Halloran v. Montgomery County Department of Public Work

WOODWARD, J. Appellant, Karen Halloran, sued appellee, Montgomery County (“the County”), and appellee, the State of Maryland (“the State”), as well as WGL Holdings d/b/a Washington Gas (“Washington Gas”), and the Washington Suburban Sanitary Commission (“WSSC”), 1 to recover damages for injuries sustained when she fell after tripping over irregular pavement in a crosswalk in Montgomery County. After the County moved for summary judgment asserting that Halloran had not complied with the Local Government Tort Claims Act (“LGTCA”), 2 the Circuit Court for Montgomery County entered judgment in favor of the County. Before trial, all of the other defendants, except for the State, were dismissed from the case. At the conclusion of the trial, a jury returned a verdict in favor of the State.

On appeal, Halloran presents four issues for our review, which we have consolidated into three questions: 1. Did the circuit court err in concluding that Halloran had not substantially complied with the notice provision of the LGTCA? 2. Did the circuit court abuse its discretion in concluding that Halloran failed to demonstrate good cause to waive the notice provision of the LGTCA? ¹⁷⁸ 3. Did the trial court commit reversible error in admitting testimony regarding repairs to the road condition that caused her injuries?

For the following reasons, we shall affirm the judgment of the circuit court. BACKGROUND On October 18, 2004, Halloran fell and was seriously injured when she tripped on irregular pavement in a crosswalk at Old Georgetown Road and Edgemoor Lane in Montgomery County. In a letter dated October 22, 2004, Halloran informed the Montgomery County Department of Public Works and Transportation (“DPWT”) of the accident. She wrote: I am writing to inform you of a serious hazard located in the crosswalk intersection of Old Georgetown Road and Edgemoor Road in Bethesda, Maryland.

There is a severe depression in the asphalt; which could result in personal injury to the numerous pedestrians who cross this road daily. I personally was hurt at this location on Monday, October 18, 2004 at approximately 12:30 pm. I was walking westbound from the 7500 block to the Chipotles Restaurant at the corner of the 7600 block of Old Georgetown Road during my lunch hour. I fell in the crosswalk due to the irregular pavement.

The road appeared to have been dug up previously and was quickly “repaired” without bringing the area flush with the rest of the roadway. I now have a sprained left foot big toe and a broken ankle on my right foot. I have missed 2.5 days of work because of this incident and have suffered pain from the injuries. I have attached pictures of my injury and the unsafe paving of the location mentioned above.

Please have this pavement repaired immediately to make the concave area flush -with the rest of the roadway. I do not want anyone else to have to suffer the injuries I’ve ¹⁷⁹ sustained or worse. Thank you for you immediate attention to this matter. DPWT responded to Halloran, thanking her for “letting [them] know about the condition” and conveying that they “regret [the] injury.” The letter explained that Halloran’s “letter was faxed to the Maryland State Highway Administration’s (MSHA) district maintenance office, because the crosswalk is within the State’s right-of-way.” Nonetheless, DPWT “agree[d] that this [was] a dangerous situation, [and, as a result] a Highway Maintenance crew ... repaired the deteriorated area to ensure pedestrian safety.” On October 25, 2004, Halloran filed a “Notice of Claim Form” against the State.

In the form, Halloran recited the time, place, and nature of her fall, and noted that she was “seeking [her] medical bills to be paid in full. Other damages to be determined.” 3 In a letter dated October 28, 2004, the State acknowledged receipt of Halloran’s claim, and advised Halloran that it would “be investigating [her] claim.” On November 22, 2004, the State responded to Halloran with the results of its investigation. According to the letter, the “claim was carefully investigated,” but that investigation determined “that the State was not at fault in the incident.” Although the letter did not elaborate on this determination, it “suggested] [Halloran] refer [her] claim to: Washington Gas.” In a letter dated January 11, 2005, Halloran’s counsel informed Washington Gas that Halloran “believe[d] that Washington Gas may be responsible for the condition of [the] roadway” that caused Halloran to fall. In a letter dated July 7, 2005, Halloran’s counsel informed the Montgomery County Executive of his representation of ¹⁸⁰ Halloran and recited the basic facts of Halloran’s injury.

The letter inquired as to “whether or not [the] location [where the fall occurred] [was] actually County responsibility.” The letter was mailed certified mail, return receipt requested. 4 The Office of the County Attorney for Montgomery County responded by letter dated July 28, 2005. The County Attorney noted that it had “received the notice of claim” and would be “referring this matter to Schaffer Companies,” the County’s claims adjuster. Additionally, the County Attorney stated that “a review of [Halloran’s] letter indicates that [Halloran’s] notice of claim may be untimely under State law.” The Schaffer Companies denied Halloran’s claim against the County in a letter dated April 20, 2006. According to The Schaffer Companies, “[i]t appeared] that [Halloran] fell at a depression that was either caused by the Washington Suburban Sanitary Commission or Washington Gas.” On October 25, 2006, Halloran filed suit against the County, Washington Gas, and WSSC.

The County and WSSC moved to dismiss or in the alternative for summary judgment on the grounds that Halloran had failed to comply with the LGTCA. After a hearing on March 26, 2007, the circuit court granted the County’s motion for summary judgment. The circuit court declined to rule on WSSC’s motion, pending discovery. On April 2, 2007 Halloran filed a separate complaint against the State based on the same injuries and circumstances.

On April 27, 2007, Halloran voluntarily dismissed WSSC from the original suit, and the two complaints were consolidated. On December 20, 2007, Halloran voluntarily dismissed Washington Gas from the suit, leaving only the State as a defendant. The case was tried before a jury on March 10 and 11, 2008, at the conclusion of which the jury rendered a verdict in favor of the State. A final judgment was entered on March 13, 2008.

This timely appeal followed. ¹⁸¹ DISCUSSION 1. Did the circuit court err in concluding that Halloran had not substantially complied with the notice provision of the LGTCA? Halloran argues that her claim against the County should have been allowed to proceed because she substantially complied with the LGTCA. According to Halloran, because she provided DPWT with the information required by the notice provision of the LGTCA, and DPWT was able to conduct an investigation of the roadway, the purpose of the LGTCA’s notice provision was fulfilled.

Halloran additionally argues that the County waived any argument that Halloran failed to provide notice under the LGTCA, because the County did not allege that its investigation was impeded. The County responds that the circuit court correctly found that Halloran had failed to satisfy the notice requirement. Specifically, the County argues that Halloran failed to demonstrate either substantial compliance with the notice provision or good cause for not serving timely notice pursuant to the LGTCA. According to the County, Halloran’s October 22, 2004 letter was not substantially compliant because it did not state a tort claim and was not directed to an entity responsible for investigating tort claims.

Standard of Review “When reviewing the grant or denial of a motion for summary judgment we must determine whether a material factual issue exists, and all inferences are resolved against the moving party.” United Servs. Auto. Ass’n v. Riley, 393 Md. 55, 66 , 899 A.2d 819 (2006). We must “examine[ ] the same information from the record and determine[ ] the same issues of law as the trial court.” Id. at 67 , 899 A.2d 819 .

Where “the facts surrounding the notice issue are essentially undisputed,” this Court “review[s] the circuit court’s decision de novo to determine if it was legally correct.” Wilbon v. Hunsicker, 172 ¹⁸² Md.App. 181, 198, 913 A.2d 678 (2006), cert. denied, 398 Md. 316 , 920 A.2d. 1060 (2007). The LGTCA The LGTCA provides that “an action for unliquidated damages may not be brought against a local government or its employees unless the notice of the claim ... is given within 180 days after the injury.” § 5-304(b). “The notice shall be in writing and shall state the time, place, and cause of the injury.” § 5-304(c)(3). In Montgomery County, the notice must be provided in person, or by certified mail, return receipt requested, to “the county commissioner, county council, or corporate authorities ... or ... the County Executive.” § 5-304(c)(1). 5 The notice requirement is “a condition precedent to maintaining an action against a local government or its employees.” Rios v. Montgomery County, 386 Md. 104, 127 , 872 A.2d 1 (2005). “[T]he notice requirement operates inde ¹⁸³ pendent of the limitations period that applies generally to the filing of suit.” Rios v. Montgomery County, 157 Md.App. 462, 480 , 852 A.2d 1005 (2004), aff'd, 386 Md. 104 , 872 A.2d 1 (2005). The Court of Appeals has stated that the purpose of the notice requirement is “to have the claimant furnish the municipal body with sufficient information to permit it to make an investigation in due time, sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.” Jackson v. Bd. of County Comm’rs, 233 Md. 164, 167 , 195 A.2d 693 (1963).

The notice requirement is intended “to protect the municipalities and counties of the State from meretricious claimants and exaggerated claims.” Bartens v. Mayor and City Council of Baltimore, 293 Md. 620, 626 , 446 A.2d 1136 (1982). Substantial Compliance Strict compliance with the notice requirement is not necessary; substantial compliance is sufficient. White v. Prince George’s County, 163 Md.App. 129, 144-45 , 877 A.2d 1129 , cert. denied, 389 Md. 401 , 885 A.2d 825 (2005). “[A] litigant is excused from strict compliance with the notice obligation, so long as the purpose of the notice statute ivas fulfilled by substantial compliance with the statutory requirements.” Id. at 144, 877 A.2d 1129 (quotation omitted) (emphasis added). “Substantial compliance requires some effort to provide the requisite notice and, in fact, it must be provided, albeit not in strict compliance with the statutory provision.” Id. at 145 , 877 A.2d 1129 (internal quotation omitted). “However, when the notice does not apprise the proper officials that the [pjlaintiff is pursuing a claim, there is not substantial compliance.” Bibum v. Prince George’s County, 85 F.Supp.2d 557, 564 (D.Md.2000) (emphasis added). Jackson was the first Maryland case to articulate the doctrine of substantial compliance with the notice requirement of the LGTCA.

In Jackson , the claimant sought to recover damages sustained in a collision with a county dump truck. 233 Md. at 166 , 195 A.2d 693 . The claimant first provided oral ¹⁸⁴ notice to an assistant county attorney and then sent written notice by ordinary mail to the county commissioners. Id. The county argued that “there was noncompliance with two essential requirements—there was no notice given of [the claimant’s] claim, only of a claim for property damage and, ... the notice was not delivered either in person or by registered mail” as required by statute.

Id. at 167, 195 A.2d 693 . The claimant’s written notice read: We represent Phyllis and William A. Jackson, Jr., and their collision insurance carrier, Interstate Insurance Company, in a claim for damages against Anne Arundel County Public Works arising out of a collision occurring on January 18,1962, at Solley Road and Powhatan Beach Road with a County Roads truck operated by Joseph Frank Havranek. Id. at 166-67, 195 A.2d 693 (emphasis added). The Court of Appeals found “substantial gratification of the purpose of the statute” in regard to both the content of the notice and its delivery.

Id. at 167-68, 195 A.2d 693 . The Court reasoned that the letter, “which ... said there ivas a claim for damages against the County," and advised of the “‘time, place and cause’ ” of the injury, “would seem to be literal compliance” or, at a minimum, substantial compliance. Id. (emphasis added).

In White , the claimant alleged police brutality in the course of his arrest for burglary. 163 Md.App. at 132 , 877 A.2d 1129 . When the claimant filed suit against Prince George’s County and four of its police officers almost three years after the arrest, the circuit court dismissed the case for failure to comply with the notice provision of the LGTCA. Id. at 132 , 877 A.2d 1129 . The claimant conceded that he did not provide notice within the 180 day period, but contended that he had substantially complied with the notice requirement when, within the 180 day period, he sent a letter to the police department complaining of the alleged brutality, which prompted an internal investigation of the matter.

Id. at 141 , 877 A.2d 1129 . This Court disagreed: [The claimant] did not provide notice to an entity with responsibility for investigating tort claims lodged against the County. Instead, appellant sent notice to the Depart- ¹⁸⁵ merit’s Internal Affairs Division [(I.A.D.)]. The content of that complaint pertained to [the claimant’s] allegation of police brutality, not to tort claims arising from such conduct.

Moreover, the investigation that ensued was conducted by and for I.A.D., under a wholly separate procedure.... Notice to I.A.D. simply was not notice to the County Attorney or County Solicitor, as required by C.J. § 5-304(b)(2). Id. at 147, 877 A.2d 1129 (footnote omitted). We therefore concluded that the claimant “did not substantially comply with the statutory notice requirement by filing a complaint with I.A.D. about police brutality.” Id. at 147 , 877 A.2d 1129 .

Because the claimant had also failed to establish good cause, we affirmed the circuit court’s dismissal of the case. Id. at 158 , 877 A.2d 1129 . In Wilbon, the estate of Joseph Wilbon, as claimant, sought damages on behalf of Wilbon, who died while in police custody. 172 Md.App. at 185-86 , 913 A.2d 678 . Four days after Wilbon’s death, his mother submitted a “Statement of Incident” to the Civilian Review Board, which was “an independent agency tasked with investigating complaints from the public regarding police misconduct.” Id. at 191—92, 194, 913 A.2d 678 .

The statement provided the basic facts of Wilbon’s death, including the date and place of the incident. Id. at 192, 913 A.2d 678 . Later, more than 180 days after Wilbon’s death, Wilbon’s mother “mailed, by certified mail, a ‘Notice of Intent to File Suit’ to the Maryland State Treasurer, the Comptroller of the Treasury, and the Commissioner of the” Baltimore City Police Department (BCPD). Id.

Then, “one year after Wilbon’s death, the attorney for Wilbon’s estate mailed, by certified mail, and hand-delivered a ‘Notice of Claim Form’ to the City Solicitor for Baltimore City[,]” which “purported to give notice of a claim pursuant to section 5-304.” Id. at 193, 913 A.2d 678 . We first considered the matter of whether the claimant strictly complied with the notice requirement. Id. at 198, 913 A.2d 678 . We noted that the “Statement of Incident” submit ¹⁸⁶ ted to the Civilian Review Board (CRB) “was not a claim for damages or a notice of intent to file suit.

It only stated a complaint of police misconduct.” Id. at 198, 913 A.2d 678 (emphasis added). Because the letter “was a notice of an occurrence involving alleged police brutality, not notice of tort claims arising out of that occurrence” and was “not submitted] .•.. to the City Solicitor, as required,” the claimant had “not strictly complied] with the notice requirement.” Id. at 199, 913 A.2d 678 . We then considered whether either the “Statement of Incident” or the “Notice of Intent to File Suit” “constituted substantial compliance with the notice requirement under the LGTCA.” Id. at 200-01, 913 A.2d 678 . We noted two problems with the “Notice of Intent to File Suit:” it was sent “to the Commissioner of the BCPD, not to the City Solicitor,” and “[m]ore problematic for [the claimant] ... this letter [was sent] between a month and six weeks beyond the 180-day statutory period.” Id. at 200, 913 A.2d 678 .

We concluded that this notice was not substantially compliant because “the courts have not held that a claimant may submit the notice beyond the time for giving such notice.” Id. We also rejected the claimant’s argument that the “Statement of Incident” submitted to the CRB just days after Wilbon’s death constituted substantial compliance, because the CRB was “not an agency of the City of Baltimore or the BCPD.” Id. at 204, 913 A.2d 678 . More importantly, however, [the] complaint prompted an investigation that was vastly different from an investigation of a tort claim for damages. The BCPD conducted a dual-natured investigation, involving both the Homicide Unit and the [Internal Investigations Division].

The purpose of this investigation was to determine whether a crime had been committed and whether the officers had violated departmental rules and standards of behavior. By contrast, an investigation into a tort claim for damages involves different issues, including, among other things, legal defenses, the nature and extent of the actual injuries sustained, the causal relationship of the injuries to the alleged misconduct, the likelihood of an ¹⁸⁷ award of compensatory and/or punitive damages, the necessity and cost of expert testimony, and litigation strategy. Therefore, ... just as the investigation in White did not suffice as a claim investigation, the investigation in the present case did not fulfill all of the purposes of the LGTCA’s notice requirement. Id.

(emphasis added) (quotation and alteration removed). We added that, although “the Commissioner of the BCPD indicated that he was familiar with the case and recognized that it might lead to a lawsuit[,]” “[n]ot every excessive force complaint develops into a civil action.” Id. In the case sub judice, Halloran concedes that she did not strictly comply with the notice provision of the LGTCA, and we agree. We disagree, however, with Halloran’s assertion that she substantially complied with the notice provision.

We explain. The purpose of Halloran’s October 22, 2004 letter to DPWT was to inform DPWT of “a serious hazard” and to request that the road be “repaired immediately” to protect others from injury. Nowhere in the letter did Halloran state that she had a “claim” against the County. Although she noted her injuries, she made no allegation that the County was responsible for damages resulting from those injuries.

In short, Halloran requested no relief other than that the condition of the road be repaired. Furthermore, the letter was not directed to the proper party under the LGTCA, namely the County Executive. Instead, the letter was addressed to the “Highway Maintenance” division of DPWT. No other entity, particularly the county council, county law office, or “corporate authority,” was copied on the letter.

In handling the letter, DPWT did not forward Halloran’s letter to any of these entities or copy them on DPWT’s response. Consequently, the letter failed to inform “the proper officials that [Halloran] [was] pursuing a claim.” Bibum, 85 F.Supp.2d at 564 (emphasis added). Therefore, based on this letter, the County had no reason to, and did not in fact, start “an investigation into a tort claim for damages involving] ... legal defenses, the nature and extent ¹⁸⁸ of the actual injuries sustained, the causal relationship of the injuries to the alleged misconduct, the likelihood of an award of compensatory and/or punitive damages, the necessity and cost of expert testimony, and litigation strategy.” Wilbon, 172 Md.App. at 204 , 913 A.2d 678 . Accordingly, Halloran’s October 22, 2004 letter to DPWT did not “apprise [the County] of its possible liability at a time when it could conduct its own investigation,” Faulk v. Ewing, 371 Md. 284, 298 , 808 A.2d 1262 (2002) (internal quotations omitted), and thus did not substantially comply with the notice provision of the LGTCA.

Halloran’s July 7, 2005 letter also failed to rise to the level of substantial compliance. The letter was mailed 262 days after the incident, or almost three months after the expiration of the 180 day notice period. See § 5-304(b). As a result, the notice did not fulfill the purpose of the notice requirement by permitting a timely investigation.

If the letter in Wilbon, being submitted 30 to 45 days after the 180 day period expired, did not substantially comply with the LGTCA, neither can Halloran’s letter of July 7, which was 82 days late. Halloran also argues that “Montgomery County has waived its argument that the LGTCA has not been satisfied by its ability to thoroughly investigate the claim, and it should be estopped from arguing that [Halloran] did not comply with the LGTCA.” In support of this argument Halloran relies on the following comment by the Court of Appeals in Moore v. Norouzi, 371 Md. 154, 180 , 807 A.2d 632 (2002): “The same acts and conduct that establish[ ] that the purpose of the statute has been satisfied may also constitute a waiver of notice or create an estoppel.” Halloran’s argument, however, misconstrues the statute and Moore . In essence, Halloran is arguing that, because the County was able to conduct a thorough investigation and thus was not prejudiced by the late notice, Halloran’s failure to comply with the notice provision of the LGTCA should be excused. We disagree.

That evidence may still be available, and an investigation still possible, after the expiration of the 180 day period does not eliminate the notice provision as a “condition precedent” to ¹⁸⁹ a claim under the LGTCA. Waiver, under the theory in Moore , may occur only where an imperfect notice is given within the 180 day period that prompts a timely and full investigation of the tort claim. Waiver does not occur whenever a successful investigation occurs regardless of when notice was provided. Such a reading of the LGTCA would render the notice provision superfluous.

See Comptroller of the Treasury v. Sci. Applications Int’l Corp., 405 Md. 185, 198 , 950 A.2d 766 (2008) (“[A] statute must be read so that no word, clause, sentence, or phrase is rendered superfluous or nugatory.”). Therefore, it was not the County’s burden to claim “that any alleged deficiency in notice had [an] impact ... on [the County’s] ability to conduct a thorough investigation.” Such inquiry only arises, as discussed infra, when a claimant has shown good cause to waive the notice provision, and the burden, by statute, shifts to the local government to show that its defense has been prejudiced. See § 5-304(d). 2.

Did the circuit court abuse its discretion in concluding that Halloran failed to demonstrate good cause to waive the notice provision of the LGTCA? Having determined that Halloran neither strictly nor substantially complied with the notice provision of the LGTCA, we must next consider whether, pursuant to Section 5-304(d), the circuit court abused its discretion in concluding that Halloran did not have good cause to waive the notice requirement. Wilbon, 172 Md.App. at 205 , 913 A.2d 678 . Halloran argues that she had “good cause” for failing to provide proper notice under the LGTCA because she prosecuted her claim with sufficient diligence.

Consequently, Halloran claims, the burden was on the County to affirmatively show that it had been prejudiced by the deficient notice, which it tailed to do. The County asserts that Halloran did not demonstrate good cause sufficient to waive the notice requirement, because, within 180 days of the incident, Halloran was aware of the County as a potential defendant and she had engaged an ¹⁹⁰ attorney, but failed to supply the requisite notice. The County also contends that prejudice to its defense is inconsequential, because Halloran did not show good cause. Standard of Review We have stated: “The discretion with which all courts determine whether good cause has or has not been shown is broad.

It involves the exercise of one of the most important judicial functions. A ruling made in the exercise of that discretion is entitled to the utmost respect. It should not be overturned by an appellate court unless there is a clear showing that the discretion has been abused—that the result falls outside its broad limits.” Wilbon, 172 Md.App. at 205 , 913 A.2d 678 (quoting Madore v. Baltimore County, 34 Md.App. 340, 346 , 367 A.2d 54 (1976)). Good Cause In Wilbon, we summarized the