Claimants May Recover Damages for Household Services as a Pecuniary Loss with Evidence of Duration of Services

Choudhry v. Fowlkes, No. 1148, Sept. Term, 2017 (filed Nov. 1, 2019) (Judges Meredith, FRIEDMAN & Eyler (Senior Judge, Specially Assigned))

In 2013, 22-year-old Yenita Owens died from complications related to a severe infection in her leg. Owens' mother, Lolita Fowlkes, whom Owens lived with before her death, filed a wrongful death action against various medical providers who treated her daughter, including Dr. Shabbir Choudhry.  Fowlkes sought both economic and non-economic damages for the loss of her daughter's services. These services included various household chores performed by Owens, such as washing dishes, vacuuming, and running errands. At trial, Fowlkes testified that Owens would perform these tasks for roughly 2 hours per day, that she had raised Owens as a single mother, and that she planned to live with Owens forever.

Choudhry moved three times for judgment as to Fowlkes' claim for damages for the loss of Owens’ services. The trial court denied all three motions. After deliberation, the jury found in Fowlkes’ favor and awarded her $500,000 in non-economic damages and $500,000 in economic damages for Owens' loss of service.  

Choudhry appealed and argued that: (1) the household services that Fowlkes testified Owens performed do not constitute a recoverable pecuniary loss; and (2) even if such household chores can be recovered as a pecuniary loss, Fowlkes nonetheless presented insufficient evidence to support any non-speculative damages award. The Court of Special Appeals agreed with Choudhry and reversed the trial court's decision.

Under the wrongful death statute, a covered beneficiary may recover for both pecuniary (i.e., economic) and non-pecuniary (i.e., non-economic) damages resulting from the wrongful death of a family member listed in the statute. See Spangler v. McQuitty, 449 Md. 33 (2016). To recover economic damages for the loss of household service, a beneficiary must: (1) identify domestic services that have a market value; (2) have reasonably expected the decedent to provide the identified services, which—absent the decedent's legal obligation to provide the services—will typically require evidence showing that the decedent was regularly providing the services in the past; and (3) present some evidence concerning the duration the decedent would have likely provided the services. See United States v. Searle, 322 Md. 1, 7 (1991); Balt. & O. R. Co. v. State, 63 Md. 135, 145-46 (1885); Emp'rs Liab. Assurance Corp. v. Balt. & O. R. Co., 173 Md. 238, 244 (1937).

In this case, the Court of Special Appeals found that Fowlkes failed the meet the third element required to prove economic damages for the loss of household services. While Fowlkes did testify that Owens performed various household chores for 2 hours a day, she failed to specify the length of time that Owens had been engaging in daily household chores. She also failed to provide evidence to support her assertion that Owens planned to live with Fowlkes indefinitely and would, therefore, continue to provide household services daily. Thus, while Fowlkes may recover both types of damages that arise from the wrongful death of Owens, she failed to provide sufficient evidence to submit her damages claim to the jury.

            --Jahnee Waller, Law Clerk

Maryland Court of Special Appeals Expands Premises Liability Duties to Condominium Associations

Damien A. Macias v. Summit Management, November 21, 2019 (Court of Special Appeals of Maryland)

Maryland Courts have traditionally imposed a legal duty on landlords to inspect, maintain, and keep safe the common areas of their properties for the benefit of invitees and social guests.  The Maryland Court of Special Appeals expanded that duty to condominium associations in a recently published opinion in Damian A. Macias v. Summit Management Inc.

This issue giving rise to the case originated on July 6, 2013 when eight-year-old Damien Macias (“Damien”) accompanied his mother and two younger siblings to the Waters House Condominium complex (“Waters House”), which was managed by Summit Management (“Summit”) (collectively, the “Condominium”), to visit his grandparents who owned a unit at Waters House.  While playing outside on the grounds of Waters House, Damien and his brother climbed on top of a community sign made of large stones.  While dismounting from the community sign, one of the large stones dislodged.  Damien fell to the ground and the stone fell on top of Damien, causing him serious injuries.  There was no sign or fencing surrounding the community sign indicating that it was off-limits.

Damien sued asserting negligence claims against the Condominium.  The Condominium filed a motion for summary judgment arguing, in part, that Damien’s legal status was that of a trespasser and was owed no duty except to refrain from “willful or wanton misconduct and entrapment.”  Damien countered arguing that he was an invitee because the community sign was located in the common area of the complex, and was therefore owed a duty by the Condominium to use reasonable care to ensure the sign was safe.  The trial court ruled Damien was a bare licensee (i.e., here, that Damien was only owed the same duties as a trespasser), but that even if Damien was an invitee, there was no evidence that the Condominium was on notice of the unsafe condition giving rise to Damien’s injuries.  Damien appealed to the Maryland Court of Special Appeals, asking the appellate court to find that Damien was an invitee when he played on the community sign and, therefore, owed a duty of care by the Condominium.

After looking to other states’ precedents on the issue and applying the Maryland landlord-tenant premises liability paradigm, the Court of Special Appeals held that condominium associations owe condominium owners and their social guests the same duty of care landlords owe to their tenants and social guests.  This holding was accompanied by a caveat, namely that condominium association may avoid liability in a negligence action by including an appropriate exculpatory clause in their condominium agreement.

The Court of Special Appeals also considered whether Damien’s legal status changed from an invitee to a trespasser when he climbed onto the community sign.  The Condominium argued that Damien lost his legal status as an invitee because there was nothing about the community sign that suggested, implied, or induced Damien (or the general public) into thinking that children may play on or climb the community sign.  The Court of Special Appeals disagreed, pointing to the fact that there was no evidence that the Condominium placed any signage, fencing, or other limits on which children could play in the common areas, which included the community sign.  The appellate court also dismissed the argument that the act of climbing a climbable object transformed Damien’s legal status, opining that it is conceivable that children, such as Damien, would climb a stone sign that blends naturally into the grounds of the common areas of the complex.

Although the Court of Special Appeals overturned the findings of the trial court with respect to Damien’s legal status on the property, the award of summary judgment was upheld on the ground that the Condominium lacked the requisite knowledge of the dangerous condition or defect in the community sign that caused Damien to fall and sustain injuries.  Accordingly, the Condominium prevailed on appeal.

The precedent set by this new opinion will undoubtedly impose additional liability concerns for condominium associations and their respective liability and casualty insurers.  In order to best defend future claims, such as Damien’s, condominium associations should consider taking two preemptive steps.  First, condominium associations should consider increasing or amending the signage and fencing in the common areas of their properties to expressly delineate areas that should not be accessed by the general public.  Second, condominium associations would be wise to supplement or revise their condominium agreements to include strong exculpatory clauses to have their condominium owners release and hold harmless the condominium association from negligence actions for injuries claimed by invitees and social guests occupying the common areas of the condominium complexes.

-Benjamin Beasley, Associate Attorney 

Congratulations to RSRM’s 2020 Maryland Super Lawyers!

It is with great pride that RSRM announces that three of its attorneys have been selected among Maryland’s 2020 Super Lawyers.

Managing Partner James Andersen was selected as a 2020 Super Lawyer in the area of Personal Injury. Mr. Andersen has nearly 30 years of litigation experience and has served as the Firm’s Managing Partner since 2014. He handles a variety of litigation matters including transportation, products liability, premises liability, construction litigation, and insurance coverage and defense. He has been selected to the Maryland Super Lawyers list in 2017, 2018, 2019, and 2020.  

Partner Paul Donoghue was selected as a 2020 Super Lawyer in Workers’ Compensation. Mr. Donoghue has served as a Partner at RSRM since 1998 and handles workers’ compensation and general litigation/liability matters. He has been selected as a Maryland Super Lawyer in 2013, 2014, 2015, 2016, 2017, 2018, and 2020.

Associate Rima Kikani was selected as a 2020 Rising Star in the area of Civil Defense Litigation. Ms. Kikani will be a sixth-year associate in 2020 and works on premises liability, products liability, and insurance coverage and defense matters. She has been named as a Maryland Rising Star Attorney in 2019 and 2020.

Each year, approximately five percent (5%) of Maryland attorneys are selected as "Super Lawyers" and two-and-a-half percent (2.5%) are selected as "Rising Stars.”

Congratulations to our 2020 Super Lawyers!

RSRM Welcomes Associate Letam Duson!

Letam Duson graduated from the University of Maryland Francis King Carey School of Law in 2013, and graduated from the University of Maryland College Park with degrees in Government & Politics and Psychology in 2010.

During law school, Ms. Duson served as a Rule 16 Student Attorney in the Appellate and Post-Conviction Advocacy Clinic, an Articles Editor for the University of Maryland Law Journal of Race, Religion, Gender and Class, and as a member of the school’s National Trial Team.  Ms. Duson also interned for Judge Lynn Stewart Mays in the Circuit Court for Baltimore City as well as for the Howard County State’s Attorney’s Office. She was a Rose Zetzer Fellow in the Women, Leadership & Equality Program and a recipient of the school’s 2013 Litigation and Advocacy Award.

After graduating from law school, Ms. Duson clerked for the Honorable Broughton M. Earnest in the Circuit Court for Talbot County. Thereafter, she joined the Baltimore City State’s Attorney’s Office where she served as an Assistant State’s Attorney for four years, concluding her tenure in the Violent Felony Division. Prior to joining RSRM, Ms. Duson worked at a civil defense litigation firm handling auto tort and complex premises liability matters involving toxic exposures. 

In her spare time, Ms. Duson enjoys spending time with friends and family, attending concerts, and cheering on the Terps, Orioles, and Ravens.

RSRM Mourns the Passing of Partner Raymond A. Richards, Sr.

Ray Richards, one of the original partners of Rollins, Smalkin, Richards & Mackie, L.L.C., passed away on November 20, 2019 in Berlin, Maryland. 

Mr. Richards was born on November 5, 1927 in Washington D.C., and at the age of 18, enlisted into active service of the United States Army. After his service, Mr. Richards obtained his undergraduate degree from the University of Maryland, College Park, and his Juris Doctor from the University of Baltimore, School of Law. He was admitted to the Bar in July of 1953, and thereafter, joined RSRM, where he practiced for almost 40 years focusing on workers’ compensation and insurance litigation. He was also a member of the Bar Association of Baltimore City, the Bar Association of Baltimore County, the Maryland State and American Bar Associations, and the Association of Insurance Attorneys.

He is survived by two brothers, two children, three grandchildren, and one great-grandchild. A service and celebration of life will be held on January 12, 2020.

Photo Courtesy of Eastern Shore Cremation & Funeral Service.

RSRM Welcomes Horton McCormick!

Horton McCormick graduated cum laude from the University of Baltimore School of Law in 2018, and graduated from the University of Maryland, Baltimore County in 2015.

While attending law school, Mr. McCormick was a competing member of the National Trial Competition Team, served as a Rule 19 student attorney in the Civil Advocacy Clinic, and was a law clerk in the legal department of the Johns Hopkins Health System. Before joining the firm, Mr. McCormick was a decision writer for the Social Security Administration where he consulted with Administrative Law Judges regarding Social Security Regulations and drafted disability determinations.

Outside of work, Mr. McCormick spends his time reading, volunteering, and playing music. He also enjoys spending time with his friends and family.

Mr. McCormick joined RSRM in October 2019. His practice focuses on general litigation and insurance defense.

Governor Hogan Appoints New Maryland Judges!

Governor Larry Hogan recently appointed new judges to fill several vacancies in both of Maryland’s appellate courts as well as in the District Court of Maryland for Baltimore County and the Circuit Court for Baltimore City.

District Court of Maryland for Baltimore County

            Governor Hogan recently appointed Guido Porcarelli, Bruce Friedman, and Michael Siri to the District Court of Maryland for Baltimore County. Judge Porcarelli received both his B.A. and J.D. from Syracuse University. He has extensive litigation experience and was a partner in the Law Offices of Frank F. Daily, P.A. before being appointed to the bench. Judge Porcarelli was also a member of the Attorney Grievance Commission Peer Review Committee.

            Judge Friedman received his B.A. from The University of Maryland, College Park and his J.D. from The University of Maryland, Francis King Carey School of Law. Prior to his appointment, Judge Friedman was a partner at Winegrad, Hess, Friedman & Levitt, L.L.C. where he focused on debt collection, personal injury, and traffic cases. Judge Friedman also founded Child Support Services, an organization focusing on the collection of delinquent child support.

            Judge Siri also obtained his B.A from The University of Maryland, College Park and his J.D. from The University of Maryland, Francis King Carey School of Law. After law school, Judge Siri clerked for the Honorable M. Brooke Murdock at the Circuit Court for Baltimore City before joining Robinson Woolson, P.A. as an associate focusing on products liability cases. Since 2004, Judge Siri served as a partner at Bowie & Jensen, L.L.C. where he focused on cases dealing with construction law and employment disputes.

Circuit Court for Baltimore City

            On September 25, 2019, Jude Anthony F. Vittoria was appointed to the Circuit Court for Baltimore City. Judge Vittoria received both his B.A. and his J.D. from the University of Virginia and holds a Master’s degree in psychology from The College of William and Mary. Judge Vittoria founded The Vittoria Law Firm where he focused on commercial, construction, and real estate law. Before being appointed to the Circuit Court for Baltimore City, Judge Vittoria was an Administrative Law Judge with the Maryland Office of Administrative Hearings and served as the Treasurer of the Bar Association of Baltimore City as well as a board member on the Board of Governors of the Maryland State Bar Association.

Maryland Court of Special Appeals

            Governor Hogan also appointed E. Gregory Wells and Steven B. Gould to the Court of Special Appeals, Maryland’s intermediate appellate court. Judge Wells is a native of Washington D.C. and received a Bachelor of Arts in Government from The College of William and Mary and his J.D. from The University of Virginia. Judge Wells served as an associate at O’Malley, Miles, McCarthy & Harrell and was the first African American to serve as the State’s Attorney for Calvert County. Judge Wells also served as an Assistant Attorney General in the Criminal Appeals Division of the Maryland Office of the Attorney General. Prior to being appointed to the Court of Special Appeals, Judge Wells was a County Administrative Judge at the Circuit Court for Calvert County.

            Steven B. Gould was also born in Washington D.C. and received a Bachelor of Arts from The University of Pennsylvania in Economics and his J.D. from The Boston University School of Law, cum laude. Judge Gould is a founding partner of Brown, Gould, Kiely, L.L.P. and is experienced in litigating complex commercial litigation cases. Judge Gould served as the chairperson of the Commercial Litigation Section of the Bar Association of Montgomery County and is active member of Congregation B’nai Tzedek where he acted as general counsel.

Maryland Court of Appeals

            Governor Hogan appointed Brynja M. Booth to the Court of Appeals, Maryland’s highest appellate court. Born in New York, Judge Booth received a Bachelor of Arts in Political Science from Bucknell University and graduated cum laude from Washington and Lee School of Law. Judge Booth was a founding member and shareholder of Booth, Booth, Cropper & Marriner, a civil litigation firm located in Worcester County and was a Town Attorney for several towns on the Eastern Shore until her appointment to the bench. Judge Booth also served as the President of the Maryland Municipal Attorneys' Association.

Congratulations to all.

-Jordan Kramer, Law Clerk

RSRM Celebrates its Centennial Anniversary!

Established in 1919, RSRM just celebrated its 100th Anniversary as one of the oldest law firms in Maryland! The Firm hosted an open house at its new Inner Harbor location and was joined by current and former partners, associates, and staff; clients; local attorneys and judges; and other friends of the Firm!

Maryland Enacts News Laws

On October 1, Maryland enacted hundreds of new laws surrounding transportation and pedestrian safety, employment, criminal justice, business, education, elections, health, environment, and immigration. Below are summaries of some of those laws:

Pedestrian Safety: SB 460 — Drivers who fail to stop for pedestrians will now face a maximum fine of $1,000. The fines will be collected into a Pedestrian Safety Fund, which will be used for traffic calming, enforcement and education. 

Electric Low-Speed Scooters: HB 748 — Electric low-speed scooters will now be categorized under the same class as bicycles. Operators will enjoy the same rights and responsibilities as bicyclists on roadways, and the same rights and restrictions as pedestrians on sidewalks and in crosswalks.

Electric Bicycles: SB 935 — Electric bicycles will now be categorized into three classes depending on motor functionality and speed, which will determine where the bicycles can be used. Minors under the age of 16 are not permitted to operate Class 3 bicycles (a motor that stops providing assistance at 28 mph) on public highways.

Driver’s Licenses: SB 237 — Drivers convicted of possessing revoked, suspended, or canceled licenses will no longer face incarceration and will be assessed 3 points for their violation. Prior to this change, convicted drivers faced a penalty of two months of incarceration and 12 points on their license.

Route 50 HOV lanes: SB 70 — Qualified hybrid vehicles are no longer permitted to operate in the high-occupancy vehicle (HOV) lane on U.S. Route 50 between Interstate 95/495 and U.S. Route 301 without passengers. Electric vehicles will still be allowed to travel on this stretch without passengers.

Rescue Workers’ Compensation: HB 604 — Fire and rescue employees with at least 10 years of service in Maryland who suffer occupational diseases will be covered under workers’ compensation, allowing more employees to qualify for the benefits. Workers previously had to devote at least 10 years at one department to receive this benefit.

Informed Consent – Medical Exams: SB 909 — Health care practitioners are now required to obtain informed consent before performing prostate, rectal or pelvic exams on patients who are unconscious or under anesthesia.

Public Information Act & 911 Records: SB 5 — Employees responding to requests (filed through the MPIA) for 911 records of domestic violence, abuse, or sex crime victims must notify the victim or victim’s representative within 30 days of the request, and wait 10 days for a response on granting or denying public inspection. Employees responding to such requests may also redact portions of the record.

Organ Donation Leave & Insurance: SB 742 — All employees will be eligible for unpaid organ donation leave for 12 weeks in any year and up to 30 business days for bone marrow transplants. Starting in January 2020, insurance agencies will be prohibited from refusing to renew insurance policies to a donor based solely on their donation.

Congratulations to Associate Rima Kikani on her Recent TDR Award!

Congratulations to Associate Rima Kikani on her selection to The Daily Record’s 2019 VIP List—Very Important Professionals Successful by 40!

The Daily Record created the VIP List to recognize Maryland’s leaders who are 40 years of age and younger, based on their professional accomplishments, community service, a commitment to inspiring change, and the impact of their achievements. They are selected by an outside panel of judges, including previous winners and business leaders.

Congratulations to Ms. Kikani!

Court of Special Appeals Determines Claimant Did Not Have the Ability to Release His Dependent’s Claim for Death Benefits

In the Matter of Bernard Collins, No. 591, September Term 2018

On February 13, 2012, Bernard Collins (“Collins”) filed a worker’s compensation claim alleging that he had developed heart disease and hypertension caused by his firefighting work for the Huntingtown Volunteer Fire Department (“Huntingtown”). Collins claimed that as of May 6, 2011, when Huntingtown was insured by Chesapeake Employers Insurance Company (“Chesapeake”), he became disabled due to his occupational disease.  Huntington and Chesapeake contested the claim. Chesapeake interpleaded Selective, which insured Huntingtown in 1998.  On March 19, 2014, the Maryland Workers’ Compensation Commission (“the Commission”) found that Collins sustained an occupational disease (heart disease and hypertension) arising out of and in the course of his employment as a firefighter, that his last injurious exposure was with Huntingtown, that he was temporarily totally disabled as of May 6, 2011, for one day, and from July 7, 2011 through July 24, 2011, and that his average weekly wage was $152.50.

Huntingtown and Chesapeake filed petitions for judicial review of the Commission’s decision disputing compensability and the date of last injurious exposure. Collins filed a cross-petition disputing the calculation of his average weekly wage.  While the appeal was pending, the parties settled the claim, and filed a stipulation of dismissal in the circuit court.  The case was remanded back to the Commission. 

The settlement agreement between the parties contained the following language:

The Claimant hereby accepts this Agreement and the aforesaid payment(s) in final compromise and settlement of any and all Claims which the Claimant, his personal representative, dependents, spouse and children or any other parties who might become beneficiaries under the Workers’ Compensation Law, might now or could hereafter have under the provision of the said Law, arising out of the aforesaid injury or disablement or the disability resulting therefrom, and does hereby, on behalf of himself and all of said other parties, release and forever discharge the Employer [Huntingtown], Chesapeake and Selective, their personal representative, heirs, successors and assigns, from all other claims of whatsoever kind which might or could hereafter arise under the Law from the said injury, disablement or disability.

Approximately two years later, Collins died from a cardiac arrest secondary to his heart disease and hypertension.  Mrs. Collins filed a “Dependent’s Claim for Death Benefits” with the Workers’ Compensation Commission.  She sought dependency benefits and reimbursement for Collins’ funeral expenses. 

The Commission held a hearing to determine, amongst other issues, whether the Settlement Agreement barred Mrs. Collins from receiving death benefits.  The Commission found that the Settlement Agreement barred Mrs. Collins’ right to survivorship/death benefits.  Mrs. Collins appealed the matter to the Circuit Court for Calvert County.  After a motions hearing, the circuit court agreed with the Commission’s findings, and granted summary judgment in favor of Huntington and Chesapeake. 

Again, the matter was appealed to the Court of Special Appeals.  The Court determined that the parties’ Settlement Agreement did not bar Mrs. Collins from obtaining death benefits for three (3) reasons.

First, §9-722 of the Labor and Employment Article of the Maryland Annotated Code states that after a claim has been filed by a covered employee or the dependents of a covered employee, a worker or his dependents may enter into an agreement for the final compromise and settlement of any current or future claim under the act.  Thus, §9-722 does not contemplate a covered worker settling and releasing his dependent’s inchoate claim for death benefits within the settlement of his claim for benefits to which he is entitled during his life.

Second, §9-722(d) of the Labor and Employment Article of the Maryland Annotated Code provides that settlement agreements are binding only upon the parties to it.  Here, Mrs. Collins was not a party to her husband’s workers’ compensation case, did not sign the Settlement Agreement that includes the release, and there is no suggestion that she participated in negotiating the Settlement Agreement.  Therefore, the Agreement was not enforceable against her.

Third, even if Collins could have unilaterally released Mrs. Collins’ claim for death benefits, which he could not, the language of the Settlement Agreement does not evince a clear intention on his part to do so, as it does not specifically mention Collins’ death resulting from Collins’ covered injury or any future claim for death benefits under the act. Although the Settlement Agreement seemed to release future claims that could “arise” from his occupational disease, a claim for death benefits accrues and arises from a covered worker’s death from the disease (or injury), not from the disease (or injury) itself.

Employers/Insurers should keep this case in mind when settling cases, especially ones in which claimants’ death is likely to be caused by a causally related injury/disease.  It is also important to keep in mind that accidental injuries have a 7-year statute of limitations on causally related deaths, while occupational diseases do not have a statute of limitations. Understanding these principles should allow Employer/Insurers to better understand their exposure for each claim.

-Ashley Bond, Associate Attorney

RSRM Congratulates its Attorneys on their Recent Bar Appointments!

Partner Tara Taylor has been selected to serve for a second year as Co-Chair of the Maryland State Bar Association's Judicial Appointments Committee, which is responsible for reviewing and recommending candidates for the Maryland Judiciary. She was also re-appointed to the Personal Injury Litigation Committee for the Bar Association of Baltimore City as well as to the Monumental City Bar Foundation Committee for the upcoming bar year. In addition, Ms. Taylor was selected to serve on the Membership Committee for the Alliance of Black Women Attorneys of Maryland.

Associate Bryan Upshur was appointed as the Technology Chair of the Bar Association of Baltimore City, where he is responsible for organizing and hosting educational seminars on issues relating to technology law. In addition, Mr. Upshur was appointed as a board member of the Monumental City Bar Association and the Young Lawyers Division of the Bar Association of Baltimore City. Mr. Upshur also serves as a member of the Maryland State Bar Association.

Associate Rima Kikani was re-appointed as Co-Chair of the Education Committee of the Maryland State Bar Association's Young Lawyers Section Council for the 2019-2020 bar year after winning the Section Council’s Best Committee Award this past year. She was also re-appointed to the Maryland State Bar Association's Leadership Academy Committee, which oversees an annual program designed to train future leaders in the legal profession.

Congratulations to our attorneys on their appointments!

Congratulations to Attorneys Tara Taylor and Rima Kikani on their recent $1 Million D.C. Court of Appeals Win!

Representing B. Frank Joy, L.L.C. (“BF Joy”), Partner Tara Taylor and Associate Rima Kikani, recently won an appeal in the District of Columbia Court of Appeals in B. Frank Joy, L.L.C. v. District of Columbia Water & Sewer Authority. Based on our attorneys’ arguments, the D.C. Court of Appeals effectively shifted the interpretation of a 47-year-old statutory law in a nearly $1 Million civil engineering defect-geotechnical hazard case. 

This case stemmed from the 2013 collapse of a roadway near the intersection of 14^th Street and F Street, NW, in Washington, D.C. Seventeen years earlier, in 1996, BF Joy had installed an access

chamber for AT&T beneath the intersection, allowing the telecommunications company to access underground cables. The 2013 collapse of the roadway caused extensive damage, including damage to a sewer main and other underground utilities. The District of Columbia Water & Sewer Authority (“WASA”) was responsible for repairing the underground water infrastructure, remediating the void, and repairing the intersection, incurring nearly one million dollars in damages.

In May 2016, WASA filed a Complaint against BF Joy, contending that BF Joy’s negligent construction of the chamber caused the collapse seventeen years later. Specifically, WASA argued that BF Joy’s installation of the access chamber bisected a storm water lateral, which blocked storm water from traveling into its sewer system, and instead, redirected the storm water back into the soil. According to WASA, years of water pressure from rainfall caused soil erosion, and the erosion, over time, caused the roadway above it to collapse.

In response, BF Joy denied any negligence, and among several affirmative defenses, argued that D.C.’s 10-year Statute of Repose barred WASA’s claim for the 1996 installation. BF Joy moved to dismiss WASA’s Complaint based on the 10-year limitation, but the Superior Court of the District of Columbia denied the request. After two years of discovery and litigation, the parties tried the matter in February 2018, and a jury found BF Joy liable for negligent installation of the access chamber.

BF Joy appealed the matter to the D.C. Court of Appeals, citing to the Statute of Repose as well as discretionary abuses by the trial court. WASA opposed the appeal, contending that the Statute of Repose did not apply to this case because: 1) the access chamber did not constitute an improvement to real property as required by the Statute given that it did not enhance the beauty or utility of the intersection; 2) the chamber did not constitute a defective condition under the meaning of the Statute; and 3) the Statute did not apply to the D.C. Government, of which WASA is a part.

Agreeing with BF Joy, the Court of Appeals reasoned that: 1) the underground access chamber does constitute an improvement to realty under the meaning of the Statute because it allows AT&T to access fiber optic cables that provide telecommunications services to surrounding buildings, including the U.S. Department of Treasury; 2) if an access chamber poses a geological hazard, then it is, by definition, a defective condition under the Statute; and 3) although the Statute exempts the D.C. Government from compliance, WASA, for purposes of this Statute, is a separate entity of the Government, but not the Government itself.

Thus, the Court held that the Statute of Repose does apply to this matter, and because WASA waited seventeen years to file suit instead of complying with the 10-year limitation, the trial court should have dismissed WASA’s Complaint. Accordingly, the Court vacated the trial judgment and reversed the denial of BF Joy’s motion to dismiss, barring WASA from any recovery.

Congratulations to Ms. Taylor and Ms. Kikani on this outstanding win.