This is a Federal Tort Claims Act case, in which a participant in a staged wrestling event at the Aberdeen Proving Ground is suing, pursuant to the substantive law of Maryland, to recover damages for a serious injury he sustained during that event. This ease was tried on January 13-14, 2003. Pursuant to FED.R.CIV.P. 52, the Court makes the following findings of fact and conclusions of law.
I. The Federal Tort Claims Act and Choice of Law
The Federal Tort Claims Act provides a limited waiver of the United States’ sovereignty to suits in tort. 28 U.S.C. § 1346(b), 2671
et seq. See also United States v. Orleans,
Pursuant to this act, federal courts have exclusive jurisdiction over claims for money damages for negligence of employees of the United States, acting within the scope of their employment, “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b).
Since the negligent act or omission is alleged to have occurred in Maryland, Maryland law governs the United States’ liability in this case.
See, e.g., Richards v. United States,
II. Negligence
A. Burden and Standard of Proof
In Maryland, a plaintiff must establish the elements of negligence by a preponderance of the evidence.
Baltimore & O.R.R. v. Plews,
B. The Elements of Negligence
The Plaintiff must show: (1) that a duty was owed by Defendant United States to Plaintiff Jason G. Miller; and (2) that Defendant breached that duty; and (3) that Defendant’s breach was the proximate cause of the injuries sustained by Plaintiff.
Myers v. Montgomery Ward & Co.,
C. Premises Liability & the Duty Owed by the Landowner
The responsibility of those who own or possess property to people injured on their property depends upon the standard of care owed to the injured person. The standard of care depends upon the injured person’s status on the property. Maryland Civil Pattern Jury Instructions, 24:1 (4th ed.2002).
See also Baltimore Gas & Elec. Co. v. Flippo,
An invitee is a person who is invited or permitted to be on another’s property for purposes related to the owner’s or occupier’s business. MPJI-Cv 24:2.
See also Baltimore Gas & Elec. Co. v. Flippo,
The defendant conceded that plaintiff was an invitee under the mutual benefit doctrine. The Court agrees and so finds that plaintiff, as a member of the group
The owner owes invitees a duty to exercise reasonable and ordinary care to protect against known or should be knurni dangers.
Pahanish v. Western Trails, Inc.,
Mr. Kegley was the sports specialist of Youth Center facility at the Aberdeen Proving Ground at the time of the accident. It is not disputed that he was acting within the scope of his employment when he approved the use of the Youth Center facility for a staged wrestling performance for the entertainment of the Aberdeen Proving Ground community. Mr. Kegley had twelve years of experience in similar jobs, .holds a bachelor’s degree in physical education, and had completed a sports director’s course at the time of plaintiffs injury. Mr. Kegley was the custodian of the mats used for the activity during which plaintiff was injured. Mr. Kegley testified that he allowed Mr. Green, the organizer of the show, to use the mats. He testified that Mr. Green knew that they were gymnastic mats, but had looked at them and said they were fine. Mr. Kegley was familiar with the nature of the wrestling event, having observed two events put on by plaintiffs group prior to the one in which plaintiff was injured. Mr. Kegley acknowledged that the activity that occurred during the match at which plaintiff was injured was substantially similar to that which took place at the two events Mr. Kegley had previously observed and that he was fully aware of the tendency of the mats to shift and separate during the wrestlers’ activities. Therefore, the Court concludes that Mr. Kegley had a duty to use reasonable and ordinary care to protect Mr. Miller against known dangers when he agreed that the wrestling évent could be held in the Youth Center, using youth center equipment, for the benefit of the Aberdeen Proving Ground community. That duty included providing safe and suitable equipment, particularly where, as here, he knew the nature of the activity and indeed admitted to observing the shifting and separating of the mats. A reasonable sports specialist in Mr. Kegley’s position should have anticipated that one of the participants could lose his footing and cause injury to either himself or another participant as a result of the use of the inappropriate mats that the youth center provided to the Semi-Professional Wrestling Federation.
Defendant argued that plaintiffs co-wrestlers, pursuant to an alleged agreement between Mr. Kegley and Mr. Green, were to stand at each corner of the “ring” and ensure that the mats did not separate, but the Court finds that there was no such agreement. While Mr. Kegley testified to such an arrangement, .neither Mr. Miller nor Mr. Green remembered such an agreement. Additionally, the video of the subject event did not reflect such monitoring of the four corners of the mats. Furthermore, even if there had been such an agreement, the Court concludes that defendant would remain liable for any failure on the part of plaintiffs co-wrestlers to exercise reasonable care to keep the mats safe.
Eyerly v. Baker,
D. The “Good Samaritan” Doctrine (Alternate Source of Duty)
(1) Restatement (Seoond) of ToRts § 323 provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.
Id.
(2) Restatement (Second) of ToRts § 324A also provides:
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.
Id.
While Maryland appellate courts have not explicitly adopted these two sections of the Restatement, case law holds that they are recognized as part of Maryland law.
See, e.g., Heinrich v. Goodyear Tire & Rubber Co.,
The Court finds that Mr. Kegley, on behalf of defendant, expressly undertook to provide mats for the activity at which plaintiff was injured. The Court also finds that his failure to exercise reasonable care, that is, to provide appropriate mats that did not shift and separate during the activity, increased the risk that the wrestlers might lose their footing and thus cause or sustain injury. Therefore, the Court concludes that Section 324A of the Restatement provides an independent, and alternative, source of the duty owed by defendant to plaintiff.
E.G. Rock, Inc. v. Danly,
E. Breach of the Duty Owed
The Court finds that the mats provided by defendant for the activity at which plaintiff was injured were inadequate, in particular because their tendency to shift and separate during the activity adversely affected the footing and balance of the wrestlers. The Court bases its finding on: (1) the testimony of Dr. Borkow-
Indeed, the gymnastic mats themselves carry a cautionary warning, including: “Before using, KNOW YOUR OWN LIMITATIONS and the limitations of this mat.” However, the Court finds that Mr. Kegley, on behalf of defendant, made no effort to investigate what type of mats or other equipment were appropriate for either the activity described to him by Mr. Green, or for the activity that he observed on the two occasions that preceded plaintiffs injury.
Thus, the Court concludes defendant breached its duty to plaintiff-invitee to ensure that the equipment used for the event during which plaintiff was injured was reasonably safe.
Keitz v. Nat’l Paving & Contracting Co.,
F. The Proximate Cause Rule
The rule in Maryland as to proximate cause, as set forth by the Court of Appeals, states:
[t]o constitute actionable negligence, there must, be not only casual connection between the negligence complained of and the injury suffered, but the connection must be by a natural and unbroken sequence,-— without intervening efficient causes,— so that, but for the negligence of the defendants, the injury would not have occurred. It must not only be a cause, but it must be the proximate cause.
State, for Use of Kalives v. Baltimore Eye, Ear, & Throat Hosp., Inc.,
The Court finds that the mats provided by defendant shifted and slipped beneath Mr. Workman’s feet in such a way as to cause him to lose his balance and fall on plaintiff, thus seriously injuring his back. The Court bases its finding on: (1) the testimony of Dr. Borkowski, plaintiffs expert in sports safety, that after watching the video approximately 100 times, he had concluded that plaintiffs opponent, Mr. Workman, was unable to brace his feet properly due to the inadequate mats, which caused him to lose his balance and fall on plaintiff; (2) the Court’s conclusion, based upon its observation of the video, that because one of Mr. Workman’s feet was on the floor as the result of the separation of the mats, while his other foot was placed on a mat that was sliding across the floor, that he lost his balance and thus fell on plaintiff; and (3) plaintiffs testimony that Mr. Workman told him he had slipped and was sorry plaintiff had been hurt. 1
The Court therefore concludes that “but for” the unreasonable risk posed by the inadequate mats provided by defendant plaintiff would not have been injured.
State, for Use of Kalives v. Baltimore Eye, Ear, & Throat Hosp., Inc.,
A. Contributory Negligence
A plaintiff cannot recover if the plaintiffs negligence is a cause of the injury. The defendant has the burden of proving by a preponderance of the evidence that the plaintiffs negligence was a cause of the plaintiffs injury. Contributory negligence occurs when the injured party acts or fails to act in a manner consistent with the knowledge or appreciation, actual or implied, of the danger or injury involved.
Campbell v. Montgomery County Bd. of Educ.,
Testimony was introduced at trial that plaintiffs opponent in the match in which he was injured was much larger, and that the two did not rehearse their moves in advance, but rather communicated them verbally during the course of the match. While the Court finds this testimony credible, it is, by itself, insufficient to establish that plaintiff was contributorily negligent.
First, the Court finds that the evidence introduced of the weight differential between plaintiff and his opponent does not establish by a preponderance that the so-called mis-match between plaintiff and Mr. Workman was a cause of plaintiffs injury. Second, the Court finds that Mr. Green’s testimony that there may have been a mis-communication that caused Mr. Workman to improperly anticipate plaintiffs counter-move, implying this to be the cause of plaintiffs injury, is speculative and inconclusive. Mr. Miller testified that Mr. Workman told him of the move he was going to make, but that something went wrong. Thus, the Court finds that defendant’s theory that plaintiffs lack of rehearsal caused the accident is not supported by the evidence. Again, based on the evidence discussed
supra,
the Court concluded that the proximate cause of the injury was Mr. Workman’s fall due to the instability of the mats. Therefore, the Court concludes that defendant has not met its burden by a preponderance, and thus plaintiff was not contributorily negligent.
Campbell v. Montgomery County Bd. of Educ.,
B. Assumption of Risk
A plaintiff cannot recover if the plaintiff has assumed the risk of the injury. However, the defense of assumption of risk is difficult to prove. “The doctrine of assumption of risk will not be applied unless the undisputed evidence and all permissible inferences therefrom
clearly
establish that the risk of danger was
fully
known to and
understood
by the plaintiff.”
Kasten Constr. Co. v. Evans,
Moreover, for assumption of risk to relieve another party of liability the injured person must have “voluntarily assumed a known risk
which
risk resulted in the injury of which he complains.”
McClearn v. Southeast Concrete Co.,
Plaintiff testified that he was not aware the mats were separating at times during the match at which he was injured, as he was concentrating on executing the moves inherent to the event. Plaintiff also testified that he did not observe the mats separating on the prior occasion at Aber
The Court finds this testimony credible, and thus concludes that plaintiff did not appreciate that the tendency of the mats to separate posed a dangerous condition in that it might adversely affect the footing of plaintiffs opponent as they executed their wrestling moves.
The defendant argues correctly that Mr. Miller did assume the risks inherent in the sport or activity of staged wrestling. However, the only risks assumed by a voluntary participant in a game, sport, or contest are those incidental to the activity, and even those are limited to those incidental risks that are obvious and foreseeable.
Johnson v. County Arena, Inc.
C. The Alleged Liability Waiver
Waiver is an affirmative defense, and must ordinarily be specially pleaded or it is waived. Fed.R.Civ.P. 8(c). However, “when issues not raised by the pleadings are tried by express or implied consent of the parties, they shall be treated in all respects as if they had been raised in the pleadings.” Fed.R. Civ.P. 15(c). Absent a showing of prejudice, a defendant does not waive an affirmative defense if it is raised at a pragmatically sufficient time.
See, e.g., Cornell v. Council of Unit Owners Hawaiian Village Condominiums, Inc.,
Although the defendant failed to plead waiver as an affirmative defense, in either its answer to the complaint or in the pretrial order, plaintiff did not object at trial to defendant’s exploration of whether plaintiff may have signed a liability waiver. Additionally, it is clear from the record that plaintiff had some notice of defendant’s intent to pursue this issue, as demonstrated by defendant’s assertion in its motion for summary judgment that plaintiff had signed a liability waiver (Paper No. 6, at 2) and plaintiffs subsequent affidavit denying that he had ever signed such a document (Paper No. 9, Exhibit 1 at 3). Finally, plaintiff testified- at trial, in rebuttal to the testimony of defense witnesses, that he never signed any liability waiver forms. Therefore, the Court finds that as plaintiff did not object, and furthermore had both notice and an opportunity to present evidence rebutting defendant’s waiver defense, plaintiff has suffered no prejudice. Thus, the Court, in accordance
Defendant presented evidence at trial that plaintiff may have signed a liability waiver form. Mr. Kegley, the sports specialist at the Youth Center at Aberdeen Proving Ground at the time of plaintiffs injury, testified that he agreed with Mr. Green, the leader of the Semi-Professional Wrestling Federation, that the members of that group would sign liability waivers pri- or to their events. Ms. Isaac, a Youth Center employee at the time of plaintiffs accident, testified that everyone in plaintiffs group must have signed liability waivers or they would not have been allowed to perform, but she could not remember plaintiff specifically. Ms. Isaac further testified that it was the normal practice of the Youth Center supervisor to retain such waivers. Mr. Green testified that the members of his group would not have been able to perform unless they had first signed liability waivers, and that everyone in his group had signed such forms, although he could not specifically recall plaintiff doing so.
Plaintiff testified unequivocally that he was never given, and that he never signed, a liability waiver form. The Court notes that no document purporting to be such a waiver of liability signed by plaintiff was entered into evidence. The Court finds the testimonial evidence that plaintiff, as distinguished from the other members of his group, may have signed a waiver of liability vague and inconclusive. Defense witnesses apparently could not recall whether plaintiff, as opposed to members of the group generally, actually signed such a document. Additionally, the Court finds plaintiffs testimony that he did not sign such a waiver credible. Most importantly, no such waiver is extant.
Therefore, the Court concludes that there is insufficient evidence to conclude that plaintiff waived liability prior to his injury at Aberdeen Proving Ground.
See Seigneur v. Nat’l Fitness Inst., Inc.,
IV. Damages
The plaintiff introduced a report of Dr. Robert D. Keehn in which the doctor opines that plaintiffs back injury and bladder function problems are directly related and proximately caused by the subject wrestling accident. Similarly, the plaintiff introduced a report of Dr. Bruce Smoller indicating that the plaintiff suffers from psychological symptoms as a result of his back injury and bladder function problems. Defendant did not rebut these reports and opinions therein and the Court adopts them as credible. Moreover, the parties stipulated that the medical treatment that Mr. Miller received was causally connected to the injuries that he sustained in the subject wrestling event and that the medical bills incurred for that treatment and totaling $64,335.86 are fair and reasonable.
The Court finds that plaintiff, as a result of defendant’s negligence, has incurred $64,335.86. in medical bills which are fair and reasonable and suffered significant injuries — a “burst vertebra” — and pain and suffering and emotional trauma. He underwent required serious back surgery, including a bone graft. He was in University of Maryland’s Cowley Shock Trauma Unit for a week. Mr. Miller spent three weeks in Kernan Rehabilitation Hospital where he underwent a course of substantial physical therapy. After the accident, he was paralyzed; after the surgery, he had to learn to walk again. He suf
Mr. Miller is a fortunate young man. The outcome of this accident could have been far worse. The Court was shocked at the Youth Center’s sponsorship of such a wrestling event, and appalled by the casual attitude that Mr. Kegley exhibited toward his role and responsibility for the event and the ensuing accident. The Court concurs with Dr. Borkowski’s judgment that this was an inappropriate activity for young people, such as the military dependents at Aberdeen Proving Ground, to observe.
Notes
. The Court notes that while this testimony was hearsay, defendant did not object, and thus waived the objection.