Potomac Electric Power Co. v. Smith

⁵⁹⁷ ALPERT, Judge. Almost a century ago, it was observed that “electricity is the most powerful and dangerous element known to science; it cannot be seen, and it is as silent as it is deadly....” Overall v. Louisville Elec. Light Co., 47 S.W. 442 , 443-44 (Ky.1898) 1 . The electrocution of fifteen-year-old Chrissy Lambert by the force of an errant 7600 volt power line begat judgments against the Potomac Electric Power Company (“PEPCO” or “the Company”) in the total or aggregate amount of $7,852,000.

Those judgments spawned this appeal, which presents us with a number of interesting yet perplexing legal issues. Facts On September 20, 1986, fifteen-year-old Chrisianthia Lambert was electrocuted when she came in contact with a 7600 volt electric power line owned by PEPCO. The accident occurred on a path located in the Hil-Mar area of Forest-ville in Prince George’s County. PEPCO does not own the land where the accident occurred, but it had acquired from the owners an easement giving it the right to install, erect, and maintain in, on, over or under the area, all electrical transmission and distribution equipment necessary to serve its utility customers.

The easement further provides that the owners of the land may use the right-of-way easement for ingress and egress to other lands owned by them, provided they first notify PEPCO in writing of this use and PEPCO grants permission. Although under the terms of the easement the Company had the right to restrict ingress and egress through the easement, PEPCO did not exercise that right. There were no signs prohibiting use of the right-of-way path; nor were there any gates or fences around the area preventing the public from using the right-of-way. A fair reading of the evidence indicates that the general public was at least ⁵⁹⁸ tacitly permitted to use the right-of-way path and did use it without any restriction.

Testimony elicited at trial revealed that the path was regularly used by children and adult residents of the neighborhood for jogging, riding of motor bikes, walking of dogs, and travel to and from different locations in the area, including the Andrew Jackson Middle School, to which the path directly leads. The accident was caused by a power line carrying 7600 volts of electricity. The power line was suspended between two utility poles about 500 feet apart. According to PEP-CO, it was required by the National Electrical Code to maintain the power line at least 25 feet above ground; however, at the time of the accident the power line had fallen to about 2 of 3 feet above ground for a distance of about 20 to 25 feet in close proximity to the adjacent pathway.

As thus positioned, it was variously described by eyewitnesses as a “dull gray” object resembling a “rope,” a “rope covered with dust,” a “railing” and an “ordinary cable.” Police officers and a paramedic who responded to the scene were unable to recognize the downed power line as such when they first observed it, and they did not become aware of its dangerous character until further inspection traced it to the two poles to which it was attached. The power line fell because a cross-arm to which it was attached broke. According to the testimony of James Taylor, a timber product specialist, the cross-arm should have been rejected at the time of installation in 1964 because of the excessive number of knots in the wood. He further testified that approximately ten years before the fatal accident the cross-arm should have been replaced when one side of it broke, but that the company chose instead to refasten the overhead power lines to its opposite side.

It was this side that broke in 1986, causing the power line to fall. According to the testimony of various witnesses at the trial, PEPCO was on notice of the fallen power line prior to the accident. Wendell Corbin, an electrician who lived in the neighborhood, testified that on or about August 17, ⁵⁹⁹ 1986 he saw the fallen power line while walking his dog along the path. He testified that he examined the power line with a “static probe” that he carried in his pocket and discovered that electricity was running through it.

He then called PEPCO, reported that a live power line was down, gave the location of the power line, and further advised PEPCO that the power line was in an area frequented by children. He was told that the company would take care of it. PEPCO has no record of this call. Another neighborhood resident, Gregory Joseph Fuller, testified that on September 7, 1986, some neighborhood children told him that a power line was down behind his house.

He walked down the path behind his house and saw a power line sagging about two feet above the ground. He testified that he immediately went home, called PEPCO, and told the company that a power line was down. He gave the operator the location of the downed power line and told her that it was located in an area that children used all the time. He also gave PEPCO his phone number for call-back purposes.

The operator allegedly asked him what the pole number was, but he could not give her that information. She told him that someone from PEPCO would be there to repair it. PEPCO has no record of this call either. PEPCO did acknowledge that on September 17, 1986, it received a complaint from a Mr. Turner about a power line down and burning in the Hil-Mar area at the end of the apartment projects along a dirt road.

The company dispatched a repair truck to the area. Mr. George Nicholas Pappas, a lead line mechanic for PEPCO, testified that he was sent to investigate the complaint on September 17, 1986. According to his testimony, he alighted from the truck and commenced inspection of the area. He walked along the path, but did not go as far down as where the accident later occurred because some youths who were further down the right of way path threatened to hurt him if he got closer.

He did not radio the police for assistance, but got back into the truck and drove around the area looking for the downed power line. He then notified the ⁶⁰⁰ dispatcher that he was unable to find it. In a complaint resolution form, however, Mr. Pappas reported that he “checked the right-of-way” path and “found (it) okay.” When questioned about this, Mr. Pappas testified that later that evening he found a power line draping low over a construction trailer in the same neighborhood and thought he had discovered the power line that was the subject of the earlier complaint. This power line, however, was neither down nor burning.

As a result, the live power line remained undetected by PEPCO until the day of the fatal accident. On September 20, 1986 fifteen-year-old Chrissy Lambert, the decedent, and Janea Stanford, a friend she had recently met, walked along the path located on PEPCO’s right-of-way easement to a nearby shopping mall. On their way back that afternoon, Ms. Lambert came into contact with the downed power line and was electrocuted. Ms. Sanford testified that the decedent was walking about two feet behind her, to her right, at a point close to the downed power line near the edge of the path.

They were engaged in conversation during their walk back, and following a conversational pause Ms. Sanford heard a buzzing noise, looked back, and saw Ms. Lambert lying on the ground with her body shaking and her left arm extended up to the power line. The power line was emitting sparks at the point of contact. She ran home and told her parents. Deborah Fiedler, a paramedic who treated the decedent at the scene, testified that she observed that Ms. Lambert had burn marks on her left arm near the elbow, her left leg, and her left buttock area.

According to Ms. Fiedler, the largest burn was a third-degree burn on the left arm. Ms. Lambert had less severe burns on her right hand. Two other witnesses testified as to the burns on Ms. Lambert’s body. Ray Martin, an electrical engineer specializing in electrical injury investigations, concluded, from the photographs admitted into evidence, that the burns on the left arm were caused by direct contact with the fallen power line.

In Mr. Martin’s opinion, the burns on the left ⁶⁰¹ buttock and left leg were electrical burns, but they were not caused by direct contact with the power line. Dr. Dennis Smyth, an Assistant State Medical Examiner who performed the autopsy, testified that Ms. Lambert sustained target burns on her right hand and left buttock area. He testified that target burns are “frequently seen at the site of electricity entering the body.” On the basis of all the testimony heard and the evidence admitted, the jury awarded the estate of Ms. Lambert $2,000 as compensatory damages and $7,500,000 as punitive damages. The jury awarded the parents of Ms. Lambert, Doris Smith and George Lambert, $500,000 in their wrongful death action.

Thereafter, the court granted PEPCO’s motion to limit the wrongful death damages under Section 11-108 of the Courts and Judicial Proceedings Article, which placed a ceiling of $350,000 on the amount of noneconomic damages recoverable in personal injury actions. Appellant then filed several post-judgment motions, and following a hearing in which these motions were denied, PEPCO noted its appeal. Thereafter, appellees filed their cross-appeal. The issues raised in these appeals are discussed infra.

I. What standard of care did PEPCO owe to Ms. Lambert? PEPCO contends that the trial court erred in essentially instructing the jury “that the standard of care owed to the decedent in this case was one of reasonable care.” 2 ⁶⁰² PEPCO’s reading of the instruction is too narrow. In qualifying its instruction on the “negligent creation” or “maintenance” of the power lines, the court told the jury that in order to impose liability it must find that “the power company ... has some kind of knowledge of the defect or unsafe condition before the accident occurred in sufficient time to ... correct ... the defect and to warn anybody that was on the land____” That language is not inconsistent with the applicable law as discussed infra. PEPCO further argues that because the decedent was a trespasser, the court should have instructed the jury that the only duty it owed decedent was to refrain from willfully or wantonly injuring her. 3 PEPCO correctly points out that in Maryland it has long been established that generally a possessor of land only owes a trespasser or a bare licensee the duty to refrain from willfully or wantonly injuring such person. 4 Murphy v. Baltimore Gas & Electric Co., 290 ⁶⁰³ Md. 186, 428 A.2d 459 (1981); Bramble v. Thompson, 264 Md. 518 , 287 A.2d 265 (1972).

Recently, the Court of Appeals in Wagner v. Doehring, 315 Md. 97 , 553 A.2d 684 (1989), applied this standard of care to an easement holder who exercises control over the easement as a land owner. 5 ⁶⁰⁴ Electric companies, as owners of property, have generally, under most circumstances, been held to the same duty of care to trespassers as landowners. See, e.g., Murphy, supra; Dageforde v. Potomac Edison Co., 35 Md.App. 37 , 369 A.2d 93 (1977). But see Eastern Shore P.S. Co. v. Corbett, 227 Md. 411 , 177 A.2d 701 (1962) (the amount of duty and care of a power company depends on the amount of danger involved, the “greater the danger, the greater the vigilance required to measure up to the standards of ordinary care”). 6 Nevertheless, we believe that nationwide there have emerged certain well accepted principles applicable to limited situations involving power companies that have, thus far, never been addressed by Maryland appellate courts, i.e., a power company is subject to liability for bodily harm to trespassers when the following factors coalesce: 1. The company knows, or should know, that trespassers constantly intrude upon a limited area of the land; ⁶⁰⁵ 2.

The company maintains a highly dangerous condition in that area; 3. The dangerous condition is likely to cause death or serious bodily harm to such trespassers; 4. The condition is of such a nature that the company has reason to believe that such trespassers will not discover it; and 5. The company has failed to exercise reasonable care to warn trespassers of the condition and risks involved.

See Restatement (Second) of Torts, Section 335 and comment d, and Illustration 1; 7 Cornucopia Gold Mines v. Locken, 150 F.2d 75 (9th Cir.1945) (defendant owed decedent duty of ordinary care which defendant negligently failed to exercise when it failed to repair a high-voltage electric transmission power line that sagged on the ground, thereby causing decedent, a person it should have known would go on the property, to die when she came in contact with the power line); Scott v. Claiborne Electric Cooperative, 13 So.2d 524 (La.App.1943) (Defendant liable for negligence in failing to exercise proper care of its 7,200 volt power line which had fallen and was the cause of decedent’s death when he came in contact with it. The Louisiana Court of Appeals held that defendant was liable not only to persons who had a right to be on the property but “also to persons who defendant should reasonably have anticipated might be present and exposed to danger ... although (such persons were) without technical right to be at such places.” Id. at 531 ); Markovich v. Jefferson Coal & Coke Corp., 146 Pa.Super. 108 , 22 A.2d 65 (1941) (when defendant main- ⁶⁰⁶ tamed high voltage uninsulated electric wires above a path which it had permitted people to pass for many years, it became liable for damages due to the death of a 16 year old boy who was electrocuted when he came in contact with a fallen power line along the path); Dillon v. Twin State Gas & Electric Co., 85 N.H. 449 , 163 A. 111 (1932) (utility company was warned by its construction engineer that boys frequently played on the bridge in proximity to its wires, based on this evidence the court found that it had knowledge of frequent trespassers on its property and, therefore, had violated its duty of care to the injured plaintiff who came in contact with its wires). Cf. Bennett v. Public Serv.

Co. of New Hampshire, 542 F.2d 92 (1st Cir.1976) (evidence was insufficient to show that utility company knew or should have known of trespassers on pole; therefore, utility owed no duty of care to the injured plaintiff); Blavatt v. Union Electric Light & Power Co., 335 Mo. 151 , 71 S.W.2d 736 (1934) (evidence insufficient to show that defendant knew or should have known that boys were in the habit of climbing over a wall which surrounded its transformer and, therefore, defendant owed them no duty other than to refrain from willfully injuring them). In Markovich, supra, the Supreme Court of Pennsylvania, holding that “maintaining a high voltage electric power line is required to exercise the highest degree of care practicable,” noted that: “the salutary and well settled rule in this Commonwealth is that one using a dangerous agency or instrumentality is bound to exercise care commensurate with the danger.” Id., 22 A.2d at 67 . See also 5 F. Harper, F. James & A. Gray, The Law of Torts, § 27.3 at 151-54 (2d ed. 1986). We believe that these principles are sound ones that, upon close examination, are not inconsistent with established Maryland law.

The Court of Appeals in Eastern Shore v. Corbett, supra, a case involving personal injury arising from the negligent use of electricity, stated the standard of care to be as follows: ⁶⁰⁷ “The primary rule relative to the diligence required of electric companies, running through all the decisions, is that they must observe such care as is commensurate with the danger involved. Thus, many cases, considering the term ‘ordinary care’ as a relative expression (meaning commensurate, due, or proper care under the circumstances), have used the same in describing the obligation of electric companies, even when high pressure currents were under consideration. The test to be applied is whether the Defendant exercised such care and caution as a reasonably prudent man would have exercised under all of the surrounding circumstances of the case, with the amount of care and caution corresponding to the capacity to injure, so that the greater the danger, the greater the vigilence required to measure up to the standards of ordinary care.” Id. [227 Md.] at 425-26, 177 A.2d 701 (original emphasis) (citations omitted). The fact that the company knows or should know that trespassers constantly intrude upon a limited area of the land is of critical significance.

That factor when considered along with the remaining enumerated principles contemplates that the company knows or should know of the presence of the trespasser and that the trespasser may be in imminent danger of serious bodily harm. The Court of Appeals in Carroll v. Spencer, 204 Md. 387, 394 , 104 A.2d 628 (1954) stated the generally accepted proposition that: “... the owner of land in Maryland owes no duty with respect to the condition of his land to the trespasser, or even to a licensee, whose presence upon the land is known to him, except to abstain from willfull or wanton misconduct.” The court went on to hold “that the appellee had no actual knowledge of a real and imminent peril of the trespasser, or bare licensee, and that this being so, owed him no duty under the facts of the case.” Id. at 396 , 104 A.2d 628 . ⁶⁰⁸ Thus, we conclude that the “actual knowledge of a real and imminent peril of the trespasser” places a duty upon the possessor of land that it may not theretofore have had immediately before acquiring that knowledge. Again we note that the trial court’s instruction predicated liability on knowledge of the unsafe condition and time to either correct it or warn “anybody that was on the land.” This certainly suggests that before PEPCO would be liable it must have foreknowledge of “anybody on the land.” This case presents a confluence between the duty of a power company using a dangerous instrumentality to exercise care commensurate with the danger and the duty that a power company owes to the trespasser once it recognizes that the trespasser is imminently in the path of that danger. We emphasize that the principles espoused by PEPCO, while unassailable under the facts of the cases cited, have never been applied in Maryland to a case similar to the one sub judice simply because the Maryland appellate courts have never been exposed to a case quite like the instant one. 8 Applying the law recited above to the facts of this case, we hold that PEPCO owed the decedent the duty commensurate with the danger involved once it knew or should have known of her presence.

The company knew it was operating a highly dangerous instrumentality (high voltage electric power lines). It is also common knowledge that if a person comes in contact with a live high voltage electric wire, he will suffer death or serious bodily harm. According to PEPCO, a complaint from a customer about a fallen power line is a Priority 1 complaint, i. e., one involving a life-threatening emergency. Mr. Henry J. Pulizzi, a manager at PEPCO’s transmission and distribution department, testified that it is PEPCO’s policy that when it receives a call that a transmission line has fallen and is two feet off the ground, hot and burning, in an area that ⁶⁰⁹ children frequent, the company would arrive at the scene within 10-15 minutes and the electricity could be cut off in a matter of minutes.

In the instant case, there was evidence that PEPCO received at least three complaints over a one month period about a “hot” or down and burning wire on their right-of-way easement, and that it was aware that people in the neighborhood, including children, often used the path located on its right-of-way easement. Yet PEPCO permitted this dangerous condition to continue uncorrected. Under these circumstances, PEPCO was under an obligation to exercise that degree of care commensurate with the degree of danger that it knew or should have known existed. Even if the standard of liability were that proffered by PEPCO, it still would not prevail for there was abundant evidence, apparently credited by the jury in its award of punitive damages, of PEPCO’s willful and wanton conduct.

Under the facts of the case sub judice, conduct that would support the imposition of punitive damages is conduct that would breach the duty of care owed to a trespasser. A landowner in Maryland will not be held liable for the injury of a trespasser unless the landowner willfully or wantonly injured the trespasser. Mech v. Hearst Corp., 64 Md.App. 422, 426 , 496 A.2d 1099 (1985), cert. denied, 305 Md. 175 , 501 A.2d 1323 (1986). Similarly, a jury cannot award punitive damages unless they find that the defendant’s conduct amounted to a wanton or reckless disregard for the rights of others.

Medina v. Meilhammer, 62 Md. App. 239, 249 , 489 A.2d 35 , cert. denied, 303 Md. 683 , 496 A.2d 683 (1985). “Willful and wanton” has been defined in both contexts as “conduct that is extreme and outrageous, in reckless disregard for the rights of others.” Mech, supra, 64 Md.App. at 428-29 , 496 A.2d 1099 ; Medina, supra, 62 Md.App. at 248 , 489 A.2d 35 . See also Harris v. Buckeye Irrigation Co., 131 Ariz. 540 , 642 P.2d 885, 889 (1982); Romana v. Boston Elevated Ry Co., 226 Mass. 532 , 116 N.E. 218 (1917). ⁶¹⁰ In McLaughlin v. Bardsen, 145 P. 954 (Mont.1915), a case cited with approval by the Maryland Court of Appeals in Wagner, supra, the Supreme Court of Montana reviewed the duty a landowner owes a trespasser and the type of actions that would constitute willful and wanton misconduct. In McLaughlin , a woman was injured when she fell into a trench dug by the defendant. The court stated: The rule at common law imposed upon the landowner the duty only to refrain from any intentional or wanton acts occasioning injury to a trespasser upon his property.

Egan v. Mont. C. Ry. Co., 24 Mont. 569 , 63 Pac. 831 ; Conway v. Monidah Trust, 47 Mont. 269 , 132 Pac. 26 . The exceptions to that rule are not material here.

Since these defendants were in possession of the land at the place of injury and had an easement in the property, they are to be treated as the owners for the purposes of these appeals. That wantonness may be shown by acts of omission as well as by acts of commission, where the facts disclose a reckless disregard of the lives or safety of others, is a rule of law now generally recognized and was referred to approvingly by this court in Driscoll v. Clark, 32 Mont. 172 , 80 Pac. 1 , 373____ Tested by that rule, the evidence discloses that the path or roadway, where the accident happened, was so plainly marked on the ground and had been subjected to such general and notorious use, and for such length of time, that the defendants knew of its existence and use, or, what amounts to the same thing, will be held chargeable with that knowledge. The facts, then, disclose uniriclosed lands over which the public (that is, the people of a considerable community or neighborhood) had been accustomed to pass for several years, until a well-defined path or roadway had become plainly marked upon the ground, and the owners of that ground excavating a dangerous trench into or across such path or roadway, and leaving the same uncovered, unguarded, and unprotected for two or three weeks, without warning or notice of any kind or character, and with the knowledge that people accustomed to use the path or ⁶¹¹ roadway might reasonably be expected to use it under such circumstances that injury to them would result. If this does not make out a prima facie case of reckless disregard of the lives and safety of others, then it would be difficult to imagine a state of circumstances which would do so.

In the case at bar, given the evidence that PEPCO was on notice for about a month that its power line was down and its awareness that adults and children had been accustomed to traversing the area, its failure to repair the downed wire was sufficient evidence to support the jury’s finding of wanton and willful misconduct. See our discussion of punitive damages — implied malice, infra, section III. In a majority of cases decided outside of Maryland, the courts have held that a utility company is guilty of willful and wanton conduct when it knowingly fails to install, maintain, or repair its facilities properly. For example, in Beavers v. West Penn Power Co., 436 F.2d 869 (3d Cir. 1971), decedent, a ten-year-old boy was electrocuted when he climbed a tree on his parents’ property and came in contact with a high tension wire that was strung on poles owned by Bell Telephone Company of Pennsylvania.

The Court of Appeals for the Third Circuit held that evidence that the company knew for a long time that their electric pole was tilting towards decedent’s parents’ property, and yet did nothing because it thought a tilt of 2 feet 5 inches was not excessive, would justify a finding of wanton misconduct. 9 ⁶¹² In Cornucopia, supra, the owner of a high-voltage electric transmission line negligently failed to repair it and allowed it to sag near and on the ground so that anyone who walked near or over it would likely come in contact with it and be thereby injured. The Court of Appeals for the Ninth Circuit held that under these circumstances the owner was guilty of reckless and wanton conduct without regard to whether the one injured was a trespasser. Id. at 77 . The Illinois Court of Appeals in Spence v. Commonwealth Edison Co., 34 Ill.App.3d 1059 , 340 N.E.2d 550 (1976) , held that evidence that defendant power company had reasonable notice that a substantial danger existed in placing its lines close to a private antenna, combined with its failure to inspect the site, insulate the wires, give warning, or take any precaution after receiving notice, was sufficient to support a charge of willful and wanton conduct.

Id., 340 N.E.2d at 557 . See also Kulhanjian v. Detroit Edison Co., 73 Mich.App. 347 , 251 N.W.2d 580 (1977) (evidence that there was 125 feet of extra high voltage wire between two poles, and the utility company was aware of the sag but never corrected it, and that they knew that the building under which the wire was sagging was going to be demolished and workmen would be near the overhead wires, was sufficient to support plaintiffs theory that defendant was guilty of willful or wanton misconduct). In the case before us, we hold that the jury was given sufficient evidence to find PEPCO guilty of willful and wanton misconduct and, therefore, PEPCO was liable for the decedent’s death.

II

Was Ms. Lambert guilty of contributory negligence and/or assumption of the risk as a matter of law? PEPCO contends that the trial court erred in allowing the jury to decide whether decedent was guilty of ⁶¹³ contributory negligence. 10 The company claims that the court should have determined as a matter of law that decedent was contributorily negligent. Appellees, of course, extol the virtues of the trial court’s decision. As a general proposition, questions of primary and contributory negligence are for the jury to determine.

Conowingo Power Co. v. State of Maryland, 120 F.2d 870, 874 (4th Cir.1941); Hooper v. Mougin, 263 Md. 630 , 284 A.2d 236 (1971); Diffendal v. Kash and Karry Service Corp., 74 Md.App. 170 , 536 A.2d 1175 (1988); Robertson v. Shell Oil Co., 34 Md.App. 399, 403 , 367 A.2d 962 (1977). PEPCO argues, however, that because the possibility of receiving an injury from touching a live electric wire is so well known, people are expected to take proper precautions to prevent such injury, and will be held as a matter of law contributorily negligent when they do not use ordinary care and come in contact with the wire. Southern Maryland ⁶¹⁴ Electric Co-op. v. Blanchard, 239 Md. 481, 485 , 212 A.2d 301 (1965); LeVonas v. Acme Paper Board Co., 184 Md. 16, 21 , 40 A.2d 43 (1944); Potomac Edison Co. v. State, 168 Md. 156, 161 , 177 A. 163 (1935); Dageforde v. Potomac Edison Co., 35 Md.App. 37, 43 , 369 A.2d 93 (1977). The question then for determination is whether the decedent here was aware of the dangerous condition and failed to use ordinary care to avoid injury.

The burden of proof was on the appellant at trial to establish that the decedent failed to exercise ordinary care for her safety. Potomac Edison Co., supra, 168 Md. at 169 , 177 A. 163 . Appellant had to show that there was “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.” Wright v. Hixon, 42 Md.App. 448, 455 , 400 A.2d 1138 (1979) (citing Baltimore & O. R.R. v. Plews, 262 Md. 442, 454 , 278 A.2d 287 (1971)). The evidence presented at trial disclosed that the decedent had never previously travelled along the pathway, that the power line had fallen to a location in close proximity to the pathway, and that, as thus positioned, it appeared to several witnesses that it was a “rope,” or a “railing.” In fact, the police investigators responding to the scene were unable to recognize the downed power line as such until further inspection traced it to the utility poles (about 500 feet apart) to which it was still attached.

Decedent’s companion, the only individual at the scene of the accident, testified that when the accident occurred, the decedent was walking two feet behind her, and to her right. Following a conversational pause, she looked back and observed the decedent on the ground with her left arm in contact with the fallen wire. Thus, the evidence presented did not clearly establish that the dangerous condition (the fallen high voltage wire) was so obvious that a person of ordinary prudence could see it and appreciate its danger and thus avoid it. Therefore, under these circumstances, the court properly submitted the question of the decedent’s contributory negligence to the ⁶¹⁵ jury.

See Snider v. Senneville, 267 Md. 552, 558 , 298 A.2d 175 (1973); Eastern Shore P.S. Co. v. Corbett, 227 Md. 411, 423 , 177 A.2d 701 (1962); Potomac Edison Co., supra, 168 Md. at 169 , 177 A. 163 ; Murphy v. Smith, 53 Md.App. 640, 644 , 455 A.2d 69 , cert. denied, 296 Md. 61 (1983); Robertson, supra, 34 Md.App. at 408 , 367 A.2d 962 . We shall not discuss the differences between “assumption of risk” and “contributory negligence” as suggested by appellant. In order to prevent a long opinion from being longer, it will suffice to say that as a matter of law there is no basis in this case for the application of the doctrine of assumption of risk to the decedent. See Gilbert, Maryland Tort Law Handbook § 11.6.

III

Was PEPCO’s conduct characterized by malice? The purpose of awarding punitive damages has been succinctly set forth by the late Judge Thomas Hunter Lowe in Cheek v. J.B.G. Properties, Inc., 28 Md.App. 29, 34 , 344 A.2d 180 (1975), in which he states: Exemplary or punitive damages, as the name connotes, are rather a punishment for and deterrent to wrongdoing than a means of recompensing the victim. To the victim they are a windfall not necessarily related to the injury he has suffered. “Instead, they are private fines levied by civil juries to punish reprehensible conduct and to deter its future occurrence.” Gertz v. Welch, 418 U.S. [323] at 350 [ 94 S.Ct. 2997 at 3012 ], 41 L.Ed.2d [789] at 811 [1974]. PEPCO argues that before a jury can award punitive damages, it must find that the tortfeasor acted with either actual or implied malice.

In this case, PEPCO contends, we must strike the award of punitive damages because even if its actions could be characterized as negligent, its conduct could not be characterized by either actual or implied malice. The appellees respond that the jury correctly found that PEPCO acted with implied malice and, therefore, the award of punitive damages must be affirmed. We agree with appellees and explain. ⁶¹⁶ It is well established that punitive damages are recoverable in tort actions in this State, but an absolute prerequisite to their award is evidence that the tortfeasor’s conduct was characterized by malice, either actual or implied. Montgomery Ward & Co. v. Keulemans, 275 Md. 441, 448 , 340 A.2d 705 (1975); American Laundry Mach. v. Horan, 45 Md.App. 97, 111-13 , 412 A.2d 407 (1980).

Actual (or express) malice has been described as the performance of an act without legal justification or excuse, but with an evil or rancorous motive influenced by hate, the purpose being to deliberately and willfully injure the plaintiff. Siegman v. Equitable Trust Co., 267 Md. 309 , 297 A.2d 758 (1972). On the other hand, implied malice may be legally inferred. In this regard, the Court of Appeals stated in Conklin v. Schillinger, 255 Md. 50, 71 , 257 A.2d 187 (1969): The difficulty in the Maryland cases arises in regard to factual situations in which there is no evidence of actual intent to injure or of actual malice toward the injured person, but in which the defendant’s conduct is of such an extraordinary character as possibly to be the legal equivalent of such actual intent or actual malice, sometimes described as ‘wanton,’ ‘reckless disregard of the rights of others,’ and the like ...

(emphasis in original). Palmer Ford, Inc. v. Wood, 65 Md.App. 390, 400-401 , 500 A.2d 1055 (1985). In order to find that a tortfeasor acted with implied malice, it is not necessary for the jury to find that the conduct was motivated by hatred or spite. In certain torts, conduct of an extraordinary or outrageous character may be considered the legal equivalent of actual malice, such as conduct which demonstrates that it was done with wanton or reckless disregard for human life.

See Miller Building Supply v. Rosen, 305 Md. 341, 347-48 , 503 A.2d 1344 (1986); Smith v. Gray Concrete Pipe Co., 267 Md. 149, 168 , 297 A.2d 721 (1972); and Exxon Corp. v. Yarema, 69 Md.App. 124, 157 , 516 A.2d 990 (1986). ⁶¹⁷ In Medina v. Meilhammer, 62 Md.App. 239, 249-250 , 489 A.2d 35 , cert. denied, 303 Md. 683 , 496 A.2d 683 (1985), the terms “willful,” “wanton” and “reckless” in the context of finding implied malice were explained for the court by Judge John J. Bishop as follows: The usual meaning assigned to ‘willful,’ ‘wanton,’ or ‘reckless,’ ... is that the actor has intentionally done an act of an unreasonable character in disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow, and which thus is usually accompanied by a conscious indifference to the consequences. Since, however, it is almost never admitted, and can be proved only by the conduct and the circumstances, an objective standard must of necessity in practice be applied. The ‘willful’ requirement, therefore, breaks down and receives at best lip service, where it is clear from the facts that the defendant, whatever his state of mind, has proceeded in disregard of a high and excessive degree of danger, either known to him or apparent to a reasonable person in his position. The result is that ‘willful,’ ‘wanton,’ or ‘reckless’ conduct tends to take on the aspect of highly unreasonable conduct, involving an extreme departure from ordinary care, in a situation where a high degree of danger is apparent.

As a result there is often no clear distinction at all between such conduct and ‘gross’ negligence, and the two have tended to merge and take on the same meaning, of an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care. It is at least clear, however, that such aggravated negligence must be more than any mere mistake resulting from inexperience, excitement, or confusion, and more than mere thoughtlessness or inadvertence, or simple inattention. Prosser and Keeton, Law of Torts, 834 pp. 212-214 (3rd ed. 1984) (footnotes omitted). Both sides here agree that PEPCO did not act with actual malice.

Hence, the only basis for an award of punitive ⁶¹⁸ damages against the company would be on a finding that it acted with implied malice. The jury in this case in awarding punitive damages necessarily found that PEPCO’s conduct was of such an extraordinary and gross nature as to constitute a wanton or reckless disregard of the rights of the decedent and others, and that the company therefore acted with the requisite implied malice. Our review of the jury’s decision is limited to whether a rational mind could “infer from the evidence that appellant acted in such an extraordinary or outrageous manner so that their actions amounted to a wanton, reckless disregard for the appellee’s (decedent . here) rights?” Medina, supra, 62 Md.App. at 249 , 489 A.2d 35 . In examining the evidence presented to the jury, we note that PEPCO’s extraordinary conduct did not occur in a single event but persisted and continued over a period of time extending for twenty-four years.

At any time during this period, PEPCO could have taken steps to correct the hazardous condition, but instead apparently chose to permit the existence of other conditions that intensified the hazard and increased the chance of injury to the community. The jury heard evidence that PEPCO’s original installation of the cross-arm in 1964 and its continued use after one side of it broke violated the National Electric Safety Code. Further, three separate citizens’ complaints lodged within the month before the accident placed PEPCO on notice that its power line was down in an area where adults and children had been accustomed to traversing. Under these circumstances, we hold that its failure to repair the downed line was sufficient evidence to support the jury’s finding of implied malice.

See cases cited in our discussion of the “Duty of Care” infra, specifically, Cornucopia, supra; Spence, supra; and Kulhanjian, supra. 11 ⁶¹⁹ THE CAP The Smiths assign as error the trial court’s reduction in the award of damages by the jury from $500,000 to $350,-000 pursuant to section ll-108(b) of the Courts and Judicial Proceedings Article of the Maryland Code — Maryland’s non-economic damages cap. 12 Primarily, the Smiths contend that the cap, if applicable, violates several state and federal constitutional provisions. Before addressing the merits of this argument, however, we must resolve two preliminary contentions regarding the applicability of the cap to the present circumstances.

IV

Whether the cap on noneconomic damages, as provided in the Maryland Annotated Code, Courts and ⁶²⁰ Judicial Proceedings Article, Section 11-108, applies to damages for wrongful death? Appellees and the American Trial Lawyers Association (“ATLA”) in its amicus brief argue that the damages recoverable under the Wrongful Death statute 13 are not limited by the cap because they are recoverable for the invasion of the property interests of the statutorily designated beneficiaries and not for personal injury. Until 1969, this contention may have been valid. Maryland’s Wrongful Death statute was originally enacted in 1852, see Act of 1852, ch. 299, and was essentially derived from the English Lord Campbell’s Act enacted in 1847.

See generally Stewart v. United Elec. Light & Power Co., 104 Md. 332 , 65 A. 49 (1906). The statute created a new right of action, but it limited the damages recoverable to those affecting the beneficiaries’ pecuniary interest. Stewart, supra, 104 Md. at 341 , 65 A. 49 .

In 1969, the Maryland General Assembly amended the statute, broadening the types of damages recoverable for certain beneficiaries. See 1969 Md.Laws ch. 352. This amendment, codified at section 3-904(d) of the Courts and Judicial Proceedings article, provides: (d) Damages if spouse or minor child dies. — For the death of a spouse, minor child, or parent of a minor child, the damages awarded under subsection (c) are not limited or restricted by the “pecuniary loss” or “pecuniary benefit” rule but may include damages for mental anguish, emotional pain and suffering, loss of society, companionship, comfort, protection, marital care, parental care, filial care, attention, advice, counsel, training, guidance, or education where applicable. The Smiths fall into this category of beneficiaries as the decedent, their 15-year-old daughter, was a “minor child” at the time of her death.

Further, it is apparent in this case ⁶²¹ that most of their damages, if not all of them, were awarded based on the non-pecuniary criteria set forth above. These damages are those that are traditionally associated with personal injury actions. The fact that such injuries are sustained by beneficiaries who have not sustained bodily injury is not decisive as to whether an action under the Wrongful Death statute is a personal injury action under the noneconomic damages cap. 14 In Black’s Law Dictionary, “personal injury” is defined: In a narrow sense, a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation. The phrase is chiefly used in this connection with actions of tort for negligence and under worker’s compensation statutes.

But the term is also used (chiefly in statutes) in a much wider sense, and as including any injury which is an invasion of personal rights, and in this signification it may include such injuries to the person as libel or slander, criminal conversation, malicious prosecution, false imprisonment, and mental suffering. Id. at 707 (5th ed. 1979). When the phrase has been examined in statutory provisions, courts have consistently interpreted it to encompass more than bodily injury. See, e.g., Merimee v. Brumfield, 397 N.E.2d 315 (Ind.App.1979) (In context of survival statutes, term “personal injury” includes “... any affront or detriment to the physical body, ⁶²² psyche, reputation or liberty”); Gray v. Wallace, 319 S.W.2d 582 (Mo.1958) (same); McCroskey v. Cass Cty., 303 N.W.2d 330 (N.D.1981) (term used within meaning of statute allowing recovery for “personal injury” against a political subdivision of the state “includes physical injuries, disease, sickness, mental anguish and suffering”); Roberts v. State, 57 Ohio App.2d 77 , 385 N.E.2d 634 (1978) (“personal injury” used in context of two year statute of limitations for civil actions against the State includes action for loss of consortium).

The Smiths also contend that the noneconomic damages cap should be construed narrowly. They argue that the General Assembly’s failure expressly to include such actions within the scope of the cap warrant their exclusion from the limitation. Although the legislative intent in this regard is silent, our review indicates that the General Assembly intended that the cap be applied broadly. Originally, the legislation culminating with the enactment of the noneconomic damages cap was to apply only to “medical malpractice claims.” See 1986 Md.Laws ch. 639.

The scope of the cap was broadened to “tort claims” and, finally, to “any action for personal injury.” 15 Further, in enacting the noneconomic damages cap in 1986, the General Assembly sought to alleviate what it perceived to be a severe liability insurance crisis in Maryland. The unpredictability and speculative nature of noneconomic damage awards has been cited as a basis for enacting a cap on such damages. See Report of the Governor’s Task Force To Study Liability Insurance, pp. 10-11 (December, 1985). A United States Department of Justice Report before the General Assembly prior to the passage of ⁶²³ the current legislation documented the increase in awards in Wrongful Death cases.

See Report of the Tort Policy Working Group To The Domestic Policy Council on The Causes, Extent and Policy Implications of the Current Crisis In Insurance Availability and Affordability, ch. 4, p. 17 & n. 28, chart L (February, 1986) (hereinafter Report of the Tort Policy Working Group). Noneconomic damages constitute the primary component of many awards under the Wrongful Death statute. The fact that the cap does not expressly enumerate the types of personal injury actions within its ambit is a function of its breadth, not a limitation of its application. 16 Application of the cap to wrongful death actions would effectuate the legislature’s intent to alleviate the perceived liability insurance crisis by limiting noneconomic damages in a cause of action where such damages are usually the primary component. Therefore, we hold that the trial court did not err in holding that the cap applies to wrongful death actions. ⁶²⁴ V. Whether the cap on noneconomic damages, as provided in the Maryland Annotated Code, Courts and Judicial Proceedings Article, Section 11-108, applies to each Plaintiff in a proceeding?

Although appellees acknowledge that only one cause of action may be brought for each death, see Md. Rule Q41a. (1989), they contend that the statute applies separately to each plaintiff. We need not decide whether appellees’ contention is correct, because we hold that they have not preserved this issue for appeal. 17 By stipulation prior to trial, appellees agreed to a lump sum jury verdict, preferring to apportion the verdict between themselves later. On appeal, we have no way of determining the individual breakdown of the $500,000 jury award.

We will not assume that neither of the plaintiffs’ separate awards would exceed the cap. 18 Because the appellees agreed to accept a lump sum jury verdict without objection, they cannot complain that the trial court treated the damage award as one award in reducing the damages recoverable pursuant to § ll-108(b). To hold otherwise would require this court to make eviden ⁶²⁵ tiary assumptions unsupported by any facts that all plaintiffs in a wrongful death action have sustained damages that are monetarily the same. This we refuse to do. In light of appellees’ acquiescence to the jury’s determination of damages, we perceive no error.

VI

Whether the imposition of a cap on noneconomic damages is constitutional? A. Jury Trial Preliminarily, both appellant and the State in its amicus brief argue that the constitutional right to trial by jury does not attach to proceedings under the Wrongful Death statute. They contend that constitutional rights do not attach to civil statutory causes of action created after the adoption of the state constitutional provision preserving the right to trial by jury. 19 Assuming arguendo, however, that a constitutional right to a jury trial under Article 23 of Maryland’s Declaration of Rights vests in certain statutorily-created causes of action enacted after Article 23 was adopted, cf. Curtis v. Loether, 415 U.S. 189 , 94 S.Ct. 1005 , 39 L.Ed.2d 260 (1974) (holding that Seventh Amendment right to a jury trial vests in certain statutory causes of action where “the statute creates legal rights and remedies, enforceable in an action for damages in the ordinary courts of law”), we hold that the cap, as applied under these circumstances, does not violate appellees’ right to trial by jury. ⁶²⁶ In pertinent part, Article 23 of Maryland’s Declaration of Rights provides: The right of trial by jury of all issues of fact in civil proceedings in the several Courts of Law in this State, where the amount in controversy exceeds the sum of five hundred dollars, shall be inviolably preserved. 20 Appellees contend that the noneconomic damages cap invades the fact-finding province of the jury by restricting its ability to determine and fully assess damages. Appellants counter that the cap was enacted pursuant to the valid legislative policy-making powers of the General Assembly.

We begin our constitutional analysis by reiterating the established principle “that a person may only assert his own constitutional rights or immunities.” Clark v. State, 284 Md. 260, 264 , 396 A.2d 243 , cert. denied, 444 U.S. 858 , 100 S.Ct. 119 , 62 L.Ed.2d 77 (1979); see also McGowan v. Maryland, 366 U.S. 420, 429 , 81 S.Ct. 1101, 1106 , 6 L.Ed.2d 393 (1961); Turner v. State, 299 Md. 565, 571 , 474 A.2d 1297 (1984). Thus, one to whom application of a statute is constitutional will not be heard to attack the statute on the ground that impliedly it might also be taken as applying to other persons or other situations in which its application might be unconstitutional. Clark, supra, 284 Md. at 264 , 396 A.2d 243 (quoting United States v. Raines, 362 U.S. 17, 21 , 80 S.Ct. 519, 522 , 4 L.Ed.2d 524 (I960)). Cf.

Bowers v. Hardwick, 478 U.S. 186 , 106 S.Ct. 2841 , 92 L.Ed.2d 140 (1986) (gender-neutral statute criminalizing sodomy is not unconstitutional in application to consensual homosexual activity because there is no fun ⁶²⁷ damental right under the United States Constitution to engage in consensual, homosexual sodomy). Thus, our review is confined to the determination of whether § ll-108(b) is unconstitutional as applied to wrongful death claimants. As we have already stated, the General Assembly, by enacting Maryland’s wrongful death statute in 1852, created a cause of action where there previously had been none under the common law. See Stewart, supra, 104 Md. at 341 , 65 A. 49 .

Not until 1969 did the General Assembly amend the statute to include damages for nonpecuniary injury. We are confident that had the General Assembly chosen to do so, it could have constitutionally enacted a noneconomic damage limitation within the 1969 amendment permitting the recovery of nonpecuniary damages, as it would have been within its power to so modify a cause of action that was a creature of legislation in the first place. See Richards v. United States, 285 F.2d 521 (10th Cir.1960); Goldstein v. Hertz Corp., 16 Ill.App.3d 89 , 305 N.E.2d 617 (1st Dist.1973); Keeley v. Great Northern Ry. Co., 121 N.W. 167 (Wis.1909); Baltimore & O.R. Co. v. Taylor, 186 F. 828 (4th Cir.1911); Owen v. Meserve, 381 Mass. 273 , 408 N.E.2d 867 (1980); Glick v. Ballentine Produce, Inc., 396 S.W.2d 609 (Mo.1965).

Cf. Mulhern v. Talk of the Town, 138 Ill.App.3d 829 , 93 Ill.Dec. 282 , 486 N.E.2d 383 (2 Dist.1985) (limitation on damages in statutorily created Dramshop Act is constitutional). In a recent federal court opinion upholding the constitutionality of Maryland’s cap, Judge Paul Niemeyer of the District Court for Maryland iterated: “If the legislature can act within its proper sphere of authority and completely eliminate a cause of action for negligence or repeal whole categories of recoverable damages under recognized torts, then it must follow that the legislature has the power to define causes of action and limit categories of recoverable damages for reasonable policy considerations without offending the Seventh Amendment.” ⁶²⁸ Franklin v. Mazda Motor Corp., 704 F.Supp. 1325, 1333 (D.Md.1989). As cogently put in Glick, supra, “[t]he legislature created the right of action where none existed before, and it may condition the right as it sees fit.” Id. at 615 .

The only difference here is that a generally applicable cap on noneconomic damages is being applied, in this case, years after the enactment of the statute that created the cause of action. Under the facts of the case before us, § ll-108(b) is not unconstitutional as applied to the appellees. The General Assembly would be well within its authority to abolish wrongful death actions if it chose to do so. Certainly, it would be well within its authority to repeal the 1969 statute permitting recovery for noneconomic loss in wrongful death actions.

Within its powers to create a cause of action or abolish a statutory cause of action is the power to modify such statutory actions. Limitation of the jury’s determination of damages in a statutorily-created cause of action is a proper modification of the remedy available in such actions and does not violate Article 23 of Maryland’s Declaration of Rights. We need not determine whether complete abrogation of the right to trial by jury in such actions would infringe on one’s constitutional right to trial by jury; nor do we decide whether § ll-108(b) is unconstitutional when applied to common law actions for personal injuries. B. Article 19 and Due Process Appellees and ATLA contend that section 11 — 108(b) violates Article. 19 of Maryland’s Declaration of Rights.

That provision requires: That every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the land. They argue that a personal injury plaintiff is denied access to the court and a full remedy because no alternative remedy or quid pro quo is provided. Appellant and the ⁶²⁹ State counter that § ll-108(b) does not limit access to a court in a way that is arbitrary or unreasonable. They contend that the legislative goal — lending stability to the civil justice system — is furthered by means “reasonably related to that purpose.” It has been stated that Article 19 provides “the same due process of law required by the fourteenth amendment.” See Hill v. Fitzgerald, 304 Md. 689, 702 , 501 A.2d 27 (1985); Whiting-Turner Contracting Co. v. Coupard, 304 Md. 340, 360 , 499 A.2d 178 (1985); Attorney General v. Johnson, 282 Md. 274, 298 , 385 A.2d 57 (1978).

Due to the unique facts and circumstances of this case, we need not decide whether a quid pro quo is required for § ll-108(b) to satisfy due process requirements. In Hill v. Fitzgerald, supra, the constitutionality of § 5-109 of the Courts and Judicial Proceedings article was questioned. That statute, enacted in 1975, required medical malpractice patients to file suit within five years from the date the injury was sustained or within three years from the date when the injury was discovered, whichever was earlier. Hill argued that the statute impermissibly denied him access to the court by infringing upon the common law discovery rule adopted by the Maryland courts in 1917.

The case was brought in the United States District Court for the District of Maryland, and several questions, including the constitutionality of § 5-109, were certified to the Court of Appeals. The court of appeals held that § 5-109 did not “make distinctions based on a suspect classification or significantly interfere with a fundamental right.” Id. [304 Md.] at 703, 501 A.2d 27 . Finding § 5-109 to be “reasonable,” the court upheld its constitutionality. As an alternative ground, the court stated: At the time of the 1867 Constitutional Convention at which Art. 19 was proposed, Maryland Code (1860, 1861-67 Supp.) Art. 57, § 1 was then in effect and provided in virtually all tort and contract actions that suit must be commenced within three years “from the time, the cause ⁶³⁰ of action accrued.” Maryland law then provided that limitations against a right or cause of action, including a malpractice action, ran from the date of the alleged wrong and not from the time the wrong was discovered.

It was not until 1917, in Hahn v. Claybrook, [ 130 Md. 179 , 100 A. 83 (1917) ] ... that the discovery rule was first made applicable by judicial decision in medical malpractice cases. As the limitation period provided in § 5-109 is actually longer than that provided by the law existing at the time that Art. 19 was adopted, no violation of that constitutional provision is here involved. Id. at 704-05, 501 A.2d 27 . Likewise, at the time Article 19 was adopted, the Wrongful Death statute only permitted beneficiaries to recover pecuniary damages.

Non-pecuniary injury was made compensable for certain beneficiaries for the first time in 1969. Section ll-108(b) limits the recovery of those non-pecuniary damages to $350,000. Even with this limitation, wrongful death beneficiaries are entitled to a greater remedy than was provided by the Wrongful Death statute at the time Article 19 was adopted. Thus, under the same analysis in Hill, supra, § 11 — 108(b), as applied to wrongful death beneficiaries, does not violate Article 19 of the Maryland Declaration of Rights.

C. Equal Protection Appellees and ATLA contend that § ll-108(b) also violates equal protection principles embodied within Article 24 of Maryland’s Declaration of Rights 21 and the Fourteenth Amendment of the United States Constitution. Traditionally, an equal protection analysis entailed a two-tiered approach. If the legislation infringed a fundamental right or involved a suspect classification, strict scrutiny was applied. ⁶³¹ The legislation would only survive where it was necessary to further a compelling governmental interest. If the legislation did not involve a suspect classification or a fundamental right, then a “rational basis” test was utilized.

Under that test, the law would survive an equal protection analysis unless it was “wholly irrelevant to the achievement of the State’s objective.” Attorney General v. Waldron, 289 Md. 683, 707 , 426 A.2d 929 (1981) (quoting McGowan v. Maryland, 366 U.S. 420, 425 , 81 S.Ct. 1101, 1105 , 6 L.Ed.2d 393 (1961). Recently, both the U.S. Supreme Court and the Court of Appeals of Maryland have haltingly gravitated towards adoption of a third tier to the equal protection analysis. This tier evolved from the rational basis analysis and has been referred to as “rationality that is not toothless.” Mathews v. Lucas, 427 U.S. 495, 510 , 96 S.Ct. 2755, 2764 , 49 L.Ed.2d 651 (1976). First adopted by the Court of Appeals in Waldron, supra, this “heightened scrutiny” test was most clearly articulated in