Ditto v. Stoneberger

SALMON, Judge. On July 25, 1998, Edward Stoneberger was hit in the head and killed by a metal pipe that fell from the roof of a two-story feed mill building owned by Richard and Helen Reynolds. At the time of the accident, the building was being demolished by Victor Ditto. Mr. Stoneberger was survived by a sister, forty-four year old Mary Stoneberger, and a niece, sixteen year old Candi Blessing.

The personal representatives of Mr. Stoneberger’s estate filed a survivorship action in the Circuit Court for Washington County against Mr. Ditto and the owners of the building; joined in the same suit was a claim for wrongful ⁴⁷⁶ death filed by Mary Stoneberger individually and as the mother of Candi Blessing. After a trial, the jury absolved the owners of any responsibility for the accident but found that Mr. Ditto’s negligence caused Mr. Stoneberger’s death. Damages were awarded to the estate as follows: Medical expenses: Funeral expenses: Pain and suffering: $ 45,673.35 3,146.75 300,000.00 Total: $348,820.10 In addition, the jury awarded Mary Stoneberger and Candi Blessing $50,000 each on their respective wrongful death claims. In this appeal, appellant, Ruth Ditto, as personal representative of the estate of Victor Ditto, raises six issues: 1.

Whether, at the time of his death, either Mary Stoneberger or Candi Blessing was substantially dependent on Edward Stoneberger; 2. Whether the trial court erred in failing to instruct the jury concerning the duty, or lack thereof, owed to a trespasser; 3. Whether sufficient evidence was presented to support a finding that Edward Stoneberger endured conscious pain and suffering as a result of the subject accident; 4. Whether the trial court erred in accepting Roger Campbell as an expert on the subject of occupational safety and the operation of cranes; 5.

Whether the trial court erred in allowing counsel for the appellee to use misleading photographs; and 6. Whether the trial court erred in allowing Patsy Hays, the caregiver for Mary Stoneberger, Candi Blessing, and the deceased to introduce Social Security Administration records. ⁴⁷⁷ I. UNDISPUTED FACTS Victor Ditto was hired by Richard and Helen Reynolds to demolish a two-story feed mill that the Reynoldses owned. The feed mill was located at the intersection of Railroad Lane and Main Street in Smithsburg, Washington County, Maryland. The front of the building faced Main Street, and railroad tracks ran along the side of the building opposite Railroad Lane.

Edward Stoneberger lived on Main Street near the feed mill. Residing with him was his sister, Mary Stoneberger, and Mary’s teen-aged daughter, Candi Blessing. On the afternoon of July 25, 1998, Mr. Ditto, age 82, was operating a crane, using the boom of the crane to knock down the feed mill building. According to Mr. Ditto’s deposition testimony that was introduced at trial, 1 Mr. Ditto was manipulating the boom to knock down the roof of the feed mill building when he struck a long, angled metal pipe.

About five minutes before the pipe was struck, Edward Stoneberger had stopped on property located across the street from where the demolition was taking place to speak with Clarence Miller. Miller was one of the people hired by Mr. Ditto to spray the feed mill in order to dampen the dust caused by the demolition. Mr. Stoneberger and Miller commenced talking while standing in the backyard of a brownstone located directly across Railroad Lane from the demolition site. When the boom struck the long metal pipe, the pipe broke loose, slid down one side of the feed mill roof, and fell, landing on Railroad Lane, bouncing up, and then striking Mr. Stoneberger in the head.

Mr. Stoneberger was transported to Washington County Hospital where, after a 16 day interlude, he died.

II

THE CONSTRUCTION SITE There was conflicting testimony presented at trial as to whether barriers, caution tape, and “No Trespassing” signs ⁴⁷⁸ were in place around the demolition site. Randall Schroyer, another man hired by Mr. Ditto to hose down the feed mill during the demolition, testified that barricades and tape were placed across Railroad Lane and Main Street. According to Mr. Schroyer, there were also “No Trespassing” signs in the front windows of the brownstone and feed mill buildings. Robert Rogers, Jr., the manager of the Smithsburg Market, located close to the intersection of Railroad Lane and Main Street, testified that he saw a trestle and tape across Railroad Lane.

The trestle was about six feet long and was placed in the center of the road. The ribbon or tape blocking the roadway was attached to one end of the trestle and to the feed mill building. Richard Grove, who was at the intersection of Railroad Lane and Main Street on the morning of July 25, 1998, saw trestles across Railroad Lane and ribbon strung across Railroad Lane on the Main Street side. He also remembered seeing a “No Trespassing” sign on the feed mill building.

John Morin, the office manager for Victor Ditto Steel Erectors and Riggers, testified that Mr. Ditto called him on the evening of July 24, 1998, asking him to bring “No Trespassing” signs and caution tape to the demolition site. Mr. Morin did as requested that same evening. Clarence Miller, who was chatting with Edward Stoneberger when the accident occurred, testified that he did not recall any barricades or tape across Railroad Lane. Jason Sturm, the paramedic who came to the scene immediately after the accident testified that he saw no banders when he anived.

Ann Boswell, a neighbor of the Stonebergers, testified that around 8:00 a.m. on July 25, 1998, she left her house to buy a newspaper. On her way back home, she saw no barriers or caution tape. Timothy Beal, a safety professional who was visiting a friend in Smithsburg between 9 a.m. and 10 a.m. on July 25, 1998, testified that there was a barricade present, but it was not blocking traffic on Railroad Lane. ⁴⁷⁹ III. EVIDENCE REGARDING DAMAGES Edward Stoneberger, who was mentally retarded, was forty-seven years old when he died.

The house he lived in was given to him and his sister, Mary Stoneberger, and Candi Blessing, by Edward Stoneberger’s mother. Mary Stoneberger is also retarded. She was forty-four and her daughter, Candi, was sixteen at the time of Edward’s death. All three were recipients of Social Security Disability benefits.

A neighbor, Patsy Hays, managed the financial affairs of Edward and Mary Stoneberger and Candi Blessing. The Social Security Administration mailed Edward and Candi’s checks directly to Ms. Hays, in her capacity as their caregiver. Mary’s check was mailed to her, but Ms. Hays accompanied Mary to the bank to ensure it was deposited in the correct account. Edward’s monthly check was approximately $527, Mary’s was $580, and Candi’s was $354.

Ms. Hays made sure that the three social security benefit checks were deposited in the bank each month. Once every third month, she would use the monies of one of the three checking accounts to pay certain of the household bills of all three individuals. Ms. Hays tried to split the fixed expenses evenly among the three as best she could, but Candi’s check, because it was the smallest, was used only toward groceries, fuel, and electricity. When it was Candi’s turn for her funds to be used, they had to be supplemented with monies from either Edward’s or Mary’s accounts.

Mary and Candi did the house cleaning, and sometimes Edward would help. Mary cooked the meals, and each took turns doing the grocery shopping with Ms. Hays’s assistance. Ms. Hays gave an estimate of the bills she paid for Edward, Mary, and Candi each month: 1) Fuel: $122.00 2) Telephone: $40.00 3) Cable: $30.00 4) Electric: $80.00-85.00 ⁴⁸⁰ 5) Water: $30.00 6) Groceries/Househ'old Expenses: $600.00 In addition, on behalf of the three and out of common funds, she paid real estate taxes of $600 per year and fire insurance of $85 annually. Total fixed monthly expenses were approximately $964.

In addition to the fixed expenses, Edward, Mary, and Candi each had individual expenses for things like clothing, entertainment, medication, and hair cuts. According to Ms. Hays, the deceased was “like a father-figure” to Candi; he took her for walks, bought her treats, etc. IV. MOTIONS BY APPELLANT Prior to trial, appellant filed a motion. in limine and/or motion to dismiss and/or motion for summary judgment seeking to dismiss the. wrongful death action brought by Mary Stoneberger, individually, and as parent of Candi Blessing. The motion asserted , that Mary and Candi were .not substantially dependent on- Edward, because both were receiving social security disability benefits and were self-supporting.

Therefore, appellant argued, they .had “no standing” to bring a wrongful death action. The trial court denied, the motions. After plaintiffs’ case-in-chief and again at the close of all evidence, appellant made motions for judgment on the wrongful death counts. Appellant .contended that , no evidence had been admitted showing that either Mary or Candi were substantially dependent on the deceased.

Appellant also argued that social security law prohibits anyone from using disability benefits to support another, and therefore it would be impermissible to allow the jury to decide the dependency issue. The trial court denied the motion. V. ANALYSIS ISSUE 1: Whether Mary Stoneberger or Candi Blessing Were Substantially Dependent on Edward Stoneberger Appellant phrases this issue in'terms of whether the “trial court err[ed] in failing to grant [ajppellant’s Motion in Limine ⁴⁸¹ and/or Motion to Dismiss and/or Motion for Summary Judgment on the Wrongful Death Counts.” The motion to dismiss challenged the sufficiency of the allegations in the complaint. On appeal, appellant does not argue that the plaintiffs’ complaint was either technically or substantively defective.

The denial of a motion for summary judgment, at least in this case, cannot be the basis for a successful appeal because the trial judge had the discretion to deny the motion even if the affidavits and other sworn material would have adequately supported the grant of summary judgment. See Post v. Bregman, 349 Md. 142, 158 , 707 A.2d 806 (1998) (citing Metropolitan Mortgage Fund, Inc. v. Basiliko, 288 Md. 25, 28 , 415 A.2d 582 (1980)). (Ordinarily, a court “does possess discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary judgment request in favor of a full hearing on the merits [and] this discretion exists even though the technical requirements for the entry of such a judgment have been met.”) A denial of a motion in limine to exclude evidence (such as the motion filed in this case) does not preserve an evidentiary issue for appeal. Rather, the party who made the motion to exclude evidence must make a contemporaneous objection at the time the evidence is introduced at trial.

Reed v. State, 353 Md. 628, 637 , 728 A.2d 195 (1999); N.B.S., Inc. v. Harvey, 121 Md.App. 334, 343 , 709 A.2d 162 (1998). No contemporaneous objection was made as to evidence concerning dependency. Nevertheless, at the conclusion of the entire case, pursuant to Maryland Rule 2-519(a), appellant did move for judgment on the wrongful death counts on the same grounds as set forth in her three pre-trial motions. Although appellant does not contend in her brief that the denial of that motion wás error, we will overlook that technicality and decide the issue raised in the Rule 2-519(a) motion, because the issue was raised and decided below. ⁴⁸² Maryland’s Wrongful Death Statute reads, in pertinent part: (b) Secondary beneficiaries.—If there are no persons who qualify under subsection (a), an action shall be for the benefit of any person related to the deceased person by blood or marriage who was substantially dependent upon the deceased.

Md. Ann.Code, Cts. & Jud. Proc. § 3-904(b) (2001) (emphasis added). Prior to a 1997 amendment to the statute, a secondary beneficiary had to be “wholly” dependent on the deceased to recover wrongful death benefits. Edward Stoneberger left no primary beneficiaries.

Mary Stoneberger and Candi Blessing were related to the decedent by blood. Thus, we must decide whether the evidence presented was sufficient to allow a jury to find that either Mary Stoneberger or Candi Blessing (or both) were substantially dependent upon Edward Stoneberger. There is no case law in Maryland interpreting the term “substantially dependent,” as it is used in the wrongful death statute. Workers’ compensation cases discuss dependency in terms of whether a relative is “wholly” or “partially” dependent on the earnings of the worker, but the term “substantially dependent” is not used in the workers’ compensation statute.

Those cases are, nevertheless, somewhat instructive. The test of dependency in workers’ compensation cases is “not whether a claimant was capable of supporting himself [or herself] without the earnings of the workman, but whether he [or she] did in fact rely upon such earnings for his [or her] livelihood, in whole or in part, under circumstances indicating an intent on the part of the workman to furnish such support.” Martin v. Beverage Capital Corp., 353 Md. 388, 403 , 726 A.2d 728 (1999) (citing Meyler v. Mayor & City Council of Baltimore, 179 Md. 211, 217 , 17 A.2d 762 (1941)). The Court of Appeals defines “dependent,” within the meaning of the Workers’ Compensation Act, as “one who relies wholly or in part upon a workman for the reasonable ⁴⁸³ necessities of life at the time of his accidental injury.” Martin, 353 Md. at 403 , 726 A.2d 728 (citing Mario Anello & Sons, Inc. v. Dunn, 217 Md. 177, 180 , 141 A.2d 731 (1958)). In construing “wholly dependent,” the Court of Appeals has adopted the seemingly universal rule that: “Total dependency exists where the dependent subsists entirely on the earnings of the workman; but in applying this rule courts have not deprived claimants of the rights of total dependents, when otherwise entitled thereto, on account of temporary gratuitous services rendered them by others, or on account of occasional financial assistance received from other sources, or on account of other minor considerations or benefits which do not substantially modify or change the general rule as above stated.” (Emphasis added.) Martin, 353 Md. at 404 , 726 A.2d 728 (citing Larkin v. Smith, 183 Md. 274, 280 , 37 A.2d 340 (1944)).

The Court of Appeals has found a claimant to be totally dependent on her deceased husband, even though she was employed at the time of his death, where that employment was temporary or occasional and the claimant’s intention was to depend solely on her husband’s income in the future as she had in the past. Bethlehem-Fairfield Shipyard, Inc. v. Rosenthal, 185 Md. 416, 427 , 45 A.2d 79 (1945). The Court found a claimant to be totally dependent, even though she was separated from her spouse at the time of his death and collected weekly rent from a boarder; the Court reasoned that she nevertheless met the definition of total dependence because she received monthly support from her spouse. Harvey v. George J. Roche & Son, 148 Md. 363, 370 , 129 A. 359 (1925).

In Knibb v. Jackson, 210 Md. 292 , 123 A.2d 338 (1956), a minor brother, Joseph, was dependent on his deceased older brother, James, and the question was the extent of his dependency. Both brothers, one seventeen and the other thirteen-years-old, lived with their mother. Id. at 295 , 123 A.2d 338 . The mother received a weekly wage of $37, although her take home pay varied from $32 most weeks to $28 for the week ⁴⁸⁴ each month that her health insurance premium was deducted.

Id. James, the older son, earned $35 per week. From his earnings, he gave his mother $22 per week-$7 for his board, $5 for his mother’s use, and $10 for his younger brother, Joseph. Id.

The Court of Appeals concluded that the case was properly submitted to the jury for a determination of whether the Industrial Accident Commission was correct in finding Joseph totally dependent on James. Id. at 296 , 123 A.2d 338 . The Court said, however, that if the jury reached the conclusion that the earnings of the mother and the older brother were pooled for the common support of all three family members, then the jury must find that the younger brother was only partially dependent on his deceased older brother. Id. at 298 , 123 A.2d 338 .

Because a jury instruction was not given to that effect, the Court of Appeals reversed and remanded the case. Id. at 300-01 , 123 A.2d 338 . In Mario Anello & Sons, Inc. v. Dunn, the Court of Appeals found a woman (Mrs. Dunn) to be partially, rather than wholly, dependent on her deceased husband where the woman’s earnings were pooled with her husband’s and used to pay their bills. Dunn, 217 Md. at 182-83 , 141 A.2d 731 .

Mrs. Dunn was employed as a sewing-machine operator. In 1954, she earned a total of $1,604.51 and in 1955, a total of $1,957.40. She earned an average take-home pay of $30 per week in January of 1956. Her husband earned an average weekly wage of $90.

The Court said that “where the evidence, or any inferences fairly deducible from it, was legally sufficient to support a rational conclusion of total dependency ..., this Court has held that the issue should be submitted to the jury----” Id. at 181 , 141 A.2d 731 . “[Wjhere the facts are undisputed, [however,] and permit no inferences consistent with the existence of a supposed or asserted right, the existence of such a right is an unmixed question of law for the court----” Id. In light of Ms. Dunn’s “substantial contributions to the pool of her and her husband’s wages for nearly two and one-half years extending to the date of his injury, and ⁴⁸⁵ the use of the funds for the support of the family,” the Court determined that Mrs. Dunn was not wholly dependent on her husband as a matter of law. Id. at 182-83 , 141 A.2d 731 . The compensation cases make it clear that usually a person who has pooled his or her income with a now-deceased (or injured) worker is not wholly dependent on the worker— but is partially dependent.

Mullan Constmction Co. v. Day, 218 Md. 581 , 147 A.2d 756 (1959); Dunn, 217 Md. at 182-83 , 141 A.2d 731 , and Knibb, 210 Md. at 298 , 123 A.2d 338 . But when two people pool their incomes and the claimant’s income is relatively minuscule compared with that of the injured worker, the claimant can still be deemed to be wholly dependent. See Martin, 353 Md. at 415 , 726 A.2d 728 (surviving spouse deemed “wholly” dependent when her income, which she pooled with the income of her husband, was only eight percent of what her spouse earned at the time of his death). Therefore, if this were a worker’s compensation case, it is clear that Mary Stoneberger and Candi Blessing would be deemed to be partially, not wholly, dependent on Edward Stoneberger.

Only a small handful of out-of-state cases, all decided prior to the Eisenhower administration, discuss “substantial dependency” in terms of wrongful death statutes. In 1952, the Superior Court of New Jersey considered whether a mother and father were dependents of their deceased eighteen-year-old daughter. Bohrman v. Pennsylvania Railroad Co., 23 N.J.Super. 399 , 93 A.2d 190 (1952). The father owned a beauty shop and he and his wife worked in the shop.

While in high school, the daughter worked in her father’s shop every afternoon after school, on Saturdays until noon, and a full six days per week during school vacations. She cleaned the shop, sterilized equipment, answered the telephone, made appointments, received payments, kept records, and assisted in servicing customers. The deceased daughter had graduated from high school in 1950 and intended to become a beauty operator. She was five weeks of training away from completing the beauty school course at the time of her death. ⁴⁸⁶ The pertinent statute provided: “The amount recovered in proceedings under this chapter shall be for the exclusive benefit of the widow, surviving husband, dependent children of the decedent, or the descendants of any such children, [or] the dependent natural parents of the decedent,....” Id. at 192-93.

In determining the meaning of “dependent,” the Superior Court of New Jersey turned to the dictionary definitions as well as other courts’ interpretations of the word. Id. The court came to the conclusion that “The degree of dependence is not as important as the fact that it be more than mere reception of benefits and partake of the character of reliance upon the receipt of the care, service or favor, in whatever quantity it may be.” Id. at 193 (citing Turon v. J. & L. Construction Co., 8 N.J. 543, 86 A.2d 192, 200 (1952)). The court settled on a “partial dependency in a substantial degree” standard that the evidence had to meet and held that there was ample testimony indicating substantial dependence of the parents upon the services of their deceased child.

Id. at 194. The court said: “Not only were [the decedent’s] parents deprived of her probable earnings during her minority (which would have inured to their benefit), but they were also deprived of the reasonable expectancy of contributions of a pecuniary nature which decedent might have made after reaching her majority.” Id. at 195. A Tenth Circuit case from 1943 seems to equate partial dependence with substantial dependence. In Myers v. Pacific Greyhound Lines, the appellant instituted an action against Pacific Greyhound to recover under New Mexico’s wrongful death statute for the death of her unmarried twenty-two year old brother. 134 F.2d 457 (10th Cir.1943).

For about a year- and-a-half prior to his death, the brother regularly sent his sister $20.00-$35.00 per month in cash, and prior to that, he sent her money intermittently. The deceased also purchased clothes for his sister and shortly before his death, promised that he would continue to support her. The decedent’s sister was married at the time of her brother’s death, but the joint income of the sister and her husband was insufficient to support them. ⁴⁸⁷ Because the Supreme Court of New Mexico had not dealt with the question of the degree of dependence required for recovery under the wrongful death statute, the Tenth Circuit looked to workmen’s compensation cases for help in determining what level of dependence would be sufficient for recovery. Id. at 458 .

The Tenth Circuit noted that “[i]n Massachusetts, Georgia, and Washington, each having a death statute similar [to] but not identical with that in New Mexico, it is well settled that partial or substantial dependence is enough.” Id. at 459 (emphasis added). The court quoted from a New Mexico Supreme Court case interpreting “dependency” within the context of the Workmen’s Compensation statute: Dependency does not necessarily depend upon whether or not the claimants could support themselves without the earnings of the deceased or whether they could have so reduced their living expenses that they could have been supported independent of such earnings. To the contrary, it depends upon whether or not the deceased had actually contributed to their support and whether or not they relied upon such earnings in whole or in part for their livelihood. Id.

(quoting Gonzales v. Chino Copper Co., 29 N.M. 228 , 222 P. 903, 905 (1924)). The Tenth Circuit acknowledged (as we do) that the Workmen’s Compensation Act is to be liberally construed, whereas wrongful death statutes are in derogation of the common law and must be strictly construed. Id. at 459. Where “dependence” was not defined in the New Mexico wrongful death statute, however, the Tenth Circuit concluded that partial, substantial dependence of a sister and substantial contributions to her support would suffice.

Id. Although her husband was legally obligated to support the decedent’s sister, the court held that the sister’s dependence on her husband did not defeat her right to recover if she was also dependent on her brother. Id. at 460. In Estes v. Schulte, . 146 Wash. 688 , 264 P. 990, 991 (1928), a woman, sixty-two years of age, with no means of support and unable to cook or do heavy housework, was found to be ⁴⁸⁸ substantially dependent on her deceased sister, who gave her between $20—$25 per month. “The cardinal rule of statutory interpretation is to ascertain and give effect to the intention of the Legislature.” Degren v. State, 352 Md. 400, 417 , 722 A.2d 887 (1999).

If, as here, the words “are susceptible to more than one meaning, it is necessary to consider their meaning and effect ‘in light of the setting, the objectives and [the] purpose of the enactment.’ ” Wesley Chapel Bluemount Ass’n v. Baltimore County, 347 Md. 125, 137 , 699 A.2d 434 (1997) (citing Tucker v. Fireman’s Fund Ins. Co., 308 Md. 69, 75 , 517 A.2d 730 (1986)). “In such circumstances, the court, in seeking to ascertain legislative intent, may consider the consequences resulting from one meaning rather than another, and adopt that construction which avoids an illogical or unreasonable result, or one which is inconsistent with common sense.” Tucker, 308 Md. at 75 , 517 A.2d 730 . “Moreover, in deciding what a term’s ordinary and natural meaning is, [a court] may, and often [does] consult the dictionary.” State Dep’t. of Assessments & Taxation v. Maryland-National Capital, Park & Planning Comm’n, 348 Md. 2,14 , 702 A.2d 690 (1997). In 1997, the General Assembly amended Maryland’s Wrongful Death Statute by its enactment of House Bill 770. In a wrongful death action without a beneficiary-or claimant who is a spouse, parent, or child of the deceased, this bill lowered from “wholly” to “substantially” the degree to which a person related to the. deceased by blood or marriage must have been dependent to be entitled to damages.

This evidenced a clear intent to make it easier for secondary beneficiaries to recover damages in a wrongful death action. The only relevant legislative history that we have been able to find regarding House Bill 770 consists of a letter from the Stephanie Roper Committee 2 containing the comments of ⁴⁸⁹ Roberta R. Roper, Chairman of the Committee, and Russell P. Butler, Esq., the Committee’s lawyer. The section of the letter concerning secondary beneficiaries states: Under Courts Article, Section 3-904(b), if there is no spouse, child, or parent of the decedent, a person related to the decedent by blood or marriage may claim economic damages if the beneficiary was wholly dependent upon the deceased. [In regard to the term] [w]holly dependent [, the Court of Appeals has said:] We hold the rule to be applied to test whether proof of other property and/or income of various kinds prevents a person from being ‘wholly dependent’ on another is as follows: Total dependency exists where the dependent subsists entirely on the income of