The trial court awarded damages to a former Maryland state trooper in her negligence action against a contractor after she was struck by a car that had entered a construction site. She appealed the damage award in the Circuit Court, Baltimore County, and the contractor cross-appealed. The Court of Special Appeals of Maryland ruled that (1) the trooper could not be barred from recovering damages from the contractor, (2) the contractor was not entitled to indemnification from the supervisor and/or the inspector, (3) the trial court erred in its instructions to the jury regarding the trooper's wage-earning potential, and (4) the trooper was not entitled to punitive damages.

THE INCIDENT

At the time of this incident, Maryland State Trooper Gayle Ann Schreiber was investigating a crash in the right, eastbound lane of I-695, just past the Route 3 exit ramp in Anne Arundel County. The crash happened where Cherry Hill Construction (Cherry Hill), hired by the State Highway Administration (SHA), was at work on the I-971/I-695 interchange.

Pamela K. Benton approached the crash site in the right, eastbound lane and saw the flares that delineated the safety zone for rescue personnel. Driving at the posted speed limit of 55 miles per hour, Benton tried to slow and move to the left lane. She lost control of her car, hit a jersey barrier, crossed two eastbound lanes into the safety zone, and struck Schreiber. The collision threw Schreiber 60 feet and caused numerous injuries.

This incident occurred along the second curve of a reverse "S" that Cherry Hill had built as a temporary crossover to take eastbound traffic past the Route 3 exit ramp and join it with westbound traffic.

Schreiber brought a five-count negligence action and two amended complaints against Benton, against Johnson, Mirmiran & Thompson, P.A. (JMT) (Cherry Hill's supervisor), and against Cherry Hill.

JMT filed a third-party complaint against Earth Engineering Sciences, Inc. (EESI) (the inspection firm that supplied JMT's contracted employees) and cross-claims against Cherry Hill and Benton. Cherry Hill filed cross-claims against Benton, JMT, and EESI. Benton filed cross-claims against JMT and Cherry Hill.

Schreiber settled with Benton, JMT, and EESI before trial.

TRIAL COURT DECISION

A jury awarded Schreiber $22,989.83 for medical expenses, $100,000 for lost wages and earning capacity, and $50,000 for pain and suffering.

On reconsideration, the Circuit Court, Baltimore County granted Cherry Hill's motion to dismiss Schreiber's claim for punitive damages. In addition, the trial court ruled in favor of Cherry Hill in its cross-claims against Benton, JMT, and EESI.

Schreiber filed a motion for judgment for damages only. She contended that the admission of certain evidence tainted the jury's verdict. The court denied this motion.

APPELLATE COURT DECISION

The Court of Special Appeals of Maryland addressed Cherry Hill's cross-appeal issues:

I. Were Ms. Schreiber's claims barred by the Fireman's Rule?
II. Did the trial court err when it refused to instruct the jury on active/passive negligence?

The court also considered Schreiber's appeal issues:

III. Did the trial court err in admitting evidence of disability benefits?
IV. Did the trial court err in admitting evidence Schreiber should earn a graduate degree?
V. Did the trial court err in allowing a vocational rehabilitation expert to testify?
VI. Should the court have submitted Schreiber's claim for punitive damages to the jury?
VII. Did the trial court err in denying Schreiber's motion for judgment "notwithstanding the verdict as to the liability of JMT and EESI"?

Facts

The project, including the crossover, was to conform with design plans prepared by Greiner Engineering Company (Greiner). Cherry Hill's contract with the SHA required it to prepare an alternative plan for any construction that differed from Greiner's plans and to submit that plan for review and approval of the State Traffic Engineer before such construction could continue.

Schreiber contended that the reverse "S" curve where the incident occurred did not conform to Greiner's design and that Cherry Hill had no approved alternative plan for constructing it. Her expert witness testified that this was a "quick, abrupt curve" where an appropriate speed limit would be 30 mph. Schreiber also argued that the curve was not banked properly and that no warning signs were posted.

Cherry Hill responded that site considerations limited the crossover geometrics. They further pointed out that they could not post signs or change the speed limit without the State's approval. Cherry Hill conceded, however, that its contract required it to post appropriate signs on all roads under construction.

Schreiber further claimed that the barriers were misaligned in such a way that they would deflect any vehicle striking them across the highway. Cherry Hill conceded its duty to set and keep the jersey barriers in proper alignment.

Schreiber was a State Trooper First-Class at the time of the incident. Her injuries left her unable to continue in her job. She began career counseling with a vocational rehabilitation specialist and accepted a job as a receptionist. She claimed this was the highest-paying job available to her. Cherry Hill asserted that Schreiber sustained no total disabilities, could obtain a better-paying job, and was exaggerating her loss of wages.

Discussion

I.     Fireman's Rule

In Flowers v. Rock Creek Terrace Ltd. (308 Md. 447-48, 520 A.2d 361 (1987)), the Court of Appeals discussed a departure from the traditional application of the Fireman's Rule:

. . . [F]iremen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance;

however,

. . . the fireman's rule does not apply when a public safety officer sustains injuries after the initial period of his anticipated occupational risk, or from perils not reasonably foreseeable as part of that risk.

Schreiber alleged that her injuries resulted from Benton's and Cherry Hill's negligence. As she was inside the safety zone set up at the crash scene, Schreiber could not have foreseen that a car would strike her.

The appellate court agreed with the trial court's ruling that Cherry Hill's negligence was not the reason for Schreiber's being at this scene. The court concluded, therefore, that the Fireman's Rule did not preclude Schreiber from a negligence action against Benton or Cherry Hill.

II.     Passive/Active Negligence

Cherry Hill asserted that the trial judge should have instructed the jury on passive negligence, because "Ms. Benton's negligence was 'the primary, active cause of the accident, and . . . [Cherry Hill's] negligence was secondary to that of Benton.'"

This argument ignored Schreiber's evidence that Cherry Hill had been negligent in its design, implementation, and monitoring of the traffic control plan. The appeals court stated that it was within the trial court jury's province to conclude that Cherry Hill's negligence was a "direct and proximate cause" of Schreiber's injuries.

The court affirmed the trial court's decision that Cherry Hill was entitled to contribution, not indemnification, from the cross-defendants.

III.     Admission of Disability Pension Benefits

The appeals court agreed with Cherry Hill's assertion that Schreiber exaggerated the impact of her injuries on her wage-earning ability. During the trial, Schreiber allowed without objection a statement from her vocational rehabilitation counselor informing the court that Schreiber had explained to the counselor she could accept either part-time or full-time employment because she was receiving a pension from the State of Maryland.

Since Schreiber did not object to this statement or ask for a continuing objection, the Court of Appeals reiterated, "If the trial judge admits the questionable evidence, the party who made the motion [in limine] ordinarily must object at the time the evidence is actually offered to preserve his objection for appellate review."

Schreiber countered that the disability-payment issue was preserved and that she had requested Cherry Hill not question her vocational rehabilitation counselor. She stated that she was "acquiescing" with the court's ruling to allow the questioning--not waiving her objection. She again objected when Cherry Hill questioned another witness on this issue.

Schreiber also objected to Cherry Hill's introduction of the vocational rehabilitation report, because it contained a reference to insurance.

Since the vocational counselor had already testified, without objection, about the report's contents, the appeals court held that any error in admitting the report was harmless.

IV.     Graduate Degree/Wage-Earning Potential

Schreiber contended the trial court erred in permitting Cherry Hill to argue that she should obtain a master's degree. After hearing testimony, the trial court reversed itself on this issue because "requiring [Schreiber] to go to school for two years . . . goes beyond the requirements of a Plaintiff to mitigate damages."

The jury, however, had already heard testimony about graduate programs and about salaries available to persons with graduate degrees. The trial court did not instruct the jury to disregard this testimony when calculating Schreiber's damages.

The appeals court concluded the trial court erred in admitting this testimony. Although the appeals court agreed with the trial court's reversal of its decision to allow this testimony, the court could not conclude that the testimony did not influence the jury in its lost wages/earning-capacity award. The appeals court reversed that part of the jury's award.

V.     Testimony of Cherry Hill's Vocational Rehabilitation Expert

Schreiber also contended that Cherry Hill's rehabilitation expert "improperly influenced" the jury's award for lost wages/earning capacity. Although Schreiber moved to strike part of this expert's testimony, this was not done at the time.

The appeals court found this objection was not timely and refused to consider it.

VI.     Punitive Damages

The trial court granted Cherry Hill's motion to dismiss Schreiber's punitive damage claim. Although the court stated that Cherry Hill should have taken precautions to inform motorists of hazards and should have erected proper barriers, it found no evidence to support a "deliberate disregard of harm or actual knowledge of the defendant that these measures were necessary in order to prevent harm."

Although Cherry Hill may have been negligent, the court felt such negligence would not support punitive damages under the law. Citing precedent, the court pointed out that "to recover punitive damages in any tort action, the plaintiff must establish the requisite malice by clear and convincing evidence.' United States Gypsum Co. v. Mayor & City of Baltimore, 336 Md. 145, 647 A.2d 405 (1994)."

Schreiber had to prove that Cherry Hill knew at the time of the incident that "its design and maintenance of the construction site presented a serious risk to motorists." She also had to show that Cherry Hill ignored these defects and did nothing to protect motorists from the resulting dangers. The trial court found Schreiber presented insufficient evidence to support her claim for punitive damages and granted Cherry Hill's motion. The appeals court agreed.

VII.     Liability of JMT and EESI

Schreiber moved for judgment on the issue of the negligence of both JMT and EESI. She argued that no evidence had been presented that personnel from either firm had inspected the construction site. The trial court denied the motion for judgment, stating that there was sufficient evidence to submit this issue to the jury. The appeals court confirmed the trial court's decision to allow the jury to decide the negligence of JMT and EESI.

In summary, the appeals court reversed the trial court's judgment on damages for lost wages/earning capacity and remanded the case to the Baltimore County Circuit Court for a new trial on this issue. The court supported the remainder of the lower court's decisions.