The opinion of the court was delivered by: Zarnoch, J.
Zarnoch, *fn1 Eyler, James R. (Retired, Specially Assigned), Rodowsky, Lawrence F. (Retired, Specially Assigned), JJ.
The principal issue in this case is whether the non-economic damage cap imposed by Md. Code (1974, 2006 Repl. Vol.), Courts & Judicial Proceedings Article (CJP), § 11-108 applies separately or collectively to damages awarded in a wrongful death and a survival action.*fn2 This and additional questions arise from a $1.37 million judgment entered in a wrongful death and survival action stemming from the death of Rodney Jennings ("Jennings"), an inmate in the custody of the Maryland Division of Corrections ("DOC").
While working on a litter pickup detail on the Capital Beltway (I-495) in Landover in Prince George's County, Jennings was struck and killed by a dump truck owned by W.H. Goss Trucking, LLC and operated by Wayne H. Goss ("Goss" or "appellants"). Jennings' estate, the estate of his mother, and three beneficiaries ("appellees")*fn3 filed a wrongful death/survival action against Goss in the Circuit Court for Prince George's County. Later, they amended their complaint to include claims against the DOC and the State Highway Administration ("SHA") (collectively, "the State"). In turn, Goss filed a third-party complaint against the State, and the State filed a cross-complaint against him, with both parties seeking contribution or indemnification against the other.
In the jury trial that followed, Goss and the State moved for judgment at the end of plaintiffs' case and at the close of all the evidence. The court initially denied the motions, but reserved judgment on the renewed motions made at the close of all the evidence. The jury then returned a verdict against Goss and the State in the amount of $2,025,000, which represented the sum of the damages awarded in the survival action ($350,000) and the wrongful death action ($1,675,000).
Goss and the State moved for judgment notwithstanding the verdict (JNOV). Goss also moved for a new trial and remittitur. The court granted the State's motion, denied Goss' motions and reduced the damage award to $1.37 million, prompting this appeal and cross- appeal.
At the June 14, 2010 trial, the evidence adduced that, on the morning of August 23, 2007, Jennings and at least two other inmates, Denard Thomas ("Thomas") and Christian Taylor ("Taylor") were driven by a correctional officer in a DOC van to pick up litter along the southbound shoulder of I-495. Another SHA employee accompanied the crew in an SHA dump truck. Upon arriving at the intersection of I-495 and Route 202, the inmates were discharged from the van, donned bright green flourescent safety vests and began walking southbound on the shoulder of I-495. Shortly thereafter, Jennings, Taylor and Thomas crossed the exit ramp by foot and entered into the gore*fn4 area of the beltway.
Lee Bayersdorfer, who was driving a tractor-trailer in the lane closest to the exit ramp, observed that immediately before the accident, Goss accelerated, passed him on the left, and cut in front of him to take the Route 202 exit. At this time, and when he was at a distance of approximately 75 feet from the exit, Goss saw the inmates walk across the exit ramp and into the gore and sounded his horn to "warn" them.
Upon hearing the horn, the inmates in the gore turned around to see both Goss' dump truck and Bayersdorfer's tractor-trailer "bearing down on [them] at a high amount of speed." Thomas observed Goss' dump truck "speeding up [and] trying to get over" to the exit lane and then "speed[ing] . . . up in front of the other truck," as it "cut all the way over to the right." Both men believed that the dump truck was going to enter the gore where they were standing. Nonetheless, they remained stationary because the horn put them in a "state of shock," freezing them in place. Although Taylor thought about escaping Goss' apparent path by "slip[ping] between [the vehicles]," the trucks were so close to the gore that he was afraid he would be "suck[ed] in . . . ." He "thought [he] was going to die" and would have run if he had been positioned closer to the exit ramp. But, given his position in the gore, "there was nowhere to run."
When Goss' dump truck was about five to eight feet away from him, Jennings ran from the gore back across the exit ramp. According to Taylor:
[W]e was [sic] in the middle [of the gore] when we saw the trucks coming, there was really nowhere for us to run to, you know, but [Jennings] tried to-he did a movement like this and he tried to go back across the ramp where we had come from. And I grabbed after him, but he was a little bit bigger than me so he got away from me. And [Goss' dump] truck just came right through and met him.
At that point, Goss "really" applied the truck's brakes, but was unable to avoid striking Jennings, who later died from accident-related injuries.
II. The Post-Accident Inspection
After the accident, Maryland State Troopers Mallon and Sliffer directed Goss to drive to a nearby shopping center where they could conduct a post-accident inspection. Mallon slid underneath the truck on his back, looking up at the bottom of the truck to inspect its brakes. Sliffer remained outside of the dump truck and recorded the brake measurements on 3x5 cards, as Mallon shouted out the measurements to him.
The State Troopers then directed Goss to drive to a weigh station, where they determined that the truck weighed 78,400 pounds, in violation of the 70,000 pound weight limit imposed by Md. Code (1977, 2009 Repl. Vol.), Transportation Article (TA) § 13-919.*fn5 Using a computer at the station, Sliffer entered the data from the 3x5 cards and prepared a report which reflected Mallon's finding that three of Goss' brakes were out of adjustment. Mallon reviewed the inspection report for accuracy and confirmed that it contained the same measurements he had orally conveyed to Sliffer. He then provided the report to the police crash team, which transferred the data into its post-collision inspection report. Over Goss' objection, both reports were admitted into evidence as plaintiffs' exhibits.
David Stopper, who testified as an expert in commercial trucking, accident reconstruction, and the proper operation of commercial motor vehicles, opined that, based on his review of the police paperwork, depositions, accident scene photos, safety manuals, and Mallon and Sliffer's post-accident inspection reports, on the day of the accident, the truck was in "an out-of-service condition which mean[t] that . . . the vehicle . . . [was] likely to cause an accident or breakdown." Stopper concluded that the two largest brakes on Goss' dump truck were "significantly" out of adjustment, resulting in a loss of more than 25% of the truck's braking efficiency. As a result, the truck was "not safe to operate" on the day of the accident, which should have been apparent to Goss during a pre-trip inspection. According to Stopper, Goss' failure to maintain his brakes in proper working order was a violation of the standard of care applicable to commercial vehicle operators.
Stopper also testified that the weight of Goss' truck on the day of the accident violated standard limits, and, together with the defective brakes, "decreased [the] truck's ability to stop." Stopper opined that Jennings "would have cleared the truck" if Goss' brakes had been in working order and the truck weighed 8400 pounds less. In making this conclusion, Stopper assigned to Jennings a speed of 7.5 feet per second, which approximates the pace of a 60- year-old male jogger. Stopper explained that, though Jennings was 28 years old at the time of the accident, this pace was appropriate because Jennings was heavy-set.
IV. The Horn Demonstration
Additionally, Stopper testified that the way in which Goss used his truck's air-horn on the day of the accident violated the applicable standard of care. Over Goss' objection, Stopper conducted an outdoor demonstration of the same kind of air horn that was on Goss' truck and blew it at a distance of 75 feet from the jury. In Stopper's opinion, Goss created the dangerous condition which required him to use his horn:
[I]f Goss had been slowing down appropriately and fallen in behind the other vehicle and used the exit ramp and had been coming on it at the appropriate speed . . . there would be no reason for him to be sounding his horn and warning others because he should have been able to stop in the distance he could see.
V. The Post-Trial Motions
At the close of all the evidence, Goss and the State renewed their earlier motions for judgment, and the court reserved ruling until after the jury returned a verdict against both parties in the amount of $2,025,000. This award represented the sum of $350,000 and $1,675,000 in non-economic damages for the survival action and wrongful death claim, respectively. Thereafter, Goss asserted that he was entitled to cross-judgment against the State and filed motions for JNOV, a new trial, and a remittitur. With respect to the remittitur, Goss argued that under CJP § 11-108, when there are two or more beneficiaries in a death claim, the cap is set at 150% of $680,000 or $1,020,000.*fn6 He also urged the court to reduce the entire damage award to that amount, essentially eliminating the $350,000 award in the survival action, along with more than $650,000 for the wrongful death.
The State also moved for JNOV, arguing that it breached no duty to Jennings, that it was not the proximate cause of his death and that he was contributorily negligent. It also argued that under the Maryland Tort Claims Act ("MTCA"), Md. Code (1984, 2009 Repl. Vol.), State Government Article (SG), § 12-101, et seq. and particularly § 12-104(a)(2), its liability could not exceed a total of $200,000 for any and all claims made against it.
On September 24, 2010, the court heard and denied Goss' motions and granted the State's motion for JNOV. Specifically, the circuit judge noted:
I don't see where the State was negligent as a matter of law. Now, I'll contrast this later with the other case, but the fact is he was moved from the one ...