Breen v. 7th Inning Stretch, LP

          MEMORANDUM OPINION

          DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.

         Presently pending and ready for resolution in this negligence case are: (1) a motion to dismiss filed by Defendant Wicomico County, Maryland (“Wicomico County”) (ECF No. 12), and (2) a motion for waiver of notice under the Maryland Local Government Torts Claims Act (“LGTCA”), Md. Code, Cts. & Jud. Proc. § 5-304 (2014), filed by Plaintiff Jared T. Breen (ECF No. 16).

         Prior to the 2015 amendment, Section 5-304(b) of the LGTCA stated that “an action for unliquidated damages may not be brought against a local government or its employees unless notice of the claim required by this section is given within 180 days after the injury.” Because Wicomico County is a county, the LGTCA requires notice to be given either in person or via certified mail, return receipt requested, “to the county commissioners or county council of the defendant local government.” §§ 5-304(c)(1)-(2). The notice requirement operates as a condition precedent to the claimant's right to maintain a tort action for damages under Maryland law, Grubbs v. Prince George's Cty., 267 Md. 318, 320-21 (1972), and failure to comply with it will bar such tort claims, see Renn v. Bd. Of Comm'rs, 352 F.Supp.2d 599, 602 (D.Md. 2005); Bibum v. Prince George's Cty., 85 F.Supp.2d 557, 566 (D.Md. 2000).

         The purpose of the LGTCA is:

to protect the municipalities and counties of the State from meretricious claimants and exaggerated claims by providing a mechanism whereby the municipality or county would be apprised of its possible liability at a time when it could conduct its own investigation, i.e., while the evidence was still fresh and the recollection of the witnesses was undiminished by time, “sufficient to ascertain the character and extent of the injury and its responsibility in connection with it.”

Williams v. Maynard, 359 Md. 379, 389-90 (2000). The Court of Appeals of Maryland has held that “strict compliance with the notice provisions of the LGTCA is not always required; substantial compliance may suffice.” Moore v. Norouzi, 371 Md. 154, 171 (2002). In addition to the substantial compliance doctrine, the notice requirement of the LGTCA may be waived for good cause and lack of prejudice to the defendant. § 5-304(d).

         For the following reasons, the motion to dismiss will be granted in part as to Plaintiff's lack of substantial compliance with the LGTCA notice requirement, but deferred as to whether Plaintiff has established good cause and whether the notice requirement should be waived. An evidentiary hearing will be scheduled to resolve the disputed factual issues.

         I. Background

         Plaintiff alleges the following in the Amended Complaint: After being drafted by the Major League Baseball team the Baltimore Orioles (“Orioles”) in 2013, Plaintiff was directed to play for the Orioles' minor league affiliate - the Delmarva Shorebirds (“Shorebirds”) - for the 2014 and 2015 seasons. (ECF No. 9 ¶¶ 6-7). The Shorebirds are owned by Defendant 7th Inning Stretch (“7th Inning”) and play their home games in Arthur W. Perdue Stadium (“the Stadium”) outside Salisbury, Maryland. (Id. ¶¶ 7-8). Defendant Wicomico County owns the Stadium, and Plaintiff alleges that 7th Inning “operates and/or leases the Stadium pursuant to an agreement with Wicomico County.” (Id. ¶¶ 8 & 10). Wicomico County “planned, designed, developed, and oversaw” construction of the Stadium. (Id. ¶ 9). The Stadium includes a six-foot high concrete wall that runs parallel with the third-base foul line and separates the spectator seating area from the field. (Id. ¶ 11). At the time of the incident prompting this action, the concrete wall was unpadded, leaving the vertical concrete face exposed to the field of play. (Id. ¶ 12).

         On July 3, 2015, during a Shorebirds game at the Stadium, Plaintiff - playing shortstop - chased after a baseball that was hit toward the third-base outfield. (Id. ¶ 14). Plaintiff claims that he was tracking the baseball in the air with his head looking over his shoulder toward home plate. (Id. ¶ 15). While Plaintiff was focused on the baseball and running underneath its arc, he crashed into the concrete wall. (Id.). In the collision, Plaintiff fractured his right patella, punctured his sinus, cracked his orbital bone, injured his back, and suffered a concussion. (Id. ¶ 18). Plaintiff alleges that he has not recovered entirely from his injuries and the collision has left him permanently partially disabled. (Id. ¶ 19).

         According to Plaintiff's affidavit, Plaintiff underwent surgery on July 7, 2015, spent a week in the hospital recovering, and then traveled home to Atlanta, Georgia. (ECF No. 16-2, at 2). For the next two weeks, Plaintiff's movement was restricted to facilitate healing post-surgery. (Id., at 3). For the next several weeks thereafter, Plaintiff took the prescription drug OxyContin to manage pain. (Id.). Plaintiff returned to Baltimore on August 18, 2015, for a post-operative examination by his surgeon. (Id.). Following that visit, Plaintiff returned home to Atlanta where he continued recovery. (Id.). Plaintiff was released by the Orioles on November 19, 2015. (Id.). Until his release, Plaintiff coordinated with the Orioles for his medical treatments and workers' compensation benefits. (Id.). Plaintiff states that: “Until the date I was released by the Orioles, I had every hope of being able to continue playing professional baseball. After those hopes were dashed and immediately following the intervening holidays, I acted promptly to identify and retain counsel to pursue my legal remedies.” (Id., at 4). Unbeknownst to Plaintiff, the deadline to provide notice under the LGTCA passed on December 30, 2015. (Id., at 4). Plaintiff retained legal counsel on January 29, 2016, who allegedly effectuated notice under the LGTCA. (Id. & 15-1).^[1]

         Plaintiff filed a complaint against Wicomico County and 7th Inning on June 27, 2018, alleging negligence as to both Defendants and negligent design and construction as to Wicomico County. (ECF No. 1). Wicomico County filed a motion to dismiss on August 24, 2018 (ECF No. 5), arguing that Plaintiff failed to provide notice of the claim to the Wicomico County Council within 180 days after the injury, as mandated by the LGTCA.^[2] (ECF No. 5-1, at 3-4).

         Plaintiff filed an amended complaint on August 20, 2018, adding that he sent notice of his claim to the Wicomico County Council via certified mail on February 24, 2016 and that Wicomico County did not suffer prejudice because of the delay. (ECF No. 9 ¶ 3). Wicomico County moved to dismiss the amended complaint on September 25, 2018, renewing its claim of lack of notice. (ECF No. 12). Additionally, Wicomico County attached an affidavit from its Risk Manager - the person who evaluates claims made against the county - which states that Wicomico County never received notice of a claim from Plaintiff regarding the incident on July 3, 2015. (ECF No. 12-2). On October 8, 2018, Plaintiff opposed Wicomico County's motion to dismiss (ECF No. 15) and filed a motion for waiver of notice, requesting that the court waive the LGTCA's notice requirement.^[3] (ECF No. 16). Plaintiff's counsel provides a declaration in support of Plaintiff's opposition to Wicomico County's motion to dismiss, explaining why Plaintiff failed to comply with the LGTCA's notice requirement. (ECF No. 15-1). Additionally, Plaintiff appends his own affidavit and a letter, purportedly sent to the Wicomico County Council on February 22, 201[6], notifying the council of Plaintiff's claim. (ECF Nos. 16-2 & 16-3). Wicomico County replied to Plaintiff's opposition to the motion to dismiss (ECF No. 17) and filed an opposition to Plaintiff's motion for waiver of notice (ECF No. 18), attaching screenshots of Plaintiff's Twitter account (ECF No. 18-2), on October 22, 2018. Plaintiff replied on November 1, 2018. (ECF No. 19).

         II. ...