Breen v. 7th Inning Stretch, LP et al
Filing
23
MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 8/6/2019. (sat, Chambers)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
:
JARED BREEN
:
v.
:
Civil Action No. DKC 18-1943
:
7TH INNING STRETCH, LP, et al.
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this negligence
case are: (1) a motion to dismiss filed by Defendant Wicomico
County, Maryland (“Wicomico County”) (ECF No. 12), and (2) a motion
for waiver of notice under the Maryland Local Government Torts
Claims Act (“LGTCA”), MD. CODE, Cts. & Jud. Proc. § 5-304 (2014),
filed by Plaintiff Jared T. Breen (ECF No. 16).
Prior to the 2015 amendment, Section 5-304(b) of the LGTCA
stated that “an action for unliquidated damages may not be brought
against a local government or its employees unless notice of the
claim required by this section is given within 180 days after the
injury.”
Because Wicomico County is a county, the LGTCA requires
notice to be given either in person or via certified mail, return
receipt requested, “to the county commissioners or county council
of the defendant local government.”
notice
requirement
operates
as
a
§§ 5-304(c)(1)-(2).
condition
precedent
to
The
the
claimant’s right to maintain a tort action for damages under
Maryland law, Grubbs v. Prince George’s Cty., 267 Md. 318, 320-21
(1972), and failure to comply with it will bar such tort claims,
see Renn v. Bd. Of Comm’rs, 352 F.Supp.2d 599, 602 (D.Md. 2005);
Bibum v. Prince George’s Cty., 85 F.Supp.2d 557, 566 (D.Md. 2000).
The purpose of the LGTCA is:
to protect the municipalities and counties of
the State from meretricious claimants and
exaggerated claims by providing a mechanism
whereby the municipality or county would be
apprised of its possible liability at a time
when it could conduct its own investigation,
i.e., while the evidence was still fresh and
the
recollection
of
the
witnesses
was
undiminished by time, “sufficient to ascertain
the character and extent of the injury and its
responsibility in connection with it.”
Williams v. Maynard, 359 Md. 379, 389-90 (2000).
The Court of
Appeals of Maryland has held that “strict compliance with the
notice provisions of the LGTCA is not always required; substantial
compliance may suffice.”
(2002).
Moore v. Norouzi, 371 Md. 154, 171
In addition to the substantial compliance doctrine, the
notice requirement of the LGTCA may be waived for good cause and
lack of prejudice to the defendant.
§ 5-304(d).
For the following reasons, the motion to dismiss will be
granted in part as to Plaintiff’s lack of substantial compliance
with the LGTCA notice requirement, but deferred as to whether
Plaintiff
has
established
good
requirement should be waived.
cause
and
whether
the
notice
An evidentiary hearing will be
scheduled to resolve the disputed factual issues.
2
I.
Background
Plaintiff alleges the following in the Amended Complaint:
After being drafted by the Major League Baseball team the Baltimore
Orioles (“Orioles”) in 2013, Plaintiff was directed to play for
the Orioles’ minor league affiliate — the Delmarva Shorebirds
(“Shorebirds”) — for the 2014 and 2015 seasons.
(ECF No. 9 ¶¶ 6-
7). The Shorebirds are owned by Defendant 7th Inning Stretch (“7th
Inning”) and play their home games in Arthur W. Perdue Stadium
(“the
Stadium”)
outside
Salisbury,
Maryland.
(Id.
¶¶
7-8).
Defendant Wicomico County owns the Stadium, and Plaintiff alleges
that 7th Inning “operates and/or leases the Stadium pursuant to an
agreement with Wicomico County.” (Id. ¶¶ 8 & 10). Wicomico County
“planned, designed, developed, and oversaw” construction of the
Stadium. (Id. ¶ 9). The Stadium includes a six-foot high concrete
wall that runs parallel with the third-base foul line and separates
the spectator seating area from the field.
(Id. ¶ 11).
At the
time of the incident prompting this action, the concrete wall was
unpadded, leaving the vertical concrete face exposed to the field
of play.
(Id. ¶ 12).
On July 3, 2015, during a Shorebirds game at the Stadium,
Plaintiff — playing shortstop — chased after a baseball that was
hit toward the third-base outfield.
(Id. ¶ 14).
Plaintiff claims
that he was tracking the baseball in the air with his head looking
over his shoulder toward home plate.
3
(Id. ¶ 15).
While Plaintiff
was focused on the baseball and running underneath its arc, he
crashed
into
Plaintiff
cracked
the
concrete
fractured
his
his
orbital
concussion.
wall.
right
bone,
(Id. ¶ 18).
(Id.).
patella,
injured
In
the
punctured
his
back,
and
collision,
his
sinus,
suffered
a
Plaintiff alleges that he has not
recovered entirely from his injuries and the collision has left
him permanently partially disabled.
According
to
Plaintiff’s
(Id. ¶ 19).
affidavit,
Plaintiff
underwent
surgery on July 7, 2015, spent a week in the hospital recovering,
and then traveled home to Atlanta, Georgia.
(ECF No. 16-2, at 2).
For the next two weeks, Plaintiff’s movement was restricted to
facilitate healing post-surgery.
(Id., at 3).
For the next
several weeks thereafter, Plaintiff took the prescription drug
OxyContin to manage pain.
(Id.).
Plaintiff returned to Baltimore
on August 18, 2015, for a post-operative examination by his
surgeon.
(Id.).
Following that visit, Plaintiff returned home to
Atlanta where he continued recovery.
(Id.).
released by the Orioles on November 19, 2015.
Plaintiff was
(Id.).
Until his
release, Plaintiff coordinated with the Orioles for his medical
treatments and workers’ compensation benefits.
states that:
(Id.).
Plaintiff
“Until the date I was released by the Orioles, I had
every hope of being able to continue playing professional baseball.
After
those
hopes
were
dashed
and
immediately
following
the
intervening holidays, I acted promptly to identify and retain
4
counsel to pursue my legal remedies.”
(Id., at 4).
Unbeknownst
to Plaintiff, the deadline to provide notice under the LGTCA passed
on December 30, 2015.
(Id., at 4).
Plaintiff retained legal
counsel on January 29, 2016, who allegedly effectuated notice under
the LGTCA.
(Id. & 15-1).1
Plaintiff filed a complaint against Wicomico County and 7th
Inning on June 27, 2018, alleging negligence as to both Defendants
and negligent design and construction as to Wicomico County.
No. 1).
(ECF
Wicomico County filed a motion to dismiss on August 24,
2018 (ECF No. 5), arguing that Plaintiff failed to provide notice
of the claim to the Wicomico County Council within 180 days after
the injury, as mandated by the LGTCA.2
(ECF No. 5-1, at 3-4).
Plaintiff filed an amended complaint on August 20, 2018,
adding that he sent notice of his claim to the Wicomico County
Council via certified mail on February 24, 2016 and that Wicomico
County did not suffer prejudice because of the delay.
¶ 3).
(ECF No. 9
Wicomico County moved to dismiss the amended complaint on
September 25, 2018, renewing its claim of lack of notice.
No. 12).
(ECF
Additionally, Wicomico County attached an affidavit from
The letter is dated “February 22, 2015.” The year is an
obvious typographical error. The attached return receipt is dated
in 2016.
1
2
At the time of the injury, the notice period was 180 days.
For any claims arising after October 1, 2015, the notice period is
one year. See 2015 Md. Laws Ch. 131.
5
its Risk Manager — the person who evaluates claims made against
the county — which states that Wicomico County never received
notice of a claim from Plaintiff regarding the incident on July 3,
2015.
(ECF No. 12-2).
On October 8, 2018, Plaintiff opposed
Wicomico County’s motion to dismiss (ECF No. 15) and filed a motion
for waiver of notice, requesting that the court waive the LGTCA’s
notice requirement.3
(ECF No. 16).
Plaintiff’s counsel provides
a declaration in support of Plaintiff’s opposition to Wicomico
County’s motion to dismiss, explaining why Plaintiff failed to
comply with the LGTCA’s notice requirement.
(ECF No. 15-1).
Additionally, Plaintiff appends his own affidavit and a letter,
purportedly sent to the Wicomico County Council on February 22,
201[6], notifying the council of Plaintiff’s claim.
2 & 16-3).
(ECF Nos. 16-
Wicomico County replied to Plaintiff’s opposition to
the motion to dismiss (ECF No. 17) and filed an opposition to
Plaintiff’s motion for waiver of notice (ECF No. 18), attaching
screenshots of Plaintiff’s Twitter account (ECF No. 18-2), on
October 22, 2018.
Plaintiff replied on November 1, 2018.
(ECF
No. 19).
3
The motion for waiver of notice fulfills the statutory
motion requirement in § 5-304(d):
“Notwithstanding the other
provisions of this section, unless the defendant can affirmatively
show that its defense has been prejudiced by lack of required
notice, upon motion and for good cause shown the court may
entertain the suit even though the required notice was not given.”
See Curtis v. Pracht, 202 F.Supp.2d 406, 414 (D.Md. 2002).
6
II.
Analysis
Defendant argues that Plaintiff failed to comply with the
strict notice provision under the LGTCA and has not established
good
cause
requirement.
consistent
with
Maryland
(ECF No. 18-1, at 2-4).
law
to
abrogate
the
Plaintiff argues that
dismissal is inappropriate because (1) he substantially complied
with the notice requirement (ECF No. 16-1, at 6), and (2) the good
cause exception in § 5-304(d) applies (id., at 4-6).
A.
Applicability of the “Substantial Compliance” Doctrine
A plaintiff “substantially complies with the LGTCA notice
requirement where: (1) the plaintiff makes ‘some effort to provide
the requisite notice’; (2) the plaintiff does ‘in fact’ give some
kind of notice; (3) the notice ‘provides . . . the requisite and
timely notice of facts and circumstances giving rise to the claim’;
and (4) the notice fulfills the LGTCA’s purpose.”
Ellis v. Hous.
Auth. of Balt. City, 436 Md. 331, 342-43 (2013) (ellipsis in
original) (quoting Faulk v. Ewing, 371 Md. 284, 298-99 (2002)).
Maryland
courts
have
provided
guidance
regarding
what
constitutes timely notice of the facts and circumstances of the
injury.
A Maryland appeals court held that a plaintiff may not
rely on the substantial compliance doctrine when he sent a letter
“between a month and six weeks beyond the 180-day statutory
period.”
Wilbon v. Hunsicker, 172 Md.App. 181, 200 (2006).
The
court agreed with the defendant that, “although ‘a claimant may
7
comply substantially with a notice requirement by giving notice to
a person not specified in the statute or by regular rather than
certified mail, the courts have not held that a claimant may submit
the notice beyond the time for giving such notice.’”
Id.
In fact,
it appears substantial compliance has only been found in the
context of delayed notice when a written notice of a claim was
mailed on the 180th day but received on the 181st day following
injury.
See Grubbs, 267 Md. at 325.
Indeed, the substantial
compliance doctrine only exists to provide leniency for claimants
who attempt to give notice but “not necessarily in a manner
technically compliant with all of the terms of the statute.”
Faulk, 371 Md. at 299 (concluding there was substantial compliance
even though the notice did not “include an envelope or other
indicia of a postmark by the United States Postal service,” and
did not appear to be “sent via certified mail[.]”); Jackson v. Bd.
of Cty. Comm’rs of Anne Arundel Cty., 233 Md. 164, 168 (1963)
(finding there was substantial compliance even though claimant did
not deliver the notice in person or via registered mail).
Even assuming that notice was sent fifty-four days after the
required LGTCA deadline, as stated in the amended complaint,
Plaintiff still failed substantially to comply with the LGTCA
notice requirement.
Accordingly, Defendant’s motion to dismiss
will be granted as to Plaintiff’s lack of substantial compliance.
8
B.
Applicability of the “Good Cause” Exception
Plaintiff argues that “there is good cause for the [] delay
in delivery of statutory notice.”
(ECF No. 16-1, at 6).
Section
5-304(d) provides:
Notwithstanding the other provisions of this
section,
unless
the
defendant
can
affirmatively show that its defense has been
prejudiced by lack of required notice, upon
motion and for good cause shown the court may
entertain the suit even though the required
notice was not given.
Under this exception, the Plaintiff bears the burden to show good
cause for lack of compliance.
See Rounds v. Maryland-Nat. Capital
Park & Planning Comm’n, 441 Md. 621, 645 (2015) (“Where a plaintiff
fails to comply with the notice requirement, it is the plaintiff’s
burden to demonstrate ‘good cause.’”).
Good cause exists where
“the claimant prosecuted his claim with that degree of diligence
that an ordinarily prudent person would have exercised under the
same or similar circumstances.”
Heron v. Strader, 361 Md. 258,
271 (2000). A defendant’s “burden to show prejudice does not arise
until a plaintiff establishes ‘good cause’ to justify the failure
to comply with the notice requirement.”
Curtis, 202 F.Supp.2d at
414 (citing Martino v. Bell, 40 F.Supp.2d 719, 720 (D.Md. 1999);
Downey v. Collins, 866 F.Supp. 887, 889–90 (D.Md. 1994)); see also
Huggins v. Prince George’s County Md., 683 F.3d 525 (4th Cir. 2012).
Maryland courts have recognized several factors to consider
when determining if “good cause” exists under the LGTCA, including:
9
[1] excusable neglect or mistake (generally
determined in reference to a reasonably
prudent person standard),
[2] serious physical or mental injury and/or
location out-of-state,
[3] the inability to retain counsel in cases
involving complex litigation[,]
[4] ignorance
of
requirement[,] or
the
statutory
notice
[5] misleading representations made by [a]
representative of the local government.
Wilbon, 172 Md.App. at 205-06 (internal quotation marks omitted);
see Heron, 361 Md. at 272.
Notably, ignorance of the notice
requirement, by itself, has been rejected as a cognizable factor
showing good cause.
Wilbon, 172 Md.App. at 206 n.15; see also
Bibum, 85 F.Supp.2d at 565–66 (the fact that Plaintiff “simply did
not know about the formal notice requirement of the LGTCA does not
constitute good cause for his failure to comply.”); Gower v. Smith,
No.
833,
Sept.
Term,
2017,
2018
WL
2331995,
at
*12
n.4
(Md.Ct.Spec.App. May 23, 2018) (“ignorance of the law alone may
not constitute good cause.”) (emphasis in original).
Plaintiff advances three explicit reasons in support of his
good cause:
of-state,
(1) Plaintiff was seriously injured and located out-
(2)
Plaintiff
was
seeking
legal
counsel,
Plaintiff was unaware of the LGTCA notice requirement.
16-1, at 6-9).
and
(3)
(ECF No.
Plaintiff also argues for good cause under the
excusable neglect prong throughout his motion and opposition.
10
(See, e.g., id., at 7) (“When all of Breen’s circumstances between
the time of the accident and his retention of counsel are taken
into account, it simply cannot be said that he was not diligent or
that he did not take reasonably prompt action to pursue his legal
claims once his medical issues stabilized.”).
argue
that
he
was
misled
by
a
Plaintiff does not
representative
of
the
local
government.
Whether Plaintiff is entitled to a waiver for good cause under
the LGTCA turns, in part, on whether he provided the requisite
notice,
albeit
conflicting
fifty-four
affidavits
days
and
late.
evidence.
The
parties
Defendant
present
attached
an
affidavit from David Fitzgerald, the Risk Manager for Wicomico
County.
(ECF No. 12-2).
Mr. Fitzgerald states that he “caused
the records of claims made to Wicomico County to be searched
thoroughly” and attests that “Wicomico County has never received
a notice of claim from Jared T. Breen, or on behalf of Jared T.
Breen[.]”
(Id., at 2).
Plaintiff’s counsel provides a competing
declaration, stating that he sent a claim letter via certified
mail to Wicomico County on February 22, 2016, and that the letter
was received and acknowledged by an authorized representative
thereof.
(ECF No. 15-1, at 3).
Plaintiff’s counsel attaches the
purported letter and a certified mail receipt signed by Dawn
Luchaco.
(Id., at 4-5).
Additionally, Plaintiff’s affidavit
affirms that his counsel sent a claim letter to Wicomico County.
11
(ECF Nos. 16-2 & 16-3).
Moreover, Defendant disputes Plaintiff’s
assertions as to the nature and extent of his injuries in the
months after the incident.
Accordingly, an evidentiary hearing
will be held to determine whether Plaintiff provided notice to
Wicomico County and whether he has demonstrated good cause.
III. Conclusion
For the foregoing reasons, Defendant’s motion to dismiss will
be granted in part and the parties will be directed to appear
before
the
court
for
an
evidentiary
remaining factual questions.
hearing
to
resolve
the
A separate order will follow.
/s/
DEBORAH K. CHASANOW
United States District Judge
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