On Friday, the Maryland Court of Special Appeals reversed a $3 million jury verdict in Cecil County v. Dorman. That statement overmagnifies the ruling. The jury verdict of $3 million is misleading because Maryland’s Local Government Tort Claim Act limited the actual verdict to $200,000. But the legal issues presented in the case are of interest to Maryland accident attorneys who are looking for creative solutions to limited insurance coverage in catastrophic accident cases. This case closed down one potential defendant: the utility pole that has been there forever should not have been there when my client hit it.
The case involved a motorcycle accident that occurred near the intersection of Nottingham Road and Pulaski Highway (Route 40). Plaintiff suffered severe injuries which required the amputation of his right leg. The defendant driver’s negligence was not in serious question, but claims were maintained against Verizon and Delmarva Power and Light Company with respect to the location of the utility pole that Plaintiff had hit, which had exacerbated Plaintiff’s injuries. Plaintiff’s lawyer argued that the location of the pole was unsafe. Plaintiff’s accident lawyer further argued that is Cecil County’s duty to maintain its roadways in good repair and free from hazards or defects was ongoing so the fact that the pole had been put in 40 years go was no defense. Accordingly, there is a duty imposed on Cecil County when a utility pole is in such close proximity to the road that it was an “accident waiting to happen.”
Verizon and Delmarva got out on summary judgment because the Cecil County trial judge allowed the case against Cecil County to go to trial. But the Maryland Court of Special Appeals found found there was no duty on the part of Cecil County:
The County owed no legal duty to [Plaintiff] because the pole had been in place for a significant length of time without creating any problem to motorists and, therefore, the County had no reason to foresee that a particular pole would incommode or otherwise imperil traffic on Nottingham Road.
I appreciate the problems with asking a utility company to move a pole that has been in place for a long period of time or for the county to insist upon it. But, to me, the frustrating part of the opinion is the affirmation of the notion that utility companies may “reasonably assume that poles that have remained standing for any significant length of time without serious incidence do not ‘incommode’ or unreasonably imperil traffic on the road.” Instead, I’d rather do a cost benefit analysis in every case, which the jury ostensibly did in reaching the conclusion that it did. Whether the stretch of what the utility company did should be imputed to Cecil County is, admittedly, a harder call.
If you are reading this, one question you have to ask is why did the Cecil County stay in the case when Verizon and Delmarva got out? The simple practical explanation is that the trial judge was not the motions judge.
Thankfully, the Plaintiff in this case, a member of the Maryland National Guard, did secure a $750,000 settlement with the driver defendant’s insurance company.
The other interesting legal issue in the case is whether Plaintiff’s lawyer’s delay in filing suit violated the Maryland Local Government Tort Claims Act by failing to file suit within 180 days. Plaintiff’s attorney’s reason for the delay in filing suit against Cecil County was that “prior to his engagement of a highway safety engineer in April 2003, ten (10) months after the accident, [p]laintiff had no inkling that Cecil County might bear responsibility for the location of the subject utility pole.” The trial court found this explanation to be an legally excusable basis for the Plaintiff missing the 180 days statute of limitations. Plaintiff argued that:
Plaintiff did everything right. He hired an experienced attorney, well aware of the 180 day rule, who pursued a diligent investigation requiring “expert investigation and expert reporting” to identify every possible defendant and every possible cause of action. Only after expert investigation did the County’s liability become known.
Appellant attempts to hold Appellee to what is best described as the “clairvoyant person standard” – requiring claimants to foresee the future in complex cases requiring expert investigation, prior to being able to discover latent or obscure defects not readily discernible to an ordinarily prudent person. That is clearly not what the legislature intended by vesting sound discretion in the trial court to accomplish substantial justice under varying circumstances giving due regard to the reason for the requirement and the rights of litigants to have their day in court.
It would have been interesting to see how the court would have resolved this issue, but it was never reached in light of the court’s verdict on the issue of whether Cecil County had a duty to the Plaintiff.
The case was handled by Elkton lawyer Charles L. Scott, Jr., with Scott & Scott, who deserves a lot of credit for fighting the good fight for his client, albeit in a losing cause. He could have easily collected his attorneys’ fees from the underlying case and walked away as I think a lot of accident lawyers would have in this case.
You can find the opinion here.