Nycole DAVIS, Individually and as Personal Representative of the Estate of Ashley Davis, a Minor, and Jerome Bradley v. BOARD OF EDUCATION FOR PRINCE GEORGE‘S COUNTY, et al.
No. 8, Sept. Term, 2014
Court of Special Appeals of Maryland
April 3, 2015
112 A.3d 1034
lished by an affidavit of parentage, pursuant to
The trial court in the instant case also briefly addressed appellant‘s argument regarding the alleged inequities created by the statute, namely that one can challenge an enrolled declaration of paternity at any time through a blood or genetic test, whereas one who signs an affidavit of parentage may not rescind the affidavit after sixty days, except upon a showing of fraud, duress, or material mistake of fact. Given the clear intent of the legislature, as stated above, any resolution of such inequity is reserved solely for the General Assembly.
Having established that the plain language and the legislative history of
JUDGMENT OF THE CIRCUIT COURT FOR WICOMICO COUNTY AFFIRMED; APPELLANT TO PAY COSTS.
Abbey G. Hairston (Shana R. Ginsburg, Thatcher Law Firm, LLC, on the brief), Greenbelt, MD, for appellee.
Panel: DEBORAH S. EYLER, REED and JAMES P. SALMON (Retired, Specially Assigned), JJ.
DEBORAH S. EYLER, J.
On September 1, 2009, 13-year-old Ashley Davis was hit by a car as she was crossing the street to board a school bus. She died of her injuries two weeks later.
In the Circuit Court for Prince George‘s County, the appellants—Ashley‘s mother, Nycole Davis, individually and as personal representative of Ashley‘s estate, and Ashley‘s father, Jerome Bradley—filed a survival suit and wrongful death action, in negligence, against the Prince George‘s County Board of Education (“the Board“), the appellee.1 The appellants alleged that the Board owed a duty of care to provide Ashley a bus stop on her side of the street, that the Board breached that duty, and that the breach proximately caused Ashley‘s injuries and death.
The case was tried to a jury, which found the Board negligent and awarded the appellants a total of $90,357,776.12 in damages.2 The Board filed a motion for judgment notwithstanding the verdict
reduced by $20,000, the amount paid in settlement of the appellants’ claims against the driver who struck Ashley.
On appeal, the appellants ask whether these rulings were legally incorrect.3
FACTS AND PROCEEDINGS
The facts adduced at trial, viewed in the light most favorable to the appellants, are as follows.
In August of 2009, Ashley was living in the Brinkley Manor Apartments (“Brinkley Manor“), at 3016 Brinkley Road, with Nycole‘s mother and grandfather (i.e., Ashley‘s grandmother and great-grandfather).4 Nycole and Jerome each had their own residences elsewhere. Nycole sometimes stayed with Ashley at Brinkley Manor.
Ashley was enrolled as a freshman in Crossland High School, in Temple Hills. The first day of school was August 24, 2009. Prior to the start of school, Nycole received a letter from the Prince George‘s County Public School system about school transportation for Ashley. It stated, as relevant:
Students should use the bus stop to which they have been assigned, and must be at the stop approximately ten (10) minutes before the scheduled bus arrival time. Students should continue to wait at the stop until the bus arrives.
Please be aware that it is common to experience an adjustment period the first few days as drivers, schools, and the students become familiar with new routes. Thus, during this period, buses may be slightly off schedule.
* * *
The [bus assignment] information below is based on data provided by schools as of August 5, 2009. The route numbers or times may change somewhat as we receive new enrollment information from schools. You can view the latest bus stop information on our website (www.pgcps.org). Each school has a complete UPDATED list of bus assignments for
every student, and personnel at the school will be available to answer your questions, or you can contact the Transportation Department at (301) 952-6570, or by e-mail at Transpor@pgcps.org. The e-mail will be monitored from 6 a.m. to 6 p.m. weekdays.
The letter identified Ashley‘s bus assignment. She was to ride Bus # 674, which was scheduled to pick her up 7:09 a.m., in the parking lot at Brinkley Manor, next to the north side of Brinkley Road, where Ashley was living.
The only other nearby bus stop for Crossland High School students was directly across the street, on the south side of Brinkley Road, in front of the Brinkley House Apartments (“Brinkley House“). Bus # 661 picked up students at that stop at 7:07 a.m.
On the first day of school, Ashley waited for Bus # 674 at her assigned bus stop on the north side of Brinkley Road. The bus never came. Ashley‘s great-grandfather drove her to school that day, and she arrived late. Nycole learned of this on the day it happened, and thought that Ashley was supposed to take Bus # 661, across Brinkley Road, in front of Brinkley House. Nycole testified:
[F]or years there was only one bus for [Crossland High School students residing in] Brinkley Manor and Brinkley House and my cousin went to that school, other neighbors, other parents all affirmed the same thing that there was only one bus stop. So because the notice said Brinkley
Manor I made her wait there. But when the bus didn‘t come then it, you know, it was just that there wasn‘t, there was only bus and plus the, the notice said that changes were subject to be made. So.
Nycole did not contact the school district with any issues concerning Bus # 674. She acknowledged that “it was [her] decision” to have Ashley cross Brinkley Road to catch Bus # 661, but explained that Ashley “didn‘t have a choice” because Bus # 674 never came. In the past, Nycole had not allowed Ashley to cross Brinkley Road unaccompanied because the “road is dangerous.” Before Ashley crossed Brinkley Road unaccompanied for the first time, Nycole told her “to please be careful.”
Kendric Pringle also was a student at Crossland High School and also was assigned to Bus # 674. Ashley‘s assigned bus stop at Brinkley Manor was the last stop on the route before Bus # 674 was to turn around and drive straight to the high school. Pringle‘s bus stop also was on the north side of Brinkley Road and was the one before Ashley‘s stop. Pringle testified that every day from the first day of school through the day of the accident Bus # 674 turned around in a shopping center before the Brinkley Manor stop and drove straight to the high school. In other words, the bus driver did not go to the Brinkley Manor bus stop at all.
Tajuana Tate was the driver assigned to Bus # 661. She had not been assigned that route before. She was given a routing list that showed where the bus stops were located and the number of children who were to get on the bus at each stop. She was not given a list of the children‘s names.
Tate testified that she arrived on time at the Brinkley House bus stop every day beginning on August 24, 2009, and that Ashley got on the bus at that stop. Although she recognized Ashley, Tate did not know her name and was unaware that she lived at Brinkley Manor, across Brinkley Road. Tate never saw Ashley crossing the street to get to the bus, and did not know that she was doing so. Tate answered affirmatively when asked if she
ley] not to [cross the street] and [would have] told the Transportation Department” of the Board if she had known that Ashley was crossing Brinkley Road to take Bus # 661. Tate did not witness the accident.
Larry Walker and Jesse Strange were students at Crossland High School. They witnessed the accident, and their versions of what happened essentially were the same. The weather was sunny and clear. As Ashley walked from her apartment to Brinkley Road, she was talking on her cell phone. When she reached the curb, before entering the street, she put her phone in her purse and looked both ways. There were no vehicles in view coming from either direction. Ashley proceeded to walk across the westbound lanes of Brinkley Road. As she reached the center line, but before stepping into the eastbound lanes, a car driving east struck her.
Tammi Morris is employed by the Board in its Transportation Department. She is in charge of bus scheduling. She testified that the Board has a “block policy,” which is a computer generated route established for buses. The block policy in effect at the time of the accident established a bus stop on the north side of Brinkley Road, in the Brinkley Manor parking lot, and on the south side of Brinkley Road, in front of Brinkley House. There were bus stops established on both sides of Brinkley Road because it was a busy road and was not safe for children to cross. Morris testified that the bus driver assigned to Bus # 674 would have been violating the block policy if he failed to go to the Brinkley Manor bus stop to pick up children. She also testified that it would be a violation of the Board‘s policies for a bus driver to create a situation in which a student was not able to board a bus assigned to her side of the street, but would have to cross the street to take a bus to school.
Morris testified that, although the Board‘s handbook for bus drivers said that they should know the students assigned to their bus routes by name, and should greet them, the bus drivers on the large school buses, i.e., all of them except buses
for special education students, were not given lists of the names of the students assigned to their routes. She explained that in times past the bus drivers had been given a list of names. When the bus routing was changed to the “block policy,” through application of a computer program, that was changed, in part because there can be transfer or other students who are permitted to ride to school on buses, but are not actually assigned to a particular bus, and the bus drivers still should allow them on the bus and not leave them behind.
Andrew Ramisch testified for the appellants as an expert in accident reconstruction. He opined that Brinkley Road is a four-lane highway and that, pursuant to
The case was sent to the jury on a special verdict. The jurors found that “the Board . . . was negligent and that its negligence was a proximate cause of [Ashley‘s] accident“; Ashley was not contributorily negligent; and Ashley did not assume the
On April 12, 2013, the court entered judgments in accordance with the verdict. Four days later, the Board filed a motion for JNOV, in which it argued that it did not owe a legal duty of care to Ashley; that Ashley was contributorily negligent as a matter of law; and that Ashley had assumed the risk of her injuries as a matter of law. It also argued, alternatively, that the amount of the verdict was “shocking, grossly
excessive and inordinate” and that the verdict should be reduced because the Board‘s liability was limited to $100,000 by
On July 26, 2013, the court held a hearing on the Board‘s motion for JNOV. The court granted the motion by a memorandum opinion and order entered on February 25, 2014. As we have explained, the court ruled:
- the Board did not owe Ashley a duty of care in tort;
- if the Board did owe Ashley a duty of care, Ashley and Nycole were contributorily negligent as a matter of law;
- if the court‘s rulings on duty and contributory negligence were to be reversed on appeal, then as to damages:
- under
CJ section 5-518 , the board is immune from liability for damages above $100,000; - if
CJ section 5-518 does not apply, the verdict shocked the conscience of the court in any event, and would be reduced to $166,000; and - the judgment against the Board would be reduced by $20,000, the amount the appellants received from the driver of the car that struck Ashley, in settlement of their claims against her.
- under
This timely appeal followed.
Additional facts will be included in our discussion, as necessary.
STANDARD OF REVIEW
In reviewing the circuit court‘s grant of a motion for judgment notwithstanding the verdict, we
must resolve all conflicts in the evidence in favor of the plaintiff and must assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom which tend to support the plaintiff‘s right to recover—that is, the evidence must be viewed in the light most favorable to the plaintiff. Houston v. Safeway Stores, Inc., 346 Md. 503, 521, 697 A.2d 851 (1997) (internal quotation marks and citation omitted). “Only where reasonable minds cannot differ in the conclusions to be drawn from the evidence, after it has been viewed in the light most favorable to the plaintiff, does the issue in question become one of law for the court and not of fact for the jury.” Id. (internal quotation marks and citation omitted).
DISCUSSION
I.
Duty of Care
The appellants contend that pursuant to
To prevail on a cause of action in negligence, the plaintiff must prove:
(1) that the defendant was under a duty to protect the plaintiff from injury, (2) that the defendant breached that
duty, (3) that the plaintiff suffered actual injury or loss, and (4) that the loss or injury proximately resulted from the defendant‘s breach of the duty. Hemmings v. Pelham Wood Ltd. Liability Ltd. Partnership, 375 Md. 522, 535-36, 826 A.2d 443 (2003) (internal quotation marks and citations omitted). “Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder.” Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947 (1999). However, whether the defendant was under a legal duty to protect the plaintiff from injury is a question of law. Id. at 549, 727 A.2d 947 (“[T]he existence of a legal duty is a question of law to be decided by the court.“). See also Pendleton v. State, 398 Md. 447, 461, 921 A.2d 196 (2007). When “the trial court decision turns on a question of law, not a dispute of fact, we review the trial court‘s decision for legal correctness without deference.” Blackburn Ltd. P‘ship v. Paul, 438 Md. 100, 108, 90 A.3d 464 (2014) (citing Mathews v. Cassidy Turley Maryland, Inc., 435 Md. 584, 598, 80 A.3d 269 (2013)).
Under the judicially created “Statute or Ordinance Rule,” statutes, ordinances, and regulations can create a “statutory duty” of care that is enforceable in negligence. See Blackburn, 438 Md. at 111-15, 90 A.3d 464. “[T]he statute or ordinance allegedly violated [must] ‘set forth mandatory acts’ that are ‘clearly for the protection of a particular class of persons’ and not merely for the ‘the public as a whole.‘” Wietzke v. Chesapeake Conference Ass‘n, 421 Md. 355, 388, 26 A.3d 931 (2011) (quoting Remsburg v. Montgomery, 376 Md. 568, 584, 831 A.2d 18 (2003)) (emphasis in original).
The Statute or Ordinance Rule may apply even when contrary common law duty principles exist. See Blackburn, 438 Md. at 112-13, 90 A.3d 464 (“This Court [has] observ[ed] that common-law limitations on the duty owed to trespassers were ‘inapplicable’ in a case ‘based on the Housing Code, not the common law.‘” (quoting Allen v. Dackman, 413 Md. 132, 157, 991 A.2d 1216 (2010))). COMAR provisions fall
within the Statute or Ordinance Rule. See Blackburn, 438 Md. 100, 90 A.3d 464 (holding that an apartment complex owner owed a “statutory duty” to a three-year-old boy who nearly drowned in a pool based on a COMAR provision requiring that fences around pools not allow passage of a sphere four inches in diameter).
“At its own expense, a county governing body may provide transportation for public school students.”
As noted, the appellants maintain that
If Brinkley Road is a four-lane highway, then pursuant to
highway at the time of the accident. The appellants’ expert, Andrew Ramisch, a civil engineer specializing in “highway traffic safety and traffic engineering, accident analysis and reconstruction,” was qualified as an expert in the field of “traffic highway safety and with respect to the standard of care for the location of safe bus stops.” Ramisch opined that, based on its 22 foot width from the curb to the center line, Brinkley Road was “a four lane highway the way it‘s marked.”5
As a public school student living on a four-lane highway, in a school district in which the Board had taken it upon itself to provide bus transportation to school, Ashley was within the specific class of people that
II.
Contributory Negligence
(A)
The appellants contend the circuit court “erred in ruling that [Ashley] was guilty of contributory negligence as a matter
of law.” They offer two reasons: first, the Board “waived the issue” by “fail[ing] to
Rule 2-532 governs JNOV motions. In relevant part, it provides that
[i]n a jury trial, a party may move for judgment notwithstanding the verdict only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.
In this case, in moving for judgment, the Board articulated in detail its arguments about the duty of care and about assumption of the risk. It did not make any argument, particular or not, in favor of judgment on the basis of contributory negligence as a matter of law. The only time the Board mentioned “contributory negligence” was when it was urging the court to find assumption of the risk as a matter of law:
[BOARD‘S COUNSEL]: Yes. That in fact all of these attributes suggest that she knew or should have known that she was taking a risk when she chose to cross Brinkley Road in the middle of the road with the sun being a hindrance and I believe that the case of Oddis, O-D-D-I-S,
versus Green, at 11 Maryland Appellate 153, 1971 case, it involved an 11-year-old bicyclists [sic] who was hit when he failed to yield a right-of-way and the Court in that case said the minor bicyclist who was 11 years of age, was old enough to be bound by rules of the road and that was where they found contributory negligence. By failure to yield the right-of-way upon entry from an unfavored street into a favorite highway.
THE COURT: You may argue contributory negligence, but contributory negligence is a matter of fact—
[BOARD‘S COUNSEL]: I understand. I was just articulating to the Court that that was a contributory negligence case.
THE COURT: Right.
[BOARD‘S COUNSEL]: In the other case that I would point the Court‘s attention to is Brown versus Rodgers, 19 Maryland Appellate 562, a 1974 case, which provides a Court of Special Appeals under the statute giving pedestrian preference in crosswalk, pedestrian must still exercise due care in crossing to avoid injury and cannot cross blindly without looking for approaching traffic and may not leave curb or place of safety or walk or run into a path of a vehicle which it is so close that it is impossible for the driver to yield.
That is what we are talking about here. We are talking about an unfortunate decision made by a young person to go to the street where she was in the path where it was impossible for the
driver to yield. And that was the assumption of the risk. THE COURT: Okay. Anything else?
[BOARD‘S COUNSEL]: No, Your Honor.
This brief reference to contributory negligence was merely to point out that a case the Board‘s lawyer was arguing in favor of assumption of the risk was a contributory negligence case.
The Board argues that even if there were a “procedural error” on its part, the appellants were “on notice” of the contributory negligence argument because the Board “consis-
tently argued that [Ashley] was contributorily negligent in its Answer to Complaint, Answer to Amended Complaint, and in all four of its dispositive motions presented to the [c]ourt.” (Emphasis in original.) Any arguments the Board made before and after its motion for judgment are irrelevant.
Even if the Board had argued contributory negligence when it moved for judgment, we would conclude that the trial court erred in granting the Board‘s motion for JNOV on that basis.
The court‘s contributory negligence ruling was specific. It concluded that the evidence at trial established that Ashley had moved from a place of safety into the path of a moving vehicle, and therefore was contributorily negligent as a matter of law. It pointed out that a crosswalk was located less than a tenth of a mile from where Ashley attempted to cross the street and that, pursuant to
In making its ruling on contributory negligence, the court failed to view the facts adduced at trial in the light most favorable to the appellants. As recited above, those facts were that, before crossing Brinkley Road, Ashley got off her cell phone and put it in her purse; she looked both ways to see if traffic was coming from either direction; and no cars were in sight. She crossed the westbound lanes of Brinkley Road and, upon reaching the center line, and before entering the lanes for eastbound traffic, was struck by a car headed east on Brinkley Road. On these facts, the issue of contributory negligence on Ashley‘s part plainly was a jury question. Reasonable jurors, crediting the evidence most favorable to Ashley, could have found that she was paying attention as she attempted to cross Brinkley Road and that she did not put herself in the path of the vehicle that struck her; rather, that vehicle crossed the center line and hit her. Reasonable jurors also could have found that Ashley did not fail to yield the right of way when crossing outside a crosswalk because there was no vehicle to which to yield when she started crossing and the vehicle that then appeared and struck her drove outside its lane of traffic, so yielding would have made no difference.
Interestingly, on the crosswalk issue, the Board relies on Pratt v. Coleman, 14 Md.App. 76, 286 A.2d 209 (1972), which does not support its position. In that case, we held “that a pedestrian who crosses a street between crossings is not negligent
Where Ashley was located when she was struck was a question of fact, which is why the issue of contributory negligence properly was submitted to the jury for decision in the first place and why the circuit court erred in granting the JNOV based on contributory negligence.
(B)
The circuit court also ruled that Nycole was contributorily negligent as a matter of law for not notifying the school that Ashley‘s bus was not coming to her bus stop and for allowing Ashley to cross the street unaccompanied. The appellants contend this issue was not raised by the Board in moving for judgment at the close of the evidence, and therefore was not a proper ground on which the court could grant a JNOV motion; and that the court‘s ruling was in error in any event. The Board does not address the issue of contributory negligence on the part of Nycole in its brief.
The appellants are correct that the issue of contributory negligence on the part of Nycole was not argued by the Board in its motion for judgment and therefore was not a proper ground for the court to grant the Board‘s JNOV motion. Moreover, contributory negligence of Nycole was not an issue in the case at all. The jury only was asked to determine whether Ashley was contributorily negligent. And, in its JNOV motion, the Board‘s only argument regarding contributory negligence of Nycole was that, because Ashley was contributorily negligent as a matter of law, her parents were barred from recovering. It made no argument that Nycole was herself negligent.
For these reasons, we conclude that the issue of contributory negligence of Nycole was not properly before the court on the JNOV motion. And, in any event, the only argument advanced in that motion—that Nycole (and Jerome) could not recover because Ashley was contributorily negligent—was not meritorious because, as we have explained, Ashley was not contributorily negligent as a matter of law.
III.
Damages
As noted, the court made two alternative rulings on damages, in the event its grant of the JNOV motion on liability were to be reversed on appeal. It ruled that under
The appellants challenge all of these rulings on appeal.
The appellants contend, for four reasons, that the court erred in reducing the verdict to $100,000 under the partial waiver of sovereign immunity granted to county boards of education by
(1) A county board complies with this section if it:
(i) Is individually self-insured for at least $100,000 for each occurrence under the rules and regulations adopted by the State Insurance Commissioner; or
(ii) Pools with other public entities for the purpose of self-insuring property or casualty risks under Title 19, Subtitle 6 of the Insurance Article.
That subsection goes on to require a county board that self-insures to periodically file the terms and conditions of the self-insurance in writing with the State Insurance Commissioner. Those terms and conditions are subject to the approval of the State Insurance Commissioner and “[s]hall conform with the terms and conditions of comprehensive liability insurance policies available in the private market.”
(b) Claims for more than $100,000.—A county board of education . . . may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy or, if self-insured or a member of a pool described under § 4-105(c)(1)(ii) of the Education Article, above $100,000.
(c) Claims for $100,000 or less.—A county board of education may not raise the defense of sovereign immunity to any claim of $100,000 or less.
A county board of education is a state agency. Beka Indus., Inc. v. Worcester Cnty. Bd. of Educ., 419 Md. 194, 210, 18 A.3d 890 (2011). In the absence of
The appellants’ first two arguments are intertwined. As they point out, under
In our view this argument overlooks the principle that this Court and the Court of Appeals have followed, that courts are to consider motions based on their content, not on how they are titled.
Under Maryland law, when motions and other pleadings are considered by a trial judge, it is the substance of the pleading that governs its outcome, and not its form. In other words, the nature of a motion is determined by the relief it seeks and not its label or caption. Hill v. Hill, 118 Md.App. 36, 44, 701 A.2d 1170 (1997) (emphasis in original). Accord Montgomery Cnty., Maryland v. Fraternal Order of Police, Montgomery Cnty. Lodge 35, Inc., 427 Md. 561, 569-70, 50 A.3d 579 (2012).
To be sure, the motion in question is titled “Motion for Judgment Notwithstanding the Verdict.” And most of the arguments advanced in it challenge the verdict against the Board on liability, and do so on legal grounds, as a motion for JNOV is supposed to. The motion also contains alternative arguments on damages that do not concern the issue of failure of proof, however. Specifically, as to the sovereign immunity issue, the Board asserted: “Should the Court decide to accept the jury verdict for [the appellants], it must reduce the award” because “the jury‘s verdict exceed[s] the cap on damages for a county board of education” and “[t]he Board . . . is immune as to damages claimed in excess of $100,000.00, the amount of its self-insurance.”7
The substance of the motion is one for a JNOV on liability and, in the alternative, for a reduction of the amount of the verdict pursuant to
In fact, immunity under
As mentioned, the appellants also argue that the court erred in reducing the verdict to $100,000 pursuant to
At the hearing, the appellants gave the court a letter their lawyer had received from the Maryland Insurance Administration (MIA). The appellants’ lawyer had written to the MIA, making a Maryland Public Information Act request for copies of all documents reflecting, concerning, or referring to the terms and conditions of the self-insurance, specifically comprehensive general liability insurance, filed by or on behalf of the Board, and in effect as of September 1, 2009. The letter from the MIA was in response to that request. It stated that “[t]he Property and Casualty Section of the [MIA] does not possess any information that is responsive to your request.” The appellants argued to the court that the letter from the MIA established that the Board had not complied with the filing requirements of
Counsel for the Board responded that the letter from the MIA did not establish that the Board had failed to make filings as required by
Counsel for the Board did not specifically respond to the appellants’ argument that the Board was required to put on
In its memorandum opinion, the court found that the letter from the MIA was not sufficient for the appellants to show that the Board had not complied with the filing requirements of
The appellants’ argument conflates the court‘s rulings. The court did not rule, as the appellants maintain, that the burden was on them to prove that the Board lacked insurance. Rather, the court ruled that if the appellants were taking the position that the Board had lost its right to
We agree with the appellants, however, that the burden was on the Board to present evidence of the existence and nature of its insurance, i.e., whether it had an insurance policy, and the limits of any such policy, or whether it was self-insured or part of an eligible insurance pool. If the Board had its own policy, the policy limit would be the amount above which the Board could assert sovereign immunity, under
(B)
As noted, the appellants contend the trial court erred in its second alternative
Maryland law is well-established that upon a finding that a verdict is excessive, so as to shock the conscience of the court, the court may order a new trial, “unless the plaintiff will agree to accept a lesser sum fixed by the court.” Banegura v. Taylor, 312 Md. 609, 624, 541 A.2d 969 (1988). Thus, a verdict only may be remitted in conjunction with a motion for new trial, when the court has decided to grant the motion on the ground that the verdict is excessive but the plaintiff chooses to accept a remittitur instead.
Here, the Board asked the court to remit the verdict because it was excessive, but did so in the absence of a motion for new trial. As discussed above, Maryland law favors treating a motion or pleading in accordance with its substance, not its form. In the Board‘s JNOV motion, it makes no mention of a new trial. We cannot read the Board‘s request to the court to remit the verdict as a motion for new trial. (Nor did the court read it as such, as it did not consider granting a new trial.) Accordingly, the trial court erred in ruling that, if its JNOV on liability were reversed, and if
(C)
Finally, appellants contend the court erred in ruling that any verdict in their favor must be reduced by the $20,000 paid to them in settlement of their claim against the driver who struck Ashley. There was no dispute that in the release memorializing that settlement the driver denied liability and denied joint tortfeasor status. In that circumstance, the only avenue for the Board to receive a reduction of any verdict against it based on the settlement paid is if the driver is proven liable for negligence, and therefore is a joint tortfeasor.
The appellants argue that the reduction was legally incorrect because the Board “failed to file a cross claim against the [driver] and further failed to prove up, in any fashion before the jury that [she] was a tortfeasor. Accordingly, under Swigert v. Welk [, 213 Md. 613, 133 A.2d 428 (1957)], and its progeny, the [Board is] not entitled to a credit, pro tanto, pro rata or otherwise.” We agree.
“A release by the injured person of one joint tort-feasor . . . reduces the claim against the other tort-feasors. . . .”
The appellants and the driver of the car signed a release in which the appellants agreed to dismiss their claims against the driver with prejudice in exchange for $20,000. It is undisputed that the release was made “without any admission of liability” on the part of the driver, who “denied that she is a joint tortfeasor.” Therefore, absent a finding by the jury of liability on the part of the driver, which would make her a joint tortfeasor, the Board was not entitled to any reduction of the verdict based on the settlement. As there was no such finding of liability, the court erred in
JUDGMENT NOTWITHSTANDING THE VERDICT REVERSED AS TO LIABILITY; VERDICT IN FAVOR OF THE APPELLANTS ON LIABILITY REINSTATED. JUDGMENT VACATED AS TO DAMAGES. CASE REMANDED FOR FURTHER PROCEEDINGS ON DAMAGES IN ACCORDANCE WITH THE VIEWS EXPRESSED IN THIS OPINION. COSTS TO BE PAID BY THE APPELLEE.
Notes
- Did the Trial Court Err in Granting Defendant‘s Motion for Judgment Notwithstanding the Verdict?
- Did the trial Court Err in Ruling that the Board of Education Owed No Duty to Plaintiff‘s Decedent, Ashley Davis?
- Did the Trial Court Err in Ruling that the Decedent was Guilty of Contributory Negligence as a Matter of Law?
- Did the Trial Court Err in Ruling that the Parents of the Decedent were Guilty of Contributory Negligence as a Matter of Law, and Imputing that Negligence to the Minor Decedent Contrary to
Courts and Judicial Proceedings Article 10-910 ? - Did the Trial Court Err in Granting Defendant‘s Remittitur, Particularly When the Defendant Failed to File a Motion Therefor.