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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1516 September Term, 1994

GAYLE ANN SCHREIBER v. CHERRY HILL CONSTRUCTION COMPANY, INC.

Moylan, Bishop, Salmon, JJ.

Opinion by Bishop, J.

Filed:

June 29, 1995

Appellee, Gayle Ann Schreiber ("Schreiber"), filed a fivecount complaint and two amended complaints in the Circuit Court for Baltimore County against Pamela K. Benton ("Benton"), Johnson, Mirmiran & Thompson, P.A. ("JMT"), and appellant, Cherry Hill Construction, Inc. ("Cherry Hill"). In her second-amended

complaint, Schreiber sought damages resulting from injuries she sustained while performing her duties as a Maryland State Trooper. Schreiber alleged that, while she was investigating an automobile accident at a road construction site monitored and supervised by JMT and Cherry Hill, Benton's car struck her, throwing her

approximately sixty feet.

Schreiber avers in her complaint that

Benton drove in a careless and negligent manner (Count I), that JMT breached its duty to monitor and inspect the construction site in a prudent and safe manner (Count II), that Cherry Hill breached its duty to engineer, design, supervise, and monitor the construction site in a safe and prudent manner (Count III), that JMT was grossly negligent and blatantly disregarded the dangerous condition of the construction site (Count IV), and that Cherry Hill was grossly negligent and blatantly disregarded the dangerous condition of the construction site (Count V). In addition to the complaint filed by Schreiber, JMT filed a third-party complaint against Earth Engineering Sciences, Inc. ("EESI"), an inspection firm that supplied employees to JMT on a subcontractor basis. Hill and Benton. JMT also filed cross-claims against Cherry

Cherry Hill filed cross-claims against Benton,

- 2 JMT, and EESI, and Benton filed cross-claims against JMT and Cherry Hill. Schreiber, however, settled with Benton, JMT, and EESI prior

to trial; appeal.

therefore, Benton, JMT, and EESI are not parties to this

Cherry Hill filed a motion to dismiss Schreiber's claim for punitive damages, and a motion for summary judgment. court denied both of these motions. The trial

Prior to submitting the case

to the jury, however, the trial court granted Cherry Hill's motion to dismiss the punitive damages claim. The jury returned a verdict in favor of Schreiber on her negligence claim against Cherry Hill and found that JMT and EESI negligently performed their inspection services. The jury awarded

Schreiber $22,989.83 in stipulated medical expenses, $100,000 for lost wages/earning capacity, and $50,000 for pain and suffering. The trial court entered judgment in favor of Cherry Hill on its cross-claims against Benton, JMT, and EESI. Schreiber filed a motion for judgment notwithstanding the verdict and/or new trial, as to damages only, contending that the jury's verdict was tainted by the admission of certain evidence. The trial court denied the motion. Issues

- 3 Schreiber raises five issues on appeal, and Cherry Hill raises two issues on cross-appeal. For clarity and convenience, we shall

address Cherry Hill's issues first. Cherry Hill's Issues: I. Whether Schreiber's claims are barred by the Fireman's Rule? II. Whether the trial court erred in refusing to instruct the jury on active/passive negligence. Schreiber's Issues: III. Did the trial court err when it admitted evidence of Schreiber's receipt of disability pension benefits where there was no evidence of malingering? IV. Did the trial court err when it admitted evidence that Schreiber should be required to obtain a graduate degree to enhance her wageearning potential and mitigate her damages? V. Did the trial court err in allowing Cherry Hill's vocational rehabilitation expert to testify concerning the existence of higher paying jobs which he thought may be available to Schreiber? VI. Should Schreiber's claim for punitive damages have been submitted to the jury? VII. Did the trial court err when it denied Schreiber's motion for judgment notwithstanding the verdict as to the liability of JMT and ESSI? Facts On the afternoon of July 4, 1989, Schreiber responded to the scene of a motor vehicle accident on eastbound I-695 in Anne Arundel County. The accident occurred in the right, eastbound lane

- 4 of I-695, just past the Route 3 exit ramp. Trooper Leroy Truitt,

who arrived on the scene before Schreiber, had set up a flare line to provide a zone of safety for rescue personnel. Benton, who was

travelling in the right, eastbound lane of I-695, approached the accident scene, saw the flares, and tried to slow her vehicle and move to the left lane; however, she lost control of her car, which caromed off a jersey barrier, crossed the two eastbound traffic lanes, and struck Schreiber. When Benton's vehicle struck

Schreiber, Schreiber was within the safety zone established by Trooper Truitt. Schreiber was thrown sixty feet and sustained a

closed head injury, contusions to the head, two black eyes, a contusion to the left elbow, a hematoma to the left buttock, a separated shoulder, a sprained left ankle, and a left tibia

fracture that extended into her kneecap. The evidence showed that, prior to the accident, Benton had been driving for approximately one year. Benton's license had a

restriction requiring that she use a driving knob because extensive brain surgery, which she had undergone as a child, left her unable to control her vehicle at all with her left arm. The Motor Vehicle

Accident Report indicates that, on the day of Schreiber's accident, it was raining, and that, prior to Benton's losing control of her vehicle, she was driving fifty-five miles per hour, the posted speed limit. Additionally, the Motor Vehicle Accident Report

revealed that Benton was "under medication for seizures."

- 5 When the accident that injured Schreiber occurred, Cherry Hill, a contractor hired by the State Highway Administration Schreiber's

("SHA"), was building the I-97/I-695 Interchange.

accident occurred along the second curve of a reverse "S" curve, constructed by Cherry Hill as a temporary crossover, which took eastbound traffic past the Route 3 exit ramp and joined it with westbound traffic. The entire road project, including the

temporary crossover, was to conform with design plans prepared by the Greiner Engineering Company ("Greiner"). Cherry Hill's

contract with the SHA required preparation of an alternative plan for any construction that did not conform to Greiner's design plans and submission of the alternative plan for review and approval by the State Traffic Engineer, Larry Elliott. Construction of any

area of the roadway could not proceed without prior approval by the State Traffic Engineer. According to Schreiber, the reverse "S" curve, where her accident occurred, did not conform to Greiner's design plans, because those plans did not provide for any curves, and therefore, Cherry Hill did not have an approved alternative plan for the construction of the reverse "S" curve. Schreiber's expert witness,

Andrew E. Ramisch, testified concerning the design of the "S" curve: [Mr. Ramisch]: In this particular case the radius of the curve was 135 feet on the curve where Ms. Schreiber was hit. The 42 degree curve that I talked about is a little bit different measurement. In highway engineering

- 6 a cord [sic], which is a straight line, to a point on a curve is struck. Where that curve is one hundred feet long the angle subtended by the one hundred foot curve was measured, in this case it was 42 degrees. For a gentle curve like this for a interstate standard the same cord of one hundred feet gives a much, much smaller angle. I believe it is something like three degrees. So. radius and angle are interrelated as are radius and other factors, but the sharper the radius, the more of a kink it is. It is a quick, abrupt curve. That's the best that I can explain it. Q: And degrees? this curve was 135 feet and 42

[Mr. Ramisch]: Yes. Q: And design standards dictated by AASHTO would have dictated what type of radius for a 55 mile per hour speed? [Mr. Ramisch]: I believe I calculated it out to 1600 and some feet. Q: Which would be what in degrees?

[Mr. Ramisch]: Three degrees. According to a mathematical formula, which gives the design speed for any given radius, the design speed for a forty-two degree "S" curve is thirty miles per hour. Additionally, Schreiber asserted

that the curve was banked improperly and that there were no advance warning signs. According to Cherry Hill, however, "[t]he

undisputed evidence at trial established that significant site considerations limited the manner in which Cherry Hill could configure the geometrics of the crossover." Cherry Hill also

maintained that signs could not be posted and the speed limit could

- 7 not be changed without the express direction and approval of the State. Cherry Hill conceded that its contract with the SHA required it to determine and post appropriate signs, in accordance with the Manual on Uniform Traffic Control Devices, on all roadways under its construction. Also, Cherry Hill conceded that it had a duty to Schreiber

set and keep the jersey barriers in proper alignment.

argued that the jersey barriers along the reverse "S" curve were constantly misaligned, and therefore, any vehicle that struck a misaligned barrier, inevitably, would be deflected across the roadway, in the same manner as was Benton's vehicle. Schreiber maintained, at trial, that Cherry Hill knew of, but ignored, the safety hazards that the forty-two degree, reverse "S" curve posed to motorists. Schreiber specifically pointed to the

increased number of automobile accidents in the road construction area after Cherry Hill had built the reverse "S" curve. Hill's Grade Foreman, Jim Rogers, its Superintendent, Cherry Steve

Kitchen, and its Project and Traffic Manager, James Openshaw, testified that they were aware of the numerous accidents along the reverse "S" curve. Cherry Hill, however, maintained that the

testimony of its employees did not demonstrate an awareness that the accidents were causally connected to a defect in the design of the construction area. According to Schreiber, Cherry Hill ignored its contractual duty to "maintain pedestrian and vehicular traffic safely,

- 8 adequately and continuously on all portions of existing facilities affected by [Cherry Hill's] work." Schreiber noted that Cherry

Hill's construction contract specifically required that "[Cherry Hill] shall provide, erect and maintain all necessary barricades, suitable and sufficient lights, danger signals, signs and other traffic control devices and shall take all necessary precautions for the protection of the work and safety of the public."

Schreiber maintained that the reason for Cherry Hill's failure to implement safety precautions was its concern about receiving a $1,000,000 bonus from the State for completing construction by August 1, 1989; if Cherry Hill failed to complete the project by the deadline, the bonus would diminish by $5,000 a day for each day the project remained uncompleted. Cherry Hill denied this allegation, specifically stating that

it had no reason to ignore safety measures, such as realigning jersey barriers, because the re-setting of the jersey barriers was a specific category of labor under the contract for which Cherry Hill was paid on a time and material basis. Cherry Hill maintained

that there was no evidence to support Schreiber's allegations that it had "a financial disincentive to avoid bringing deficiencies in design to the attention of the State because it might create a delay and . . . diminish its bonus." At the time Schreiber was injured, she was twenty-six years old and had been promoted to the position of State Trooper FirstClass. Because of her injuries, Schreiber was unable to meet the

- 9 physical demands of her job and was forced to retire from the Maryland State Police force. Schreiber began career counseling

immediately with Lee Mintz, a vocational rehabilitation specialist, and, shortly afterward, accepted employment as a receptionist for a forensic psychiatrist. highest paying job According to Schreiber, this was the to someone with her education,

available

training, experience, and physical limitations.

Cherry Hill,

however, asserted at trial that Schreiber did not sustain a total disability to any part of her body, that she could have obtained a higher-paying job, and that she exaggerated her wage loss. Discussion I. Fireman's Rule

Cherry Hill argues that Schreiber's claims are barred because, "as a matter of public recover policy, for firemen and police officers to the

generally

cannot

injuries

attributable

negligence that requires their assistance." Terrace Ltd., 308 Md. 432, 447 (1987).

Flowers v. Rock Creek

According to Cherry Hill,

"the doctrine known as the fireman's rule generally prevents . . . police officers injured in the course of their duties from

recovering tort damages from those whose negligence exposed them to injury." Southland Corp. v. Griffith, 332 Md. 704, 713 (1993).

Recently, in Southland Corp., the Court of Appeals discussed in detail the principles underlying the fireman's rule. explained that, "[p]rior to 1987, the rationale The Court behind the

- 10 fireman's rule focused on the status of the safety officer on the landowner's premises[,]" and that courts "generally held that fire

fighters and police officers were licensees when they entered property in the performance of their duties . . . ." 14. Id. at 713-

In Flowers, however, the Court departed from the traditional

application of the fireman's rule: Instead of continuing to use a rationale based on the law of premises liability, we hold that, as a matter of public policy, firemen and police officers generally cannot recover for injuries attributable to the negligence that requires their assistance. This public policy is based on a relationship between firemen and policemen and the public that calls on these safety officers specifically to confront certain hazards on behalf of the public. A fireman or police officer may not recover if injured by the negligently created risk that was the very reason for his presence on the scene in his occupational capacity. Someone who negligently creates the need for a public safety officer will be liable to a fireman or policeman for injuries caused by this negligence. Flowers, 308 Md. at 447-48. The Flowers Court also stated that

"[t]he fireman's rule does not . . . bar [public safety officers] from recovering tort damages for all improper conduct." 332 Md. at 714. In Southland, the Court indicated that negligent acts not protected by the fireman's rule included "`pre-existing hidden dangers where there was knowledge of the danger and an opportunity, to warn,'" id. at 714 (quoting Flowers, 308 Md. at 448), "`acts which occur subsequent to the safety officer's arrival on the scene Southland,

- 11 and which are outside of his anticipated occupational hazards,'" id., and injurious acts which occur after "the initial period of his anticipated occupational risk," or which are not reasonably foreseeable as part of that risk. Id. at 715. As support for its

summary, the Court cited Prosser and Keeton on the Law of Torts

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