Delmarva Shorebirds and the Local Govt Tort Claims Act

I love minor league baseball games.  I’ve been to a few Delmarva Shorebirds games.  It really is a fun environment.

One thing I really like?  Any kid that really wants a baseball is going to get one at the game one way or another.  The Frederick Keys, Bowie Baysox, and the Aberdeen Iron Birds (I’m told, I have not seen an Iron Birds game but the stadium is awesome).

There is an interesting lawsuit in Wicomico County involving Jared Breen, a little known former minor league prospect of the Baltimore Orioles.  He is suing the Delmarva Shorebirds and Wicomico County after his career was cut short by a collision with an unpadded wall. The Orioles drafted Breen in the 24th round of the 2013 Major League Baseball draft. After being drafted, Breen began his minor league career playing shortstop for the Delmarva Shorebirds.

baseball

Only Baseball Stock Image I Have!

The Shorebirds are a Single A affiliate of the Orioles and they play their home games at Arthur Perdue Stadium (“Perdue Stadium”) near Salisbury.  Perdue Stadium, where the team plays, is owned and operated by Wicomico County, MD. Built in 1996, Perdue Stadium is typical of most minor league parks and seats 5,200 spectators. Along the 3rd baseline towards the outfield, Perdue Stadium has a 6-foot concrete wall which would eventually end Jared Breen’s dreams of playing professional baseball.

In July 2015, Breen was playing shortstop for the Shorebirds when a shallow pop-fly was hit into foul territory just beyond the 3rd base. Breen raced after the ball at full-speed in hopes of catching it. Breen kept his eye on the ball while looking back over his shoulder toward home plate. Unfortunately, in his hustle to make a play, Breen lost track of where he was and smashed right into the stadium’s concrete wall. At that time, this 6-foot wall was not covered with any protective padding.

Breen suffered massive injuries in his collision with the wall. He fractured his knee cap cracked his orbital bone, sprained his back and suffered a serious concussion. Breen was so severely injured that he was immobilized on the field and taken out on a stretcher. A long and difficult recovery process followed. After surgery, Breen spent a week in the hospital then went home to recover in Atlanta. It took another two months of rest and therapy before Breen was even back on his feet. When Breen had finally finished treatment in November 2015, the Orioles released him.

Following his release by the Orioles, Breen’s baseball career was effectively over. His collision with the concrete wall at Perdue Stadium left him permanently partially disabled. Understandably, Breen felt as though his injury could have been prevented if the concrete wall had padding on it. Just two months after his release, Breen hired a lawyer to pursue legal action against whoever was legally responsible for the unsafe condition of the wall. Unfortunately for Breen, the party with primary responsibility for the wall turned out to be Wicomico County (the owner of Perdue Stadium).

Breen’s Lawsuit

Most people understand that personal injury lawsuits are subject to a statute of limitations.  This means that if you wait too long to file a civil lawsuit you may lose your right to sue at all. What many people do not realize, however, is that if you want to sue the state or local government in Maryland, there is a heightened set of notice requirements besides the statute of limitations.

The “early notice” requirements for suits against the government come from the Maryland Local Government Torts Claim Act (the “LGTCA”), Md. Code, Cts. & Jud. Proc. § 5-304. This section of the LGTCA basically says that if you want to sue a county in Maryland you have to give them notice of your claim within 6 months after your injury. This early notice requirement is a condition precedent to any personal injury action against a county. The Maryland Court of Appeals has explained that the underlying purpose of this requirement is to protect counties and municipalities from frivolous tort claims and give them the opportunity to investigate accidents soon after they occur. [This is foolish. But it is our law.]

This might all seem reasonable at first glance, but the early notice requirements under the LGTCA can have some harsh results. Jared Breen’s case presents a perfect example of this. Breen’s collision with the concrete wall occurred in July 2015, but it didn’t really end his baseball career until 5 months later. Breen acted prompted and hired a lawyer just 2 months later.  But by the time Breen retained an attorney, the deadline for providing “early notice” to Wicomico County under the LGTCA had already passed.

If the LGTCA early notice requirement was strictly applied, Breen’s chance to sue Wicomico County would have been lost before he even hired a lawyer. Fortunately for Breen and other prospective plaintiffs, there are exceptions to the LGTCA notice requirements. For starters, the Maryland high court has repeatedly held that strict compliance with the LGTCA notice rules is not necessary and “substantial compliance” may be enough. Moore v. Norouzi, 371 Md. 154, 171 (2002). In addition to this “substantial compliance” exception, the language of the LGTCA itself provides that notice requirements may be waived for “good cause” or “lack of prejudice” to the defendant. LGTCA § 5-304(d).

Did Breen Satisfy the LGTCA Early Notice Requirements?

In June 2018, Jared Breen filed his lawsuit against Wicomico County and 7th Inning Stretch, LP in the U.S. District Court for Maryland. (I think Breen probably lives out-of-state and triggering diversity jurisdiction.  Not many plaintiffs’ lawyers would pick Wicomico County over a federal jury.)  Wicomico County immediately moved to dismiss the case claiming that Breen did not comply with the LGTCA early notice requirement. According to Wicomico County, they received no notice from Breen or his lawyers.

Breen’s lawyers claimed that they sent the required written notice to Wicomico County via certified mail in February 2016. They even had a signed certified mail delivery receipt to back this up. The problem is that the notice deadline under the LGTCA was December 30, 2015. This meant that even if Breen did send notice in February 2016, it was 54-days late under the LGTCA.

Breen’s lawyers made 2 arguments in opposition to Wicomico County’s motion to dismiss. First, they argued that Breen “substantially complied” with the LGTCA notice requirements. Second, they argued that the good cause exception under § 5-304(d) should be applied. On August 6, 2019, Judge Deborah Chasanow issued a Memorandum Opinion partly granting and partially denying the motion to dismiss.

  • Substantial Compliance

Judge Chasanow rejected Breen’s “substantial compliance” argument. Chasanow explained that the substantial compliance exception to the LGTCA does not apply to late notices sent after the 6-month deadline. Rather, substantial compliance only applies to claimants who attempt to give notice within the 6-month deadline, but that notice is technically deficient in some way. The most common example is where a claimant sends timely notice but does not deliver it in person or by certified mail as required by the LGTCA.

  • Good Cause Exception

Judge Chasanow next turned her attention to Breen’s argument that his late notice should fall under the “good cause” exception set forth in § 5-304(d) of the LGTCA notice provision. Chasanow explained that “good cause” will apply to late notice under the LGTCA so long as the claimant pursued his or her claim with reasonable diligence under the circumstances. Maryland courts have identified several relevant factors to consider in evaluating “good cause” under the LGTCA:

  • Excusable neglect (reasonably prudent person standard)
  • Serious injury and/or location out-of-state
  • Inability to obtain counsel
  • Ignorance of the LGTCA early notice requirement
  • Misrepresentations made by local government

Breen argued that he took prompt action to retain counsel and pursue his rights as soon as his medical situation stabilized. Judge Chasanow explained that whether Breen is entitled to a good cause waiver depended on whether he provided the disputed notice to Wicomico County in February 2016 (54-days after the LGTCA deadline). Both parties submitted conflicting affidavits on this key issue, so Judge Chasanow ruled that an evidentiary hearing would be required to resolve the issue.

It will be interesting to see how this case plays out.  You can find the court’s ruling here.

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