocked the conscience of the court in any event, and would be reduced to $166,000; and c) the judgment against the Board would be reduced by $20,000, the amount the appellants received from the driver of the car that struck Ashley, in settlement of their claims against her. This timely appeal followed.

Additional facts will be included in our discussion, as necessary. STANDARD OF REVIEW In reviewing the circuit court’s grant of a motion for judgment notwithstanding the verdict, we ²⁶⁰ must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiffs right to recover — that is, the evidence must be viewed in the light most favorable to the plaintiff. Houston v. Safeway Stores, Inc., 346 Md. 503, 521 , 697 A.2d 851 (1997) (internal quotation marks and citation omitted). “Only where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury.” Id. (internal quotation marks and citation omitted).

DISCUSSION I. Duty of Care The appellants contend that pursuant to COMAE, 13A.06.07.13C, the Board’s own internal policies, and the common law, the Board owed Ashley a duty to provide a bus stop on her side of the street so she could take the bus to school without endangering herself by crossing a busy street. The Board counters that the “[ajppellants have failed to articulate any legally cognizable duty under Maryland statute, regulation, or common law that was triggered by the uncon-troverted facts in this case.” It urges this Court to adopt a common law “physical custody-notice rule,” and hold that “the Board owed no duty to [Ashley]” because at the time of the accident, “[ (1) ] she was not in the physical custody or control of the Board, and because [ (2) ] the Board had no notice of problems with [Ashley]’s assigned bus picking her up at her assigned bus stop.” (Emphasis added.) To prevail on a cause of action in negligence, the plaintiff must prove: (1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that ²⁶¹ duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant’s breach of the duty. Hemmings v. Pelham Wood Ltd. Liability Ltd. Partnership, 375 Md. 522, 535-36 , 826 A.2d 443 (2003) (internal quotation marks and citations omitted). “Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder.” Valentine v. On Target, Inc., 353 Md. 544, 549 , 727 A.2d 947 (1999). However, whether the defendant was under a legal duty to protect the plaintiff from injury is a question of law.

Id. at 549 , 727 A.2d 947 (“[T]he existence of a legal duty is a question of law to be decided by the court.”). See also Pendleton v. State, 398 Md. 447, 461 , 921 A.2d 196 (2007). When “the trial court decision turns on a question of law, not a dispute of fact, we review the trial court’s decision for legal correctness without deference.” Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 108 , 90 A.3d 464 (2014) (citing Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598 , 80 A.3d 269 (2013)). Under the judicially created “Statute or Ordinance Rule,” statutes, ordinances, and regulations can create a “statutory duty” of care that is enforceable in negligence.

See Blackburn, 438 Md. at 111-15 , 90 A.3d 464 . “[T]he statute or ordinance allegedly violated [must] ‘set forth mandatory acts’ that are ‘clearly for the protection of a particular class of persons’ and not merely for the ‘the public as a whole.’ ” Wietzke v. Chesapeake Conference Ass’n, 421 Md. 355, 388 , 26 A.3d 931 (2011) (quoting Remsburg v. Montgomery, 376 Md. 568, 584 , 831 A.2d 18 (2003)) (emphasis in original). The Statute or Ordinance Rule may apply even when contrary common law duty principles exist. See Blackburn, 438 Md. at 112-13 , 90 A.3d 464 (“This Court ... [has] observed] that common-law limitations on the duty owed to trespassers were ‘inapplicable’ in a case ‘based on the Housing Code, not the common law.’ ” (quoting Allen v. Dackman, 413 Md. 132, 157 , 991 A.2d 1216 (2010))). COMAR provisions fall ²⁶² within the Statute or Ordinance Rule.

See Blackburn, 438 Md. 100 , 90 A.3d 464 (holding that an apartment complex owner owed a “statutory duty” to a three-year-old boy who nearly drowned in a pool based on a COMAR provision requiring that fences around pools not allow passage of a sphere four inches in diameter). “At its own expense, a county governing body may provide transportation for public school students.” Md. Code (1978, 2008 Repl. Vol.), section 7 — 801(b)(1) of the Education Article (“EA”). The State Board of Education must “adopt rules and regulations that provide for the safe operation of the student transportation system of each county board of education.” Id. at § 5-205(f). In accordance with this directive, the State Board of Education adopted COMAR 13A.06.07.13, titled “Routing and Operating Procedures.” Subsection A states: “The prime consideration is the safety of riders.” Additionally, subsection C states: “On four-lane highways students, shall be picked up and discharged on the side of the roadway where they reside.” (Emphasis added.) As noted, the appellants maintain that COMAR 13A.06.07.13C created a duty of care under the Statute or Ordinance Rule.

We agree. Subsection C is not a regulation designed for the protection of the public as a whole. Rather, it is designed to protect public school students who ride county-provided buses to and from school from the risks associated with crossing a four-lane highway, including the risk of being hit by a car. Therefore, COMAR 13A.06.07.13C creates a statutory duty owed by a county board to its students to provide bus stops on four-lane highways in locations so that students do not need to cross those highways to take the bus.

If Brinkley Road is a four-lane highway, then pursuant to COMAR 13A.06.07.13C the Board owed a duty of care to students such as Ashley to provide bus stops on both sides of Brinkley Road, so they would not have to cross Brinkley Road to take the bus to school (or to return home from school). There was evidence that Brinkley Road in fact was a four-lane ²⁶³ highway at the time of the accident. The appellants’ expert, Andrew Ramisch, a civil engineer specializing in “highway traffic safety and traffic engineering, accident analysis and reconstruction,” was qualified as an expert in the field of “traffic highway safety and with respect to the standard of care for the location of safe bus stops.” Ramisch opined that, based on its 22 foot width from the curb to the center line, Brinkley Road was “a four lane highway the way it’s marked.” 5 As a public school student living on a four-lane highway, in a school district in which the Board had taken it upon itself to provide bus transportation to school, Ashley was within the specific class of people that COMAR 13A.06.07.13C was designed to protect. And she suffered precisely the kind of injury that that regulation was intended to protect against.

Accordingly, the Board owed Ashley a legal duty of care to provide a bus stop on her side of Brinkley Road sufficient to support the duty element of a cause of action in negligence. For this reason, the circuit court erred in granting a JNOV in favor of the Board on the ground of an absence of a legal duty of care. 6 II. Contributory Negligence ' (A) The appellants contend the circuit court “erred in ruling that [Ashley] was guilty of contributory negligence as a matter ²⁶⁴ of law.” They offer two reasons: first, the Board “waived the issue” by “failing] to raise contributory negligence as a basis of [its] motion for judgment”; and second, Ashley was not contributorily negligent as a matter of law because “a reasonable juror could infer that [she] thought that [Brinkley Road] was clear, attempted to cross the roadway and was struck while she stood on the center line.” We agree with the appellants on both counts. Rule 2-532 governs JNOV motions.

In relevant part, it provides that [i]n a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion. Md. Rule 2-532(a) (emphasis added). Under Rule 2-519(a), a party who moves for judgment “shall state with particularity all reasons why the motion should be granted.... ” “Failure to state a reason ‘with particularity’ ” in a motion for judgment precludes raising an argument on those grounds in a motion for JNOV, and consequently “serves to withdraw the issue from appellate review.” Kent Village Assocs. Joint Venture v. Smith, 104 Md.App. 507, 517 , 657 A.2d 330 (1995) (citing State v. Lyles, 308 Md. 129 , 517 A.2d 761 (1986)) (additional citation omitted).

See also Barnes v. Greater Baltimore Medical Center, Inc., 210 Md.App. 457, 487 , 63 A.3d 620 (2013). In this case, in moving for judgment, the Board articulated in detail its arguments about the duty of care and about assumption of the risk. It did not make any argument, particular or not, in favor of judgment on the basis of contributory negligence as a matter of law. The only time the Board mentioned “contributory negligence” was when it was urging the court to find assumption of the risk as a matter of law: [BOARD’S COUNSEL]: Yes.

That in fact all of these attributes suggest that she knew or should have known that she was taking a risk when she chose to cross Brinkley Road in the middle of the road with the sun being a hindrance and I believe that the case of Oddis, O-D-D-I-S, ²⁶⁵ versus Green, at 11 Maryland Appellate 153, 1971 case, it involved an 11-year-old bicyclists [sic] who was hit when he failed to yield a right-of-way and the Court in that case said the minor bicyclist who was 11 years of age, was old enough to be bound by rules of the road and that was where they found contributory negligence. By failure to yield the right-of-way upon entry from an unfavored street into a favorite highway. THE COURT: You may argue contributory negligence, but contributory negligence is a matter of fact— [BOARD’S COUNSEL]: I understand. I was just articulating to the Court that that was a contributory negligence case.

THE COURT: Right. [BOARD’S COUNSEL]: In the other case that I would point the Court’s attention to is Brown versus Rodgers, 19 Maryland Appellate 562, a 1974 case, which provides a Court of Special Appeals under the statute giving pedestrian preference in crosswalk, pedestrian must still exercise due care in crossing to avoid injury and cannot cross blindly without looking for approaching traffic and may not leave curb or place of safety or walk or run into a path of a vehicle which it is so close that it is impossible for the driver to yield. That is what we are talking about here. We are talking about an unfortunate decision made by a young person to go to the street where she was in the path where it was impossible for the driver to yield. And that was the assumption of the risk.

THE COURT: Okay. Anything else? [BOARD’S COUNSEL]: No, Your Honor. This brief reference to contributory negligence was merely to point out that a case the Board’s lawyer was arguing in favor of assumption of the risk was a contributory negligence case. The Board argues that even if there were a “procedural error” on its part, the appellants were “on notice” of the contributory negligence argument because the Board “consis ²⁶⁶ tently argued that [Ashley] was contributorily negligent in its Answer to Complaint, Answer to Amended Complaint, and in all four of its dispositive motions presented to the [c]ourt.” (Emphasis in original.) Any arguments the Board made before and after its motion for judgment are irrelevant.

Rule 2-532(a) allows a party to move for JNOV “only on the grounds advanced in support of the” motion for judgment. Because the Board did not argue contributory negligence in support of its motion for judgment, it was precluded from raising that argument in a motion for JNOV. For that reason alone, the trial court erred in granting the JNOV motion on the ground of contributory negligence. Even if the Board had argued contributory negligence when it moved for judgment, we would conclude that the trial court erred in granting the Board’s motion for JNOV on that basis.

The court’s contributory negligence ruling was specific. It concluded that the evidence at trial established that Ashley had moved from a place of safety into the path of a moving vehicle, and therefore was contributorily negligent as a matter of law. It pointed out that a crosswalk was located less than a tenth of a mile from where Ashley attempted to cross the street and that, pursuant to Md. Code (1977, 2009 Repl. Vol.), section 21-503(a) of