Higgins v. City of Rockville

MOYLAN, Judge. The plaintiff-appellants, John F. Higgins (Higgins); Margaret M. Higgins, his wife; and Group Hospitalization Medical Services, Inc., appeal from the granting by the Circuit Court for Montgomery County of a judgment at the close of the plaintiffs’ case in favor of the appellees, City of Rockville (City) and Gregory A. Bayor (Bayor). Upon this appeal, the appellants raise the following four contentions: 1. That the trial court erred in holding that the appellees enjoyed sovereign immunity because the maintenance and operation of the public walkway involved the exercise of a governmental function; 2.

That the trial court erred in holding that the appellants had failed to adduce legally sufficient evidence of negligence; ⁶⁷³ 3. That the trial court erred in holding that the appellant, John F. Higgins, was contributorially negligent as a matter of law; and 4. That the trial court erred in excluding appellants’ evidence of subsequent remedial measures. When a defendant moves for judgment at the close of the plaintiff’s evidence, the court must consider all evidence and inferences in the light most favorable to the plaintiff.

Md. Rule 2-519(b); Pahanish v. Western Trails, Inc., 69 Md. App. 342, 353 , 517 A.2d 1122 (1986). The facts in the case, viewed in that light, are as follows. The former Broome Junior High School in Rockville and its surrounding campus are owned by Montgomery County (County). In October, 1986, the former school housed the Alcoholic Treatment Center and an Autistic Education program.

From January, 1984, until the time of the accident, the County leased the school’s athletic field to Rockville. In effect, the former campus was split into two roughly equal parcels. That part which had been the school’s athletic fields, located essentially behind the school building, was leased to the City of Rockville to use for municipal recreational purposes. Its management was assigned by the City to its Department of Recreation and Parks.

It was designated as the Broome Athletic Park. The remainder of the former campus, fronting on Twinbrook Parkway and containing the school building proper, some tennis courts, parking lots and driveways and surrounding lawn, remained in the possession of Montgomery County. As one of the conditions of the lease, the City agreed to maintain that part of the original campus which remained in the possession of the County, including the parking lots and driveways. Specifically, the City and the County agreed that the City would be responsible for maintaining the driveway, which led from the parking lot off Twinbrook Parkway and circled around behind the school, in front of the athletic field, and returned to Twinbrook Parkway.

The driveway was used ⁶⁷⁴ by “voters dropping off their ballots,” 1 waste trucks picking up trash dumpsters, and other maintenance vehicles. It was also regularly utilized by pedestrians for various purposes, but primarily for access to the athletic fields. Although the County refused permission, the City nonetheless installed bollards and chains on the driveway at the two rear corners of the building in March, 1985, through the Department of Recreation and Parks (Department). At that time, Gregory Bayor was the director of the Department.

On Friday, October 10, 1986, Higgins took his four sons, ranging from 10 to 3 years of age, to his wife Margaret’s softball game at the Broome Athletic Park. He arrived at approximately 7:55 p.m., when it was dark, parking the car in the unlit parking lot on the school campus just off Twinbrook Parkway. He and the boys proceeded from the parking lot down an unlit driveway, apparently the primary route to the athletic field. Three of the boys, including the three-year old, moved ahead of him.

Fearing that the youngest would fall down the stairs leading to the field, Higgins increased his pace to a trot or a run down the driveway. Although occasionally glancing to his side or behind him (at one of the boys), he “was primarily looking straight ahead.” As he ran, Higgins felt something come into contact with his leg, just below his knee, tripping him and causing him to break his elbow. The object causing the fall was a chain or cable (cable gate), approximately 10 feet in length, strung between two posts, or bollards, with white tubing covering the middle section. Higgins saw no warning signs; nor did he see the cable gate.

Only a matter of minutes before, Michelle Buterbaugh had also tripped over the cable gate, but sustained no injuries. She had been walking at a normal pace, looking straight ahead, and still failed to see the cable gate. ⁶⁷⁵ Higgins sued the City and the County, alleging negligence in failing to provide a safe walkway, in failing to warn of a dangerous condition and in failing to correct a known, dangerous condition. Higgins’ injuries caused him to undergo three operations and prevented him from working for six months, thereby losing one-third of his base pay and his usual overtime. The damages asked for included lost wages, lost earning capacity, past and future medical expenses, and pain and suffering.

He and his wife also sued for loss of consortium. The complaint was amended to include Bayor 2 as a defendant. Group Hospitalization Medical Services, Inc. known as Blue Cross and Blue Shield of the National Capital Area, intervened, claiming subrogation for the medical expenses incurred by Higgins. On May 14, 1990, the case proceeded to trial before a jury.

The court refused to permit evidence that the City had subsequently installed a light above the cable gate and had covered the cable with fluorescent orange tubing. At the close of the plaintiffs’ case, the defendants moved for judgment, arguing that a prima facie case of negligence had not been established, that Higgins was contributorially negligent as a matter of law, and that they enjoyed governmental immunity. The motion was granted on all three grounds. The appellants appeal the lower court’s decision only as to the City of Rockville and Bayor.

Governmental Immunity A. As to the City of Rockville: The appellants contend that the City and Bayor are not immune from liability. They argue that the trial court misapplied the sovereign or governmental immunity doc ⁶⁷⁶ trine in finding that the City was acting in its governmental capacity. The difference between the broad sovereign immunity enjoyed by the State of Maryland and the more limited governmental immunity enjoyed by a county or municipal corporation within the state was well spelled out by Judge Eldridge, in Maryland-Nat. Capital Park and Planning Com’n v. Kranz, 808 Md. 618 , 622, 521 A.2d 729 (1987): “As this Court has often pointed out, the doctrine that the State of Maryland and state agencies are generally immune from suits, unless the immunity has been waived by the General Assembly, ‘is firmly embedded in the law of Maryland.’ On the other hand, counties and municipalities do not possess this general immunity.

Instead, counties and municipalities have never been given immunity in contract actions, and, in tort actions, they are not immune with regard to those matters categorized as ‘proprietary’ but are immune with regard to those matters categorized as ‘governmental.’ ” (citations omitted). See also Mayor and City Council of Baltimore v. State, ex rel. Blueford, 173 Md. 267, 271 , 195 A. 571 (1937); Burns v. City of Rockville, 71 Md.App. 293, 297-298 , 525 A.2d 255 (1987). Where a municipal corporation is performing a governmental function, it enjoys the same immunity as the state itself.

Mayor and City Council of Baltimore v. State, ex rel. Blueford, supra, fully explained this concept, at 173 Md. 271 -272, 195 A. 571 : “That immunity extends to such agencies of the state as have no separate corporate existence but are employed by it merely as hands or instruments to execute its will, but not to its creatures, such as municipal corporations, except when exercising some governmental function of the state itself. Where, however, a municipality is engaged in the performance of a governmental function as an agent of the state, the same principle which protects the state from liability also protects the municipality. So that, where that principle of immunity is invoked in ⁶⁷⁷ behalf of a municipality charged with a tort, the primary and essential inquiry is whether the tortious act was done in the course of the performance of some governmental duty or function.” (citations omitted).

Blueford provided the guidelines for determining when the actions of a municipality are governmental in nature, at 173 Md. 276 , 195 A. 571 : “Where the act in question is sanctioned by legislative authority, is solely for the public benefit, with no profit or emolument inuring to the municipality, and tends to benefit the public health and promote the welfare of the whole public, and has in it no element of private interest, it is governmental in its nature.” The Blueford case also established unequivocally that the maintenance of a public park by a municipality is a governmental function enjoying sovereign immunity: “[T]he maintenance of a public park is a governmental function, and ... the municipality is not liable for any default or neglect of its agents or employees in the management thereof.” 173 Md. at 272 , 195 A. 571 . See also City of Baltimore v. State, Use of Ahrens, 168 Md. 619, 626 , 179 A. 169 (1935). And see Haley v. City of Baltimore, 211 Md. 269, 272-273 , 127 A.2d 371 (1956): “The law of this State is well established that a municipal corporation is not liable in a civil action for any default or neglect in the performance of a purely governmental function, such as the maintenance and management of a public park for recreational purposes.” Overlapping and closely related to the immunity enjoyed by a municipality in its governmental function of maintaining a public park for recreational purposes is similar immunity in its governmental function of conducting municipal recreation programs. Austin v. City of Baltimore, 286 Md. 51, 63 , 405 A.2d 255 (1979); Burns v. City of Rockville, 71 Md.App. 293, 303-308 , 525 A.2d 255 (1987). ⁶⁷⁸ Indeed, the appellants acknowledge that the City would have enjoyed governmental immunity had the incident occurred within the confines of Broome Athletic Park and had the injury been suffered by a player, spectator, or other participant involved in the recreational activities of the park.

They strenuously maintain, however, that when the agents of the City stretched the cable gate across the width of the driveway leading to the park, the City was engaged in the very different proprietary function of maintaining streets and walkways and was thus bereft of any governmental immunity for its negligence in the performance of that function. The distinction between a municipality’s governmental functions and its proprietary functions is, in . terms of both policy and logic, a sound one. What is bizarre is the placement of the maintenance of streets, highways, and walkways in the proprietary column rather than in the governmental column. Bizarre or not, it is nonetheless the indisputable and long-settled law of this state.

It has long been held that a municipality is not immune from a negligence action arising out of its maintenance of its public streets and highways. One of the first cases in which a municipality was held liable on this basis was Mayor and City Council of Baltimore v. Marriott, 9 Md. 160, 176 (1856), in which the plaintiff recovered from the City due to the City’s negligent failure to clear an accumulation of ice from a sidewalk, on which the plaintiff fell and was injured. Later, in Mayor and City Council of Baltimore v. Walker, 98 Md. 637, 644 , 57 A. 4 (1904), the Court of Appeals again held the City liable for injuries caused by its neglect in maintaining a public street. The Court subsequently stated that it is the duty of a municipality to keep its streets in a safe condition for public travel and that if it negligently fails to do so, and travelers are injured without their own negligence, the municipality is liable.

State, Use of Biggs v. Baltimore City, 129 Md. 686 , 99 A. 860 (1917). ⁶⁷⁹ Baltimore v. Eagers, 167 Md. 128, 136 , 173 A. 56 (1934), treated the principle as one of long standing: “There is no question that, by the great weight of authority, the rule of law is that it is a private proprietary obligation of municipal corporations to keep their streets and public ways reasonably safe for travel in the ordinary manner, and to prevent and remove a nuisance affecting the use and safety of these public ways.” Haley v. City of Baltimore, supra, spoke to the same effect, at 211 Md. 273 , 127 A.2d 371 : “On the other hand, the keeping of public highways and walkways under its management and control in a reasonably safe condition is a corporate function of a municipality and it is therefore answerable in damages for failing to exercise such function.” And see Wynkoop v. City of Hagerstown, 159 Md. 194, 198 , 150 A. 447 (1930); Mayor and City Council of Baltimore v. Thompson, 171 Md. 460, 467 , 189 A. 822 (1936); County Commissioners of Harford County v. Love, 173 Md. 429, 432 , 196 A. 122 (1937). The apparently illogical nature of this placement has been commented upon by Baltimore v. State, Use of Blueford, supra, at 173 Md. 272 , 195 A. 571 : “It is undoubtedly true that it is difficult to discover any logical distinction between the governmental character of such a duty as that of maintaining the public highways, which in this state has been held to be a private corporate function ..., and that of maintaining the public parks, which was held in Baltimore v. State, use of Ahrens, supra, to be a public, political, and governmental function.” (citation omitted). Our case law has nonetheless regularly held that a municipality has a “private proprietary obligation” to maintain its streets, as well as the sidewalks, footways and the areas contiguous to them, in a reasonably safe condition. Pierce v. City of Baltimore, 220 Md. 286, 290 , 151 A.2d 915 (1959) (streets, sidewalks, footways and contiguous areas); Birck ⁶⁸⁰ head v. Mayor and City Council of Baltimore, 174 Md. 32, 36-37 , 197 A. 615 (1938) (highway and areas adjacent to it); Mayor and Council of Hagerstown v. Hertzler, 167 Md. 518, 520-21 , 175 A. 447 (1934) (strip between road and sidewalk).

The exemption of this particular function from the benefits of governmental immunity, logical or illogical, 3 seems destined to remain with us for the foreseeable future. As the Blueford case noted, at 173 Md. 273 , 195 A. 571 : “[T]he two principles, one that a municipal corporation is not liable in a civil action for any default or neglect in the performance of a purely governmental function, and the exception that it is liable for failure to keep the public highways under its management and control in a reasonably safe condition, are too firmly embedded in our law to be disturbed now.” The neat distinction between a governmental function and a proprietary function — between immunity and liability— loses its clarity, however, when applied to a hybrid function. What happens when a public roadway or public walkway (proprietary) goes through or simply into a park or other recreational area (governmental)? Is a centaur more like a man or more like a horse?

The Court of Appeals has grappled with the classifying of the hybrid in both Baltimore v. Eagers, 167 Md. 128 , 173 A. 56 (1934), and Haley v. City of Baltimore, 211 Md. 269 , 127 A.2d 371 (1956). In sorting out immaterial factors from pivotal factors, the Eagers case held that the job classification of the allegedly negligent actor is not controlling. If negli ⁶⁸¹ gence occurs on a roadway in a park, liability will not turn upon whether the negligent agent was an employee of the Highway Department or of the Department of Parks and Recreation. As Eagers held, 167 Md. at 137, 173 A. 56 : “[Wjhether the city is liable in a civil action for neglect on its part or on the part of its servants is determined by the nature of the act, not by the identity of the servant of the municipality who was guilty of the negligent act.” Thus, the fact that the Rockville official who ordered the installation of the bollards and the cable gate was the Director of the Department of Recreation and Parks, the appellant Bayor, is of no moment in determining the immunity or liability of the City of Rockville.

Turning to the issue of use, both Eagers and Haley held that the proper maintenance of the public walkways in those cases, albeit the walkways were within the geographic confines of parks, was part of the proprietary responsibility of the municipality to maintain highways, streets, and public walkways in a safe condition. In Eagers , the Court of Appeals held that the City was not immune from liability arising out of the negligent removal of a tree which resulted in the death of a pedestrian walking along a public footway within a public square that was under the supervision and jurisdiction of the Board of Park Commissioners. The removal of the dead or diseased tree for purposes of park beautification and preservation was clearly part of the governmental function of maintaining parks. The negligence of the park employees in removing the tree in such a way that a dead branch fell on a pedestrian on a walkway twenty feet from the base of the tree engaged the gears, however, of the proprietary function of maintaining streets and footways.

In the Eagers case, the park property in question was Collington Square, which was precisely one square block in area. The footways in question paralleled the four surrounding streets that formed the perimeter of the square. The footways were, therefore, continuations of intersecting sidewalks from beyond the boundaries of the square. The ⁶⁸² opinion in Eagers , however, attached no significance to (indeed, never alluded to) the possibility that the fatally injured pedestrian may have been in transit through the square rather than walking into the square simply to enjoy its amenities.

That arguable distinction and the resulting ambiguity on which the appellee City of Rockville and the trial judge relied arose in the Haley case. In Haley , the City of Baltimore was held not to be immune from suit for injuries arising out of its negligent maintenance of a concrete walkway, including its column of steps, that crossed a public park. The park was Preston Gardens, a long and thin strip of land separating St. Paul Street from St. Paul Place. Although Chief Judge Brune’s opinion in Haley never stated that the maintenance of walkways within the park that were used primarily for the internal enjoyment of the park would be part of the City’s governmental function