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Davis v. Board of Education for Prince George's County

Court of Special Appeals of Maryland

April 3, 2015

NYCOLE DAVIS, INDIVIDUALLY AND AS PERSONAL REPRESENTATIVE OF THE ESTATE OF ASHLEY DAVIS, A MINOR, AND JEROME BRADLEY
v.
BOARD OF EDUCATION FOR PRINCE GEORGE'S COUNTY, ET AL

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[Copyrighted Material Omitted]

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Appeal from the Circuit Court for Prince George's County. Leo Green, Jr., Judge.

Argued by: John F. X. Costello (Costello & Edwards, LLC of Camp Springs, MD) Timothy Maloney (Hina Z. Hussain, Joseph, Greenwald & Laake, PA of Greenbelt, MD) all on the brief for Appellant.

Argued by: Abbey G. Hairston (Shana R. Ginsburg, Thatcher Law Firm, LLC on the brief) all of Greenbelt, MD for Appellee.

Panel: Eyler, Deborah S., Reed, Salmon, James P. (Retired, Specially Assigned), JJ.

OPINION

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[222 Md.App. 253] Eyler, Deborah S., J.

On September 1, 2009, 13-year-old Ashley Davis was hit by a car as she was crossing the street to board a school bus. She died of her injuries two weeks later.

In the Circuit Court for Prince George's County, the appellants -- Ashley's mother, Nycole Davis, individually and as personal representative of Ashley's estate, and Ashley's father, Jerome Bradley -- filed a survival suit and wrongful death action, in negligence, against the Prince George's County Board of Education (" the Board" ), the appellee.[1] The appellants alleged that the Board owed a duty of care to provide Ashley a bus stop on her side of the street, that the Board breached that duty, and that the breach proximately caused Ashley's injuries and death.

The case was tried to a jury, which found the Board negligent and awarded the appellants a total of $90,357,776.12 in damages.[2] The Board filed a motion for judgment notwithstanding the verdict

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(" JNOV" ), which the appellants opposed. After a hearing, the court granted that motion and vacated the jury's verdict. It found that the Board did not owe Ashley a duty of care in tort and, even if it did, Ashley and Nycole were contributorily negligent as a matter of law. It further found that, if its grant of the JNOV motion were to be reversed on appeal, then, as to damages, the Board was immune from liability for damages over $100,000 under Md. Code (1974, 2006 Repl. Vol.), section 5-518 of the Courts and Judicial Proceedings Article (" CJ" ), and therefore the judgment would be reduced to that amount; if CJ section 5-518 does not apply, the verdict shocked the conscience of the court and would be remitted to $166,000; and the judgment would further be [222 Md.App. 254] reduced by $20,000, the amount paid in settlement of the appellants' claims against the driver who struck Ashley.

On appeal, the appellants ask whether these rulings were legally incorrect.[3]

FACTS AND PROCEEDINGS

The facts adduced at trial, viewed in the light most favorable to the appellants, are as follows.

In August of 2009, Ashley was living in the Brinkley Manor Apartments (" Brinkley Manor" ), at 3016 Brinkley Road, with Nycole's mother and grandfather ( i.e., Ashley's grandmother and great-grandfather).[4] Nycole and Jerome each had their own residences elsewhere. Nycole sometimes stayed with Ashley at Brinkley Manor.

Ashley was enrolled as a freshman in Crossland High School, in Temple Hills. The first day of school was August 24, 2009. Prior to the start of school, Nycole received a letter from the Prince George's County Public School system about school transportation for Ashley. It stated, as relevant:

Students should use the bus stop to which they have been assigned, and must be at the stop approximately ten (10) minutes before the scheduled bus arrival time. Students should continue to wait at the stop until the bus arrives. [222 Md.App. 255] Please be aware that it is common to experience an adjustment period the first few days as drivers, schools, and the students become familiar with new routes. Thus, during this period, buses may be slightly off schedule.
* * *
The [bus assignment] information below is based on data provided by schools as of August 5, 2009. The route numbers or times may change somewhat as we receive new enrollment information from schools. You can view the latest bus stop information on our website (www.pgcps.org). Each school has a complete UPDATED list of bus assignments for

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every student, and personnel at the school will be available to answer your questions, or you can contact the Transportation Department at (301) 952-6570, or by e-mail at Transpor@pgcps.org. The e-mail will be monitored from 6 a.m. to 6 p.m. weekdays.

The letter identified Ashley's bus assignment. She was to ride Bus #674, which was scheduled to pick her up 7:09 a.m., in the parking lot at Brinkley Manor, next to the north side of Brinkley Road, where Ashley was living.

The only other nearby bus stop for Crossland High School students was directly across the street, on the south side of Brinkley Road, in front of the Brinkley House Apartments (" Brinkley House" ). Bus #661 picked up students at that stop at 7:07 a.m.

On the first day of school, Ashley waited for Bus #674 at her assigned bus stop on the north side of Brinkley Road. The bus never came. Ashley's great-grandfather drove her to school that day, and she arrived late. Nycole learned of this on the day it happened, and thought that Ashley was supposed to take Bus #661, across Brinkley Road, in front of Brinkley House. Nycole testified:

[F]or years there was only one bus for [Crossland High School students residing in] Brinkley Manor and Brinkley House and my cousin went to that school, other neighbors, other parents all affirmed the same thing that there was only one bus stop. So because the notice said Brinkley [222 Md.App. 256] Manor I made her wait there. But when the bus didn't come then it, you know, it was just that there wasn't, there was only bus and plus the, the notice said that changes were subject to be made. So.

Nycole did not contact the school district with any issues concerning Bus #674. She acknowledged that " it was [her] decision" to have Ashley cross Brinkley Road to catch Bus #661, but explained that Ashley " didn't have a choice" because Bus #674 never came. In the past, Nycole had not allowed Ashley to cross Brinkley Road unaccompanied because the " road is dangerous." Before Ashley crossed Brinkley Road unaccompanied for the first time, Nycole told her " to please be careful."

Kendric Pringle also was a student at Crossland High School and also was assigned to Bus #674. Ashley's assigned bus stop at Brinkley Manor was the last stop on the route before Bus #674 was to turn around and drive straight to the high school. Pringle's bus stop also was on the north side of Brinkley Road and was the one before Ashley's stop. Pringle testified that every day from the first day of school through the day of the accident Bus #674 turned around in a shopping center before the Brinkley Manor stop and drove straight to the high school. In other words, the bus driver did not go to the Brinkley Manor bus stop at all.

Tajuana Tate was the driver assigned to Bus #661. She had not been assigned that route before. She was given a routing list that showed where the bus stops were located and the number of children who were to get on the bus at each stop. She was not given a list of the children's names.

Tate testified that she arrived on time at the Brinkley House bus stop every day beginning on August 24, 2009, and that Ashley got on the bus at that stop. Although she recognized Ashley, Tate did not know her name and was unaware that she lived at Brinkley Manor, across Brinkley Road. Tate never saw Ashley crossing the street to get to the bus, and did not know that she was doing so. Tate answered affirmatively when asked if she

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" would have instructed [Ashley] [222 Md.App. 257] not to [cross the street] and [would have] told the Transportation Department" of the Board if she had known that Ashley was crossing Brinkley Road to take Bus #661. Tate did not witness the accident.

Larry Walker and Jesse Strange were students at Crossland High School. They witnessed the accident, and their versions of what happened essentially were the same. The weather was sunny and clear. As Ashley walked from her apartment to Brinkley Road, she was talking on her cell phone. When she reached the curb, before entering the street, she put her phone in her purse and looked both ways. There were no vehicles in view coming from either direction. Ashley proceeded to walk across the westbound lanes of Brinkley Road. As she reached the center line, but before stepping into the eastbound lanes, a car driving east struck her.

Tammi Morris is employed by the Board in its Transportation Department. She is in charge of bus scheduling. She testified that the Board has a " block policy," which is a computer generated route established for buses. The block policy in effect at the time of the accident established a bus stop on the north side of Brinkley Road, in the Brinkley Manor parking lot, and on the south side of Brinkley Road, in front of Brinkley House. There were bus stops established on both sides of Brinkley Road because it was a busy road and was not safe for children to cross. Morris testified that the bus driver assigned to Bus #674 would have been violating the block policy if he failed to go to the Brinkley Manor bus stop to pick up children. She also testified that it would be a violation of the Board's policies for a bus driver to create a situation in which a student was not able to board a bus assigned to her side of the street, but would have to cross the street to take a bus to school.

Morris testified that, although the Board's handbook for bus drivers said that they should know the students assigned to their bus routes by name, and should greet them, the bus drivers on the large school buses, i.e., all of them except buses [222 Md.App. 258] for special education students, were not given lists of the names of the students assigned to their routes. She explained that in times past the bus drivers had been given a list of names. When the bus routing was changed to the " block policy," through application of a computer program, that was changed, in part because there can be transfer or other students who are permitted to ride to school on buses, but are not actually assigned to a particular bus, and the bus drivers still should allow them on the bus and not leave them behind.

Andrew Ramisch testified for the appellants as an expert in accident reconstruction. He opined that Brinkley Road is a four-lane highway and that, pursuant to COMAR 13A.06.07.13C, the Board was required to have buses pick up and discharge students on both sides of that street, so they would not have to cross the street to get the bus to school or to return home from school. He further opined that if a bus driver repeatedly fails to drive to a bus stop on his assigned route, that is tantamount to there not being a bus stop at that location at all. Based on the facts in evidence, Ramisch opined that that is what happened here. The driver for Bus #674 repeatedly failed to go to the Brinkley Manor bus stop, instead turning around before reaching that stop. That was the equivalent of there not being any bus stop at Brinkley Manor.

The case was sent to the jury on a special verdict. The jurors found that " the Board...was negligent and that its negligence was a proximate cause of [Ashley's] accident" ; Ashley was not contributorily negligent; and Ashley did not assume the

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risk of her injury. They awarded damages of $90,357,776.12.

On April 12, 2013, the court entered judgments in accordance with the verdict. Four days later, the Board filed a motion for JNOV, in which it argued that it did not owe a legal duty of care to Ashley; that Ashley was contributorily negligent as a matter of law; and that Ashley had assumed the risk of her injuries as a matter of law. It also argued, alternatively, that the amount of the verdict was " shocking, grossly [222 Md.App. 259] excessive and inordinate" and that the verdict should be reduced because the Board's liability was limited to $100,000 by CJ section 5-518. The appellants filed an opposition, arguing that the Board " owed a duty to Ashley Davis to provide a safe bus stop and safe transportation services," and breached that duty by failing " to provide safe transportation services" and because Ashley " was not picked up on her side of the roadway" ; and that contributory negligence and assumption of the risk were issues that were properly submitted to the jury for decision.

On July 26, 2013, the court held a hearing on the Board's motion for JNOV. The court granted the motion by a memorandum opinion and order entered on February 25, 2014. As we have explained, the court ruled:

1) the Board did not owe Ashley a duty of care in tort;
2) if the Board did owe Ashley a duty of care, Ashley and Nycole were contributorily negligent as a matter of law;
3) if the court's rulings on duty and contributory negligence were to be reversed on ...

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