Appellate Decisions (Continued from page 43)


Government Tort Claims Act, Md. Code (1974, 1995 Repl. Vol., 1997 Cum. Supp.) §§ 5-301 et seq., of the Cts. & Jud. Proc. Art., requires a governmental entity such as Montgomery County to provide a legal defense for alleged tortu- ous acts and omissions of its employees an provides that other than for punitive damages such governmental entity shall be liable for any judgment recovered against its employee for damages result- ing from tortuous acts or omissions committed by its employees within the scope of employment with the local gov- ernment, the act does not subject to being made a party to an action based upon the employees’ tortuous acts.


The Court


compared the governmental entity’s liabil- ity to that of an insurance company on a public liability policy on an automobile. The insurance company is liable for such damages as its assured may inflict, but it may not be sued for its assured’s torts. Thus, the attempt here to sue Montgom- ery County was improper.


Nam, et al. v. Montgomery County, et al., No. 1089, September Term, 1998 filed July 1, 1999. Opinion by Smith, J. (Re- tired, Specially Assigned).


Negligence


Discovery—interrogatories—motion in limine—fifth amendment. In civil, suit arising form fatal automobile accident, trial court did not abuse its discretion in denying motion in limine that sought to bar defendant’s use of his own answers to interrogatories to support his sum- mary judgment motion. At his deposition, defendant had invoked his Fifth Amendment privilege, pending resolution of criminal charges against him arising out of automobile accident. But, defendant was willing to resume the deposition as soon as the criminal case was resolved, which occurred in advance of civil trial date.


Summary judgment—agency—pre- sumption of due care—contributory negligence—assumption of risk. Court erred in granting summary judgment in favor of intoxicated defendant-driver based on agency principles and affirma- tive defenses of assumption of risk and contributory negligence. Although the decedent was a passenger in her own car, which was driven by defendant at decedent’s alleged request, agency prin- ciples did not preclude negligence suit


44


against driver.


It was also jury’s func-


tion to assess credibility of driver, the only surviving eye witness, with respect to his claim that decedent purchased the liquor, knew he was unfit to drive, yet directed him to drive. Under circum- stances present here, presumption of due care in favor of decedent applied, and defense of contributory negligence and assumption of risk did not bar suit as a matter of law.


Facts: On January 17, 1997, nineteen year old Timothy Lee Keefer, appellee, was driving a vehicle owned by his passenger, thirty-seven year old Rebecca Faith. Appelle was traveling at an estimated speed of 65 or 70 mile per hour, well in excess of the posted speed limit of 40 mile per hour. As Keefer approached a curve in the road, he lost control of the vehicle, and the car collided with a utility pole. Rebecca died as a result of the accident. Keefer was taken to nearby hospital for treatment. A blood sample taken from Keefer at the emergency room revealed that his blood alcohol level was .18. No blood alcohol test was performed on the decedent. Suit was instituted against Keefer by


Rebecca’s husband, individually and on behalf of her estate and the couple’s in- fant daughter, and by her former husband on behalf of Rebecca’s son from that mar- riage (the “appellants”). They filed a wrongful death and survival action. Dis- covery was scheduled for completion by May 15, 1998 pursuant to a scheduling order. On July 21, 1997, appellants pro- pounded interrogatories to defendant. At appellee’s deposition on February 16, 1998, appellee invoked his Fifth Amendment privilege because of crimi- nal charges pending against him based on the automobile accident. Appellee advised that, upon the conclusion of the criminal matter, then scheduled for trial in April 1998, he would resume the deposition. In April 1998, Keefer pled guilty to ho- micide by motor vehicle while intoxicated. Thereafter, in a letter dated May 19, 1998, appelle’s counsel reiterated to appellants’ counsel that Keefer was available for depo- sition. Appellants’ counsel declined to resume the deposition, however. On May 19, 1998, ten months after


the interrogatory answers were due, and four day after the discovery deadline set forth in the scheduling order, appelle filed his answers to interrogatories. In the an- swers, Keefer claimed that, around 9:00 p.m. on the evening of the accident, he and Rebecca drove to a liquor store, where Rebecca, despite knowing that Keefer was under the legal drinking age, purchased a pint and a half of whiskey and a pack of beer.


The pair consumed the whiskey Trial Reporter


and beer and then returned to the liquor store, where Rebecca purchased another pint of whiskey that they also consumed. Thereafter, they drove to a bar and con- tinued to drink until 1:00 a.m. Keefer further alleged that, despite knowing that appelle was intoxicated, Rebecca insisted that he drive her back to the house where she was staying. Replying on his answers to interroga-


tories, Keefer moved for summary judgment. In response, appellants filed a motion in limine and asserted that, by invoking his Fifth Amendment privilege at his deposition, Keefer was barred from testifying about the collision in any fu- ture proceeding or from utilizing his interrogatory answers.


In addition, ap-


pellants filed an opposition to summary judgment, in which they reiterated their objection to Keefer’s reliance on his an- swers to interrogatories. They also urged the court not to consider the answers, because they were not filed within the time provided by the scheduling order or within the time provided by Md. Rule 2- 421. Following a hearing, the Circuit Court


for Washington County denied appel- lants’ motion in limine and granted summary judgment in favor of appellee, based upon principles of agency, contribu- tory negligence, and assumption of risk.


Held: Denial of motion in limine af- firmed; summary judgment in favor of appellee reversed, and case remanded to the circuit court for further proceedings. In upholding the circuit court’s denial of the motion in limine, the Court of Spe- cial Appeals noted that appellee did not invoke his constitutional privilege to ham- per discovery or to conceal evidence. Rather, he sought a relatively brief delay in discovery until the resolution of his pending criminal charges. The Court also noted that Keefer repeatedly offered to resume the deposition upon resolution of the criminal matter and in advance of the civil trial. The court also observed the appealants neither moved for sanction nor to compel discovery under Md. Rule 2- 432 (a) or (b), and did not take any steps to obtain the answers to interrogatories. Further, appellants did not assert that, during the period when appelle relied on his Fifth Amendment privilege, important evidence or discovery opportunities were. Thus, the court concluded that the lower court neither erred nor abused its discre- tion by declining to bar appellee’s use of the answers to interrogatories. With regard to summary judgment, the Court held that the trial court erred. Assuming, arguendo, that Keefer pre- sented legally sufficient evidence of an agency relationship based on his claim that


Winter 2000


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