Order Signed April 25, 2006--Judge Catherine C. Blake. Not approved for publication.
Metro Ready Mix, Inc. claims damages in a case arising out of contracts for the supply of cement. Metro initially filed a complaint in this court against Essroc Cement Corp. alleging breach of contract and breach of warranty; subsequently it amended the complaint to add allegations of intentional misrepresentation, intentional concealment, negligence, and negligent misrepresentation and to seek punitive damages. This ruling deals with Essroc's motion to dismiss the added claims.
Metro is in the business of supplying and placing ready mix concrete for construction jobs. Cement is a necessary ingredient in order to mix concrete, and for the years leading up to and including 2004, Metro obtained much of its cement from Essroc. In late 2004, Metro bid for, and was awarded, several large contracts for various projects all requiring high-strength concrete. At unclear times between November 2004 and March 2005, Metro and Essroc allegedly entered into oral contracts for the delivery of cement sufficient to cover Metro's needs for these projects. In December 2004 and January 2005, Metro, using cement supplied by Essroc, created concrete mix designs for its large projects. These mix designs received approval from the contractors and from independent testing agencies, certifying that the concrete met strength and other testing requirements.
Beginning in May 2005, Metro began to receive complaints about the strength of its concrete. In December 2005 and January 2006, Metro had its concrete tested, and the tests revealed that the cement supplied by Essroc was defective. As a result of the defective cement, Metro alleges that its customers began terminating their contracts and charging Metro for remedial costs caused by the problematic concrete. Because of the terminated contracts, Metro had to sell off some equipment at a loss, and pay for the cancellation of other leased equipment. Apparently Metro has since been forced to close its business.
Metro alleges that Essroc made misrepresentations inducing Metro to contract with Essroc. Metro representatives met with Essroc representatives in the fall of 2004 and early 2005. At these meetings, Metro alleges that Essroc stated it could provide Metro with the quality and quantity of cement it needed. Metro alleges that when Essroc made these assurances, however, it knew it was not capable of providing safe and suitable cement.
Metro's complaint included claims for intentional misrepresentation, intentional concealment, negligence, and negligent misrepresentation. Metro alleged that Essroc's two main plants were experiencing severe maintenance and quality control problems in the spring of 2005, which brought Essroc's cement in violation of the standards for cement manufacturing established by the American Society for Testing and Materials (ASTM). In its intentional misrepresentation claims, Metro alleges that in 2004 and February 2005, Essroc falsely represented that it was capable of supplying Metro with suitable cement that would meet ASTM standards, and did so "with actual malice, ill will, and spite towards Metro."
In its intentional concealment claim, Metro alleges that Essroc knew and did not disclose the problems at its manufacturing plants. In its negligence claim, Metro alleges that Essroc had a duty to exercise ordinary care in the production of cement, and breached that duty by selling substandard cement. Lastly, in its negligent misrepresentation claim, Metro alleges that Essroc falsely represented that the cement would be safe and suitable for Metro's needs. Essroc moved to dismiss the added claims.
As to the fraud allegations, the Court found that there appears to be no specific evidence or allegation that Essroc did not believe it could fulfill the contracts at the time they were entered or that it was attempting to deceive or defraud Metro with its representations. Thus, it dismissed Metro's claims for fraudulent misrepresentation and fraudulent concealment for failure to meet the specificity requirements of Rule 9(b). Because Metro did not proffer in its opposition or at the hearing any evidence that would support these claims, the Court ruled that no further leave to amend would be granted.
Because it found that the "application of the somewhat uncertain contours of Maryland law" pertaining to negligence and negligent misrepresentation in the context of a business dispute might be assisted by further factual development, and discovery will be proceeding on the contract claims in any event, Essroc's motion to dismiss the negligence and negligent misrepresentation claims were denied, subject to renewal if warranted as a summary judgment motion at the close of discovery.
Finally, because Metro has not alleged facts to show that Essroc acted with "actual malice," the Court dismissed any claim for an award of punitive damages.
The opinion and order are available in PDF.
Showing posts with label negligence. Show all posts
Showing posts with label negligence. Show all posts
Thursday, May 3, 2007
Sunday, April 22, 2007
Pendleton v. State (Ct. of Appeals)
Filed April 13, 2007. Opinion by Judge Robert M. Bell.
Issue: Did a pleading asserting a claim for negligence against the State based upon abuse that the plaintiff suffered in a State licensed home sufficiently allege a duty on the part of the State where the complaint alleged that, "upon information and belief," the State "knew or should have known" of the perpetrator's propensity for violence?
Held: No. The Circuit Court's dismissal of the claim against the State defendants is affirmed. For a pleading to be sufficient in the context of a negligence action, it must allege “with certainty and definiteness” facts to show a duty on the part of the defendant to the plaintiff . Whether a legal duty exists is a question of law, to be decided by the court. Stating that, upon information and belief, a party knew or should have known about a third party’s alleged propensity for violence, without more, is not a sufficient factual allegation from which a duty may arise.
Facts: The plaintiff sued the State in the Circuit Court for Baltimore City for negligence in connection with alleged sexual and physical abuse that the plaintiff suffered at the hands of his roommate while he was residing in a group home licensed by the State. The plaintiff alleged that, "upon information and belief," the State knew or should have known of the perpetrator's propensity for violence.
The plaintiff did not allege that the perpetrator had committed assaults prior to those alleged in the complaint, or that the State had knowledge of any sexual tendencies the perpetrator may have had or that he had a history of sexual assaults. The State moved to dismiss, and the trial court granted the motion.
On appeal, the Court of Appeals noted that there was "no factual allegation as to the basis for the knowledge attributed to the State or that related why the State should have been aware of any deviant tendencies that [the perpetrator] may have had, or even that he, in fact, had such tendencies prior to the alleged incidents that occurred with the [plaintiff]. The Court stated that, "in simple situations involving an easily recognized breach of duty, a general averment of negligence following a simple statement of the defendant’s act or omission will be regarded as an ultimate fact; while in more complex situations where the breach of duty is not readily apparent, such an averment will be regarded as a mere legal conclusion.”
Finding that the situation presented by the complaint was not one "where the plaintiff’s right and the defendant’s [corresponding] duty are simple and easily perceived, or involve an easily recognized breach of duty," the Court affirmed the dismissal.
The opinion is available in PDF format.
Issue: Did a pleading asserting a claim for negligence against the State based upon abuse that the plaintiff suffered in a State licensed home sufficiently allege a duty on the part of the State where the complaint alleged that, "upon information and belief," the State "knew or should have known" of the perpetrator's propensity for violence?
Held: No. The Circuit Court's dismissal of the claim against the State defendants is affirmed. For a pleading to be sufficient in the context of a negligence action, it must allege “with certainty and definiteness” facts to show a duty on the part of the defendant to the plaintiff . Whether a legal duty exists is a question of law, to be decided by the court. Stating that, upon information and belief, a party knew or should have known about a third party’s alleged propensity for violence, without more, is not a sufficient factual allegation from which a duty may arise.
Facts: The plaintiff sued the State in the Circuit Court for Baltimore City for negligence in connection with alleged sexual and physical abuse that the plaintiff suffered at the hands of his roommate while he was residing in a group home licensed by the State. The plaintiff alleged that, "upon information and belief," the State knew or should have known of the perpetrator's propensity for violence.
The plaintiff did not allege that the perpetrator had committed assaults prior to those alleged in the complaint, or that the State had knowledge of any sexual tendencies the perpetrator may have had or that he had a history of sexual assaults. The State moved to dismiss, and the trial court granted the motion.
On appeal, the Court of Appeals noted that there was "no factual allegation as to the basis for the knowledge attributed to the State or that related why the State should have been aware of any deviant tendencies that [the perpetrator] may have had, or even that he, in fact, had such tendencies prior to the alleged incidents that occurred with the [plaintiff]. The Court stated that, "in simple situations involving an easily recognized breach of duty, a general averment of negligence following a simple statement of the defendant’s act or omission will be regarded as an ultimate fact; while in more complex situations where the breach of duty is not readily apparent, such an averment will be regarded as a mere legal conclusion.”
Finding that the situation presented by the complaint was not one "where the plaintiff’s right and the defendant’s [corresponding] duty are simple and easily perceived, or involve an easily recognized breach of duty," the Court affirmed the dismissal.
The opinion is available in PDF format.
Thursday, March 15, 2007
Morgan State University v. Walker (Ct. of Appeals)
Filed March 15, 2007--Opinion by Judge Clayton Greene.
Ms. Walker instituted a personal injury action against MSU, arguing they were negligent for their failure to remove snow from a parking lot which resulted in Ms. Walker fracturing her leg when she fell on the ice. The Circuit Court for Baltimore City determined that despite MSU's negligence, as a matter of law, Ms. Walker assumed the risk of her injuries and granted summary judgment in favor of MSU. The Court of Special Appeals reversed in an unreported opinion, holding that the voluntariness of Ms. Walker's action was a jury question. This Court concluded that when Ms. Walker walked across the parking lot with knowledge that the lot was covered with ice and snow, she assumed the risk of her injuries, as a matter of law, under the circumstances. Further, in an assumption of the risk analysis, the defendant's or a third party's negligence is irrelevant.
The voluntariness of conduct in an assumption of risk analysis is measured by an objective standard. Ms. Walker's testimony indicated she was aware of the icy conditions and clearly appreciated the danger of walking on the ice. Further, Ms. Walker's motivation to walk across the ice would be considered involuntary only if she lacked the free will to avoid the situation. The fact that no other reasonable alternative path was available does not reduce the free will standard. Ms. Walker's purpose of walking across the ice was to visit her daughter. As soon as she realized the parking lot was covered in ice, she made the free-will choice to continue with her visit, park her car, and walk across the ice. Because the uncontroverted evidence demonstrated that Ms. Walker knowingly and voluntarily walked across the icy parking lot, the Circuit Court correctly granted summary judgment in favor of MSU.
The full opinion is available in PDF.
Ms. Walker instituted a personal injury action against MSU, arguing they were negligent for their failure to remove snow from a parking lot which resulted in Ms. Walker fracturing her leg when she fell on the ice. The Circuit Court for Baltimore City determined that despite MSU's negligence, as a matter of law, Ms. Walker assumed the risk of her injuries and granted summary judgment in favor of MSU. The Court of Special Appeals reversed in an unreported opinion, holding that the voluntariness of Ms. Walker's action was a jury question. This Court concluded that when Ms. Walker walked across the parking lot with knowledge that the lot was covered with ice and snow, she assumed the risk of her injuries, as a matter of law, under the circumstances. Further, in an assumption of the risk analysis, the defendant's or a third party's negligence is irrelevant.
The voluntariness of conduct in an assumption of risk analysis is measured by an objective standard. Ms. Walker's testimony indicated she was aware of the icy conditions and clearly appreciated the danger of walking on the ice. Further, Ms. Walker's motivation to walk across the ice would be considered involuntary only if she lacked the free will to avoid the situation. The fact that no other reasonable alternative path was available does not reduce the free will standard. Ms. Walker's purpose of walking across the ice was to visit her daughter. As soon as she realized the parking lot was covered in ice, she made the free-will choice to continue with her visit, park her car, and walk across the ice. Because the uncontroverted evidence demonstrated that Ms. Walker knowingly and voluntarily walked across the icy parking lot, the Circuit Court correctly granted summary judgment in favor of MSU.
The full opinion is available in PDF.
Wednesday, January 17, 2007
Conyers v. Dept of the Army (Maryland U.S.D.C.)(not approved for publication)
Filed January 16, 2007 –Opinion by Judge J. Frederick Motz (not approved for publication)
In an action arising from an accident in 2002, in which Plaintiff Conyers was severely burned while cooking dinner in the Army housing assigned to his family, the Plaintiff asserted a negligence claim against the United States. The United States moved to dismiss, based on lack of subject matter jurisdiction and failure to state a claim.
The Court noted that the Defendant may have had knowledge of a potentially dangerous condition (the absence of a fire extinguisher) and it was at least arguably foreseeable that the lack of an available fire extinguisher in the apartment would make the consequences of a cooking fire more serious. The Court found lacking, however, any allegation that Defendant retained control over the apartment in which Plaintiff and his wife lived. Thus the Court found no basis under Maryland law for a finding that Defendant owed any duty to Plaintiff to provide him with a fire extinguisher. Having found that Defendant owed no duty to Plaintiff, the Court held that the Plaintiff's claim therefore failed as a matter of law.
In a footnote, the Court thanked the attorney it had appointed, James S. Zavakos, for the highly professional services he rendered to the Plaintiff and to the court. Although the Plaintiff originally instituted this action pro se, the Court appointed Mr. Zavakos to represent the Plaintiff because of the extremely unfortunate nature of the accident, the extent of the injuries the Plaintiff sustained, and the closeness of the legal issues.
The full opinion is available in PDF. The order appears here.
In an action arising from an accident in 2002, in which Plaintiff Conyers was severely burned while cooking dinner in the Army housing assigned to his family, the Plaintiff asserted a negligence claim against the United States. The United States moved to dismiss, based on lack of subject matter jurisdiction and failure to state a claim.
The Court noted that the Defendant may have had knowledge of a potentially dangerous condition (the absence of a fire extinguisher) and it was at least arguably foreseeable that the lack of an available fire extinguisher in the apartment would make the consequences of a cooking fire more serious. The Court found lacking, however, any allegation that Defendant retained control over the apartment in which Plaintiff and his wife lived. Thus the Court found no basis under Maryland law for a finding that Defendant owed any duty to Plaintiff to provide him with a fire extinguisher. Having found that Defendant owed no duty to Plaintiff, the Court held that the Plaintiff's claim therefore failed as a matter of law.
In a footnote, the Court thanked the attorney it had appointed, James S. Zavakos, for the highly professional services he rendered to the Plaintiff and to the court. Although the Plaintiff originally instituted this action pro se, the Court appointed Mr. Zavakos to represent the Plaintiff because of the extremely unfortunate nature of the accident, the extent of the injuries the Plaintiff sustained, and the closeness of the legal issues.
The full opinion is available in PDF. The order appears here.
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