Circuit Court for Baltimore City
Case No. 24-C-17-000840
*This is an unreported opinion, and it may not be cited in any paper, brief, motion, or
other document filed in this Court or any other Maryland Court as either precedent within
the rule of stare decisis or as persuasive authority. Md. Rule 1-104.
UNREPORTED
IN THE COURT OF SPECIAL APPEALS
OF MARYLAND
No. 493
September Term, 2018
JOANN STUPI
v.
MAYOR AND CITY COUNCIL
OF BALTIMORE
Meredith,*
Friedman,
Beachley,
JJ.
Opinion by Meredith, J.
Filed: March 12, 2021
*Meredith, Timothy E., J., now retired,
participated in the hearing of this case while an
active member of this Court, and after being
recalled pursuant to the Constitution, Article IV,
Section 3A, he also participated in the decision
and the preparation of this opinion.
-Unreported Opinion-
While returning to her car after attending a Baltimore Ravens home game at M&T
Bank Stadium, Joann Stupi, appellant, fell and suffered injuries to her leg. As she and her
husband were walking among a crowd of fans along the edge of Ostend Street, Ms. Stupi
stepped onto a broken storm drain grate that was missing one of its metal bars, and that
caused her foot and leg to fall through the gap in the storm drain grate. After another fan
helped her dislodge her leg from the storm drain grate, she was transported to a hospital
and underwent surgery. Ms. Stupi sued the Mayor and City Council of Baltimore (“the
City”), appellee, in the Circuit Court for Baltimore City, alleging that the City had been
negligent in failing to properly maintain that part of its street.
At the conclusion of Ms. Stupi’s case in chief, the City moved for judgment,
asserting that there was no evidence from which the jury could find that the City had
either actual or constructive notice of the defective storm drain grate. The Circuit Court
for Baltimore City granted the motion and entered judgment in favor of the City.
Ms. Stupi appealed, and presents the following issues (which we have reordered):
1. Did the court err in precluding an eyewitness from testifying that the
storm grate had been broken for a considerable period of time based on
its appearance and his common experience?
2. Did the court err in ruling that the flaking rust and deterioration on the
broken grate could not as a matter of law create an inference that the
City should have discovered it before the Ravens game when the City
says it inspects the area before Ravens games?
3. Did the trial court err in granting judgment as a matter of law on the
grounds that Ms. Stupi needed to present direct evidence that the City
was notified of the hazard or is evidence that the hazard was a trap that
existed for a considerable period of time legally sufficient to impute
constructive notice to the City?
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2
4. Did the court err in concluding that the location of the broken storm
grate in a “high traffic area” during Baltimore Ravens home games that
the City inspects once a month did not give rise to an inference that the
City should have discovered the broken grate before Ms. Stupi’s injury?
Because we conclude that the trial court did not commit reversible error in its
evidentiary rulings, and the evidence admitted during the appellant’s case in chief—even
when considered in a light most favorable to Ms. Stupi—was insufficient for a jury to
conclude, without speculating, that the defect was present prior to the day of Ms. Stupi’s
fall, the trial court did not err in granting the City’s motion for judgment. We shall affirm
the judgment of the Circuit Court for Baltimore City.
FACTS AND PROCEDURAL HISTORY
On September 7, 2014, the Baltimore Ravens opened their season with a home
game against the Cincinnati Bengals. Harry Pawley was among the fans who attended the
game. Although he had been a police officer with the Baltimore City Police Department
for 25 years, he was attending the game as a spectator and was not on duty that day. As
he was walking toward the stadium on his way to the game, Officer Pawley walked along
the edge of Ostend Street and he fell into a storm drain grate which was missing a bar. At
the trial of Ms. Stupi’s case, Officer Pawley described his fall as follows:
A. [BY OFFICER PAWLEY] While I was walking I fell into a storm grate.
Q. [BY COUNSEL FOR MS. STUPI] Can you describe what kind of grate
you’re referring to?
A. I guess just a standard storm drain, multiple bars, maybe like five bars or
so.
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3
Q. And when you say you fell, did you come to an understanding as to why
you fell?
A. Yes, after I – I mean, I was laying basically on the road because it went
up all the way up to my groin area. So my leg was completely down in the
hole and I was like laying on the street. And I just climbed up out of the
hole and kept on walking.
Q. . . . What caused you to go down into the hole?
A. A missing bar from the grate.
Officer Pawley testified that he “got [him]self up out of the hole and just
continued to walk” to the game. He did not report the damaged storm drain grate to
anyone. But, after the game, when he was walking along Ostend Street to return to his
car, as were “herds of people,” he saw two people lying down by the same broken storm
drain grate through which he had fallen. Considering the evidence in a light most
favorable to the non-moving party, it is inferable that the woman Officer Pawley
observed lying near the storm drain was Ms. Stupi, and the man who was lying near her
was Jeffrey Riddle, who also fell in that storm drain grate after the Ravens game.
At Ms. Stupi’s trial, Mr. Riddle described his fall as follows:
[BY MR. RIDDLE] I was talking to a couple of my friends about the game
and I stepped off the curb. And as I stepped off[,] I stepped right into a hole
in the sewer grate and fell down to my calf. And a couple of my friend[s]
pulled me – they had to take my shoe off to get me out of the sewer grate.
Q. [BY COUNSEL FOR MS. STUPI] What happened after you got out of
the sewer grate?
A. They sat me down on a curb and a couple [of] police officers came over
to talk to me.
* * *
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4
Q. And as you were speaking with those police officers did you observe
anything that caught your attention as you were –
A. I heard a scream and I turned around and a young lady was – they were
pulling a young lady out of the same sewer grate. . . . She was bleeding
heavily and she went in the ambulance with me [to the hospital].
* * *
Q. Were you able to see the grate before you fell in it?
A. No.
A few minutes after Mr. Riddle’s fall, Ms. Stupi approached the same intersection
of Ostend Street and Scott Street where he had fallen through the storm drain grate.
Because of the high volume of fans leaving the stadium at the same time, people were
walking very close together, and Ms. Stupi did not see the storm drain grate before her
foot and leg went through the gap created by the missing bar. She described the fall as
follows:
[BY MS. STUPI] . . . I was walking with my husband and at a certain
point[,] I went to take my next step and my foot seemed like it was stuck.
So I said to my husband, “My foot is stuck.” And I didn’t realize that my
foot had dropped down into a storm drain that was there up to my knee. . . .
So I went to try to pull my foot up and it was stuck. I guess the weight of
my body dropping down through the storm drain, but I couldn’t get it up. . .
. At that point I remember someone coming up behind me and saying
“Don’t try to move your leg. You have a nasty cut on your leg.”
* * *
And that’s the last thing I remember . . . .
Q. [BY COUNSEL FOR MS. STUPI] Were you able to observe the grate
into which you fell?
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5
A. Not at the time I fell into it. When I woke up from passing out[,] I was
sitting beside it.
* * *
Q. [BY COUNSEL FOR THE CITY] . . . What did you notice about the
grate after you fell?
A. After I fell I noticed that it was broken.
Q. And when you – you stated that the next day you returned to the grate to
go and look at it. Did you notice anything in the bottom of the grate?
A. I noticed that day, I noticed it while I was sitting there waiting for the
EMT’s that the broken piece was down inside the drain.
Q. And was the broken piece covered in trash or was it on top of the trash?
A. I don’t recall that.
At the hospital, Ms. Stupi was diagnosed with “traumatic arthrotomy of the knee[,]
. . . a partial laceration of the patella ligament and . . . a cartilage injury to the medial
femoral condyle.” She underwent surgery, and was discharged the following day. For
several weeks she wore a brace and was on crutches, and she attended physical therapy
for four to six weeks.
On February 21, 2017, Ms. Stupi filed a complaint in the Circuit Court for
Baltimore City alleging negligence on the part of the Mayor and City Council of
Baltimore for the following errors or omissions:
a. creat[ing] an unsafe, dangerous, defective, and/or hazardous condition
in a public street;
b. fail[ing] to make the street safe for members of general public [] by
creating a hazardous condition;
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6
c. fail[ing] to make proper inspections which would have discovered the
broken, hazardous drainage grate;
d. fail[ing] to discover a hazardous condition;
e. fail[ing] to warn members of the general public of the presence of the
broken drainage grate, a hazardous condition;
f. fail[ing] to fix or replace the hazardous condition; and
g. [being] otherwise negligent and careless.
On first day of trial, the court granted the City’s pretrial motion in limine to
exclude lay witness testimony about the length of time the grate had been defective. The
court explained its ruling as follows:
The ability of a piece of metal to be susceptible to the weather, the
elements, and whether or not it decreases the sustainability of that piece of
metal is subject to expert testimony. You can’t make an assumption about
something merely because you have decided that it seems reasonable to you
when I have said to you specifically that in order to be able to have
testimony of that nature you need an expert witness. Steel holds up under
different -- it depends on the thickness of the steel, the weight of the steel,
whether it has been previously exposed to heat or other things. There’s a
lot of factors. I’ve sat here and watched trials about buildings that have
steel and metal and the different forms and the type of steel and metal and
inferior steel and metal and how they determine when you have a piece of
inferior steel or metal.
I mean, I’ve seen experts flown in about oil cans and the thickness of
oil cans and how much pressure they can withstand before they break. I
mean, that’s the -- that smacks of expert testimony. Usually engineers.
Usually people with expert testimony with degrees and letters following
their name. You cannot ask a lay person to tell me how much weight a
piece of rusted metal is going to sustain before it breaks, how long before it
breaks, what’s the likelihood that it will break. You can’t do that through
lay testimony. You need an expert.
* * *
-Unreported Opinion-
7
[COUNSEL FOR MS. STUPI]: Just to be clear, Your Honor. I’ve
instructed [George Stupi] not to put any time limit on that. But for
clarification, he is allowed to testify to what he observed.
THE COURT: That’s exactly right.
[COUNSEL FOR MS. STUPI]: Okay.
THE COURT: And he can’t give [give an opinion] it looks like it had been
there for a long time.
During the trial, Ms. Stupi called John Boyd, superintendent for Storm Water
Maintenance in Baltimore City, to testify as a lay witness. Mr. Boyd’s testimony included
the following:
Q. [BY COUNSEL FOR MS. STUPI] You’re aware that these storm grates
break.
A. [BY MR. BOYD] I’m aware that they break.
Q. And they break frequently. . . . Is that correct?
A. They break -- well, they break when something is over the capacity of
the weight, it breaks them. And the[n] sometimes when people beat on
them to try to get in them, they break.
* * *
A. Yes, they break. All over the city they break.
Q. Okay.
A. They only break when something, like I said, if something runs over
them or people beat on them to get them up, they could break them out.
* * *
Q. Grates break more often in heavy traffic areas, correct?
A. It all depends. . . . It all depends on the structure of the drain.
Q. Where do you concentrate your complaint crews and your hand crews to
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8
go out and inspect grates?
A. I send them out every day to inspect grates all over the city, but they
can’t be everywhere at one time.
Q. Do you send them to high traffic areas?
A. Yes, I do.
* * *
Q. You’re familiar with the area of Ostend Street and Scott Street, correct?
A. I wasn’t familiar with it, what happened.
Q. You don’t know the area of Ostend and Scott Street?
A. I know Ostend Street, but I wasn’t familiar with the grate at the time.
* * *
Q. And you’re aware that that area gets heavy traffic, correct?
A. Sure.
Q. You’re aware that it gets heavy foot traffic [on] game days, correct?
A. Correct.
* * *
Q. Do you have any prior knowledge of prior to September 2014 a crew
was sent to Ostend Street and Scott Street to inspect the drainage grates?
A. No, I don’t.
* * *
Q. You don’t have any time sheets that show that [your crews have] gone to
the area of Ostend Street and Scott Street at any time in 2014?
A. I don’t have knowledge of it.
* * *
Q. I’m showing Mr. Boyd what’s been pre-marked as Exhibit 8A [a photo
-Unreported Opinion-
9
of the grate through which Ms. Stupi fell]. Mr. Boyd, what, if anything,
would you do as the superintendent of Baltimore City if you came up to a
grate that looked like this? . . . What, if anything, would you do?
A. We would change the grate.
Q. Replace it?
A. Replace it.
* * *
Q. What, if anything does the Storm Maintenance Division do on Ostend
Street and Scott Street with regard to the drainage system . . . throughout
the year?
A. We check the grates all over the city and storm drains.
Q. And when you say “all over the city,” does that include Ostend Street
and Scott Street?
A. Yes, east and west. The east area, the west area southeast [indiscernible].
Q. Where would [indiscernible]
A. We send the same crews out every day to clean drains, to repair drains,
to inspect drains.
Q. And that area where you send crews, would that include Ostend Street
and Scott Street, the intersection?
A. At the time that we inspected it, it must wasn’t [sic] a problem at the
time.
Q. I’m sorry?
A. When it was inspected – if it was inspected, it must wasn’t a problem at
the time because if it was a problem at the time with any grate on Ostend
Street or Scott Street it would have got dispatched back and we would have
repaired it.
* * *
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10
Q. Are you aware there are drainage grates at Ostend Street and Scott
Street?
A. I’m aware.
Q. How often do you inspect those grates in a given year?
[objection overruled]
A. We might check them like maybe once a month.
Q. Do you have any records of when the last time prior to or if any time
prior to September 7, 2014 you inspected or your crews inspected the grates
at Ostend Street and Scott Street?
A. No, I don’t.
* * *
Q. What is that [grate] made out of?
A. Cast iron.
* * *
Q. Was the grate where Ms. Stupi fell, if you know, on Ostend and Scott
Street a[n] SS grate?
A. Yes.
Q. What would you do – what would your crew be instructed to do if there
was a broken bar on a[n] SS grate?
A. They would replace the grate.
* * *
Q. What, if anything, do your crews either complaint crews or hand crews
do before the start of a Baltimore Ravens season to prepare for the season?
[COUNSEL FOR THE CITY]: Objection.
THE COURT: Overruled. What if anything, do your crews do or do you
-Unreported Opinion-
11
have any role in preparation for the Ravens game? Overruled.
A. Most of the time if it’s a Ravens game, if it’s a game, during the game,
we can’t get down there to inspect anything. But before a game we will
inspect the grates, the drains.
Q. [BY COUNSEL FOR MS. STUPI] Will you inspect the grates prior to
the start of the season?
A. Sure.
Q. . . . Do you have any record that the grates at Ostend Street and Scott
Street were ever inspected prior to the start of the 2014 Ravens season?
[COUNSEL FOR THE CITY]: Objection
THE COURT: Overruled.
A. Not to my knowledge.
* * *
A. We check the grates down at the stadium because it’s a high volume
area.
THE COURT: And what are you looking for?
A. Any grates that’s damaged or any -- I mean, grates that’s missing or
damaged.
Q. [BY COUNSEL FOR MS. STUPI] Why are you looking for damaged or
missing grates?
[COUNSEL FOR THE CITY]: Objection.
THE COURT: Overruled.
A. It’s a high traffic area.
Q. [BY COUNSEL FOR MS. STUPI] And why is it important for you to
inspect areas that are high traffic?
[COUNSEL FOR THE CITY]: Objection.
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12
THE COURT: Overruled.
A. To alleviate hazards.
[COUNSEL FOR MS. STUPI] I’m sorry. I didn’t hear you.
A. To alleviate hazards of somebody getting hurt.
* * *
Q. [BY COUNSEL FOR THE CITY]: . . . To your knowledge, did the City
receive any phone calls or complaints about the grate at W. Ostend and
Scott Streets prior to September 7, 2014?
A. No, they didn’t.
Q. And how do you know that?
A. Because we didn’t get the call on it until -- we didn’t get no call on that
location.
* * *
Q. And so you actually reviewed the [City’s Service Request] system for
complaints about this grate prior to September 7, 2014?
A. Yes.
Q. And you didn’t find any complaints or notifications that this grate was
damaged?
A. Nothing.
Q. I just want to go back and clarify something that you testified to on
direct. You testified that sometimes grates are damaged because people beat
on them. What did you mean by that?
* * *
A. People beat on them because they steal them regularly.
Q. Why do they do that, if you know?
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13
A. Scrap.
Q. Do you know what they beat on them with?
A. . . . I don’t know. But they beat on them. And most of the time they
broke it or stole it.
Q. Okay.
A. That’s the problem we’ve got now.
Q. And you had testified that the longevity of grates can vary based on, you
know, the weight of cars going over them, or that sort of thing. And that,
you know, the grates can last a short time or a long time.
Do you know what is the outside long time that they can last?
A. Grates can last up to ten years.
Q. Or they can be damaged within a day?
A. Yes, they can.
* * *
Q. [BY COUNSEL FOR MS. STUPI] Did you find anything in the [City’s
Service Request] system that suggested that any crew had ever inspected
the area of Ostend Street and Scott Street?
A. To my knowledge, no.
* * *
Q. [BY COUNSEL FOR THE CITY] The summary report [in the Service
Request system] that they referred to[;] that only contains the work orders
that were generated, correct, and not inspections?
A. Yes.
The only other witness called to testify about the condition of the storm drain grate
was Ms. Stupi’s husband, George Stupi. He was present when she fell, and he returned to
the site to take the photos that were admitted in evidence. After photos marked as
-Unreported Opinion-
14
Exhibits 8A, 8B, 8C, 8D, and 8E were introduced, counsel for Ms. Stupi endeavored to
have Mr. Stupi describe the condition of the grate. Counsel asked: “At the area where the
grate had broken, what did it look like?” After an objection, the court rephrased the
question and Mr. Stupi testified as follows:
THE COURT: . . . What did [the broken area of the grate] look like to you?
In other words, use adjectives to describe what you saw.
[GEORGE STUPI]: It was dark brown, rusty, worn, flaky, just deteriorated.
Q. [BY COUNSEL FOR MS. STUPI] You said “rusty.” Was it a thin,
thick?
A. [BY GEORGE STUPI] It was just dark. I mean, it was pretty uniform
with everything else. This area matched this area (indicating). I mean, there
was rust along here (indicating). It was kind of flaking off. It’s kind of
shiny up here, but rusty and kind of flaky and dull on the sides and over
here as well (indicating). It was just -- it was all rusty.
Q. And what was the general condition of the grate?
A. I’m sorry?
Q. What was the general condition of the grate?
A. The general condition of the grate was --
[COUNSEL FOR THE CITY]: Objection
THE COURT: Sustained.
THE COURT: Counsel, you’re aware of the Court’s ruling.
[COUNSEL FOR MS. STUPI]: Yes, Your Honor.
THE COURT: And I don’t want you to generate anything that the Court
has directed you not to do.
[COUNSEL FOR MS. STUPI]: Understood.
THE COURT: So why don’t we ask a different question.
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15
[COUNSEL FOR MS. STUPI]: Okay. Understood.
Q. Just the area that had broken off was it rusty on both sides?
A. It was rust. There’s a curve right here (indicating). This is a point
(indicating). And then there’s a curve right here (indicating). That was
rusty, the face of it. And there’s another part of it where it broke off. That
is also rusted.
That’s another part of the beam that broke or whatever you call that,
bar. That is also rusty. And it matches the color of this (indicating).
Q. Okay. You mentioned it was also flaky. Was it flaky on both sides?
A. Yes, it was kind of flaky. Mostly on the sides it was flaky and rusty. But
this was more of a brown, dark brown that matched this (indicating). So it
wasn’t -- this part here (indicating) was not flaky. This was the flaky part
here (indicating).
The court took a break and, outside of the presence of the jury, the following
exchange took place:
[COUNSEL FOR MS. STUPI]: I don’t mean to interrupt you, but perhaps
this is a good time just to do like literally a one question proffer regarding
some evidence that you’ve excluded with Mr. Stupi so we don’t have to do
it when we get back.
THE COURT: I’m not sure I understand. If you’re going to proffer
something you come to the bench outside of the earshot of the witness.
[COUNSEL FOR MS. STUPI]: I understand. But I was just going to ask
him the question and you instruct --
THE COURT: To see what answer he’s going to give?
[COUNSEL FOR MS. STUPI]: Yes.
THE COURT: Well, ask --
[COUNSEL FOR MS. STUPI]: Just opposed to --
THE COURT: Ask the question and make sure it’s not leading.
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16
[COUNSEL FOR MS. STUPI]: What would you expect if the grate had
just broken off, what would you expect to observe?
THE COURT: That’s sustained. You are not to answer it.
And, Mr. Stupi, you’re not going to have to answer that question
because I just told him he can’t ask you that question.
[GEORGE STUPI]: Okay.
THE COURT: Okay. So one of the issues that has come up and I know
you’ve been directed is you’re not an expert in metal or engineering, are
you?
[GEORGE STUPI]: No.
THE COURT: And so I have made a ruling that your opinion about how
long that rust might have been there is not admissible which is why your
lawyer told you not to say anything about that. Your opinion about that is
not admissible, but your observations are. And you did a great job of
describing things.
* * *
[COUNSEL FOR MS. STUPI]: . . . I just want to make sure that I’m
preserved for appeal what his answer to those questions.
THE COURT: Correct. I understand that the record should reflect that you
believe that the witness should be able to say how long he believes that that
rust was there, that the cases you cited from other jurisdictions go to a lay
person’s ability to talk about the length of time that the rust existed at the
location.
And so therefore, the Court has previously heard your argument and
preserved it. . . .
* * *
So therefore, he can tell us what he saw but he may not give a
further opinion as to the length of time that that rust may have been there. .
. . Or even the cause of the break.
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When the jury returned, Mr. Stupi’s examination continued, and included the
following testimony:
Q. [BY COUNSEL FOR THE CITY] And when you went back to view the
grate of even on the same day you saw that the bar that had broken out was
directly under the grate, correct?
A. [BY GEORGE STUPI] I believe I saw the bar laying down inside the
grate.
Q. And it was on top of some trash?
A. It was mingled in with it. There was stuff on top of it.
* * *
Q. . . . [D]rawing your attention back to your testimony where you had
talked about how the grate was rusty. Those were on the sides of the bar,
correct, for the most part?
A. There was rust all over, but the top part was worn shiny, but the sides
and where the break was was rusty on the sides where the break is. I can’t
show you – where the bar came out.
After Ms. Stupi concluded her case in chief, the City moved for judgment pursuant
to Maryland Rule 2-519. During arguments on the motion, counsel for Ms. Stupi agreed
with the court that “there was no actual notice” to the City regarding the broken storm
drain grate, but nevertheless, counsel insisted that the evidence was sufficient for the jury
to conclude that the damage had been present long enough for the City to be charged with
constructive notice of the defect, and the City should have discovered the defect if it had
exercised due care for the maintenance of the City’s streets in that high traffic area. The
court then engaged in the following colloquy with counsel for Ms. Stupi:
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18
THE COURT: You see, this is the problem . . . . There was no testimony
in this record about the length of time that that rust had been there. I
precluded it. So you can’t now argue facts that are not in evidence. You
took exception to my ruling. You felt that Mr. Stupi should have been
permitted to testify about the length of time that the rust existed.
However, I did not agree with you. So that’s not part of your case. You
can’t argue now that it was. And since you’re finished with your case you
can’t not [sic] now argue well, Judge, if you had let me ask Mr. Stupi then
we would have had evidence. Well, unfortunately, that’s not what your case
includes. Your case includes observations by Mr. Stupi of the content of
what he saw and identified as rust, the condition of the grate.
And are you asserting to the Court that because Mr. Stupi saw
the rust that that was notice to the City?
[COUNSEL FOR MS. STUPI]: In part, yes.
* * *
[COUNSEL FOR MS. STUPI]: . . . But even in the absence of [Mr.
Stupi’s] testimony as to how long [the rust had been there] that might lead
him to conclude that condition existed, my argument is that the presence
of the rust alone at the location of the break[,] that area in particular[,]
allows the inference that the rust had been there for an appreciable
period of time. And that comes from the case law that we submitted to the
Court. And that is in the absence of testimony about the amount of time. It
is simply the existence of rust which a lay person can infer is not
formed immediately, does not form overnight. A lay person can make an
inference and that’s what the cases say.
THE COURT: But that’s not in your case, is it?
[COUNSEL FOR MS. STUPI]: It is.
THE COURT: No, the jury never heard that.
[COUNSEL FOR MS. STUPI]: The jury heard --
THE COURT: The jury never heard that. You’re at the end of the
Plaintiff’s case in the light most favorable of not what you wanted to be put
in evidence, but what was admitted into evidence.
[COUNSEL FOR MS. STUPI]: Exactly, Your Honor.
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19
THE COURT: And you don’t have any evidence of how long the rust
was there.
[COUNSEL FOR MS. STUPI]: That’s correct.
THE COURT: So you can’t argue in the negative. You can’t argue in the
light most favorable to the Plaintiff a fact that’s not part of your case.
[COUNSEL FOR MS. STUPI]: I’m not suggesting to the Court that that
fact is in the case. My point is that the fact that is in the case is Mr.
Stupi’s testimony that he saw rust. He observed flaking rust at the
location where the bar was exposed. And that was --
THE COURT: And that is notice to the City[?]
[COUNSEL FOR MS. STUPI]: That allows an inference that the
condition existed long enough to put the City on notice.
* * *
In addition to the rust[,] there was testimony from Mr. Stupi
about observing the bar in the bottom of the grate. And when he was
asked whether it was sitting on top of the debris and trash that was inside
the grate he specifically said no. It was . . . mixed in with the trash and
debris.
. . . The existence of trash and debris that is covering the bar
that is mixed in over the top of the bar allows the jury to infer that that
took a period of time to accumulate and cover up at least parts of the
bar. And that allows an inference that . . . it existed long enough for the
City to be on notice particularly in a case where the City knows this drain
to be in a high traffic area that exposes pedestrians to a danger.
(Emphasis added.)
The court granted the City’s motion for judgment from the bench, and followed up
with a written memorandum in which the court explained its rationale as follows:
This Court finds no actual or constructive notice to the Defendant of any
defective or unsafe condition before the Plaintiff was injured. Although
Plaintiff argues that rust on the storm grate alone allows for the inference
that the rust had been there a “long time” and thereby puts the Defendant,
-Unreported Opinion-
20
Baltimore City, on notice that the grate was defective and needed to be
replaced, this Court does not agree. The argument set forth by the Plaintiff
is mere speculation and conjecture insufficient without evidence such as the
testimony of an expert. . . . There is simply no evidence, sufficient as a
matter of law, that the Defendant knew or should have known of the unsafe
condition. Smith v. City of Baltimore, 156 Md. App. [377] (2004).
* * *
. . . It is clear in Maryland that the mere existence of a defect on the
sidewalks and highways does not subject a municipality to liability for
negligence. Smith v. City of Baltimore, 156 Md. App. 377 (2004). . . . There
is no evidence of the length of time the defect had been present nor the
manner in which the Defendant might have discovered the defect. This
Court precluded the Plaintiff to present a lay person to testify about the
manner in which metal deteriorates but required that an expert be presented.
No expert was properly identified or noted by the Plaintiff pretrial and
therefore there was no expert testimony provided of the testing of metal
rusted portions of the broken storm drain, the length of time the grate had
been rusted or exposed to rust or even the amount of weight the grate might
endure before breaking. This Court finds that this type of testimony is
beyond the knowledge of the average person and requires expert testimony.
This appeal followed.
STANDARD OF REVIEW
The standard of review of a ruling granting a motion for judgment was described
as follows in Sugarman v. Liles, 234 Md. App. 442, 464 (2017), aff’d, 460 Md. 396
(2018):
Maryland Rule 2–519 provides that “[a] party may move for
judgment on any or all of the issues in any action at the close of the
evidence offered by an opposing party, and in a jury trial at the close of all
the evidence.” The standard for reviewing a circuit court’s ruling on a
motion for judgment is well settled:
[W]e ask whether on the evidence adduced, viewed in the
light most favorable to the non-moving party, any reasonable
trier of fact could find the elements of the tort by a
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21
preponderance of the evidence. . . . If there is even a slight
amount of evidence that would support a finding by the trier
of fact in favor of the plaintiff, the motion for judgment
should be denied.
Asphalt & Concrete Services, Inc. v. Perry, 221 Md. App. 235, 271–72, 108
A.3d 558 (2015) (quoting Washington Metro. Area Transit Auth. v. Djan,
187 Md. App. 487, 491–92, 979 A.2d 194 (2009)), aff’d on other
grounds, 447 Md. 31, 133 A.3d 1143 (2016).
With respect to the standard of appellate review of a trial court’s ruling regarding
the admissibility or exclusion of opinion testimony, Judge Charles E. Moylan, Jr.,
explained in Mack v. State, 244 Md. App. 549, 572-73 (2020), that the evidentiary ruling
“is one quintessentially entrusted to the broad discretion of the trial judge[,] and an
appellate court will not substitute its judgment for that of the trial judge absent a clear
abuse of that discretion. In upholding a trial court judge’s exercise of discretion, the
appellate court is scrupulously and broadly deferential.”
DISCUSSION
1. Lay witness opinion that the grate had been broken for a long period of time
Ms. Stupi argues: “The court erred in excluding the testimony of Mr. Stupi that,
based on his lay-person’s observation of the grate and his common experience, it
appeared to have been broken for a considerable period of time.” She further explains in
her brief: “Mr. Stupi was prepared to testify that the grate’s appearance indicated that it
[had] been broken for a considerable time. The trial court, however, did not allow Mr.
Stupi to offer this testimony.” She concedes, however, that “Mr. Stupi was not prepared
to give testimony estimating a specific length of time over which the rust and corrosion
-Unreported Opinion-
22
developed,” but she says in the following sentence that Mr. Stupi “was going to testify
that based on his observation, the grate gave the appearance that it had been broken for a
long period of time.”
As the excerpts of Mr. Stupi’s testimony (quoted above) reflect, the trial court did
not preclude Mr. Stupi from describing what he observed, and the photographs he offered
were all admitted in evidence. When the trial court asked him if he was “an expert in
metal or engineering,” he answered: “No.” Under the circumstances, we fail to see an
abuse of discretion in the court’s ruling that he could not offer a lay witness opinion
“about how long that rust might have been there.” Although it may be common
knowledge that rust is caused by moisture, we agree with the trial court that it would
require specialized training to be able to estimate how long it had taken for specific rust
to have appeared and accumulated on a given piece of metal. That sort of estimate is a
matter beyond the realm of common experience.
As Judge Moylan explained in great detail in Mack v. State, 244 Md. App. at 560-
68, the Court of Appeals held in Ragland v. State, 385 Md. 706 (2005), that Maryland
Rule 5-701 would be interpreted as if it contained the same limitation upon lay opinion
testimony as Federal Rule of Evidence 701 has contained since being amended in 2000,
namely, that a witness “not testifying as an expert” is not qualified to give an opinion
“based on scientific, technical, or other specified knowledge within the scope of Rule
702.” 385 Md. at 722 (quoting Fed.R.Evid. 701). As a consequence, the Court of Appeals
held in Ragland: “[W]e will follow the approach as reflected in the 2000 amendment to
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23
Fed. R. Evid. 701 and hold that Md. Rules 5-701 and 5-702 prohibit the admission as ‘lay
opinion’ of testimony based upon specialized knowledge, skill, experience, training or
education.” 385 Md. at 725.
In Ms. Stupi’s case, the trial court concluded that it was not a matter within the
common knowledge of the average juror to be able to look at rust on a piece of iron and
know how long that rust had been present. There was no foundation testimony or
evidence offered to indicate that the trial court’s conclusion on that point was erroneous
as a matter of fact.
Ms. Stupi cited three out-of-state cases that she said had concluded that it is
common knowledge that rust and corrosion takes place over time: Baker v. Granite City,
311 Ill. App. 586, 593, 37 N.E.2d 372 (1941); Wrobleski v. Linn-Jones FS Services, Inc.,
195 N.W.2d 709, 713-14 (Iowa 1972); and Northern v. Gen. Motors Corp., 2 Utah 2d 9,
10, 268 P.2d 981, 981-82 (1954). It goes without saying that all three of those cases
predated the 2000 amendment to Federal Rule of Evidence 701, and the 1994 adoption of
Maryland Rules 5-701 and 5-702. Further, recognizing the proposition that rust and
corrosion generally takes place over time is materially different from permitting a lay
witness to examine a particular piece of metal and express an opinion that the rust
observed on that piece had been there “a long time,” which is the opinion Ms. Stupi
sought to elicit from her husband. Based upon Ragland and Mack, we conclude that the
trial court did not commit an abuse of discretion in precluding Mr. Stupi from expressing
-Unreported Opinion-
24
his opinion that the rust he observed on the storm drain grate appeared to have been there
a long time.
2. Constructive notice of a defect
Ms. Stupi asserts that George Stupi’s descriptive testimony, when considered in
combination with the photographs of the grate, provided sufficient evidence to allow a
jury to use its “common knowledge” to infer that the grate had been broken for a
sufficiently long period of time to give constructive notice to the City. We agree with the
circuit court that Ms. Stupi failed to present sufficient evidence that would allow the jury
to draw this inference.
The testimony of Mr. Boyd indicated that storm drain grates are made of cast iron,
and they can last ten years. But they can also break any day if a vehicle with excessive
weight drives over the grate or if a thief gathering marketable scrap metal beats on a bar
until it breaks. Mr. Boyd admitted that, if his crew knew of a storm drain grate missing a
bar like the one shown in Mr. Stupi’s photos, the crew would replace the grate. But Mr.
Boyd also testified that he could find no record in the City’s Service Request system that
indicated anyone had ever alerted the City to the damaged condition of the storm drain
grate that caused Ms. Stupi’s injury.
Counsel for Ms. Stupi agreed that there was no evidence that the City had actual
knowledge of the damaged storm drain grate. But, even now, she urges us to conclude
that the evidence was sufficient to create a jury question as to constructive notice. Despite
the serious nature of Ms. Stupi’s injury, the lack of evidence from which a jury could
-Unreported Opinion-
25
rationally conclude, without speculating, that the grate had been missing one of its bars
for such a long time that the City should have discovered the damage leads us to conclude
that the trial court did not err in granting the City’s motion for judgment.
As we observed in Anne Arundel County v. Fratantuono, 239 Md. App. 126
(2018), a local government does not enjoy governmental immunity for failing
“to maintain its streets, as well as the sidewalks, footways and the areas
contiguous to them, in a reasonably safe condition,” which has been treated
as proprietary. Higgins v. City of Rockville, 86 Md. App. 670, 679, 587
A.2d 1168 (1991). This is sometimes known as the “public ways”
exception to governmental immunity.
239 Md. App. at 133 (footnote omitted).
In the trial court’s written opinion in Ms. Stupi’s case, the trial court cited Smith v.
City of Baltimore, 156 Md. App. 377 (2004), for the principle that a municipality’s
liability for failing to maintain its public streets and walkways in a reasonably safe
condition depends upon evidence that the municipality had either actual or constructive
notice of the existence of the unsafe condition. In Smith, Judge Deborah Eyler explained
that the City was properly granted summary judgment in that case because there was no
evidence the City had actual notice of a damaged crosswalk signal, and there was no
evidence to show how long the condition had been in existence. The pedestrian crossing
signal had been rotated approximately 90 degrees from its proper position, and as a
consequence, a pedestrian who would normally be guided by that signal could no longer
see what it said. A pedestrian who tried to cross the highway when the signal would have
-Unreported Opinion-
26
told him to wait was struck by a vehicle and fatally injured. Judge Eyler summarized the
governing principles as follows:
Generally, a municipal corporation owes a duty to persons lawfully
using its public streets and sidewalks to make them reasonably safe for
passage. This duty is not absolute and the municipality is not an insurer of
safe passage. If, however, a person is injured because a municipality
failed to maintain its streets, and the municipality had actual or
constructive notice of the dangerous condition that caused the injury,
the municipality may be held liable in negligence.
156 Md. App. at 383 (citations omitted; emphasis added).
Judge Eyler quoted the following “often repeated” passage, 156 Md. App. at 384,
from Keen v. City of Havre de Grace, 93 Md. 34 (1901):
It is not questioned that the city of Havre de Grace has the power to grade
and repair its streets and sidewalks (Act 1890, ch. 180); and when such is
the case, the municipality is bound to maintain them in safe condition, and
if it negligently fail so to do and thereby persons, acting without negligence
on their part, are injured, it is liable to respond in damages for all injuries
caused by its neglect. Before, however, the municipality can be made liable
in any case, it must be shown that it had actual or constructive notice of the
bad condition of the street. As was well said in the case of Todd v. City of
Troy, 61 N.Y. 509 [(1875)]: “By constructive notice is meant such notice as
the law imputes from the circumstances of the case. It is the duty of the
municipal authorities to exercise an active vigilance over the streets; to see
if they are kept in a reasonably safe condition for public travel. They cannot
fold their arms and shut their eyes and say they have no notice. After a
street has been out of repair, so that the defect has become known and
notorious to those traveling the street, and there has been full opportunity
for the municipality through its agents charged with that duty, to learn of its
existence and repair it, the law imputes to it notice and charges it with
negligence.” If the defect be of such a character as not to be readily
observable, express notice to the municipality must be shown. But if it be
one which the proper officers either had knowledge of, or by the exercise of
reasonable care and diligence might have had knowledge of, in time to have
remedied it, so as to prevent the injury complained of, then the municipality
is liable.
-Unreported Opinion-
27
93 Md. at 38-39 (citations omitted).
In Keen, there was eyewitness testimony that the hole in the sidewalk that caused
Keen’s fall had been present for two or three weeks, 93 Md. at 40, and the Court of
Appeals held that that was a sufficient period of time to create a jury question as to
constructive notice. Judge Eyler explained in Smith that, “when read in context,” Keen’s
reference to “active” vigilance “does not impose a duty on municipalities to conduct
regular inspections of their roadways. Rather, the language explains the circumstances in
which municipalities will be found to be on constructive notice of defects in their
roadways, and the rationale underlying the concept of constructive notice.” 156 Md. App.
at 385. We said in Smith that a municipality “must perform repairs upon being notified of
a ‘bad condition of the street.’” Id. at 386 (quoting Keen, 93 Md. at 39). “[T]herefore,
when the evidence shows that a ‘bad condition’ is such that, by virtue of its nature or the
length of time it has existed, the municipality would have learned of it by the exercise of
due care, the municipality may be found to have constructive knowledge of its
existence.” Id. Because there was no evidence in Smith “showing that the defect [in the
crosswalk signal] had existed for a sufficient length of time that it would have been
reported to City authorities, and therefore would have been known to the City, had the
City been abiding by its practice of responding to citizen reports of adverse roadway
conditions,” id., summary judgment in favor of the City was appropriate.
Ms. Stupi points to language in the Court of Appeals’s decision in Pierce v. City of
Baltimore, 220 Md. 286 (1959), as providing support for her case. In Pierce, the Court of
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28
Appeals reversed the circuit court’s order granting judgment notwithstanding the verdict.
220 Md. at 288-90. In that case, Charles Pierce exited a Baltimore City bus at a bus stop
located at a point along a section of Harford Road that did not have a sidewalk. Id. at 288.
As Pierce walked toward his destination by walking upon the unpaved strip of land
adjacent to Harford Road, “he caught his left foot under a metal plate covering a drain
and fell.” Id. He sued the City for failing to eliminate the hazardous condition that
caused his fall. Although the jury returned a verdict in his favor, the circuit court granted
a judgment notwithstanding the verdict based upon its conclusion that Pierce had been
contributorily negligent as a matter of law. The Court of Appeals reversed the circuit
court’s ruling and reinstated the jury’s verdict.
The Court of Appeals cited the general rule that “a municipality has a duty to
maintain streets, sidewalks, and footways, and the areas contiguous to them, in a
reasonably safe condition.” Id. at 290. Citing its opinion in Mayor & Council of
Hagerstown v. Hertzler, 167 Md. 518, 520-21 (1934), the Court observed in Pierce that,
“if the defect is slight or trivial, there is no right of recovery against the municipality.”
220 Md. at 291. “If, however, the obstruction or defect is not to be expected and is
substantial, and the municipality has actual or constructive notice of it, generally
recovery is allowed, even though the area involved is one not actually or formally
dedicated to pedestrian use.” Id. (emphasis added; footnote omitted). The Court described
the evidence of notice in Pierce’s case as follows:
There was testimony that permitted the inference that the City had actual or
constructive notice of the defective conditions that caused the injury. It is
-Unreported Opinion-
29
apparent from the photographs in the record that the condition which
caused the metal plate to tilt above the concrete sides of the drain was
of long standing and must have existed when the City inspected the
property some five months before the accident or have come into being
shortly thereafter. The jury could have inferred from the testimony and
the photographs that Pierce was walking along the grass plot near the curb
in a line with the tree until he got to a point so close to the tree that he must
have diverged to the right, and that when he did so he caught his foot under
the black metal plate that was protruding above the drain in a position well-
calculated to catch an unwary traveler.
Id. at 291-92 (emphasis added).
Ms. Stupi argues that the above-quoted passage establishes that photos alone were
sufficient to establish notice in Pierce, and her photos (when considered with Mr. Stupi’s
description of rust on the storm drain grate) provided sufficient evidence for the jury to
find that the City had constructive notice that a bar was missing from the storm drain
grate. This conclusion does not follow from the statement in Pierce. The Court of
Appeals provided no details about the information in the photographs that made it
“apparent” to the Court that the dangerous condition was “of long standing and must have
existed . . . some five months before the accident,” but that was clearly the Court’s
interpretation of the photos in evidence in that case. In stark contrast, we detect no
similarly persuasive information in the photographs introduced in Ms. Stupi’s case. From
our examination of the photographs, it is not at all “apparent” how long before Ms.
Stupi’s fall the cast iron bar was dislodged from the storm drain grate. Even if we give
full credit to Mr. Stupi’s description of rust, we could only speculate whether the bar
became dislodged long enough before the game day that the City ought to have known
about the damage to that storm drain grate.
-Unreported Opinion-
30
In Keen, 93 Md. at 39, as noted above, the Court of Appeals described the amount
of time that must pass in order to impute constructive notice in these terms: “After a
street has been out of repair, so that the defect has become known and notorious to
those traveling the street, and there has been full opportunity for the municipality
through its agents charged with that duty, to learn of its existence and repair it, the
law imputes to it notice and charges it with negligence.” (Emphasis added; internal
quotation marks omitted) There is simply no evidence in this case from which the jury
could have found, without speculation, that the gap in the storm drain grate that caused
Ms. Stupi’s injuries had been in existence for such a period of time.
3. Constructive notice of a “trap”
Ms. Stupi’s Question 3 (as reordered) asks:
Did the trial court err in granting judgment as a matter of law on the
grounds that Ms. Stupi needed to present direct evidence that the City was
notified of the hazard or is evidence that the hazard was a trap that existed
for a considerable period of time legally sufficient to impute constructive
notice to the City?
This question assumes two premises that are not present in this case: (1) that the
trial court’s ruling was based upon the ground “that Ms. Stupi needed to present direct
evidence that the City was notified of the hazard”; and (2) that there was evidence from
which the jury could have rationally found, without speculation, that the hazardous
condition “existed for a considerable period of time.” As noted above, the trial court ruled
that, in the absence of actual notice, constructive notice could suffice, but there was no
evidence from which the jury could have made a rational finding as to how long the
-Unreported Opinion-
31
storm drain grate had been missing one of its bars. Accordingly, we answer “no” to this
question.
4. “High-traffic” location
Ms. Stupi asserts in her brief:
The location of the broken grate was an area that deserved particular
attention from the City. . . . [T]housands of pedestrians going to and from
Ravens games would walk on West Ostend Street where they would be
exposed to the risk of injury on broken grates. The City should have
exercised due care to remove traps that would not be expected by foot
passengers.
* * *
. . . [T]he City’s duty does not change – its duty is still to exercise
“reasonable” care. But the jury could infer, given the heightened risk
presented by a broken storm grate on Ostend Street during a Ravens home
game, that the rusted, flaky, deteriorated condition of the broken grate was
not reasonable. In other words, the jury could have found that if the City
were indeed exercising “reasonable” care in maintaining Ostend Street, the
condition of the storm grate should never have reached that point. Again,
the question was for the jury to decide.
This theory of liability is not supported by Maryland cases. As explained above,
we said in Smith, 156 Md. App. at 383, that the duty a municipal corporation owes (to
maintain its public streets and sidewalks in a “reasonably safe” condition) “is not
absolute and the municipality is not an insurer of safe passage.” Although Ms. Stupi cites
the statement in Pierce, 220 Md. at 291, that said the defective condition of the drain
cover in that case “almost amounted to a trap,” the Court in Pierce also stated that, even
if “the obstruction or defect is not to be expected and is substantial,” id., the municipality
will have liability if the municipality “has actual or constructive notice of” the defect. Id.
In other words, the Court in Pierce did not relieve a plaintiff of the obligation to prove
-Unreported Opinion-
32
that the City had “actual or constructive notice” of the dangerous condition even if the
location of the hazard almost amounts to a trap.
JUDGMENT OF THE CIRCUIT COURT
FOR BALTIMORE CITY AFFIRMED.
COSTS TO BE PAID BY APPELLANT.
