Goss v. Estate of Jennings

ZARNOCH, J. The principal issue in this case is whether the non-economic damage cap imposed by Md.Code (1974, 2006 Repl.Vol.), ¹⁵⁷ Courts & Judicial Proceedings Article (CJP), § 11-108 applies separately or collectively to damages awarded in a wrongful death and a survival action. 1 This and additional questions arise from a $1.37 million judgment entered in a wrongful death and survival action stemming from the death of Rodney Jennings (“Jennings”), an inmate in the custody of the Maryland Division of Corrections (“DOC”). While working on a litter pickup detail on the Capital Beltway (1-495) in Landover in Prince George’s County, Jennings was struck and killed by a dump truck owned by W.H. Goss Trucking, LLC and operated by Wayne H. Goss (“Goss” or “appellants”). Jennings’ estate, the estate of his mother, and three beneficiaries (“appellees”) 2 filed a wrongful death/survival action against Goss in the Circuit Court for Prince George’s County. Later, they amended their complaint to include claims against the DOC and the State Highway Administration (“SHA”) (collectively, “the State”).

In turn, Goss filed a third-party complaint against the State, and the State filed a cross-complaint against him, with both parties seeking contribution or indemnification against the other. In the jury trial that followed, Goss and the State moved for judgment at the end of plaintiffs’ case and at the close of all the evidence. The court initially denied the motions, but reserved judgment on the renewed motions made at the close of all the evidence. The jury then returned a verdict against Goss and the State in the amount of $2,025,000, which represented the sum of the damages awarded in the survival action ($350,000) and the wrongful death action ($1,675,000).

Goss and the State moved for judgment notwithstanding the verdict (JNOY). Goss also moved for a new trial and remittitur. The court granted the State’s motion, denied Goss’ ¹⁵⁸ motions and reduced the damage award to $1.37 million, prompting this appeal and cross-appeal. Factual Background At the June 14, 2010 trial, the evidence adduced that, on the morning of August 23, 2007, Jennings and at least two other inmates, Denard Thomas (“Thomas”) and Christian Taylor (“Taylor”) were driven by a correctional officer in a DOC van to pick up litter along the southbound shoulder of 1-495.

Another SHA employee accompanied the crew in an SHA dump truck. Upon arriving at the intersection of 1-495 and Route 202, the inmates were discharged from the van, donned bright green fluorescent safety vests and began walking southbound on the shoulder of 1-495. Shortly thereafter, Jennings, Taylor and Thomas crossed the exit ramp by foot and entered into the gore 3 area of the beltway. I. The Accident Lee Bayersdorfer, who was driving a tractor-trailer in the lane closest to the exit ramp, observed that immediately before the accident, Goss accelerated, passed him on the left, and cut in front of him to take the Route 202 exit.

At this time, and when he was at a distance of approximately 75 feet from the exit, Goss saw the inmates walk across the exit ramp and into the gore and sounded his horn to “warn” them. Upon hearing the horn, the inmates in the gore turned around to see both Goss’ dump truck and Bayersdorfer’s tractor-trailer “bearing down on [them] at a high amount of speed.” Thomas observed Goss’ dump truck “speeding up [and] trying to get over” to the exit lane and then “speeding] ... up in front of the other truck,” as it “cut all the way over to the right.” Both men believed that the dump truck was going to enter the gore where they were standing. Nonethe ¹⁵⁹ less, they remained stationary because the horn put them in a “state of shock,” freezing them in place. Although Taylor thought about escaping Goss’ apparent path by “slip[ping] between [the vehicles],” the trucks were so close to the gore that he was afraid he would be “suck[ed] in....” He “thought [he] was going to die” and would have run if he had been positioned closer to the exit ramp.

But, given his position in the gore, “there was nowhere to run.” When Goss’ dump truck was about five to eight feet away from him, Jennings ran from the gore back across the exit ramp. According to Taylor: [W]e was [sic ] in the middle [of the gore] when we saw the trucks coming, there was really nowhere for us to run to, you know, but [Jennings] tried to—he did a movement like this and he tried to go back across the ramp where we had come from. And I grabbed after him, but he was a little bit bigger than me so he got away from me. And [Goss’ dump] truck just came right through and met him.

At that point, Goss “really” applied the truck’s brakes, but was unable to avoid striking Jennings, who later died from accident-related injuries.

II

The Post-Accident Inspection After the accident, Maryland State Troopers Mallon and Sliffer directed Goss to drive to a nearby shopping center where they could conduct a post-accident inspection. Mallon slid underneath the truck on his back, looking up at the bottom of the truck to inspect its brakes. Sliffer remained outside of the dump truck and recorded the brake measurements on 3x5 cards, as Mallon shouted out the measurements to him. The State Troopers then directed Goss to drive to a weigh station, where they determined that the truck weighed 78,400 pounds, in violation of the 70,000 pound weight limit imposed by Md.Code (1977, 2009 Repl.Vol.), Transportation Article (TA) § 13-919. 4 Using a computer at the station, Sliffer ¹⁶⁰ entered the data from the 3x5 cards and prepared a report which reflected Mallon’s finding that three of Goss’ brakes were out of adjustment.

Maflon reviewed the inspection report for accuracy and confirmed that it contained the same measurements he had orally conveyed to Sliffer. He then provided the report to the police crash team, which transferred the data into its post-collision inspection report. Over Goss’ objection, both reports were admitted into evidence as plaintiffs’ exhibits.

III

Expert Testimony David Stopper, who testified as an expert in commercial trucking, accident reconstruction, and the proper operation of commercial motor vehicles, opined that, based on his review of the police paperwork, depositions, accident scene photos, safety manuals, and Mallon and Sliffer’s post-accident inspection reports, on the day of the accident, the truck was in “an out-of-service condition which mean[t] that ... the vehicle ... [was] likely to cause an accident or breakdown.” Stopper concluded that the two largest brakes on Goss’ dump truck were “significantly” out of adjustment, resulting in a loss of more than 25% of the truck’s braking efficiency. As a result, the truck was “not safe to operate” on the day of the accident, which should have been apparent to Goss during a pre-trip inspection. According to Stopper, Goss’ failure to maintain his brakes in proper working order was a violation of the standard of care applicable to commercial vehicle operators. Stopper also testified that the weight of Goss’ truck on the day of the accident violated standard limits, and, together with the defective brakes, “decreased [the] truck’s ability to stop.” Stopper opined that Jennings “would have cleared the truck” if Goss’ brakes had been in working order and the truck weighed 8400 pounds less.

In making this conclusion, Stopper assigned to Jennings a speed of 7.5 feet per second, which approximates the pace of a 60-year-old male jogger. Stopper explained that, though Jennings was 28 years old at the time of the accident, this pace was appropriate because Jennings was heavyset. ¹⁶¹ IV. The Horn Demonstration Additionally, Stopper testified that the way in which Goss used his truck’s air-horn on the day of the accident violated the applicable standard of care. Over Goss’ objection, Stopper conducted an outdoor demonstration of the same kind of air horn that was on Goss’ truck and blew it at a distance of 75 feet from the jury.

In Stopper’s opinion, Goss created the dangerous condition which required him to use his horn: [I]f Goss had been slowing down appropriately and fallen in behind the other vehicle and used the exit ramp and had been coming on it at the appropriate speed ... there would be no reason for him to be sounding his horn and warning others because he should have been able to stop in the distance he could see. V. The Post-Trial Motions At the close of all the evidence, Goss and the State renewed their earlier motions for judgment, and the court reserved ruling until after the jury returned a verdict against both parties in the amount of $2,025,000. This award represented the sum of $350,000 and $1,675,000 in noneconomic damages for the survival action and wrongful death claim, respectively. Thereafter, Goss asserted that he was entitled to cross-judgment against the State and filed motions for JNOV, a new trial, and a remittitur.

With respect to the remittitur, Goss argued that under CJP § 11-108, when there are two or more beneficiaries in a death claim, the cap is set at 150% of $680,000 or $1,020,000. 5 He also urged the court to reduce the entire damage award to that amount, essentially eliminating the $350,000 award in the survival action, along with more than $650,000 for the wrongful death. The State also moved for JNOV, arguing that it breached no duty to Jennings, that it was not the proximate cause of his death and that he was contributorily negligent. It also argued ¹⁶² that under the Maryland Tort Claims Act (“MTCA”), Md.Code (1984, 2009 Repl.Vol.), State Government Article (SG), § 12-101, et seq. and particularly § 12-104(a)(2), its liability could not exceed a total of $200,000 for any and all claims made against it. On September 24, 2010, the court heard and denied Goss’ motions and granted the State’s motion for JNOV.

Specifically, the circuit judge noted: I don’t see where the State was negligent as a matter of law. Now, I’ll contrast this later with the other case, but the fact is he was moved from the one side and across the ramp to the gore area. If we look at from your blocking vehicle or moving in the ramp while they cross or if we look at putting them in a van to take them across, it’s a moot point. They got from point A to point B without a problem.

They did. It’s a fact. They moved from point A to point B without issue. If we say, okay, we need to have a blocking vehicle then at the gore area to protect them there, that’s moot because they weren’t hit in the gore area.

He wasn’t hit in the gore area. He was hit on the ramp. The State did nothing in this case that was negligent. It’s incontrovertible.

They got him across the ramp. He wasn’t hit in the gore area. The State did nothing negligent and I’m going to grant [its’] Motion for Judgment.... [ 6 ] ¹⁶³ The court’s rulings left the $350,000 survival action judgment intact and reduced the wrongful death awards to 150% of $680,000 or $1,020,000. Goss noted this appeal.

The State and the other appellees cross-appealed. 7 QUESTIONS PRESENTED Goss presents four questions for our consideration: 1. Did the trial court erroneously deny Goss’ motion for JNOV when the undisputed evidence established Jennings’ negligence by suddenly darting into the path of Goss’ truck, and the absence of proximate causation between Goss’ negligence and Jennings’ death? 2. Did the trial court commit reversible errors in allowing irrelevant evidence of the truck’s gross weight, hearsay evidence of the condition of its brakes, and an irrelevant horn demonstration? 3. Did the trial court erroneously impose two statutory caps in granting Goss’ requested remittitur when only one cap applied? 4.

Did the trial court improperly grant the State’s motion for JNOV and deny Goss’ cross-judgment against the State? The appellees’ cross-appeal presents this additional issue: Whether the Circuit Court erred by (A) granting judgment notwithstanding the verdict to the State of Maryland, where the jury’s findings that the State’s negligence proximately caused Jennings’ injuries and death were supported by the evidence, and (B) ruling that the State’s total liability to all claimants is capped at $200,000, when the plain language of the Maryland Tort Claims Act applies the $200,000 cap to each “single claimant.” For the following reasons, we answer all of Goss’ questions in the negative. We answer part A of appellees’ question in ¹⁶⁴ the negative and decline to reach part B. Thus, we affirm the rulings of the circuit court. DISCUSSION I. Motion for Judgment Notwithstanding the Verdict Goss’ challenge to the jury verdict is premised on two grounds.

First, he argues that Jennings’ decision to run from the gore made him contributorily negligent as a matter of law. Second, he asserts that Jennings’ flight into the exit ramp was a superseding cause of the accident that relieves him of liability for negligence. We reject both contentions and hold that the evidence was legally sufficient to support the jury’s conclusions. A. Standard of Review Maryland has a “very restrictive rule” about removing negligence cases from the jury.

Campbell v. Montgomery County Bd. of Education, 73 Md.App. 54, 62 , 533 A.2d 9 (1987). If there is “any evidence, however slight, legally sufficient as tending to prove negligence,” then the trial judge must leave the weighing and evaluating of that evidence to the jury. Moore v. Myers, 161 Md.App. 349, 363 , 868 A.2d 954 (2005). Upon review of the circuit court’s denial of a motion for JNOV, we apply the same standard, and “consider all the evidence, including inferences reasonably and logically drawn therefrom, in a light most favorable to the non-moving party.” Romero v. Brenes, 189 Md.App. 284, 290 , 984 A.2d 346 (2009).

We will affirm the court’s decision to submit the issue to the jury if we find that “evidence and the reasonable inferences to be drawn from it in the light most favorable to the party opposing the motion” sufficiently supports the jury’s verdict. Campbell, 73 Md.App. at 63 , 533 A.2d 9 . B. Contributory Negligence When a defendant raises a claim of contributory negligence against a plaintiff who has died in the underlying action, a presumption applies that the decedent “exercised ¹⁶⁵ ordinary care for his own safety in accordance with the natural instinct of human beings to guard against danger.” Baltimore Transit Company v. State, 194 Md. 421, 434 , 71 A.2d 442 (1950). Contributory negligence will not be decided as a matter of law unless the evidence overcomes this presumption and demonstrates “some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Id.

Here, whether Jennings exercised proper caution in running across the exit ramp is not so obvious that we can say as a matter of law that the jury was unjustified in finding him free from fault. Although Taylor “grabbed after” Jennings to prevent him from leaving the gore, Taylor testified that he, too, would have run he had been standing closer to the exit ramp. Moreover, contrary to Goss’ assertion that Thomas and Taylor remained in the gore because they appreciated their relative position of safety, both men testified that they were “stuck” or “frozen” in the gore after hearing the horn and watching the truck barrel down on them. The fact that Jennings was struck on the exit ramp does not establish his negligence as a matter of law.

Whether his decision to run was negligently or carelessly made was a question for the jury. It was not error for the circuit court to rule otherwise. C. Proximate Cause Goss’ next contention is that Jennings’ dash into the travel portion of the roadway was an intervening cause of the accident that relieves the appellants of liability for negligence. Generally, intervening conduct will break the chain of causation when the act is neither intended by the initial actor nor foreseeable as the probable result of his conduct.

See Stone v. Chicago Title Ins. Co., 330 Md. 329, 337 , 624 A.2d 496 (1992). Accordingly, the linchpin of whether an intervening act breaks the causal chain is foreseeability. Id. at 338 , 624 A.2d 496 .

Here, we find sufficient evidence to support the jury’s finding that Jennings’ death was the reasonably foreseeable ¹⁶⁶ consequence of Goss’ negligence. The jury heard evidence that Goss was speeding, traversing lanes, sounding a loud horn, and apparently heading directly toward the inmates. The totality of this evidence created a jury question as to the foreseeability of Jennings’ flight, and it was permissible for them to conclude that Goss’ conduct created the chain of events that caused Jennings’ death. Accordingly, the trial court did not err in denying Goss’ motion for JNOV on this basis. 8 II.

Evidentiary Rulings We are similarly unpersuaded by Goss’ argument that the court abused its discretion by (1) admitting evidence of a gross weight violation; (2) allowing the horn demonstration; and; (3) admitting evidence of post-crash brake measurements. A. Standard of Review We review a trial court’s ruling on the admissibility of evidence under an abuse of discretion standard. Brown v. Daniel Realty Co., 409 Md. 565, 583 , 976 A.2d 300 (2009). We will not set aside the court’s ruling unless the error “causefs] substantial injustice.” Crane v. Dunn, 382 Md. 83, 92 , 854 A.2d 1180 (2004).

Accordingly, an evidentiary ruling, even if manifestly erroneous, will not be disturbed if it was harmless. See Md. Rule 5-103(a). To the extent an evidentiary ruling involves resolution of a question of law, we review that decision de novo. Id. ¹⁶⁷ B. Evidence of Weight Violation Goss argues that his violation of TA § 13-919 should not have been disclosed to the jury because Jennings was not a member of the class the statute was designed to protect.

Given the totality of the evidence regarding the manner in which Goss approached and entered the ramp, loaded his truck, and maintained his brakes, we believe that the introduction of the weight violation cannot reasonably be understood as the pivotal evidence that tipped the verdict in favor of the appellees. In short, assuming an error did occur, we conclude that it was harmless as a matter of law. Therefore, we cannot conclude that the judge abused his discretion in admitting the evidence or that the evidence so prejudicially affected Goss’ rights that he is entitled to a new trial. C. Horn Demonstration Citing Andrews v. State, 372 Md. 1, 25 , 811 A.2d 282 (2002), Goss next contends that the court’s failure to require appellees to establish “substantial similarity” between the horn demonstration and the actual event renders the demonstration irrelevant, misleading, and grounds for new trial.

We disagree. The record reflects that the purpose of the horn demonstration was to assist the jury in understanding the difference in decibel levels between an average car horn and the air-horn on Goss’ truck. The test was intended for the jurors to “hear what this horn is and how it’s different than the horn in their common experience.” Appellees simply wanted the jury to hear the “loud blast of a loud horn.” With this purpose, it would make no difference whether the horn demonstration occurred inside the courtroom, at the scene of the accident, or at a location determined by the trial court. We cannot say that the horn demonstration significantly affected the outcome of Goss’ case, particularly when he, too, acknowledged: “It’s a truck horn.

It’s supposed to be loud.” ¹⁶⁸ D. Hearsay Goss next submits that the lower court committed reversible error in allowing appellees to introduce inadmissable