United States District Court, D. Maryland
DEBORAH K. CHASANOW, UNITED STATES DISTRICT JUDGE.
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).
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).
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).
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.
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).
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. ¶
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. &
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. (ECF No. 5-1, at 3-4).
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. (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,
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).