Anne Arundel County, Maryland v. Fratantuono, No. 1, September Term, 2017. Opinion
by Fader, J.

GOVERNMENTAL IMMUNITY – MUNICIPALITIES – PUBLIC WAYS

Local governments generally enjoy immunity only when performing governmental, as
opposed to proprietary, functions. By precedent, the maintenance of streets, sidewalks,
footways, and the areas contiguous to them in a reasonably safe condition are treated as
proprietary functions for which a local government has no immunity.

GOVERNMENTAL IMMUNITY – MUNICIPALITIES – PUBLIC WAYS

County was not entitled to governmental immunity from suit arising from its negligence
in maintaining a grassy strip set contiguous to both the public road and the public
sidewalk where the area in question was used by pedestrians for travel and was not
located in a public park or other similar area.

JURY INSTRUCTIONS – CONTRIBUTORY NEGLIGENCE

The evidence did not support the County’s requested jury instruction on contributory
negligence where the County presented no evidence to suggest that the plaintiff would
have observed anything amiss had she been looking at the defective water meter lid that
caused her injuries.

JURY INSTRUCTIONS – CONTRIBUTORY NEGLIGENCE

The evidence did not support the County’s requested jury instruction based on the
plaintiff’s alleged violation of Md. Code Ann., Transp. § 21-506(a), which prohibits
pedestrians from walking “along and on” a road when a sidewalk is provided where there
was no evidence that the plaintiff was walking on the road when she was injured.

INCONSISTENT VERDICTS – MULTIPLE THEORIES OF NEGLIGENCE

The jury’s verdicts finding the County not liable under a theory of common law
negligence but liable under a theory of negligence based on violation of a regulation were
not irreconcilably inconsistent in light of the instructions given to the jury.
Circuit Court for Anne Arundel County
Case No. C-02-CV-15-003663
                                                                                                 REPORTED

                                                                                    IN THE COURT OF SPECIAL APPEALS

                                                                                              OF MARYLAND

                                                                                                     No. 1

                                                                                            September Term, 2017
                                                                                  ______________________________________

                                                                                  ANNE ARUNDEL COUNTY, MARYLAND

                                                                                                      v.

                                                                                          JANINE FRATANTUONO
                                                                                  ______________________________________

                                                                                       Wright,
                                                                                       Fader,
                                                                                       Eyler, James R.
                                                                                          (Senior Judge, Specially Assigned),

                                                                                                    JJ.
                                                                                  ______________________________________

                                                                                             Opinion by Fader, J.
                                                                                  ______________________________________

                                                                                       Filed: November 1, 2018




 Pursuant to Maryland Uniform Electronic Legal
Materials Act
(§§ 10-1601 et seq. of the State Government Article) this document " authentic.




                             2018-11-01
                             14:32-04:00



Suzanne C. Johnson, Acting Clerk
       We are asked to determine whether a county enjoys governmental immunity from a

negligence claim for injury occurring in an area that is (1) contiguous with and adjacent to,

but not on, a paved public street or walkway, (2) used as a walkway by pedestrians even

though there is a paved sidewalk on the opposite side of the street, and (3) not in a public

park, swimming pool, or similar area. A jury awarded more than $50,000 in damages to

the appellee, Janine Fratantuono, for injuries she suffered as a result of the negligence of

the appellant, Anne Arundel County, in failing to follow its own requirements relating to

the installation and maintenance of a water meter lid. We conclude that the County was

not entitled to governmental immunity under these circumstances.

       The County also argues that the circuit court erred in denying its request for a

contributory negligence jury instruction and by entering judgment on an inconsistent jury

verdict. We hold that the circuit court correctly concluded that the evidence did not support

a contributory negligence instruction and that the jury verdict was not inconsistent. We

therefore affirm.

                                     BACKGROUND

       At the center of this dispute is a water meter lid that the County installed and

maintained in a grassy strip of land near the southwest corner of the intersection of Maple

Road and Camp Meade Road in Linthicum. The grassy strip sits on the south side of Maple

Road between the road and a property fence and stretches between the property’s driveway

and an area of sidewalk that begins at the corner. The lid is near the edge of the strip that

abuts the beginning of the sidewalk. At trial, Ms. Fratantuono introduced the following

pictures of (1) the lid and the area immediately around it:
and (2) the relevant area of the grassy strip as depicted on Google Street View:




      On the morning of December 27, 2014, Ms. Fratantuono and her then-husband were

out for a walk on the sidewalk on the north side of Maple Road, west of the intersection

                                            2
with Camp Meade Road, when they saw joggers coming in the opposite direction. To

avoid a logjam, the couple crossed to the south side of Maple Road. Although there was a

sidewalk on the south side of Maple at the point where they first crossed, eventually it

ended. The Fratantuonos continued walking onto the grassy strip.

       Ms. Fratantuono testified that she had walked on this same grassy strip at least 50

times before. This time, her right foot stepped on the lid, which flipped up and open. Her

left foot and leg then fell approximately 30 inches into the newly-opened hole, causing her

to sustain injuries.

       Ms. Fratantuono filed this lawsuit against Anne Arundel County, alleging that her

injuries resulted from the County’s negligence and negligent supervision of its employees

with respect to the construction, installation, and maintenance of the water meter lid.

Before trial, the County filed a motion for summary judgment in which it unsuccessfully

argued that Ms. Fratantuono’s claim was barred by governmental immunity. At trial, Ms.

Fratantuono introduced evidence that the County, through its Department of Public Works,

had ignored the requirements of its own Design Manual regarding the selection and

installation of the water meter lid. A jury entered judgment in favor of Ms. Fratantuono

and awarded her damages of $50,806.00. The court denied the County’s motion for

judgment notwithstanding the verdict. This appeal followed.

                                     DISCUSSION

       The County challenges the circuit court’s denial of its motion for summary

judgment, its refusal to give a requested jury instruction, and its denial of a motion for

judgment notwithstanding the verdict.     We review denial of a motion for summary

                                            3
judgment and denial of a judgment notwithstanding the verdict for legal correctness. Sage

Title Grp., LLC v. Roman, 455 Md. 188, 201 (2017); Dashiell v. Meeks, 396 Md. 149, 163

(2006). We review the decision not to give a requested jury instruction for abuse of

discretion. Woolridge v. Abrishami, 233 Md. App. 278, 305 (2017).

I.     THE COUNTY IS NOT PROTECTED FROM MS. FRATANTUONO’S CLAIMS
       BY GOVERNMENTAL IMMUNITY.

       The County argues that the circuit court erred in denying its motion for summary

judgment on the basis of governmental immunity. Specifically, the County contends that

although it does not enjoy immunity from claims arising out of its “maintenance of streets,

walkways and areas contiguous to them used by the public to travel from one point to

another,” the strip of grass in which Ms. Fratantuono fell does not fit that description. Ms.

Fratantuono responds that her claim falls within this exception because the strip of grass

where the water meter lid was located was contiguous to the public street as well as the

sidewalk and it was an area where she and others regularly walked.

       Although the State enjoys absolute immunity from claims except to the extent it

consents otherwise, counties generally enjoy immunity only when performing

governmental, as opposed to proprietary, functions. Rios v. Montgomery County, 386 Md.

104, 124 (2005); Austin v. Mayor and City Council of Balt., 286 Md. 51, 53 (1979);

Zilichikhis v. Montgomery County, 223 Md. App. 158, 192 (2015). The distinction between

when a local government acts in a governmental versus a proprietary capacity has been

developed through case law. Relevant to our purposes here, our appellate courts have long

recognized a distinction between the maintenance of public parks and swimming pools,


                                             4
which has been treated as a governmental function, and the government’s obligation “to

maintain its streets, as well as the sidewalks, footways and the areas contiguous to them,

in a reasonably safe condition,” which has been treated as proprietary. Higgins v. City of

Rockville, 86 Md. App. 670, 679 (1991).1 This is sometimes known as the “public ways”

exception to governmental immunity.

       Four cases the Court of Appeals decided in the 1930s established the framework for

the governmental immunity analysis our appellate courts continue to apply in this context.

In Mayor & City Council of Balt. v. Eagers, the Court addressed a claim arising out of the

death of a pedestrian who was walking down the center of a walkway when he was struck

with a rotten branch that came from a tree being felled by a City work crew 20 feet away.

167 Md. 128, 129 (1934). The Court observed that the City had a statutory obligation to

keep the walkways safe, including the obligation to remove trees “with reasonable care and



       1
         Although our appellate courts have long recognized and applied this distinction,
they have sometimes questioned its logic. In Mayor & City Council of Baltimore City v.
State, use of Blueford, the Court of Appeals lamented the absence of “any logical
distinction between the governmental character” of maintenance of public highways as
compared with public parks. 173 Md. 267, 272 (1937). The Court nonetheless considered
the distinction too well established to abandon. Id. at 273. In dissent from the Court’s
refusal to revisit this rule in Austin, Judge Eldridge stated that he could “think of no good
reason whatsoever why the operation of a park, swimming pool or camp should be deemed
‘governmental,’ . . . whereas the construction and maintenance of public streets, bridges
and sewers, or the removal of garbage, or the supplying of water to homes, should all be
classified as ‘proprietary’ . . . .” 286 Md. at 72. The Court’s majority chose to maintain
the distinction. Id. at 63. This Court has similarly labeled “the placement of the
maintenance of streets, highways, and walkways in the proprietary column rather than in
the governmental column” as “bizarre,” but nonetheless applied the distinction as “the
indisputable and long-settled law of this state.” Higgins v. City of Rockville, 86 Md. App.
670, 678 (1991). We join in applying this well-established, though perhaps not logically
consistent, distinction.
                                             5
skill, so as to do no injury to those on the sidewalks while exercising due care and caution

according to the circumstances.” Id. at 134. Whether the City could be sued, however,

depended on whether the nature of its act was governmental or proprietary. The Court

found that “the great weight of authority” established “that it is a private proprietary

obligation of municipal corporations to keep their streets and public ways reasonably safe

for travel in the ordinary manner, and to prevent and remove a nuisance affecting the use

and safety of these public ways.” Id. at 136. Moreover, the Court concluded, that duty

“extends to the land immediately contiguous to these public ways.” Id. Thus, although

removal of a tree from an area outside of a public way would normally be a governmental

function for which a local government would have immunity, that is not the case where

negligence during that removal injures someone who is on a public way. Id. at 137.

       Later that same year, the Court decided Mayor & Council of Hagerstown v.

Hertzler, 167 Md. 518 (1934). Hagerstown had set aside a three-and-a-half-foot-wide grass

strip in between a highway and a paved sidewalk. Id. at 519. The City then planted trees

on the grass strip which, while young, were supported by “guy wires” extending out several

feet from the trees. Id. The plaintiff’s wife tripped on one of the guy wires and fell while

she was walking from a portion of the road to the sidewalk. Id. at 519-20. Although

observing that the duty of the City was lesser, and that of the pedestrian greater, on such a

strip of grass than on a paved walkway, the Court held that the City was nonetheless

“obliged to exercise care for the safety of the pedestrians against dangers, not from the

customary, permissible uses or conditions, but dangers of a kind that would not be expected

by foot passengers, dangers in the nature of traps.” Id. at 521. Such dangers include “pipes

                                             6
or piles of stone on the ground, holes, and wires fencing off seeded portions.” Id.

Concluding that the guy wires could be found to constitute such a danger, the Court

affirmed the judgment against the City. Id. at 522.

       The following year, the Court was presented with a claim from the parents of a

ten-year-old boy who had drowned while swimming in a natural stream at Gwynns Falls

Park. Mayor & City Council of Balt. v. State, use of Ahrens, 168 Md. 619, 620 (1935).

The plaintiffs presented evidence that the area in which the boy drowned was dangerous,

that three others had drowned there in the prior five years, and that the City had nonetheless

posted no warnings and taken no steps to make the area safer. Id. at 622. In rejecting the

plaintiffs’ claims that these facts gave rise to an actionable claim, the Court noted the

distinction confirmed in Eagers between the proprietary function of “the maintenance of

streets and highways” and “the exercise of various governmental or political functions

necessarily incident to municipal government.” Id. at 625. Based on that distinction and

important public policy concerns—the Court feared that imposing liability on local

governments for negligence in maintaining parks would discourage the expansion and

development of such parks—the Court held that “that the maintenance, control, and

operation of Gwynns Falls Park . . . is a governmental duty, discretionary in its nature,

performed in its political and governmental capacity as an agency of the state.” Id. at 628.

The City thus enjoyed immunity for actions related to its maintenance of the park. Id.

       Two years later, the Court decided Blueford, which involved the drowning of an

11-year-old girl in a swimming pool maintained by the City of Baltimore. 173 Md. at 268.

The Court began by recognizing the general rule that a local government “is not liable in a

                                              7
civil action for any default or neglect in the performance of a purely governmental

function,” as well as the exception that applied to the entity’s “failure to keep the public

highways under its management and control in a reasonably safe condition.” Id. at 273.

Observing that it was already established that maintenance of a park was a governmental

function, the Court held that maintaining a swimming pool must be as well. Id. at 274.

Although it acknowledged that there was no universally-accepted rule for determining

whether a function was governmental or proprietary, the Court concluded that a function

is governmental where it “is sanctioned by legislative authority, is solely for the public

benefit, with no profit or emolument inuring to the municipality, and tends to benefit the

public health and promote the welfare of the whole public, and has in it no element of

private interest.” Id. at 276. Maintaining a public swimming pool, the Court concluded,

meets that standard. Id. at 274.

       The Court introduced a twist on the “public way” exception to governmental

immunity in Haley v. Mayor & City Council of Baltimore, 211 Md. 269 (1956). There, in

separate incidents, two plaintiffs were injured while walking on steps within an urban park

that was maintained by the City of Baltimore. Id. at 271. Although the walkway at issue

was within the park, the Court determined that its function, and not its location, was

dispositive. Id. at 272-73. Because the steps were part of a public path connecting two

pedestrian sidewalks, and that path was frequently used “in order to travel between points

which were outside the park and not for recreational purposes,” the Court held that “the

steps constitute[d] a public highway of the City.” Id. at 273. The Court thus reversed the

trial court’s conclusion that Baltimore City enjoyed immunity from the claims. Id. at 274.

                                             8
       Three years after Haley, the Court decided Pierce v. City of Baltimore, 220 Md. 286

(1959). When Mr. Pierce alighted from a bus at a city bus stop where there was no

sidewalk, he, like other passengers, had been required to walk “along an unpaved strip of

ground” parallel to the road to get to a sidewalk. Id. at 288. While doing so, he caught his

foot under a metal plate covering a drain, fell, and sustained damages. Id. Summarizing

the state of the law, the Court concluded that where “the municipality has actual or

constructive notice” of a defect that “is not to be expected and is substantial . . . generally

recovery is allowed, even though the area involved is one not actually or formally dedicated

to pedestrian use.” Id. at 291.2 There, the evidence was such that a “jury properly could

have concluded that the City had violated a duty owed Pierce to have anticipated that

pedestrians would” walk on the unpaved strip rather than “in the street with their backs to

traffic,” and so that one of them “might injure himself on the drain or the plate.” Id.

Although the City’s duty of care with respect to the unpaved strip was less than it would

have been on a paved surface, the City still was required to make it “reasonably safe for

persons having occasion to walk upon [it].” Id. at 292.

       In Higgins, this Court considered whether the City of Rockville had immunity from

a claim for damages a pedestrian sustained while walking from a City-maintained parking

lot to a City-maintained athletic field along a walkway the City had created by chaining off

a portion of the parking lot. 86 Md. App. at 674. We held that because the City had set


       2
         The requirement that the local government have notice of the defect before liability
may be imposed is longstanding. See, e.g., Keen v. City of Havre de Grace, 93 Md. 34, 39
(1901) (“Before the city can be made liable in any case, it must be shown that it had notice
of the bad condition of the street.”). Neither party raises notice as an issue on appeal.
                                              9
aside a portion of the lot as a walkway, maintenance of that portion of the lot became a

proprietary function under the “public way” exception and the City thus could not claim

governmental immunity. Id. at 686.

       The most recent addition to Maryland’s delineation of the scope of the public ways

exception to governmental immunity was Mayor & City Council of Baltimore v. Whalen,

395 Md. 154 (2006). There, a blind plaintiff who was on a walk on a public right-of-way

located within a public park veered slightly off the right-of-way and fell into an uncovered

utility hole. Id. at 157. The City argued that it enjoyed governmental immunity because

the accident occurred in a public park, the maintenance of which case law had long since

established as governmental in nature. Id. at 162. The plaintiff, by contrast, argued that

this fell within the exception for the “maintenance of streets, public ways, and the areas

contiguous and adjacent to them . . . .” Id. Placing dispositive importance on the fact that

the plaintiff was inside the boundaries of the public park at the time of the accident, the

Court found Ahrens and its progeny controlling. Id. at 164. Although Eagers and cases

on which it relied had established that dangers that originate from within public parks could

give rise to liability of a local government if they “create actual hazards on the public way,”

that principle was limited to dangers that “come from outside the boundaries of the public

way onto the public way . . . .” Id. at 167. In Whalen, the danger stayed entirely within

the boundaries of the public park and never ventured onto the public way itself. As a result,

the City was immune from suit.

       These cases establish the following general principles where a pedestrian is injured

by a local government’s negligence:

                                              10
       1.     If the injury occurs on a paved public way (i.e., a paved public street
       or sidewalk), there is no governmental immunity. Eagers, 167 Md. at 136;
       Haley, 211 Md. at 272-73. That is true regardless of where the local
       government’s negligence originates. Eagers, 167 Md. at 136;

       2.     If the injury occurs within the boundaries of a public park, swimming
       pool, or similar area where the local government’s maintenance obligation is
       governmental in nature, governmental immunity applies, Blueford, 173 Md.
       at 274; Ahrens, 168 Md. at 628, unless the injury occurs on a paved public
       way through the park, Haley, 211 Md. at 272-73; Eagers, 167 Md. at 136;
       Higgins, 86 Md. App. at 685. That is true even if the area within the park,
       pool, or similar area is contiguous and adjacent to a public way. Whalen,
       395 Md. at 157-58;

       3.     If the injury occurs on an unpaved area that is (a) outside of a public
       park, swimming pool, or similar area, (b) contiguous and adjacent to a public
       way, and (c) where the government should expect that pedestrians might
       walk, governmental immunity does not apply. Pierce, 220 Md. at 290, 292;
       Hertzler, 167 Md. at 520-21. In that situation, however, the standard of care
       owed by the government is less than that owed in conjunction with a paved
       public way. Pierce, 220 Md. at 292; Hertzler, 167 Md. at 521.

       The County argues that this case is controlled by Whalen because the area in which

the injury occurred in both cases was adjacent to, and not on, a public way. But the County

ignores that the dispositive factor in Whalen was that the injury occurred within the

boundaries of a public park, the maintenance of which is well-established as a

governmental function. Here, by contrast, the injury occurred on a grassy strip that is

neither a paved public way nor within the boundaries of a public park or similar area.3

Whalen is therefore not dispositive.


       3
         Notably, to reach its expansive interpretation of Whalen the County felt the need
to argue that the Court of Appeals in that case “overruled Pierce and its progeny” by
holding “that the immunities that would normally apply outside of the roadway exception
kick in when the traveler leaves the safe path and is injured.” Thus, the County contends,
the Court of Appeals has now tightened the public ways exception so that it no longer
reaches areas that are contiguous and adjacent to paved roads and sidewalks under any
                                            11
       Ms. Fratantuono argues that this case is controlled by Pierce because the area in

which the injury occurred in both cases was adjacent to a public way and the government

had reason to know that pedestrians traveled there. But in Pierce, the government—by

placing a bus stop in an area with no paved walkway—had basically left pedestrians with

no choice but to walk on the strip where the injury occurred. Here, by contrast, the County

had placed a sidewalk on the other side of the street, which Ms. Fratantuono chose to leave.

We thus find Pierce distinguishable as well.

       Although this case is not on all fours with any of the precedents discussed above,

we think it is most similar to Hertzler. There, as here, the injury occurred in an unpaved

area that the government had neither set aside for walking nor blocked with any barriers to

pedestrian traffic. 167 Md. at 519. There, as here, the injured party was traversing the

unpaved area to get from one paved area to another. Id. at 519-20. And there, as here, the

evidence established that the area was contiguous and adjacent to a sidewalk where

pedestrian traffic was expected. Id. at 520-21. Here, that evidence included (1) Ms.

Fratantuono’s testimony that she had walked that path at least 50 times and had observed

others walking it as well and (2) pictures and descriptions showing that the strip fell

between two paved sidewalk segments that were not otherwise connected.




circumstances. The County provides no authority for its assertion that the Court overruled
Pierce, nor did the Court expressly state an intent to do so in Whalen or any other decision.
When the Court of Appeals “intends to overrule a case it tends to do so explicitly.” Moore
v. State, 412 Md. 635, 657 (2010). Absent compelling evidence to the contrary, we will
not assume that the Court overruled its precedent by implication.
                                             12
       In Hertzler, the Court of Appeals observed that the local government’s duties with

respect to the unpaved area were less than they would be in a paved area, but that the

government nonetheless was obligated to protect pedestrians from “dangers of a kind that

would not be expected by foot passengers, dangers in the nature of traps.” Id. at 521. The

Court in Pierce similarly noted that a local government’s duty of care with respect to an

unpaved area was to make it “reasonably safe for persons having occasion to walk upon

[it].” 220 Md. at 292. Here, the jury concluded that the County’s failure to maintain the

water meter lid in a safe condition allowed it to flip without any warning or notice, which

in turn allowed Ms. Fratantuono’s leg to fall into the hole and resulted in her injuries. This

danger constitutes just the sort of trap that renders such an unpaved area not reasonably

safe for pedestrian use.

       In sum, Anne Arundel County did not have governmental immunity for this injury

occurring in a grassy strip that was set contiguous with and adjacent to both the public road

and the public sidewalk. The circuit court thus did not err in denying the County’s motion

for summary judgment on that ground.

II.    THE CIRCUIT COURT DID NOT ERR IN DECLINING TO INSTRUCT THE
       JURY AS TO CONTRIBUTORY NEGLIGENCE.

       The County’s second contention on appeal is that the circuit court erred in declining

to give jury instructions (1) that Ms. Fratantuono’s violation of a statute that prohibits

pedestrians from walking on a roadway when a sidewalk is provided constituted evidence

of contributory negligence; and (2) on contributory negligence generally.             Neither

contention has merit.


                                             13
       We review whether a trial court abused its discretion in declining to offer a jury

instruction using “well-defined standards.” Cost v. State, 417 Md. 360, 368 (2010). 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.

Preston v. State, 444 Md. 67, 81-82 (2015).

       The County contends that by (1) crossing Maple Road at a point where there was

no crosswalk and then (2) walking on the grassy strip rather than the sidewalk that was on

the opposite side of Maple Road, Ms. Fratantuono violated Maryland law that “when a

sidewalk is present, a pedestrian may not walk along an adjacent road.” As support for that

legal proposition, the County cites only § 21-506(a) of the Transportation Article, which

states: “Where a sidewalk is provided, a pedestrian may not walk along and on an adjacent

roadway.” Md. Code Ann., Transp. § 21-506(a) (emphasis added). That statute, which is

designed to prevent pedestrians from walking in streets, is inapposite here, where Ms.

Fratantuono was walking along, but not on, the adjacent roadway at the time of her injury.4

       We also agree with the trial court that there is no evidence in the record that could

have generated a general contributory negligence instruction. Ms. Fratantuono testified

that she was looking ahead while she was walking. Even if the County is correct that she


       4
          The County’s claim that Ms. Fratantuono violated the statute by crossing Maple
Road where there was no crosswalk suffers from even greater deficiencies, including that
there was no sidewalk “provided” for the purpose of crossing the road (thus rendering the
statute inapposite), the injury did not occur while she was crossing the road, and there was
no evidence presented to link her injury to the fact that she got to the south side of Maple
Road by jaywalking.
                                              14
was somehow negligent in looking ahead instead of looking down, the County presented

no evidence that she would have observed anything amiss had she been looking down. The

evidence was that the water meter lid was installed in 2011 and had not subsequently been

opened. The record contains no indication that anything about the appearance of the lid

would have suggested that it would flip if disturbed, nor has the County pointed us to any

authority for the proposition that it is negligent for a pedestrian to step on a water meter lid

while walking. Because the evidence did not support either of the County’s proposed

instructions, the trial court did not err in refusing to give them.

III.   THE JURY VERDICT WAS NOT INCONSISTENT.

       The County’s final assertion of error is that the jury’s verdict should be set aside as

fundamentally inconsistent.      We will only overturn a jury’s verdict on grounds of

inconsistency if it is “irreconcilably inconsistent.” Bacon & Assocs., Inc. v. Rolly Tasker

Sails (Thailand) Co., 154 Md. App. 617, 627 (2004). This is not such a situation.

       The questions and answers at issue are:

       Question 1: Has Plaintiff proved, by a preponderance of evidence, the
       elements of negligence, as they were described to you by the court, against
       Anne Arundel County with respect to the construction, installation,
       maintenance and replacement of the Nicor Water Meter Lid at issue?

       Answer: No.

       Question 2: Has Plaintiff proved, by a preponderance of evidence, the
       elements of negligence based upon violation of a regulation, as they were
       described to you by the court, against Anne Arundel County with respect to
       the construction, installation, maintenance and replacement of the Nicor
       Water Meter Lid at issue?

       Answer: Yes.


                                              15
       Question 3: Has Plaintiff proved, by a preponderance of evidence, the
       elements of negligent supervision, as they were described to you by the court,
       against Anne Arundel County with the respect to supervising and training of
       the employees in the construction, installation, maintenance and replacement
       of the Nicor Water Meter Lid at issue?

       Answer: Yes.

       The County argues that the answers to questions 1 and 2 are inconsistent because

both questions asked the jury whether the County was answerable in ordinary negligence

to Ms. Fratantuono with respect to the construction, installation, maintenance, and

replacement of the lid. Although the County acknowledges that Ms. Fratantuono pursued

three different theories of negligence—common law, violation of regulation, and failure to

supervise—it claims that the jury’s negative answer to the first question required a

judgment in the County’s favor.

       We find no merit in this argument. The court instructed the jury on each of Ms.

Fratantuono’s theories of negligence. It initially instructed the jury on the common law

elements of a negligence claim, telling them that “[t]he definition of negligence is doing

something that a person using reasonable care would not do or not doing something that a

reasonable person using reasonable care would do.” After being reminded that it had not

read a separate instruction regarding Ms. Fratantuono’s theory that the County was

negligent in failing to follow the requirements of its own design manual, the Court gave

this instruction:

       Entirely separate and distinct from common law negligence, the violation of
       a regulation, in this case the Anne Arundel County design manual, which is
       a cause of the Plaintiff’s injuries or damages, is evidence of negligence. To
       establish negligence based upon the violation of a regulation, all that a
       plaintiff must show is that the violation of a regulation designed to protect a

                                             16
       specific class of persons, which includes the Plaintiff, and that the cause –
       and that this caused the injury complained of. Plaintiff need not show that
       the Defendant had knowledge that it violated the regulation.[5]

The court followed with an instruction regarding negligent supervision, telling the jury that

the elements were the same as the elements of common law negligence for breach of “the

duty to properly and effectively supervise, train its employees tasked with constructing,

installing, maintaining, and replacing the subject water meter lid in accordance with the

Anne Arundel County’s design manual and construction details.”

       On appeal, the County does not challenge the verdict sheet or the instructions given

to the jury. Instead, the County’s challenge is limited to a claim that the verdict is

inconsistent. We disagree. In light of the instructions the court provided, the jury’s

answers made clear its conclusion that the County was negligent, but only because it had

violated the requirements of its own design manual. In other words, but for the evidence

that the County had violated the requirements of the manual, the jury would have found for

the County. Because that evidence was presented, the jury found otherwise. The circuit

court thus did not err in refusing to vacate the jury’s verdict.



                                            JUDGMENTS AFFIRMED. COSTS TO BE
                                            PAID BY APPELLANT.




       5
       Although the County objected to giving this instruction, it does not raise that issue
on appeal and so we do not address it.
                                              17
