Garvine v. State of Maryland

Filing 86

MEMORANDUM OPINION Regarding Motions in Limine. Signed by Magistrate Judge J. Mark Coulson on 3/20/2019. (jnls, Deputy Clerk)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LISA E. GARVINE,

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Plaintiff,

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v.

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STATE OF MARYLAND, et al.

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Defendants.

Civil Case No. 17-01013-JMC

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MEMORANDUM OPINION
REGARDING MOTIONS IN LIMINE

This suit arises out of injuries sustained by Plaintiff Lisa E. Garvine after falling off her
horse on October 11, 2015, during a charity horse ride organized by Defendant The Oxford
Grain & Hay Company (“Oxford”) on land owned by Defendant State of Maryland (“Maryland”
or the “State”), (collectively, the “Defendants”). The parties consented to proceed before a
magistrate judge pursuant to 28 U.S.C. § 636(c) and Local Rule 301.4. (ECF Nos. 61, 63, 64).
Plaintiff previously filed the Amended Complaint, (ECF No. 35), against Oxford and Maryland
alleging negligence. Maryland has also filed a Third Party Complaint, (ECF No. 6), against
Oxford for negligence and indemnification and/or contribution. Trial is scheduled to begin next
Monday, March 25, 2019. Now pending before this Court are five Motions in Limine: (1)
Plaintiff’s to Prohibit Defendants from Mentioning the Maryland Recreational Use Statute (ECF
No. 69); (2) Plaintiff’s to Prohibit Defendants from Mentioning the Registration Form “Waiver”
(ECF No. 69-2); (3) Defendant State’s to Exclude Evidence of Subsequent Remedial Measures
(ECF No. 70); (4) Defendant State’s to Exclude Evidence of Fences, Railings, or Warnings
Above Other Culverts or Water Bodies (ECF No. 76); and (5) Defendant Oxford’s to Preclude
Plaintiff from Introducing Untimely Produced Materials, Information, and Expert Opinions (ECF

No. 83). The Court has considered all oppositions, (ECF Nos. 71, 72, 73, 85), no replies were
filed, and no hearing is necessary. See Loc. R. 105.6 (D. Md. 2018). Each is discussed in turn
below.
DISCUSSION
“A ruling on a motion in limine is no more than a preliminary or advisory opinion that
falls entirely within the discretion of the district court.” Adams v. NVR Homes, Inc., 141 F.
Supp. 2d 554, 558 (D. Md. 2001) (internal citations omitted). “The primary purpose of an in
limine ruling is to streamline the case for trial and to provide guidance to counsel regarding
evidentiary issues.” Id.
A. Plaintiff’s Motions in Limine to Prohibit Defendants from Mentioning the Maryland
Recreational Use Statute (“MRUS”), Md. Code Ann., Nat. Res. § 5-1101 et seq.,
(ECF No. 69), and to Prohibit Defendants from Mentioning the Registration Form
“Waiver.” (ECF No. 69-2).
Plaintiff argues that this Court’s denial of the Defendants’ Motions for Summary
Judgment, (ECF No. 65), results in the logical exclusion of two categories of evidence from trial:
(1) evidence concerning the MRUS because the Court ruled as a matter of law that the State was
not immune under the MRUS; and (2) evidence concerning the registration waiver because the
Court ruled as a matter of law that the waiver failed to “clearly, unequivocally, specifically, and
unmistakably communicate the intent of participants in the trail ride to release Oxford from
liability for falls caused by negligent conditions on the trail or immediately adjacent to the trail
including tall grass and a below-the-grade culvert allegedly obscured by that grass.” Plaintiff
avers that these holdings constitute the law of the case and their admission would cause undue
confusion or prejudice. (ECF No. 69). The Defendants argue the law of the case doctrine is
inapplicable under both circumstances because the denial of a motion for summary judgment is
not the law of a case and any decision did not squarely concern MRUS’s or the waiver’s
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presentation to a jury. As for MRUS, the Defendant State simply opposes exclusion because the
law of the case doctrine is inapplicable, while conceding that it does not plan to mention MRUS
during trial.

As for the waiver, both Defendants assert that it is particularly important in

asserting planned defenses, including assumption of the risk.
Regarding the MRUS, given the State’s representation that it does not intend to introduce
or mention the MRUS as trial, the Plaintiff’s motion is denied as moot. Should the State develop
additional facts at trial or have additional legal authority to present on the MRUS issue for the
Court’s consideration by way of a motion for judgment at the conclusion of Plaintiff’s case or at
the conclusion of all the evidence out of the presence of the jury, it is free to do so as the Court
does not consider its prior denial of the State’s motion for summary judgment on this issue to bar
the State from doing so under the law of the case doctrine.
Regarding the waiver, this Court identified as a “threshold issue” whether the waiver
was, in fact, exculpatory—that is, whether it expressly or unequivocally demonstrated on its face
an unambiguous intention to shield Defendants from liability for their own alleged negligence,
relying on Adloo v. H.T. Brown Real Estate, Inc., 344 Md. 254 (1996), and, in particular, Adloo’s
approving citation to Audley v. Melton, 138 N.H. 416, 417 (1994), which found an even less
ambiguous clause than the one at issue to be deficient as a waiver. (ECF No. 65 at pp. 16-17).
Simply put, language that Defendant Oxford “is not responsible for any person, horse or your
property” and that entrants “participate at your own risk” is insufficient as a matter of law in the
Court’s view to bar claims based on the Defendants’ own alleged negligence as articulated here.
Although this Court’s decision was made in the context of a summary judgment—i.e. whether
Defendants were entitled to judgment as a matter of law based on the waiver, the Court sees no

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reason to change its analysis in now holding as a matter of law that the waiver’s language falls
short of the legal standard demanded of exculpatory waivers.
Because Plaintiff’s signing of the waiver does not, by itself, bar her claim, the Court is
hesitant to permit its introduction based on concerns over its potential to mislead the jury and
confuse the issues, in violation of Federal Rule of Evidence 403. A juror could, even with
careful instruction from the Court, over-apply the waiver and rely on it alone in erroneously
barring Plaintiff’s claim. Although the waiver is some evidence that Plaintiff was voluntarily
accepting some risk by participating in the event, by itself, the waiver does not establish the
necessary elements of the assumption of risk defense asserted by Defendants. Additionally,
according to the record presented in the summary judgment briefing, Plaintiff already
acknowledges that she had “the ultimate responsibility to be alert to anything in [her]
surroundings that might impact [her] or [her] horse.” (ECF No. 65 at p. 16.)
Because the Court holds that, as a matter of law, the language of the waiver fails to meet
the standard set forth in Adloo for an exculpatory waiver sufficient to excuse Defendants from
their own alleged negligence as articulated in this case, and because of the danger of misleading
the jury and confusion of the issues should the waiver be introduced for some other purpose (for
which alternative evidence exists), the Court will not allow introduction of or reference to the
waiver at trial. However, should Plaintiff “open the door” or circumstances at trial unfold such
that the waiver’s introduction becomes reasonably necessary for impeachment purposes or as
justice otherwise requires, the Court may consider allowing introduction of or reference to the
waiver at that time. Additionally, should Defendants have additional authority not already
considered by the Court, they are free to raise the issue again by way of a motion for judgment at

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the close of Plaintiff’s case or at the conclusion of all the evidence, out of the presence of the
jury.
Therefore, the Plaintiff’s motion (ECF No. 69), is DENIED AS MOOT, and Plaintiff’s
motion (ECF No. 69-2) is GRANTED in part and DENIED in part.
B. Defendant State’s Motion in Limine to Exclude Evidence of Subsequent Remedial
Measures. (ECF No. 70).
The State asks to preclude evidence of the subsequent installation of a wooden fence
across the top of the culvert at issue in this case arguing that it is a subsequent remedial measure
as contemplated by Federal Rule of Evidence 407. (ECF No. 70). Plaintiff agrees that the
evidence would not be admissible as evidence of negligence, but argues that such evidence
would be admissible to prove ownership, control, or the feasibility of precautionary measures, if
disputed. (ECF No. 71). At this point, it does not appear as though such issues are in dispute.
Therefore, the State’s motion, (ECF No. 70), is GRANTED, pursuant to Federal Rule of
Evidence 407, subject to revisiting should the issues of ownership, control or feasibility fall into
dispute.
Plaintiff further couched her response with a qualification that such a ruling should not
apply to any other fences present on the property. (Id.). The merit of this qualification is better
addressed below.
C. Defendant State’s Motion in Limine to Exclude Evidence of Fences, Railings, or
Warnings Above Other Culverts or Water Bodies. (ECF No. 76).
The State asks that Plaintiff be prevented from proffering evidence concerning other
fences, railings, or warnings at Fair Hill Natural Resources Management Area (“Fair Hill”) or
elsewhere that are near other culverts or bodies of water other than the culvert involved in
incident at hand. (ECF No. 76). The State argues that doing so is necessary because Plaintiff

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will be unable to provide the requisite context or background to properly evaluate the history and
purpose of fences, railings, or warnings throughout Fair Hill. And therefore, such evidence
should be excluded as irrelevant, confusing or misleading, and unfairly prejudicial.
After careful review of the unopposed motion, the Court remains unconvinced of a
blanket exclusion’s necessity. Assuming an appropriate foundation is otherwise established for
introduction of such evidence, the Court is confident that objections, cross-examinations, and the
introduction of other evidence, can sufficiently prevent any potential undue confusion or
prejudice. Thus, the Court DENIES Defendant’s motion, (ECF No. 76), but does so without
prejudice, to permit for future challenge, if necessary.
D. Defendant Oxford’s Motion in Limine to Preclude Plaintiff from Introducing
Untimely Produced Materials, Information, and Expert Opinions. (ECF No. 83).
The last motion before the Court is Defendant Oxford’s which asks to preclude Plaintiff
from introducing “untimely produced materials, information, and expert opinions,” stemming
from four photographs Plaintiff’s expert took at the Tyron International Equestrian Center in
North Carolina. (ECF No. 83). Defendant Oxford argues that the photographs should be
excluded because their disclosure was untimely under Fed. R. Civ. P. 26(a)(3).

Plaintiff

contends that the disclosure does fall within the harmless error exception to Rule 26(a)(3) since
these new photographs would be used to reinforce her expert’s already-expressed opinions.
Plaintiff also argues that she plans to use the photographs during the cross-examination of
Defendants’ expert.
As for use in Plaintiff’s case in chief, the Court agrees with Oxford. Plaintiff disclosed
the photographs on February 28, 2019, twenty-five (25) days before trial. In the email doing so,
Plaintiff’s counsel explains that the photographs will be used for “reference at trial” by Plaintiff’s
expert. This brief explanation of use, supplemented by Plaintiff’s brief opposition, (ECF No.
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85), does not sufficiently give rise to the harmless error exception to Rule 26(a)(3). Given
sufficient time, Oxford may well have been able to develop evidence to undermine the
photographs, including having its own expert obtain competing exhibits.
As for use in cross examination, it is not clear to the Court how the photographs would be
used or whether a sufficient foundation could be established to allow them to be used for
impeachment purposes. Thus, the Court reserves on whether the photographs at issue can be
used for impeachment of Defendants’ expert. Accordingly, Defendant Oxford’s motion, (ECF
No. 83), is GRANTED IN PART, with the Court reserving on the issue whether the photographs
can be used for impeachment of Defendants’ expert.

Dated: March 20, 2019

/s/
J. Mark Coulson
United States Magistrate Judge

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