IN THE COURT OF SPECIAL APPEALS OF MARYLAND. September Term, 2004 ANGELINA SOMMERMAN, DEBORAH SCHUBERT TITLEMAN, et al., No. 2020

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1 IN THE COURT OF SPECIAL APPEALS OF MARYLAND September Term, 2004 ANGELINA SOMMERMAN, v. Appellant, DEBORAH SCHUBERT TITLEMAN, et al., Appellees No Appeal from the Circuit Court for Baltimore County (Vicki Ballou-Watts, Judge) REPLY BRIEF FOR APPELLANT TO BRIEF OF APPELLEE BALTIMORE COUNTY, MARYLAND JOHN F. FRANKE C. WILLIAM MICHAELS Levi, Franke & Hall Law Offices 2904 East Joppa Road 1579 Dellsway Road Baltimore, Maryland Baltimore, Maryland (410) (410) Attorneys for Appellant 1

2 TABLE OF CONTENTS Statement of the Case... 1 Issues Presented... 1 Statement of the Facts... 2 Argument... 3 Appellee Baltimore County Was Not Entitled to Summary Judgment and the Circuit Court Was Clearly Erroneous in Granting Summary Judgment... 3 Conclusion Certification Under Rule Certificate of Service

3 TABLE OF AUTHORITIES MARYLAND CASES Court of Appeals Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298 (1996)...9 Bagwell v. Peninsula Regional Medical, 106 Md.App. 470, 665 A.2d 297 (1995)...3 Campfield v. Crowther, 252 Md. 88, 249 A.2d 168 (1969)...4 Ferrell Lines, Inc. v. Devlin, 211 Md. 404, 127 A.2d 640 (1956)...9 General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 492 A.2d 1306 (1985)...9 Goodwich v. Sinai Hosp. of Baltimore, 343 Md. 185, 680 A.2d 1067 (1996)...3 Gross v. Sussex, Inc., 332 Md. 247, 630 A.2d 1156 (1993)...3 Impala Platinum, Ltd. v. Impala Sales, Inc., 283 Md. 296, 389 A.2d 887 (1978)...3 Mondawmin Corporation v. Kres, 258 Md. 307, 266 A.2d 8 (1970)...4 Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967)...4 Sanner v. Guard, 236 Md. 271, 203 A.2d 885 (1964)...4 Sheets v. Brethren Mutual, 342 Md. 634, 679 A.2d 540 (1996)...3 Southern Maryland Electric Co-operative v. Blanchard, 239 Md. 481, 212 A.2d 301 (1965)...4 Tie Bar, Inc. v. Shartzer, 249 Md. 711, 241 A.2d 582 (1968)...4 Wolf v. Ford, 335 Md. 525, 644 A.2d 522 (1994)...9 ii

4 Wolfe v. Lamar & Wallace, Inc., 261 Md. 174, 274 A.2d 121 (1971)...3 iii

5 Court of Special Appeals Cheney v. Bell National Life Insurance Company, 70 Md. App. 163, 520 A.2d 402 (1987)...3 Fearnow v. Chesapeake Telephone, 104 Md.App. 1, 655 A.2d 1, 25 (1995), aff'd in part, rev'd in part, 342 Md. 363, 676 A.2d 65 (1996)... 4 Fireman's Fund Ins. Co. v. Rairigh, 59 Md. Alp. 305, 475 A.2d 509 (1984)...4 Seigner v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (2002)...9 STATUTES AND RULES Maryland Rule 2-323(g)...9 iv

6 IN THE COURT OF SPECIAL APPEALS OF MARYLAND September Term, 2004 ANGELINA SOMMERMAN, v. Appellant, DEBORAH SCHUBERT TITLEMAN, et al., Appellees No Appeal from the Circuit Court for Baltimore County (Vicki Ballou-Watts, Judge) REPLY BRIEF FOR APPELLANT v

7 STATEMENT OF THE CASE Appellant Angelina Sommerman ("Ms. Sommerman" or "Plaintiff" or "Appellant") here incorporates the description of the procedural background in the Statement of the Case appearing in her initial Brief. Appellee Baltimore County ("Baltimore County" or "Defendant" or "Appellee") in its Brief, noted no changes or objections to that description. ISSUES PRESENTED Appellant notes the restatement of the issues in Appellee's Brief, but nevertheless reiterates the issues, regarding all Appellees as described in her initial Brief: 1. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Deborah S. Titleman, the defendant driver, solely on the basis of alleged contributory negligence of Plaintiff pedestrian, who was struck by Defendant's vehicle while crossing a street in a non-crosswalk area, where Defendant driver was talking on her hand-held cell phone at the time the accident and where there was a dispute of fact as to other crucial and relevant circumstances, including whether the Defendant driver was exceeding the speed limit? 2. Was application of the doctrine of contributory negligence negated because the Defendant driver had the "last clear chance" to avoid the accident? 3. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Baltimore County, due to the condition created by a construction area managed by the County at which a sidewalk had been fenced off and closed, making it difficult for pedestrians on that side of the street to reach a marked intersection crosswalk, and thus making it likely that pedestrians would cross a heavily-traveled street without the benefit of a crosswalk to reach the other side of the street, and in that the County did not install a temporary crosswalk to compensate for the fenced-off sidewalk in the construction area although the contractor recommended such a sidewalk be installed, and for failing promptly to repair a street light which had failed some time prior to the accident and which was not functioning on the evening of the accident? 1

8 4. To the extent that summary judgment granted to Defendant Baltimore County was based upon a "release" which Plaintiff signed, did the Circuit Court err or abuse its discretion in basing summary judgment on that release? 5. To the extent that summary judgment granted to Defendant Baltimore County was based upon a "release" which Plaintiff signed, was the County barred from asserting this release as an affirmative defense because the defense was not raised in Defendant's original answer to the Complaint? 6. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Gilbane Building Company, in that Defendant Gilbane fenced off the sidewalk of the construction area when construction fencing need not have encompassed the sidewalk, creating a condition contributing to Plaintiff's being unable easily to reach the marked intersection crosswalk to return to her vehicle and making it likely that Plaintiff would cross a heavily-traveled street without the benefit of a marked crosswalk, and to the extent it was responsible for the failed streetlight? 7. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Gilbane Building Company, assuming that fencing off the sidewalk of the construction area was necessary, for failing to require the County install a temporary crosswalk at the construction site area, when the construction company was aware that pedestrians could not easily walk to the marked intersection crosswalk to reach the opposite side of the street and thus would cross the street without the benefit of a marked crosswalk in an area known for heavy and rapidly-moving traffic? STATEMENT OF THE FACTS Appellant offers the following reply on Appellee's comments concerning the Statement of the Facts in Appellant's Brief: --Appellant disagrees that there was space between the construction fence at the new detention center site and the curb on the north side of Kenilworth Drive. The photographs show otherwise. [E. 200, E. 204, E. 206]. Also, even if one witness testified she had used that path before, this does not mean that Ms. Sommerman could have or 2

9 should have used the same path, in that she was unfamiliar with Kenilworth Drive and could not have been certain about using the path through the construction site to the intersection, given that it was night and a streetlight was not functioning. --Also, as to whether it was dark, Appellant simply states that the accident occurred at approximately 8:30 p.m. in late October (October 28). ARGUMENT APPELLEE BALTIMORE COUNTY WAS NOT ENTITLED TO SUMMARY JUDGMENT AND THE CIRCUIT COURT WAS CLEARLY ERRONEOUS IN GRANTING SUMMARY JUDGMENT. Appellee presents its argument for affirming the Circuit Court's ruling, while passing over summary judgment standards. Appellant reiterates that summary judgment determines if material facts are in dispute and if the moving party is entitled to judgment as a matter of law. It is not a substitute for trial. Cheney v. Bell National Life Insurance Company, 70 Md. App. 163, 520 A.2d 402 (1987). To survive a motion for summary judgment, the non-moving party need only demonstrate that there is a "genuine dispute of material fact by presenting facts that would be admissible in evidence." Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 (1993). A court considering summary judgment does not decide issues of fact or credibility. See also, e.g., Wolfe v. Lamar & Wallace, Inc., 261 Md. 174, 274 A.2d 121 (1971); Impala Platinum, Ltd. v. Impala Sales, Inc., 283 Md. 296, 389 A.2d 887 (1978). Summary judgment is inappropriate where the evidence is susceptible to more 3

10 than one inference. Fearnow v. Chesapeake Telephone, 104 Md.App. 1, 655 A.2d 1, 25 (1995), aff'd in part, rev'd in part, 342 Md. 363, 676 A.2d 65 (1996). The court must resolve all inferences against defendant and give plaintiff the "benefit of all reasonable doubts in determining whether a genuine issue exists." Id. (quotation marks and citations omitted). The trial court thus is required to view the facts and inferences in a light most favorable to the non-moving party. Fireman's Fund Ins. Co. v. Rairigh, 59 Md. App. 305, 475 A.2d 509 (1984). Appellee also does not mention the general rule that ordinarily, the issue of contributory negligence is for the jury. See, e.g., Southern Maryland Electric Cooperative v. Blanchard, 239 Md. 481, 212 A.2d 301 (1965), and Sanner v. Guard, 236 Md. 271, 203 A.2d 885 (1964). Only when reasonable minds cannot differ is a trial court justified in deciding a question of contributory negligence as a matter of law. Mondawmin Corporation v. Kres, 258 Md. 307, 266 A.2d 8 (1970); Campfield v. Crowther, 252 Md. 88, 249 A.2d 168 (1969); Tie Bar, Inc. v. Shartzer, 249 Md. 711, 241 A.2d 582 (1968), and Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967). Appellee County incorporates in its Brief, the arguments by Appellee Titleman concerning Appellant's alleged contributory negligence as a matter of law. Appellant incorporates by reference here, her discussion of that issue in her Reply Brief to the Brief of Appellee Titleman. Concerning other issues raised by the County, Ms. Sommerman crossed the street 4

11 where she did, because it was difficult if not impractical for her to walk between parked cars and the construction fence to proceed to the corner of Kenilworth Drive and Bosley Avenue to the marked crosswalk there. Other pedestrians, including Ms. Sommerman, also chose instead to walk directly across the street. The County discounts the effect of the construction fence on that situation. There is no dispute that the County was aware that this situation was a safety hazard. There is no dispute that several officials for the contractor, Gilbane Building Company, informed the County numerous times of the safety problem. Gilbane consistently recommended that a temporary crosswalk be installed. The County was on notice of the danger to pedestrians created by the closed sidewalk at Kenilworth Drive. For reasons known only to the County, no temporary crosswalk was then installed. Yet, after the accident, a temporary crosswalk was installed. There was no necessity for Ms. Titleman to produce a traffic engineering expert, for purposes of the County's summary judgment motion, on conclusions to be drawn from the fact of the pedestrian hazard at that location of Kenilworth Drive or from the fact that the County, after the accident, installed a temporary crosswalk. These inferences were well within lay experience and fairly could have been drawn from the wellunderstood circumstances. Further, under summary judgment standards, those inferences were to have been drawn in Ms. Sommerman's favor. The County's statement that "lay speculation" regarding the sidewalk hazard 5

12 would be "inadmissible" appears to disregard the effect of Rule and Rule Those evidence rules specifically permit lay opinion testimony if such "opinions or inferences" are "rationally based" upon the witness' perception or "helpful to a clear understanding of the witness's testimony or the determination of a fact in issue." Thus, the Court could consider the views of any witnesses as to whether a temporary crosswalk should have been placed at that point in the roadway. There also is no dispute that the County was aware that a street light was out at the time of the accident. Yet, after the accident, the street light was repaired. The County appears to concede that evidence of its subsequent remedial measures, in later installing a temporary crosswalk, would be admissible. Appellant emphasizes, as she stated in her Brief, that installing this additional crosswalk stands in direct contradiction to the County's position, when safety issues were raised by Gilbane in mid-2002 about the lack of just such a temporary crosswalk, that installing one was not feasible. [See, e.g., Appellant's memorandum in opposition to summary judgment motion of Appellee Titleman, at p. 3-4, and Appellee's Brief at 3-4, conceding that the temporary crosswalk was installed due to potential liability issues for the County]. The County appears to concede that the effect upon its summary judgment arguments of the installation of this temporary crosswalk, a fact that was among the circumstances before the Circuit Court on the County's summary judgment motion, is a dispute of fact or is a legal inference which should have precluded summary judgment 6

13 for the County. In addition, there is a further dispute between Defendants Gilbane and the County, over which of these two parties was responsible for pedestrian safety issues at or near the construction site, and to what extent. (See Appellee County's Brief at 3-4 and fn. 1). These circumstances, again, require that summary judgment be denied to the County. Appellee County declares that the County's "duty" to install the temporary crosswalk is "speculation" and that it is "speculation" to suggest that the construction fence was a factor in Ms. Sommerman's decision to cross the street where she did. Appellant states that, instead, any "speculation" concerns Appellee County's contention that Ms. Sommerman crossed Kenilworth Drive where she did, not because her path to the intersection of Kenilworth Drive and Bosley Avenue (where the crosswalk was located) was blocked, but because she had "no intention" of continuing to the intersection. (Appellee's Brief at 4). Reviewing Appellant's deposition, it does not appear that counsel for Appellee County even inquired of her as to why she proceeded across Kenilworth Drive where she did, as opposed to walking to the Bosley Avenue intersection and the crosswalk. Given Appellee's arguments, whether the construction fence was a factor in Appellant's decision to cross where she did, is a dispute of material fact precluding summary judgment. The same can be said about the effect of the street light. It was quite evidence that it was dark at the time of the incident. There is no dispute that the street light was out. It 7

14 was not clear how long the street light was not functioning, although Appellant maintains that the County either knew or should have known of that situation. Such an issue is properly before the jury. Concentrating on the contributory negligence issue, Appellee County chooses not to review issues of Appellant's waiver document, contending the Circuit Court did not rely upon this document in its summary judgment decision. (Appellee County's Brief at 7, fn. 2). The Circuit Court did not rule from the bench at the hearing on the summary judgment motions [E. 442], nor were its reasons for granting summary judgment for each of the Defendants described in the Orders signed [E. 445, E. 446, E. 447]. No written opinion accompanied those Orders. Consequently, all issues advanced by the County for its summary judgment motion are before this Court on appeal. To state briefly, Appellant notes the release, dated October 7, 2002, for the field trip to the Detention Center of October 28, It stated: In consideration of the permission granted to [Angelina Sommerman] by the Baltimore County Bureau of Corrections to participate in the above described activity, I [Angelina Sommerman] hereby release Baltimore County and the Baltimore County Bureau of Corrections and their officers, servants, agents and employees from all actions, causes of action, claims, damages, demands, judgements [sic] and executions of any and every kind of [sic] nature whatsoever that may arise from participation in the above described activity and agree to and do indemnify and save harmless Baltimore County, the Baltimore County Bureau of Corrections and their officers, servants, agents and employees from all claims or causes of action in connection therewith. I have read and understand all of the items of this release. I execute it voluntarily and with full knowledge of its significance. 8

15 Appellant has argued that this release does not bar her claims against the County for this incident. She reiterates that the County's reliance upon the release as a defense is barred by its failure to timely note the release as an affirmative defense. See Rule 2-323(g). In addition, the Release cannot absolve the County from liability based on its own negligence. A release is to be carefully construed. The critical issue is whether the exculpatory clause is sufficient to absolve the defendant from liability resulting from its own negligence. A clause that is ambiguous in this regard is insufficient. Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254, 686 A.2d 298 (1996), noting releases are to be construed as contracts and will not be construed to indemnify a person against negligence unless an intention to do so is clearly and unequivocally expressed. See Ferrell Lines, Inc. v. Devlin, 211 Md. 404, 127 A.2d 640 (1956). Although a release need not include the word "negligence" or any specific terms, to be effective in this respect, the intention of the release to indemnify a party from his or her own negligence, still must be clear. Adloo, at 686 A.2d at , and cases cited, e.g., General Motors Acceptance Corp. v. Daniels, 303 Md. 254, 492 A.2d 1306 (1985). And see also Seigner v. National Fitness Institute, Inc., 132 Md. App. 271, 752 A.2d 631 (2002) (discussing exculpatory clauses and public policy) and Wolf v. Ford, 335 Md. 525, 644 A.2d 522 (1994) (performance of public service obligation is of such significance to public good that release would be objectionable). 9

16 Further, a reasonable reading of the language of the release concerns the trip to the Detention Center and any injuries or incidents occurring on that site, rather than as a global release for injuries sustained in any incident of any sort occurring at any other time, on that date of that visit, for any reason. In short, the release does not require that the County's summary judgment motion should have been granted. Thus, the Circuit Court erred in granting the summary judgment motion of Appellee Baltimore County. That decision must be reversed. CONCLUSION THEREFORE, Appellant ANGELINA SOMMERMAN requests that this Court REVERSE the summary judgments entered by the Circuit Court for Baltimore County. 10

17 RESPECTFULLY SUBMITTED, C. WILLIAM MICHAELS Law Offices 1579 Dellsway Road Baltimore, Maryland (410) JOHN F. FRANKE Levi, Franke & Hall 2904 East Joppa Road Baltimore, Maryland (410) Attorneys for Appellant CERTIFICATION AS TO RULE In accordance with Rule 8-112, Appellant here certifies that the typeface utilized for this Brief is an approved typeface, CG Times, that the type size is 13 point, and that this Brief otherwise meets all applicable requirements of the Rule. C. WILLIAM MICHAELS 11

18 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of July, 2005, I mailed, postage prepaid, two copies of this Reply Brief of Appellant to: KATHLEEN MCDONALD, ESQ. Kerr McDonald, LLP 31 Light Street, Suite 400 Baltimore, Maryland Attorney for Appellee Deborah S. Titleman and J. GREGORY DONLIN, ESQ. Law Offices B&O Building, Suite 310 Two North Charles Street Baltimore, Maryland Attorney for Appellee Gilbane Building Company, Inc. and PAUL MAYHEW, ESQ. Baltimore County Office of Law 400 Washington Avenue, Suite 219 Towson, Maryland Attorney for Appellee Baltimore County C. WILLIAM MICHAELS 12