Beverly v. Carp-Seca Corp.

LOUIS BEVERLY, ET AL. v. CARP-SECA CORPORATION, ET AL.

No. 2351

COURT OF SPECIAL APPEALS OF MARYLAND

September Term, 2017

April 14, 2020

Circuit Court for Baltimore City

Case No. 24-C-16-004891

UNREPORTED

Fader, C.J., Shaw Geter, Sharer, J., Frederick (Senior Judge, Specially Assigned), JJ.

Opinion by Sharer, J.

*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or other document filed in this Court or any other Maryland Court as either precedent within the rule of stare decisis or as persuasive authority. Md. Rule 1-104.

Appellants, Louis and Kim Beverly, filed suit in the Circuit Court for Baltimore City seeking to recover damages for personal injuries caused by the alleged negligence of appellees Carp-Seca Corporation, the Mayor and City Council of Baltimore, and other defendants. By the time of trial only Carp-Seca and the City remained as defendants.

A jury, finding both the City and Carp-Seca negligent, awarded $2,622,120.09 in damages in favor of the Beverlys, but against the City only, based on a finding that the City's negligence was an intervening, superseding cause to Carp-Seca's negligence. Thus, Carp-Seca was released from liability, and the damage award was reduced to $200,000 pursuant to the Local Government Tort Claims Act damages cap.¹

On appeal, the Beverlys challenge (1) the court's superseding cause jury instruction and (2) the court's delay and framing of the verdict sheet.² In its cross-appeal, the Citychallenges the court's denial of its motion for judgment and, in the alternative, it incorporates the Beverlys' challenges to the superseding cause issues.

BACKGROUND

Wyman Park Project

In 2007, the City contracted with Carp-Seca to install a sewage collection system in the Wyman Park neighborhood. The contract was later revised to include restoration of a ballfield in that part of the park where the construction staging and storage area had been based. The ballfield restoration plan provided for, inter alia, the installation of wooden bollards along Wyman Park Drive with a barrier gate to allow restricted, authorized access into Wyman Park. The restoration plan, including installation of the gate, was completed in the fall of 2011.

The accident On April 3, 2014, Louis Beverly sustained severe injuries when his car collided with the barrier gate which had swung open into the roadway of Wyman Park Drive, a two-lane public road that runs along part of the perimeter of the park. Beverly was injured when his vehicle struck the pointed end of the triangular gate, which pierced the passenger side windshield and struck him in the head.

The Litigation

The Beverlys' initial complaint named several defendants, asserting identical claims of negligent design, installation and maintenance of the gate against each defendant.³

At the close of all the evidence, following a five-day jury trial, Carp-Seca requested, and was granted over objection, a jury instruction on intervening, superseding cause.

Only after the jury had begun deliberations, the court prepared a proposed verdict sheet, to which all parties noted objections for various reasons. During the two hours of discussion on the subject, the court entertained some of the parties' proposed revisions tothe verdict sheet, but ultimately overruled their final objections and provided the revised verdict sheet to the jury. Shortly thereafter, the jury returned its verdict, finding both Carp-Seca and the City negligent but finding the City's negligence was the superseding cause of the accident.

The Beverlys' appeal was followed by the City's cross-appeal.

DISCUSSION

Standard of Review

In this appeal, we are asked to determine three issues: 1) whether the court abused its discretion in giving a superseding cause jury instruction; 2) whether the court abused its discretion in delaying the preparation and distribution of the verdict sheet; and 3) whether the City's motion for judgment ought to have been granted. Each issue creates separate and distinct standards for our review.

"Our review of a trial court's decision whether to give a requested jury instruction is conducted under an abuse of discretion standard." Gasper v. Ruffin Hotel Corp. of Maryland, Inc., 183 Md. App. 211, 219 (2008) (citing Thompson v. State, 393 Md. 291, 311 (2006)). "Whether the evidence is sufficient to generate the requested instruction in the first instance, however, is a question of law that we review de novo." Gables Constr., Inc. v. Red Coats, Inc., 241 Md. App. 1, 48 (citing Fleming v. State, 373 Md. 426, 433 (2003)), cert. granted, 464 Md. 25 (2019). We recently explained, "[a] trial court is required to give a proposed jury instruction when: (1) the requested instruction is a correct statement of the law; (2) the evidence supports giving the instruction; and (3) the substance of the instruction is not otherwise fairly covered by instructions that are given." AnneArundel County v. Fratantuono, 239 Md. App. 126, 142 (2018) (citing Preston v. State, 444 Md. 67, 81-82 (2015)).

With respect to the use of a special verdict sheet, we recently explained:

In general, "the decision to use a particular verdict sheet 'will not be reversed absent abuse of discretion.'" Consol. Waste Indus., Inc. v. Standard Equip. Co., 421 Md. 210, 220 (2011) (quoting Applied Indus. Techs. v. Ludemann, 148 Md. App. 272, 287 (2002)); accord S & S Oil, Inc. v. Jackson, 428 Md. 621, 629 (2012). "Under the abuse of discretion standard," however, "this Court will overturn a trial judge's decision to use a particular verdict sheet if we find both that the trial judge committed an error and that the error prejudiced [the appellant's] case." S & S Oil, Inc., 428 Md. at 629. Furthermore, "a 'court's discretion is always tempered by the requirement that the court correctly apply the law applicable to the case.'" Schlotzhauer v. Morton, 224 Md. App. 72, 84 (2015) (quoting Arrington v. State, 411 Md. 524, 552 (2009)).

Reiss v. Am. Radiology Servs., LLC, 241 Md. App. 316, 333, cert. granted, 466 Md. 217 (2019).

Finally, with respect to the City's argument raised in its cross-appeal, we have explained the analysis for reviewing motions for judgment:

"[W]hen ruling on a motion for a judgment the trial judge must consider the evidence, including the inferences reasonably and logically drawn therefrom, in the light most favorable to the party against whom the motion is made. If there is any evidence, no matter how slight, legally sufficient to generate a jury question, the motion must be denied.... An appellate court reviewing the propriety of the grant or denial of a motion for judgment by a trial judge must conduct the same analysis."

Tate v. Bd. of Educ., Prince George's County, 155 Md. App. 536, 545 (2004) (emphasis in Tate) (quoting James v. General Motors Corp., 74 Md. App. 479, 484-85 (1988)).

A. The Beverlys' Appeal

The Intervening, Superseding Cause Instruction

In their challenge to the court's superseding cause jury instruction, the Beverlys contend that "[t]he [court] should have applied the law to the evidence to determine if the evidence supported a six-part test of the evidence[,]" referring to the test advanced by the Court of Appeals in Pittway Corp. v. Collins, 409 Md. 218, 248 (2009). Further, they argue that "the court utterly bypassed the superseding cause test and erred as a matter of law by failing to conduct any analysis of the issue whatsoever." Therefore, they conclude, "the jury finding of superseding cause should be severed from the verdict, leaving intact the remainder of the verdict."

Carp-Seca responds that appellants failed to properly preserve the argument concerning the application of the six Pittway factors. We agree.

Carp-Seca moved for judgment on the basis of a superseding cause, thereby timely putting the parties on notice of the issue, but neither the Beverlys nor the City opposed the motion or presented argument as to the inapplicability of that defense. On two occasions, in denying Carp-Seca's motion for judgment, first at the close of the Beverlys' case-in-chief and later in its subsequent renewed motion at the close of all the evidence, the court recognized that:

With respect to the intervening cause, you certainly raise a good point. I think -- looking at the evidence in the light most favorable to the Plaintiff at this juncture, I think I cannot grant the motion.

We'll discuss this at the end of the case. And certainly as a jury instruction and legitimacy of that argument before the jury.

* * *

You have posed a jury question about superseding and intervening cause. And we can discuss that at the appropriate time.

Immediately following the court's denial of Carp-Seca's renewed motion for judgment, its counsel⁴ engaged in a colloquy with the court, adding clarity to the particular superseding cause argument it intended to pursue.

[COUNSEL]: I know I don't need to, Your Honor, but I'd like to at least put a footnote in here because you're going to consider at a later date the lock argument, the superseding problem.

And I just want to call the Court's attention so that it doesn't pop up later on for the first time to the design, which included not only a latch with a stop, but also a lock. And the testimony is that that wasn't there. So --

THE COURT: Understood.

[COUNSEL]: Great.

THE COURT: Okay. So the superseding negligence argument is even if Carp-Seca was negligent in installing a gate that did not meet the specifications, thereby causing a [sic] unreasonable risk of harm to those driving on the roadway, that the negligence of the City was a superseding cause of the injury so to speak. And I think that's a fair understanding of the law.

This comment by the court put squarely before the parties the exact argument that Carp-Seca would be relying on in its ultimate request for a superseding cause instruction. And, it may well have tipped its closing argument. Despite having adequate notice fromboth the court and Carp-Seca of the potential applicability of the...