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CSA: Grieving dad can sue state for bridge-safety decisions

The father of a 12-year-old girl killed in a 2001 car accident can sue the state for failing to install a median barrier on the Thomas J. Hatem Memorial Bridge between Havre de Grace and Perryville, an appeals court has held.

In its 3-0 opinion, the Court of Special Appeals reversed a judge who said the state was immune from liability in this case.

The decision revives Garrett P. Tollenger’s lawsuit against the state over the death of his daughter, Ashley. She was killed Aug. 10, 2001, when her stepfather’s pickup truck crossed a median line during a late-afternoon downpour and struck a vehicle going in the opposite direction.

“As a dad, it means so much to me,” Tollenger said of last week’s Court of Special Appeals decision. “We’re going to have my daughter’s day in court. That’s all that ever mattered to me.”

Kenneth Connor, who was driving the truck, also was killed. The driver of the other vehicle, Eric Lee Klotz, was not seriously hurt.

The state, which had decided against installing a jersey barrier on the span the previous year, changed its mind shortly after the crash.

Tollenger sued the state on Aug. 6, 2004.

After a lengthy discovery dispute, the state filed a motion for summary judgment that Harford County Circuit Judge Emory A. Plitt Jr. granted in October 2009.

Plitt concluded there was an unwritten exception to the broad waiver of state immunity in the Maryland Tort Claims Act. That implicit exception shielded the state from liability based on the discretionary decisions of its public officials, including the decision not to construct a jersey barrier, he ruled.

But the General Assembly implied no such exception, the Court of Special Appeals held last week. To the contrary, the statute itself specifies that it is to “be construed broadly to ensure that injured parties have a remedy.”

The legislature did not intend that “the state would retain the cloak of sovereign immunity for the discretionary acts of its public officials that [allegedly] allowed a bridge to be kept in a defective or dangerous highway condition, even though no such exclusion is mentioned in the statute,” Judge James P. Salmon wrote for the court.

“[I]n deciding whether the MTCA waived the state’s immunity, it is irrelevant whether the person or persons who make the decision not to install the jersey barrier were public officials exercising discretionary functions.”

Salmon, a retired judge sitting by special assignment, was joined by Judges Alexander Wright Jr. and Michele D. Hotten.

Broad remedy

Tollenger’s attorney, Clay M. Barnes, said the court’s decision is important not just for a grieving father but for other litigants harmed by the state’s negligence.

“The court’s decision clarified that the public has a broad remedy for tort claims against the state under the Maryland Tort Claims Act,” said Barnes, a Towson solo practitioner. “Mr. Tollenger will now have the opportunity to have a jury hear and decide the issue of the state’s negligence.”

Michael W. Lord, of the Maryland attorney general’s office, declined to comment Friday.

“We are evaluating the case and have not made any decisions about appealing” to Maryland’s top court, the Court of Appeals, said Lord, supervising attorney for the office’s tort litigation unit.

Tollenger’s complaint cited 12 cross-over crashes — including two that resulted in deaths — in the 10 years before the Aug. 10, 2001, collision that killed his daughter.

Court filings also include a Feb. 25, 2000, memorandum from the Maryland Transportation Authority’s engineering director recommending that a barrier be built on the bridge.

“This option will enhance safety by providing a positive barrier between opposing travel lanes without [a]ffecting the life of the bridge deck,” Faysal Thameen wrote. “[T]he benefits from the elimination of opposite-direction accidents outweighs the disadvantages.”

The MdTA tabled the recommendation on March 21, 2000, due to concerns that the barrier would narrow the bridge’s lanes and result in more-frequent accidents, the Court of Special Appeals opinion said.

Eleven days after the fatal collision, the chief engineer renewed his recommendation to build a barrier, which the MdTA accepted. The median barrier was completed in March 2002.

“This is the worst thing a parent can go through,” Tollenger, 57, said of Ashley’s death. “Her life was taken needlessly. It didn’t have to happen.”

Tollenger has settled lawsuits against Klotz and Connor’s estate, Barnes said.

One claim or two?

He has brought two claims against the state: a wrongful-death action, as Ashley’s father, and a survivorship claim on behalf of his daughter’s estate.

If he prevails, Tollenger could recover damages of up to $200,000 on each claim, the maximum permitted under the Maryland Tort Claims Act, Barnes said.

The state counters that the lawsuit comprises only a single claim, which would cap any recovery at $200,000.

WHAT THE COURT HELD

Case:

Tollenger v. Maryland, CSA No. 2118, Sept. Term 2009. Reported. Opinion by Salmon, J. (retired, specially assigned). Filed July 5, 2011.

Issue:

Does the state have an “implied exception” from liability under the Maryland Tort Claims Act for discretionary governmental planning and policy decisions?

Holding:

No; the MTCA is to be “construed broadly to ensure that injured parties have a remedy.”

Counsel:

Clay M. Barnes for appellant; Steven M. Sullivan and Michael W. Lord for appellee.

RecordFax # 11-0705-01.