AT&T Mobility LLC v. Tiptons' Inc.
MEMORANDUM. Signed by Judge James K. Bredar on 9/21/2017. (krs, Deputy Clerk)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
AT&T MOBILITY LLC,
CIVIL NO. JKB-16-3107
Plaintiff AT&T Mobility LLC, a Georgia company, brings this action against Defendant
Tiptons‟ Inc., a Maryland company, alleging negligence and seeking compensatory damages
associated with the collapse of a communications tower and resulting damage to Plaintiff‟s
communications equipment. Before the Court are the parties‟ cross motions for partial summary
judgment. A hearing is not necessary to resolve the matter. See Local Rule 105.6 (D. Md.
2016). For the reasons set forth in this memorandum, Defendant‟s Motion (ECF No. 33) will be
denied by accompanying order. Plaintiff‟s Motion (ECF No. 35) will be granted in part and
denied without prejudice in part by accompanying order, in accordance with the principles set
In 2002, Plaintiff AT&T Mobility LLC entered into a contract with the owner of a
communications tower (“Tower”) in Frederick County, Maryland, and began using space on the
Tower to house and operate telecommunications equipment (“Equipment”). (Pl.‟s Mot. Partial
Summ. J. Ex. C, Van Riper Dep. 19:22, ECF No. 35-5; Def.‟s Mot. Partial Summ. J., Ex. 72,
License for Telecommunications Equipment, hereinafter “License,” ECF No. 33-6.)
contract, titled as a “License,” did not permit Plaintiff access to or control over most of the
Tower, nor did it grant Plaintiff any ownership of the Tower itself. (License ¶ 1.) Instead, the
License allowed Plaintiff, for a monthly fee, to place Equipment in a specific place on the Tower
and to have access to a “footprint” at the base of the Tower. (Id. ¶¶ 1-2.) Plaintiff is required
under the License to notify the Tower owner of conditions on the Tower that would require
maintenance or repair (id. ¶ 10), but the License provides that Plaintiff may not make any
modification to its Equipment without the permission of the Tower owner. (Id. ¶ 7(c).) In the
event of a fire or casualty, the License provides that the Tower owner will be responsible for
repairing the Tower to its prior condition, but the Tower owner is specifically not liable for any
damages stemming from the Plaintiff‟s inability to use the Tower in the interim, nor is the Tower
owner liable for any damage to Plaintiff‟s own equipment.
(Id. ¶ 13(a).)
maintained the License to this day and continues to make monthly payments to the owner. (Van
Riper Dep. 41:21-22; 99:14-17.)
On July 13, 2015, the Tower collapsed. (First Am. Compl. ¶ 6, ECF No. 24; Pl.‟s Mot.
Partial Summ. J. Ex. E, Tiptons‟ Answer to AT&T‟s Interrog. No. 7, ECF No. 35-7.) Plaintiff
alleges that the cause of the collapse was the negligence of Defendant Tiptons‟ Inc., a Maryland
company that was engaged in logging operations on the same property where the Tower was
situated. (First Am. Compl. ¶¶ 1, 8; Tiptons‟ Answer to AT&T‟s Interrog. No. 1.)
As a result of the Tower‟s collapse, Plaintiff has suffered a loss. The precise nature of
that loss is in part the subject of the cross motions for summary judgment before the Court today,
but the basic nature of Plaintiff‟s loss can be simply described in two parts. First, Plaintiff‟s
Equipment was damaged. (First Am. Compl. ¶ 13.) Second, Plaintiff lost the utility of that
Equipment, i.e., Plaintiff lost the telecommunications coverage that the Equipment provided.
(See Pl.‟s Mot. Partial Summ. J. Supp. Mem. 3, ECF No. 35-1.) In order to compensate for the
first loss, Plaintiff purchased new Equipment. (Id. Ex. A, Van Riper Aff. ¶ 6, ECF No. 35-3; Ex.
J, AT&T Summary Chart of Damages, ECF No. 35-12.) According to the Plaintiff, it is more
economical to purchase new Equipment than to repair damaged Equipment because when it
repairs damaged Equipment, it must also test and certify that Equipment, which is costly. (Van
Riper Dep. 104:18-105:2.) In order to compensate for the second loss, Plaintiff erected its own
temporary tower (the “Temporary Tower”) and installed the new Equipment on the Temporary
Tower. (Van Riper Aff. ¶ 6; Van Riper Dep. 109:9-23.) According to the Plaintiff, this is the
most economical and the fastest way of restoring service to the affected area. (Van Riper Dep.
In order to be compensated for all of its loss, Plaintiff has brought the instant action,
alleging Defendant was negligent and asking for damages. Specifically, Plaintiff is asking for, at
least, the cost (1) of purchasing the new Equipment (“Equipment Costs”), (2) to erect the
Temporary Tower, to install the new Equipment on the Temporary Tower, and to get that
Equipment into service (“Temporary Tower Costs”), and (3) the cost to move the Equipment
back to the original Tower once it has been repaired or replaced (“Relocation Costs”). (See Pl.‟s
Mot. Partial Summ. J. Supp. Mem. 25.)
Before the Court today are the parties‟ cross-motions for summary judgment. Defendant
moves the Court for judgment on the following issues of law: that Plaintiff is not entitled to
“loss of use” damages stemming from Plaintiff‟s inability to use the Tower, that Plaintiff cannot
recover damages in an amount beyond what it could recover from the Tower owner under the
License, and that Plaintiff cannot recover both the cost of moving the Equipment to the
Temporary Tower and the Relocation Costs because this would constitute a “double recovery.”
(Def.‟s Mot. Partial Summ. J.) Plaintiff has responded to Defendant‟s Motion and Plaintiff also
moves the Court for judgment on the following issues of law: that, “if [Plaintiff] prevails on
liability . . . upon sufficient evidence of damages, [Plaintiff] is entitled to recover (in an amount
to be determined by the jury)” the Equipment Costs, Temporary Tower Costs, and Relocation
Costs, and that Plaintiff is not contributorily negligent “as alleged by [Defendant].” (Pl.‟s Mot.
Partial Summ. J.; Def.‟s Answer to Pl.‟s First Am. Compl. ¶ 18.a, ECF No. 32 (alleging
Plaintiff‟s contributory negligence).)
Standard of Review
“The court shall grant summary judgment if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (citing predecessor to
current Rule 56(a)). The burden is on the moving party to demonstrate the absence of any
genuine dispute of material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). If
sufficient evidence exists for a reasonable jury to render a verdict in favor of the party opposing
the motion, then a genuine dispute of material fact is presented and summary judgment should be
denied. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). However, the “mere
existence of a scintilla of evidence in support of the [opposing party‟s] position” is insufficient to
defeat a motion for summary judgment. Id. at 252. The facts themselves, and the inferences to
be drawn from the underlying facts, must be viewed in the light most favorable to the opposing
party, Scott v. Harris, 550 U.S. 372, 378 (2007); Iko v. Shreve, 535 F.3d 225, 230 (4th Cir.
2008), who may not rest upon the mere allegations or denials of his pleading but instead must, by
affidavit or other evidentiary showing, set out specific facts showing a genuine dispute for trial,
Fed. R. Civ. P. 56(c)(1).
The competing claims surrounding the propriety of damages in this case are reminiscent
of a torts hypothetical in a first year law school class. And, just as in an introductory torts class,
it is helpful to start with some of the basic premises of the law of damages before moving onto
the parties‟ specific claims.
The Plaintiff is asking for compensatory damages, and
“[c]ompensatory damages awards attempt to make the plaintiff whole again by monetary
compensation.” Exxon Mobil Corp. v. Albright, 71 A.3d 30, 97 (Md. 2013) (quotations omitted).
Such damage awards aim to place a plaintiff in the same position he would have been in without
the defendant‟s negligent conduct. See Restatement (Second) of Torts § 903, cmt. a. (1979). For
a case involving damage to a tangible thing, i.e., a “chattel,” the measure of such damages is
generally simple: the fair market value of the chattel prior to the damage, or the cost of repair,
whichever is cheaper.
See Taylor v. King, 213 A.2d 504, 507 (Md. 1965) (referring to
compensation for injury to a motor vehicle); Maryland Law Encyclopedia, 8 M.L.E. Damages
§ 68. This is because chattels are generally easily replaceable – if a car is damaged in an
accident, then its owner can be “made whole” by having the car fixed, or if the car is “totaled,”
i.e., repairs will cost more than what the car is worth, the owner can be made whole by buying
the same (or equivalent) car.
Another consequence of the fact that chattels are often easily replaceable is that damages
for “loss of use” of the chattel would often make a plaintiff better off than before the negligent
conduct occurred. If a plaintiff can have his car replaced, the plaintiff does not also suffer from
his inability to use that car. This is part of the reason why, generally, “when [a chattel] is totally
destroyed, and there is recovery for its full value, there can be no recovery for loss of use.”
Weishaar v. Canestrale, 217 A.2d 525, 534 (Md. 1966) (citing Barnes v. United Rys. & Elec.
Co., 116 A. 855 (Md. 1922)). Another reason loss of use damages are the exception and not the
rule is that damages, whether for “loss of use” or any other deprivation, may not be unduly
speculative. See Albright, 71 A.3d at 97 (citing McCalister v. Carl, 197 A.2d 140, 145 (Md.
1964)). If a plaintiff‟s family heirloom is destroyed by an act of negligence, the plaintiff may
suffer some “loss” tied to his inability to “use” that chattel, but putting a dollar figure on such a
loss is nearly impossible.
Loss of use damages are not, however, universally disfavored or categorically banned.
See Weishaar, 241 A.2d at 530-31. Weishaar v. Canestrale, a case cited favorably by both
parties here, is a good example of when a plaintiff may properly recover for loss of use without
recovering a windfall. In Weishaar, a commercial driver had parked his truck on the shoulder of
a highway when another vehicle hit and seriously damaged his truck. Id. at 527. The truck
driver immediately “ordered a replacement for the truck,” but because it was not a common
vehicle, “the body had to be specially fabricated for his use [and] delivery was not accomplished
until five weeks later.” Id. at 530. In order to keep up his deliveries, which he had already
contracted to perform, he “was obliged to hire a truck.” Id. After a finding in his favor on
liability, the truck driver was allowed to recover damages not only for the value of the repairs to
his truck, but also for the rental costs associated with hiring the alternative truck for five weeks.
Id. The defendant appealed, arguing that the basic law of damages applied – that when “there is
a recovery for . . . [the] full value [of a chattel], there can be no recovery for loss of use.” Id.
(citing Barnes v. United Rys. & Electric Co., 116 A. 855 (Md. 1922)). The Court of Appeals of
Maryland affirmed the award, noting that the above stated rule is a “convenient rule of thumb,”
but one that must give way to the “general principle” that “[d]amages are supposed to
compensate the injured person for the wrong which has been done to him.” Id. at 530-31. The
truck driver suffered more than the monetary value of the loss of his truck; he also had to pay for
a substitute truck while the replacement truck was being fabricated. Furthermore, the plaintiff
“removed the possibility of speculation by careful proof which showed not only the possibility of
profitable use [of the chattel] but an actual contract for that use.” Id.
To put the law somewhat more succinctly, in an action for negligence “[a]s in other tort
actions, additional damages adequate to compensate an owner for other injurious consequences
which result in a loss greater than the diminished or market value of the chattel at the time of the
[tort] may be allowed unless such claimed damages are so speculative as to create a danger of
injustice to the opposite party.” Staub v. Staub, 376 A.2d 1129, 1133 (Md. Ct. Spec. App. 1977).
With these basic principles in mind, the Court now turns to the parties‟ specific arguments,
beginning with the Defendant‟s motion and then proceeding to the Plaintiff‟s motion.
a. Defendant’s Motion for Summary Judgment
Although the Defendant says in its motion that “[t]here is no genuine dispute as to any
material fact in this case and Defendant is entitled to judgment as a matter of law,” it titles its
motion as a Motion for Partial Summary Judgment, and the substance of its motion and its
memorandum and reply implicitly concede that there are some issues of material fact because it
fails to substantively address numerous issues, such as, for example, its own liability. Therefore,
the Court will not address Defendant‟s possible contention that it is entitled to complete
Instead, the Court will address the narrower claims set forth in the
Defendant‟s motion: that Plaintiff may not recover for “loss of use” damages because Plaintiff
did not own the Tower, that Plaintiff is limited to remedies available under the License, and that
Plaintiff is seeking a double recovery.
i. Loss of Use
Defendant argues that, as a matter of law, Plaintiff is barred from recovering against
Defendant any more than the cost of the Plaintiff‟s damaged equipment because Plaintiff did not
own the Tower. (See Def.‟s Mot. Partial Summ. J. Supp. Mem. 4-5.) In other words, Defendant
argues that Plaintiff cannot recover for loss of use damages for its inability to use a “tower it
admits it never owned.” (Id. 5.) This argument fails for two reasons: the Plaintiff is not seeking
damages for its inability to use the entire Tower, and ownership is not required for a loss of use
Plaintiff is not seeking to recover damages for its inability to use the entire Tower; it is
seeking to recover damages for its inability to use its own equipment on a particular part of the
Tower. (See Pl.‟s Mot. Partial Summ. J. Supp. Mem. 10.) The License does not permit Plaintiff
to do whatever it wishes with the Tower. (License ¶ 1.) Therefore, if Plaintiff were in fact
seeking to recover for its inability to use parts of the Tower that it had no right to use, the
Defendant would be right to point out that such damages would be at best far too speculative to
be recoverable. Plaintiff, however, is only seeking to recover for its inability to use that which it
had a right to use: its own equipment and the areas of the Tower to which it had access.
Defendant maintains that Plaintiff cannot recover for its inability to use even this part of the
Tower because Plaintiff only possesses a “license” to use the property.
Formal ownership, however, is not required for a plaintiff to recover loss of use damages.
See 22 Am. Jur. 2d. Damages § 305 (“Damages may be awarded for loss of use so long as the
plaintiff had a possessory interest in the property even if he or she did not own it.”). To be sure,
neither party has shown the Court a case from Maryland or this District or Circuit in which a
Plaintiff was able to recover loss of use damages for property that he did not own. But neither
party has shown the Court such a case that found ownership to be an essential predicate to loss of
use either. Further, persuasive authority from other jurisdictions has found loss of use damages
recoverable when no formal ownership exists. See, e.g., Smith v. United States, 113 F. Supp.
131, 133-34 (D. Del. 1953) (noting that while “grave problems of proof of causal connection,
damages, and other elements of a successful case may confront a plaintiff at trial” when he
claims loss of use for property he does not own, such a plaintiff is legally capable of pleading
such a case); Mauney v. Carroll, 795 S.E.2d 239, 242 (N.C. Ct. App. 2016) (Plaintiff owned an
auto lease and was able to seek loss of use damages for the time that the car was being repaired).
Beyond the holdings of these other courts, the formality that Defendant asks for here would
undermine the general principles of damages. “It was Plaintiff who was deprived of his right to
use the Porsche while it was being repaired. Lessor, the title owner, did not suffer any loss of
use damage during this period because it had no right to use the Porsche for the duration of the
Plaintiff‟s lease.” Mauney, 795 S.E.2d at 242. Replace “Porsche” with “Equipment,” and
“Lessor” with “Tower Owner,” and that statement perfectly applies to the case before the Court.
Ultimately, so long as Plaintiff can show a non-speculative loss resulting from its deprivation, it
should be able to recover for that loss.
Defendant makes much of the fact that Plaintiff‟s contract with the Tower Owner is titled
a “License,” and that Plaintiff can only point to cases where someone with a lease was able to
recover for loss of use. The title of the contract here, however, is irrelevant to the question of
whether Plaintiff can seek damages for loss of use. First, from the perspective of judging the
possessory interest of the Plaintiff, the contract at issue is functionally akin to a lease. Defendant
is correct that, as a matter of strict property law, a “license” is something less than a lease, in that
a license only permits its holder to enter another‟s land for a specific purpose and is freely
revocable by the owner for any reason at any time. See Delauter v. Shafer, 822 A.2d 423 (Md.
2003); Rau v. Collins, 891 A.2d 1175, 1184 (Md. Ct. Spec. App. 2006). However, the “License”
at issue here provides for payment of a security deposit, monthly rent (deemed a “License fee”),
the term of the License, the mechanism for renewal, and even a provision that requires the
“Licensee” to pay utilities. (License ¶¶ 2, 3, 6.) The Plaintiff is entitled to exclusively possess
its portion of the Tower, except that the Tower Owner has “access to the Equipment Space for
the purpose of operating, maintaining, repairing or improving the Tower.” (Id. ¶ 2.) This is
functionally indistinguishable from a commercial lease that allows a tenant to use space in a
building for a particular purpose subject to the owner‟s right to enter for specific purposes. See
Delauter, 822 A.2d at 427 (stating that “[w]hether the contract is a lease or a license depends
upon the intention of the parties,” and finding that because there was no written agreement and
no payment of rent, a license and not a lease had been formed).
Second, even if the Court agreed with Defendant‟s interpretation of the contract as a
“mere license,” that would not necessarily mean Plaintiff could not recover for loss of use.
Rather, it would mean that Plaintiff would face a greater challenge when it comes to proving that
its harm is not speculative. That is, if Plaintiff‟s “right” to use the Tower was so tenuous that it
could be revoked for any reason at any time, perhaps Plaintiff‟s claim that it was harmed because
it could not use the Tower at any given time would be too speculative, whereas a formal
leasehold, or title ownership, might more clearly show a right to use that property in the future,
and thus a claim of deprivation would not be as speculative. But regardless of the form of
ownership or control, a plaintiff could still bring a loss of use claim, provided that he was able to
sufficiently prove that the harm was not too speculative. In short, Defendant attempts to do
categorically what it must do factually – Plaintiff is not legally barred from recovering because
of the nature of its agreement with the Tower owner, but that does not foreclose the possibility
that Plaintiff‟s damages calculation is exaggerated.
ii. Recovery under the License
Defendant further relies on the License to argue that Plaintiff cannot seek any recovery
from the Defendant beyond what Plaintiff could recover from the Tower owner under the
License. The License provides that, in the event of “damage by fire or other casualty,” the
Tower owner will repair the Tower, but will not reimburse the Plaintiff for damage to its
equipment or costs associated with the delay in repair or harm to Plaintiff‟s business. (License
¶ 13(a).) Defendant argues that because Plaintiff would be unable to recover for, e.g., the
Temporary Tower costs under the License, Plaintiff cannot recover for the Temporary Tower
costs in this action. Defendant‟s assertion that Plaintiff “lack[s] a remedy in its communications
license to obtain a temporary replacement tower” is questionable. (See Def.‟s Mot. Partial
Summ. J. Supp. Mem. 7; see License ¶ 13(a) (Licensee cannot recover against the Tower owner
for costs associated with damage to its equipment, “except to the extent and for the time that the
Tower or the Equipment Space are thereby rendered unusable for Licensee‟s intended
purpose.”).) But the Court today does not need to define the exact parameters of the contract that
Plaintiff entered into with the Tower owner. Defendant‟s argument that Plaintiff is limited in its
recovery against Defendant because it is limited in its recovery against the Tower owner fails as
a matter of law.
As explained above, the law does not permit Plaintiff to recover compensation that would
place it in a better position than it would have been in without Defendant’s negligence.
Assuming that the Defendant‟s negligence was the cause of the Tower‟s collapse, then if
Defendant had not been negligent, Plaintiff would not have spent the money it did erecting the
Temporary Tower and moving the Equipment. If Plaintiff‟s contract with the Tower owner
would not put Plaintiff in that position, then that may be an undesirable contract, but it has
nothing to do with the damages allegedly caused by the Defendant from its breach of its duty to
the Plaintiff. Allowing Plaintiff to recover more from Defendant than it could from the Tower
owner may put it in a better position than if it had relied on its contract and recovered against the
Tower owner, but it puts it in the same position as it would have held in the absence of
Defendant‟s conduct – and the latter is the measure of damages in a lawsuit against the
Defendant for negligence.1
iii. Double Recovery
Finally, Defendant argues that Plaintiff cannot recover both the Temporary Tower Costs
and the Replacement Costs in full because compensation for moving the Equipment to the
temporary tower and back to the original Tower once it is repaired would constitute a “double
recovery.” Maryland courts do follow the fundamental rule against double recovery, which
“precludes a party from double recovery for a single injury.” Kramer v. Emche, 494 A.2d 225,
231 (Md. Ct. Spec. App. 1985). But Defendant‟s argument here proves far too much. If a
person‟s office is flooded due to the negligence of his upstairs neighbor, would that person be
able to recover the cost of moving his equipment out of the office to a temporary location, but
not the cost of moving it back to the office when it is dry? Surely not. Defendant‟s proposed
interpretation of the rule against double recovery would mean that the plaintiff in Weishaar could
The Defendant cites to Atkinson Warehousing and Distribution, Inc. v. Ecolab, Inc., 99 F. Supp. 2d 665 (D. Md.
2000), for the proposition that “[c]ompensation cannot place [a] plaintiff in a better position than the contract would
otherwise provide.” (Def.‟s Mot. Partial Summ. J. Supp. Mem. 8.) Atkinson Warehousing was a breach of contract
case between two parties to a contract. Of course, when a party seeks to recover for breach of contract, that party
cannot recover more than would be due to it under that contract. That is not the issue here.
recover for the costs of renting a comparable truck, perhaps in perpetuity, but could not also
recover for the cost of repairing his own truck.
At bottom, Defendant mischaracterizes
Plaintiff‟s harm. Plaintiff‟s harm is not that it has to move some Equipment. In that event,
recovering for moving the same Equipment twice may be a “double recovery.”
Plaintiff‟s harm is its loss of use of its Equipment, and to compensate for that harm it believes
that it must relocate the Equipment to a temporary tower and back to the permanent tower.
While it may involve moving the Equipment twice, Plaintiff is only seeking to be compensated
once for one harm.
b. Plaintiff’s Motion for Summary Judgment
Plaintiff, in its motion, seeks summary judgment on two issues. First, on the flip side of
the coin from Defendant‟s motion, Plaintiff asks this Court to hold that it is entitled to the
Equipment Costs, Temporary Tower Costs, and Relocation Costs as a matter of law, if they are
able to prove liability and amount. Second, Plaintiff asks this Court to hold that it is not
contributorily negligent as a matter of law. The Court will address each request in turn.
i. Entitlement to Categories of Damages
Plaintiff asks that the Court enter an order stating that “if [Plaintiff] prevails on liability,
then Plaintiff, upon providing sufficient evidence as to damages, is entitled to recover (in an
amount to be determined by the jury)” the Equipment Costs, Temporary Tower Costs, and
Plaintiff is entitled to those damages that are reasonably calculated to make it whole. See
Albright, 71 A.3d at 97. Therefore, if Plaintiff can prove by a preponderance of the evidence at
trial that Defendant is liable for the harm and that Plaintiff‟s equipment could not have been
repaired for less cost than its full fair market value, then Plaintiff can recover the cost of
procuring new Equipment.
See Taylor, 213 A.2d at 507.
If Plaintiff can prove by a
preponderance of the evidence at trial that erecting the Temporary Tower and placing the
Equipment on it was a necessary substitute for the Equipment‟s original position on the original
Tower, then Plaintiff can recover the costs of erecting the Temporary Tower and relocating
Equipment there. See Weishaar, 217 A.2d at 530 (quoting Restatement (First) of Torts § 927
(1939)) (“[D]amages can properly include an amount for expenses in procuring a necessary
substitute for the value of the use of a substitute until a replacement of the subject matter can be
made.”). If Plaintiff can prove by a preponderance of the evidence at trial that relocation to the
Temporary Tower was a “necessary substitute,” then Plaintiff can recover the costs of relocating
the Equipment back to the original Tower.
Therefore, Plaintiff is not barred, as a matter of law, from attempting to recover the
Equipment Costs, Temporary Tower Costs, or Relocation Costs. But to grant the Plaintiff‟s
motion for summary judgment is to issue a judgment on the facts under the guise of a judgment
on the law, something the Court will not do. For example, to decide that, based on the record
before the Court today, Plaintiff is entitled to the Temporary Tower or Replacement Costs if
liability is shown, is to decide that a replacement tower was a “necessary substitute.” It may be,
but the Court declines the invitation to so hold. Defendant is still free to present evidence at trial
regarding, for instance, the market value of the Equipment, the propriety of erecting the
Temporary Tower, whether the “Temporary” Tower is in fact temporary and thus the propriety
of relocating the equipment back to the original Tower, or more besides. Therefore, the Court
will deny without prejudice the Plaintiff‟s motion with respect to Paragraph one (ECF No. 35, p.
1, ¶ 1).
ii. Contributory Negligence
Finally, Plaintiff asks the Court to hold that it was not contributorily negligent as a matter
of law. Defendant alleged in its Answer to Plaintiff‟s First Amended Complaint (ECF No. 32)
that Plaintiff was contributorily negligent. Specifically, Defendant alleged that “Plaintiff failed
to maintain the tower, guide wires, and related equipment in good condition and a careful and
reasonable manner,” that “Plaintiff failed to protect the guide wire mooring post by chain link
fence or other protective enclosure,” and that “Plaintiff failed to clear the area surrounding the
guide wire and its mooring post of overgrowth or to mark or post the location of guide wire [sic]
and its mooring post so as to notify others of its location.” (Ans. First Am. Compl. ¶ 18.a.)
Plaintiff, in its Motion, specifically asks that the Court find that, “as a matter of law, [it] was not
contributorily negligent, as alleged by Tiptons.” (Pl.‟s Mot. Partial Summ. J. ¶ 2 (emphasis
Insofar as the Plaintiff‟s Motion requests that the Court find Plaintiff was not
contributorily negligent specifically for the reasons that Defendant alleged in its complaint, the
Court will grant the motion. The Court cannot, however, hold as a matter of law, that Plaintiff is
not contributorily negligent in any way.
“Contributory negligence is the neglect of the duty imposed upon all men to observe
ordinary care for their own safety.” Campfield v. Crowther, 249 A.2d 168, 172 (Md. 1969).
Contributory negligence is not the mirror image of a defendant‟s primary negligence. See
Menish v. Polinger Co., 356 A.2d 233, 235-36 (Md. 1976). “Although „primary negligence and
contributory negligence are often thought of as simply opposite sides of the same coin,‟ there is a
significant difference between them; while „primary negligence involves a breach of duty owed
to another, contributory negligence involves a failure to take proper precautions for one‟s own
safety.‟” Id. (quoting Baltimore Cty. v. State, Use of Keenan, 193 A.2d 30, 37 (Md. 1963)). The
question of contributory negligence is often left to the jury, but can be settled by a court before
trial. See Campfield, 249 A.2d at 172 (quoting Wiggins v. State, Use of Collins, 192 A.2d 515,
The positions of the parties on this issue can be stated as follows: Plaintiff contends that,
as a tenant on the Tower, it had no duty to attend to the structural and maintenance issues that
Defendant sets forth. Defendant counters that Plaintiff had a contractual duty to inform the
Tower owner of certain known conditions (such as structural deficiencies) and that its failure to
do so was a breach of that duty. The parties are both partially correct.
Plaintiff did not owe a duty to Defendant to maintain the structural integrity of the Tower,
enclose or protect the mooring, or trim the foliage around the Tower‟s base itself. The License,
which elsewhere Defendant argues severely restricts Plaintiff‟s ability to use the Tower, only
allows Plaintiff access to its “Equipment Space,” and only for the “transmission and reception of
communications signals used for Personal Communications Services.” (License ¶¶ 1, 7.) Any
modification of the Plaintiff‟s Equipment on the Tower must first be approved by the Tower
owner. (Id. ¶ 7(c).) Therefore, Plaintiff has no duty to maintain the Tower‟s structural integrity
or the Tower‟s base area by its own actions, because Plaintiff likely would not be allowed to
affect the Tower‟s integrity on its own or erect a fence around the mooring on its own. Because
Plaintiff has no duty to do these things itself, it had no duty to Defendant in this regard, and was
not contributorily negligent, as a matter of law, as alleged by the Defendant in Defendant’s
Plaintiff did, however, appear to owe a duty to the Tower owner. The License provides
that Plaintiff “shall notify [the owner] of any conditions on the Tower or on the Property,
observed by Licensee which would require maintenance or repair by [the owner].” (License
¶ 10.) Furthermore, the Defendant contends that “industry standards” dictate that, regardless of
the Plaintiff‟s explicit duties under the License, Plaintiff “should have insisted that the tower
owner conduct . . . inspections.” (Def.‟s Opp‟n to Pl.‟s Mot. Partial Summ. J. 19, ECF No. 39
(quoting Westbrook Aff., ECF No. 39-1).) Even if Plaintiff could not have fixed the alleged
problems regarding the Tower‟s structural integrity or base area itself, and even if Plaintiff owed
no duty to the Defendant to do these things, Plaintiff may still have breached a duty to inform the
Tower owner about known problems on or around the tower, and if Plaintiff‟s breach of that duty
contributed to the harm that it suffered, Plaintiff could be contributorily negligent. See Menish,
356 A.2d at 235-36. Therefore, to the extent that Plaintiff requests the Court enter an order
stating that Plaintiff was not contributorily negligent specifically for the reasons set forth in
Defendant‟s Answer to Plaintiff‟s First Amended Complaint, the Court will grant the Plaintiff‟s
Motion, but the Court today does not remove from the factfinder any determination that the
Plaintiff was contributorily negligent.
As a matter of law, Plaintiff is not barred from recovering the Equipment Costs,
Temporary Tower Costs, or Relocation Costs, and therefore Defendant‟s Motion will be denied.
Whether Plaintiff is entitled to recover for the Equipment Costs, Temporary Tower Costs, or
Relocation Costs depends on the resolution of issues of material fact that must be determined at
trial, and therefore the Plaintiff‟s Motion Paragraph one (ECF No. 35, p. 1, ¶ 1) will be denied
without prejudice. Plaintiff had no duty to, by its own actions, maintain the Tower, guide wires,
or related equipment in good condition, protect the guide wire mooring post with a chain link
fence or other enclosure, clear the area surrounding the guide wire and mooring post of
overgrowth, or mark the location of the guide wire and mooring post. Therefore, Plaintiff‟s
Motion Paragraph two (ECF No. 35, p. 2, ¶ 2) will be granted. The Court makes no ruling with
regard to whether Plaintiff may be contributorily negligent due to other actions or omissions. A
separate order denying Defendant‟s motion and granting in part and denying in part Plaintiff‟s
motion will be entered.
DATED this 21st day of September, 2017
BY THE COURT:
James K. Bredar
United States District Judge
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