BRENDA COLBERT v. MAYOR AND CITY COUNCIL OF BALTIMORE, No. 1610,
Sept. Term 2016

HEADNOTE:

Negligence – Duty – Actual Notice – Constructive Notice – Res Ipsa Loquitur

Notwithstanding evidence of complaints regarding leaks in water lines in close proximity
to Colbert’s home, and that Baltimore City had trouble keeping up with maintenance
projects, there was no evidence that the City had actual or constructive notice of a
defective condition in the water main on Elmley Avenue that ruptured on February 20,
2015. There was no evidence to suggest that the ruptured water main was a casualty that
usually does not occur in the absence of negligence. As a result, the trial court did not err
in determining that the doctrine of res ipsa loquitur did not apply in this case.
Circuit Court for Baltimore City
Case No. 24-C-15-003582



                                               REPORTED

                                   IN THE COURT OF SPECIAL APPEALS

                                             OF MARYLAND

                                                 No. 1610

                                          September Term, 2016


                                         BRENDA COLBERT

                                                    v.

                                     MAYOR AND CITY COUNCIL OF
                                           BALTIMORE



                                       Nazarian,
                                       Shaw Geter,
                                       Eyler, James R.
                                        (Senior Judge, Specially Assigned),

                                                    JJ.



                                       Opinion by Eyler, James R., J.


                                       Filed: February 2, 2018
       In a negligence suit against a municipality based on a failure to properly maintain

its public facilities, it is reasonably well settled that a plaintiff must produce some

evidence that the municipality knew or should have known of the alleged defect that

caused damage. In this case, involving a rupture of a buried water main line, the question

is whether evidence of water leaks generally and a failure to adequately maintain an

aging water system is enough to create a jury question with respect to a buried water line

that ruptures, either because it is sufficient to give rise to an inference of a specific act of

negligence or it is sufficient to invoke res ipsa loquitur. We conclude that the evidence is

legally insufficient to create a jury question.

        The Circuit Court for Baltimore City entered summary judgment in favor of the

Mayor and City Council of Baltimore (“the City”), the appellee, in a negligence suit

brought against it by Brenda Colbert, appellant. In February 2015, an underground water

main ruptured in close proximity to appellant’s residence, causing flooding in her home.

Appellant notified the City, which denied liability. In her complaint, appellant alleged

that the City negligently failed to properly maintain the water main. In this timely

appeal, appellant contends that the circuit court’s grant of summary judgment was legally

incorrect.    She presents the following issues for our consideration:

              1) Whether the circuit court erred by finding no dispute of
              material fact existed as to whether the City had actual
              knowledge of the defective condition of the water main;

              2) Whether the circuit court erred in determining that no
              dispute of material fact existed as to whether the City had
              constructive knowledge of the defective condition of the
              water main; and,
              3) Whether the circuit court erred in determining that the
              doctrine of res ipsa loquitur was inapplicable to this case.

       For the reasons set forth below, we shall affirm the judgment of the circuit court.

                               FACTUAL BACKGROUND

       The parties do not dispute that, on February 20, 2015, an 8-inch cast iron water

main line that, in 1939, was buried beneath Elmley Avenue in Baltimore City, ruptured

and caused water to flood the basement of appellant’s house, which was located at 3544

Elmley Avenue. Appellant notified the City of her claim pursuant to the Local

Government Tort Claims Act, Md. Code (2013 Repl. Vol.), § 5-304 of the Courts and

Judicial Proceedings Article (“CJP”). The City denied her claim. Subsequently, appellant

filed a negligence action in the circuit court. In her amended complaint, appellant alleged

that the City had breached its duty to maintain its water mains and protect her from

resulting damages. Specifically, she alleged that the City was aware that its water system

was “quite old,” that it had suffered years of neglect, that there was an increase in “non-

seasonal breaks,” and that “‘an out-of-sight, out-of-mind attitude has left [the City] with

far too many crumbling water lines.’”

       The City filed a motion for summary judgment on the ground that there was no

evidence that, prior to the break, it had either actual or constructive notice of a defective

condition in the water main beneath Elmley Avenue. The City argued that “any defect

with the water main was not of a ‘nature’ that [it] would have learned of its existence

prior to the water main break because the water main was buried beneath the street.”        In

support of its motion, the City provided an affidavit from its designated representative,
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Arthur Shapiro, the chief of the office of engineering and construction at the Department

of Public Works and a map from the Department of Public Works depicting the water

main in question. In his affidavit, Mr. Shapiro averred that the City had no knowledge of

a defective condition in the eight inch cast iron water main on Elmley Avenue prior to the

water main break on February 20, 2015.

       Appellant opposed the motion for summary judgment, arguing that whether the

City knew or should have known of the defective condition of the water main was a

question for the jury. Appellant relied on data sheets, investigative reports, and work

orders dating from 2014 to the time of the break that showed a number of “incidents and

water leaks,” including water leaks on Elmley Avenue on November 10, 2014, and

January 5, 13, and 23, 2015. The documents indicate that the incidents included

complaints of water in basements and a leaking water meter. It appears from the

documents that the leaks were remedied. There is no evidence that the leaks were from

the main line. Appellant also directed the court’s attention to statements on the

Department of Public Works’ webpage acknowledging that the City had “noticed an

increase in non-seasonal breaks,” that “many [water mains] are not in a serviceable

state,” and that “[y]ears of an out-of-sight, out-of-mind attitude has left us with far too

many crumbling water lines.”     In addition, appellant referenced newspaper articles in

which the City acknowledged that it was replacing only five miles or less of pipe per

year, that the replacement efforts were “far short of what’s needed,” and that the City had

not been keeping up “with the maintenance that’s needed over the past 40 to 50 years.”

Acknowledging that she had no evidence of knowledge of a defect in the main line,

                                              3
appellant argued that water leaks generally were “symptomatic of a broader problem”

from which a trier of fact could “infer that the City had notice that there were problems

with the main itself.”

       In the alternative, appellant argued that the doctrine of res ipsa loquitur applied

and thus, even if the City did not have actual or constructive knowledge of the water

main’s specific condition, a genuine dispute of material fact existed as to whether such a

break would ordinarily not occur in the absence of negligence.

       The City filed a reply to appellant’s opposition and attached excerpts and exhibits

from the deposition of Mr. Shapiro.

       After a hearing on September 6, 2016, the court concluded that the doctrine of res

ipsa loquitur was not applicable. The court also concluded that there was no evidence in

the record to support appellant’s argument that leaks in the City’s water lines and the

general need for maintenance “were symptomatic of a larger problem[.]” The court

concluded that appellant failed to establish through facts admissible in evidence that the

City had actual or constructive notice of a defect in the water main prior to the rupture on

February 20, 2015.

                               STANDARD OF REVIEW

       A circuit court may grant a motion for summary judgment “if the motion and

response show that there is no genuine dispute as to any material fact and that the party in

whose favor judgment is entered is entitled to judgment as a matter of law.” Md. Rule 2-

501(f). We review a circuit court’s decision to grant summary judgment without

deference, by independently examining the record to determine whether the parties

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generated a genuine dispute of material fact and, if not, whether the moving party was

entitled to judgment as a matter of law. Rowhouses, Inc. v. Smith, 446 Md. 611, 630

(2016). We consider the record “‘in the light most favorable to the non-moving party,’”

drawing any reasonable inferences against the moving party. Id. at 631 (quoting

Hamilton v. Kirson, 439 Md. 501, 522 (2014)).

                                         DISCUSSION

                                                I.

          Appellant contends that the circuit court erred in finding that there was no dispute

of material fact as to whether the City had actual or constructive knowledge of the

defective condition of the subject water main. We disagree. Because appellant relies on

the same evidence to support her arguments of actual and constructive notice, we will

address both issues at the same time.

          As a general rule, a municipality has a duty to maintain its public works in good

condition. Smith v. City of Baltimore, 156 Md. App. 377, 383 (2004). That duty is not

absolute, however, and the municipality is not an insurer. Id. If an entity is injured

because the municipality failed to maintain its public works and the municipality had

actual or constructive notice of the bad condition that caused the damage, the

municipality may be held liable in negligence. Id. Thus, in order for the City to be held

liable for negligence, appellant was required to show that it had actual or constructive

notice.

          Actual notice has been defined as “knowledge on the part of the corporation,

acquired either by personal observation or by communication from third persons, of that

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condition of things which is alleged to constitute the defect.” McQuillin, THE LAW OF

MUNICIPAL CORPORATIONS, § 54:176 (3rd ed., July 2017 update).

       Constructive notice is notice that the law imputes based on the circumstances of

the case. City of Annapolis v. Stallings, 125 Md. 343, 93 A. 974, 976 (1915). “A

municipality is charged with constructive notice when the evidence shows that – as a

result of the ‘nature’ of a defective condition or the ‘length of time it has existed’ – the

municipality would have learned of its existence by exercising reasonable care.”

Hartford Cas. Ins. Co. v. City of Baltimore, 418 F.Supp.2d 790,793 (D.Md.

2006)(quoting Smith, 156 Md. App. at 386).

       Appellant challenges the circuit court’s reliance on Mr. Shapiro’s affidavit, in

which he averred that the City had no knowledge of a defective condition in the water

main. Appellant explains that Mr. Shapiro was “entirely unfamiliar with the City’s own

information sheet expressly mapping the condition of the water main[.]” Appellant

argues that the circuit court improperly weighed the evidence, determined Mr. Shapiro’s

credibility, discounted the documents she provided, ignored “the City’s own admissions

as to its neglect of the City’s water main,” and ignored the three prior complaints in close

proximity to her home. According to appellant, the circuit court’s ruling “effectively

absolves the City of any responsibility for maintenance of its water mains” because “the

City operates on a complaint-driven and purely reactionary maintenance system for water

mains[.]” In support of her arguments, Colbert relies on Keen v. City of Havre de Grace,

93 Md. 34, 48 A. 444, 445 (1901), in which the Court of Appeals cautioned that “[i]t is



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the duty of the municipal authorities to exercise an active vigilance over the streets . . .

[t]hey cannot fold their arms and shut their eyes and say they have no notice.”

       Appellant failed to present any evidence to dispute Mr. Shapiro’s testimony that

the City had no actual knowledge of a defective condition in the water main. Even

though, before the leak in question, there were complaints of leaks in close proximity to

appellant’s home, and accepting that the City had trouble keeping up with needed

maintenance projects, the evidence fell short of establishing that the City had actual or

constructive notice that there was a defective condition in the water main in question.

       Appellant relied upon the age of the water main, newspaper articles, a screenshot

of the Department of Public Works’ webpage, and the City’s repair records for the area

close to her property to support her contention that the City knew that its water system

was old and in need of repair, that defective water mains were widespread throughout the

City, and that there were multiple water leaks in the months leading up to the break in the

subject water main. There was no evidence presented, however, to counter Mr. Shapiro’s

deposition testimony that the “longevity” of the subject water main pipe, which was

installed in 1939, “is upwards of 120 years.” Nor was there anything in the City’s

service records to link prior repairs or prior leaks to a defect in the subject water main. In

addition, the nature of the defect in the water main was not readily observable because it

was buried beneath the street. In short, there was no admissible evidence to suggest that

the City should have learned of a defective condition in the subject water main by

exercising reasonable care. As a result, the circuit court did not err in concluding that the



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City did not have actual or constructive notice of a defect in the water main prior to the

break.

                                               II.

         Appellant also contends that the circuit court erred in declining to apply the

doctrine of res ipsa loquitur. We disagree and explain.

         Ordinarily, in an action for negligence, a plaintiff must present evidence tending to

show that the defendant was legally responsible for his or her injury because that injury

might have been caused by something other than the defendant’s negligence. Chesapeake

& Potomac Tele. Co. of Maryland v. Hicks, 25 Md. App. 503, 511 (1975). Direct proof

of negligence, however, is not required. A plaintiff may instead invoke the doctrine of

res ipsa loquitur to “rely on the inference of negligence to be deduced from all the

circumstances.” Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262 (1953). The doctrine

“allows a plaintiff the opportunity to establish a prima facie case ‘when he could not

otherwise satisfy the traditional requirements for proof of negligence.’” Dover Elevator

Co. v. Swann, 334 Md. 231, 236 (1994)(quoting Pahanish v. Western Trails, Inc., 69 Md.

App. 342, 359 (1986)). The doctrine applies when “the instrumentality causing injury is

in the exclusive control of the defendant, and it is assumed he is in the best position to

explain how the accident happened.” Peterson v. Underwood, 258 Md. 9, 19

(1970)(citation omitted). The Court of Appeals described what a plaintiff must establish

to rely on the doctrine as follows:

         To invoke successfully the doctrine [of res ipsa loquitur], the plaintiff must
         establish that the accident was “(1) of a kind that does not ordinarily occur
         absent negligence, (2) that was caused by an instrumentality exclusively in
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       the defendant’s control, and (3) that was not caused by an act or omission
       of the plaintiff.”

District of Columbia v. Singleton, 425 Md. 398, 408 (2012)(quoting Holzhauer v. Saks &

Co., 346 Md. 328, 335-36 (1997)).

       A plaintiff must establish each of the three elements of the doctrine by a

preponderance of the evidence. Hicks, 25 Md. App. at 527-33. When the three elements

are satisfied, the doctrine permits, but does not compel, the jury “to infer a defendant’s

negligence without the aid of any direct evidence. Even when the doctrine applies,

however, the burden of proving the defendant’s negligence remains upon the plaintiff.”

Dover Elevator Co., 334 Md. at 236 (citations omitted).

       Appellant argues that her property sustained damage as the result of a break in a

water main that was in the City’s exclusive control. She asserts that the main would not

have broken in the absence of negligence, that “maintained pipes do not suddenly break,”

that the City was the “only entity with knowledge of the water main installation,

maintenance, and condition,” and that the City “is singularly in control” of repairs and

inspections of the water main pipes. In support of her argument that the doctrine of res

ipsa loquitur applies to her case, appellant directs our attention to Pacific Northwest Bell

Tel. Co. v. Port of Seattle, 491 P.2d 1037 (Wash. 1972). In that case, a water pipe that

formed part of a fire protection system for the Port of Seattle broke, causing water to run

into the telephone company’s manhole and damage exposed wires. Id. at 1037. The trial

court instructed the jury on the doctrine of res ipsa loquitur and the jury returned a verdict

for the Port of Seattle. Id. at 1038. Subsequently, the trial court granted the telephone

                                              9
company’s motion for judgment notwithstanding the verdict on the ground that the

doctrine of strict liability was applicable. Id. On appeal, the Supreme Court of

Washington held that the principle of liability without fault did not apply, but the doctrine

of res ipsa loquitur did. Id. at 1039. The Supreme Court held that the telephone company

was entitled to an instruction on res ipsa loquitur, explaining:

               We have here a harm which occurred to plaintiff without any fault
       on its part. The water pipe system, even though placed where it
       customarily and rightfully may be, nevertheless was buried beyond
       practical inspection and maintenance. Under these circumstances, the
       plaintiff is certainly entitled to the presumptions carried by the res ipsa
       instruction and defendant should be obligated to prove its freedom from
       negligence. Defendant met this burden to the satisfaction of the jury.

Id. at 1041.

       In Hartford Casualty Ins. Co. v. City of Baltimore, 418 F.Supp.2d 790 (D.Md

2006), the United States District Court, applying Maryland law, considered and rejected

the approach taken in the Pacific Northwest Bell Tel. Co. case. Hartford Casualty

involved a water main buried beneath a Baltimore City street. Id. at 791. The water main

was between 93 and 99 years old, had an average useful life of 120 years, and had no

history of prior breaks. Id. at 792. On January 4, 2004, the main ruptured and caused

flooding in a nearby property that was insured by Hartford Casualty Insurance Company.

Id. at 791. The United States District Court determined that Baltimore City did not have

actual notice of a defect in the water main. Id. at 793. It also concluded that the City did

not have constructive notice, stating that a reasonable jury could not find “that the

‘nature’ of the defective water main or the ‘length of time it [ ] existed’ would have led


                                             10
the City to discover this condition.” Id. The court specifically addressed the decision in

Pacific Northwest Bell Tel. Co. to apply the doctrine of res ipsa loquitur and rejected that

approach, stating:

       “[I]n order for the doctrine of res ipsa loquitur to be applicable, plaintiff
       must prove, by a preponderance of the evidence … [a] casualty of a sort
       that usually does not occur on the part of someone….” Vito v. Sargis &
       Jones, Ltd., 108 Md. App. 408, 672 A.2d 129, 134 (1996), [aff’d sub nom,
       Cogan Kibler, Inc. v. Vito, 346 Md. 200 (1997)]. In this case, however, the
       parties have forecast no evidence to suggest that a ruptured water main
       some 93-99 years old is a casualty that usually does not occur in the
       absence of negligence. See I.M. of Atlantic City v. Dist. of Columbia, 356
       F.Supp. 487, 491 (D.D.C. 1973)(“A municipality is not an insurer against
       damages from broken water mains but must be held only to the same
       standard of ‘due care’ applicable to individuals and other corporations.”).

Id. at 794 n. 2.

       We find the reasoning in Hartford Casualty to be sound and to reflect Maryland

law. In the case at hand, there was no evidence to suggest that the ruptured water main

was a casualty that usually does not occur in the absence of negligence. As a result, the

court did not err in concluding that the doctrine of res ipsa loquitur did not apply.



                                           JUDGMENT OF THE CIRCUIT COURT
                                           FOR BALTIMORE CITY AFFIRMED;
                                           COSTS TO BE PAID BY APPELLANT.




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