Court reinstates verdict, sans $90M award, in teen’s death

Daily Record Legal Affairs Writer//April 6, 2015

Court reinstates verdict, sans $90M award, in teen’s death

By Steve Lash

//Daily Record Legal Affairs Writer

//April 6, 2015

ANNAPOLIS — A Maryland appeals court has reinstated a jury’s verdict — but not its $90.3 million damages award — for the parents of a 13-year-old girl who was struck and killed by a car six years ago while crossing a four-lane street trying to reach her school-bus stop in Temple Hills.

The Court of Special Appeals said the trial judge was wrong to toss out the jury’s verdict against the Prince George’s County Board of Education based on his erroneous finding that it owed no duty of care to the girl and that her negligent crossing of the street contributed to her death. In its 3-0 decision, the intermediate court said the board owed a duty to the girl under a regulation governing bus-stop locations and that a jury reasonably concluded she was not contributorily negligent.

“It was a very important ruling by the court,” said the family’s attorney, John F. X. Costello. “Because that regulation was not complied with, this little girl was forced to cross the street.”

The Court of Special Appeals, however, said state law calls for the award to be reduced to the school board’s insurance policy limit, but not to less than $100,000. The board has the defense of sovereign immunity from damages for amounts greater, the court said in remanding the case to Prince George’s County Circuit Court to determine the award.

No decision has been made on whether to appeal the damages-reducing decision to Maryland’s top court, the Court of Appeals, said Costello, of John F.X. Costello & Associates LLC in Largo.

Attorney Timothy F. Maloney, Costello’s co-counsel, voiced frustration with what amounts to a cap on damages that can be awarded against school boards and local governments.

No adjustments

“Many of these governmental caps have not been adjusted in [many] years and are drawing the attention of the General Assembly,” said Maloney, of Joseph, Greenwald & Laake P.A. in Greenbelt.

Abbey G. Hairston, an attorney for the school board, declined to comment on the Court of Special Appeals’ decision. Hairston is with the Thatcher Law Firm in Greenbelt.

The Prince George’s County Circuit Court jury had found in April 2013 that the school board fatally breached its duty of care to Ashley Davis by not providing a school-bus stop on the same side of Brinkley Road as her home, thus requiring the freshman at Crossland High School in Temple Hills to cross the four-lane thoroughfare.

Ashley was killed while crossing Brinkley Road on Sept. 1, 2009. The driver admitted no liability in reaching a $20,000 settlement with the family.

The jury, in finding the school board liable, concluded that Ashely was not contributorily negligent.

Absolved from liability

Maryland is one of a handful of states that absolves negligent defendants of liability if the plaintiffs’ negligence contributed at all to their injuries.

The six-member jury awarded $90,357,776.12 million in damages, including $13,000 to Ashley’s estate for her funeral expenses and her pain and suffering; $344,776.12 in medical expenses; $50 million in non-economic damages to Ashley’s mother, Nycole Davis; and $40 million in non-economic damages to Ashley’s father, Jerome Bradley.

But Prince George’s County Circuit Judge Leo E. Green Jr. granted the board’s motion for a judgment notwithstanding the verdict in February 2014.

Green agreed with the board that it owed no legal duty to Ashley because she was not in the board’s “physical custody or control” while heading to the bus stop and the board had not been told of any problem with the stop’s location. Green also agreed Ashley was contributorily negligent by not crossing in the crosswalk that was less than a tenth of a mile away.

Four-lane highway

But the Court of Special Appeals reinstated the verdict, citing Maryland State Board of Education regulation 13A.06.07.13, which pertains to “Reporting and Operating Procedures.” Subsection C of the regulation states that “on four-lane highways, students shall be picked up and discharged on the side of the roadway where they reside.”

Subsection C is “designed to protect public-school students who ride county-provided buses to and from school from the risks associated with crossing a four-lane highway, including the risk of being hit by a car,” Judge Deborah S. Eyler wrote in the appellate court’s reported opinion filed Friday.

“As a public-school student living on a four-lane highway, in a school district in which the board had taken it upon itself to provide bus transportation to school, Ashley was within the specific class of people that [Subsection C] was designed to protect,” Eyler added. “And she suffered precisely the kind of injury that the regulation was intended to protect against. Accordingly, the board owed Ashley a legal duty of care to provide a bus stop on her side of Brinkley Road sufficient to support the duty element of a cause of action in negligence.”

In addition, Green should have deferred to the jury’s finding that Ashley was not contributorily negligent, Eyler wrote.

‘Reasonable jurors’

“Reasonable jurors, crediting the evidence most favorable to Ashley, could have found that she was paying attention as she attempted to cross Brinkley Road and that she did not put herself in the path of the vehicle that struck her; rather, that vehicle crossed the center line and hit her,” Eyler added. “Reasonable jurors also could have found that Ashley did not fail to yield the right of way when crossing outside a crosswalk because there was no vehicle to which to yield when she started crossing and the vehicle that then appeared and struck her drove outside its lane of traffic, so yielding would have made no difference.”

In remanding the case for recalculation of damages, the Court of Special Appeals cited two Maryland laws in ruling that the $90.3 million award must be reduced to the school board’s insurance coverage, but no less than $100,000.

Section 4-105 of the Maryland Education Article requires county school boards to have at least $100,000 in liability coverage. Section 5-518 of the Maryland Courts and Judicial Proceedings Article, titled “Immunity – County boards of education” provides that the boards “may raise the defense of sovereign immunity to any amount claimed above the limit of its insurance policy….”

Eyler was joined in the opinion by judges Michael W. Reed and James P. Salmon, a retired jurist sitting by special assignment.

The case is Nycole Davis et al. v. Board of Education for Prince George’s County, No. 8, Sept. Term 2014.

Networking Calendar

Submit an entry for the business calendar