JOAN SILVER, * IN THE

Plaintiff * CIRCUIT COURT

v. * FOR

STANLEY FINE, * BALTIMORE COUNTY

Defendant. * CASE NO. 2015.161

* * * * * * * * * * * * *

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

NOW COMES Defendant, Stanley Fine, by and through his counsel, Nathaniel A.

Baker, Esquire, and files this Memorandum in Support of Defendant’s Motion for

Summary Judgment and in support thereof states as follows:

INTRODUCTION

On June 4, 2014, Plaintiff was injured while under the care of Defendant, a

Baltimore County volunteer. Upon consideration of Plaintiff’s Complaint and Motion to

Entertain Suit, as well as Defendant’s Answer, the Honorable Cameron Wells directed

the parties to submit memoranda addressing the issues of notice and good cause pursuant

to the Local Government Tort Claims Act (“LGTCA”). Md. Code Ann. Cts. & Jud. Pro. '

5-304 et seq. The following facts were elicited from the pleadings and exhibits attached

thereto.

STATEMENT OF FACTS

Plaintiff, Joan Silver, is employed as a paralegal for the Baltimore County Office

of Law. Plaintiff’s comp. ¶1. This was the position she held at the time of the alleged

incident. Id.

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On May 28, 2014, at the County Health Fair, plaintiff sought the assistance of the

defendant, Stanley Fine, an expert in smoking cessation, to help her quit smoking through

the use of hypnotherapy. Plaintiff’s comp. ¶12.

The following month, plaintiff attended her first hypnotherapy session at the

office of Mr. Fine. Plaintiff’s comp. ¶13. Despite the fact that she was a lifelong smoker,

even going so far as to describe herself as a “chimney.” Defendant’s Ex. B; and, ignoring

the potential heat of a summer day in Maryland, Plaintiff chose to walk ten blocks and

climb three flights of stairs before entering Mr. Fine’s office. Plaintiff’s comp. ¶14.

Plaintiff did not rest once she reached Mr. Fine’s office; instead, she entered the

examination room under Mr. Fine’s guidance. Id. Mr. Fine provided Plaintiff a copy of

the County’s policy on hypnosis that included a release of liability; which she proceeded

to sign without comment or question. Plaintiff’s comp. ¶16. Mr. Fine then placed Plaintiff

in a hypnotic state. Plaintiff’s comp. ¶18. At some point after entering the hypnotic state

Plaintiff slipped from the table and came into contact with the wall, resulting in injuries

to her back and left arm. Plaintiff’s comp. ¶19.

Some months later, on November 30, 2014, Plaintiff sent an e-mail to Kevin

Kamenetz, the County Executive for Baltimore County. Silver Aff. ¶4. Prior to her

employment in the County’s Office of Law, Plaintiff was employed as an assistant in the

office of the Baltimore County Executive. Silver Aff. ¶1. In the e-mail to her former

employer, Plaintiff provided a bare sketch of the circumstances surrounding her incident.

Defendant’s Ex. B. The language used in the e-mail was informal and familiar; conjuring

thoughts of an exchange between friends rather than a notification of impending legal

action. Id. Plaintiff referred to the County Executive as “Kev” and used emoticon “smiley

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faces.” Id. In ambiguous and uncertain terms Plaintiff hinted at the fact that she was

considering filing suit against the county; Plaintiff said in her message “I may have to

sue, Kev”, “I may not have any other choice”, and “I figured I might as well tell you.” Id.

Mr. Kamenetz forwarded Plaintiff’s e-mail, without comment, to the County Attorney

Michael Field. Kamenetz Aff. ¶5. Mr. Kamenetz, also using familiar terms and

emoticons, replied to Plaintiff, thanking her for the e-mail. Kamenetz Aff. ¶6. At no point

did Plaintiff send via certified mail or deliver, in person, notice of her suit to the county

attorney. MD CODE ANN., CTS & JUD. PROC. § 5-304 WEST 2014.

ARGUMENT

Summary judgment is properly granted when “the pleadings, the discovery and

disclosure materials on file, and any affidavits show that there is no genuine issue as to

any material fact and that the movant is entitled to judgment as a matter of law.” see

Meson v. GATX Tech. Servs. Corp., 507 F.3d 803, 806 (4th Cir. 2007) The party moving

for summary judgment bears the burden of demonstrating that no genuine dispute exists

as to material facts. Pulliam Inv. Co. v. Cameo Props., 810 F.2d 1282, 1286 (4th Cir.

1987).

The LGTCA provides that “an action for unliquidated damages may not be

brought against a local government or its employees unless the notice of the claim

required by this section is given within 180 days after the injury.” Md. Code Ann. Cts. &

Jud. Pro. ' 5-304(b). In order for Plaintiff’s claim to proceed she must demonstrate that

she has substantially complied with the notice requirement of the LGTCA or that her

failure to do so may be waived for good cause shown.

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I. Substantial Compliance

It is clear from the language of the statute that the plaintiff did not provide actual

notice. Id. If actual notice is not provided, the plaintiff must have “substantially complied

with the notice requirement.” Id. The elements necessary to satisfy the substantial

compliance requirement have been enumerated as follows

(1) [T]he plaintiff makes "some effort to provide the requisite notice"; (2) the plaintiff does "in fact" give some kind of notice; (3) the notice "provides . . . requisite and timely notice of facts and circumstances giving rise to the claim"; and (4) the notice fulfills the LGTCA notice requirement's purpose, which is to apprise [the] local government of its possible liability at a time when [the local government] 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 [the local government's] responsibility[.]

Hous. Auth. of Balt. City v. Woodland, 92 A.3d 379 at 428 (Md. 2013) (quoting Ellis v.

Hous. Auth. of Balt. City, 82 A.3d at 167 (Md. 2013)).

Plaintiff appears to have satisfied the first element provided in Woodland. There

was some effort to provide notice. There ends plaintiff’s substantial compliance with the

statute. There was no notice “in fact” that plaintiff would bring legal action as a result of

her injuries. Mere threats are not sufficient to put an authority on notice regarding

potential litigation. Ellis at 169. Plaintiff did not use clear and direct language to indicate

her allegations that a county employee had injured her, and that she would be bringing

legal action as a result. Because plaintiff merely hinted at the threat of a lawsuit, and did

not explicitly state in her e-mail that she would be bringing legal action against the

county there can be no finding of notice “in fact”.

There must be “requisite and timely notice of the facts and circumstances” in

order to provide the county sufficient time to perform their own investigation of the

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events which caused the alleged injuries. Woodland at 428. This element exists in order

to allow the government to question witnesses and review the facts while they are still

fresh in the minds of those involved. E.g., Mayor and City Council of Baltimore v.

Stokes, 94 A.3d 159 (Md. Ct. Spec. App. 2014). In the instant action there was no such

opportunity because the notice was not properly provided. The lack of time to perform

such an investigation can create prejudice. Id.

Courts have allowed actions to proceed when the notice was given to a third

party; this has only been done when that third party had a sufficiently close relationship

with the government authority that notice to the third party constituted notice to both.

E.g., Moore v. Norouzi, 807 A.2d 632 (Md. 2000) (notice to a county’s claims

administrator constituted substantial compliance with the LGTCA, as notice to the claims

administrator provided the county with time to perform their own investigation).

Kamenetz’s role is County Executive, he has not held himself out to be a claims

administrator. His role as Executive does not constitute a relationship sufficiently close

with the county’s Office of Law so as to construe that notice to him, if it had been

provided, would have acted as notice to the proper authority.

As the county’s Executive he had relationships with many components of the

county’s government; it cannot be concluded that a letter to him from a constituent

complaining about the tall grass at a local park would be seen as that same constituent

notifying someone in the county’s Department of Parks and Recreation of the same. As

the Executive, he is too far removed from the day-to-day operations of the many

departments within the government to attach to him a sufficiently close relationship with

any one department.

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II. Good Cause

In the absence of substantial compliance an action can still be allowed to proceed,

provided the plaintiff has shown good cause for their failure to comply with the statute.

The test for good cause has been explained as “whether the claimant prosecuted his claim

with that degree of diligence that an ordinarily prudent person would have exercised

under the same or similar circumstances.” Rios v. Montgomery County, 872 A.2d 1 (Md.

2005). Good cause exists if one of the following requirements can be met:

[1] excusable neglect or mistake (generally determined in reference to a reasonably prudent person standard), [2] serious physical or mental injury and/or location out-of-state, [3] the inability to retain counsel in cases involving complex litigation, ... [4] ignorance of the statutory notice requirement[,] or (5) misleading representations made by representative of the local government.

Stokes at 168 (quoting Wilbon v. Hunsicker, 913 A.2d 678 (2006)).

The first three elements provided in Rios can be discarded immediately. The

mistake made is not one that a reasonably prudent person would make. It is reasonable to

presume that potential defendants to litigation would need to be notified properly and

promptly in order to conduct their own investigation into the events surrounding the

allegation. Second, although plaintiff was injured, it was not so severely as to prevent her

from communicating. She obtained dictation software and was able to send an e-mail, she

was also able to speak on the phone with Ms. Freedman. Thus, it appears, plaintiff’s

injuries were not so severe as to prevent her from communicating with someone who

could have advised her of the notice requirement. Finally, there was nothing preventing

plaintiff from obtaining legal counsel. Counsel was in fact retained, albeit after the

running of the 180 day statute of limitations provided by the LGTCA.

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The next element provided by the Rios court is a showing of ignorance of the

statutory notice requirement. In that particular case the plaintiff was shown to have good

cause for failing to provide notice in that her limited proficiency with the English

language prevented her from understanding the requirements of the LGTCA, or even that

the physician she had seen was a county employee working at a county clinic. See

generally, Rios. Plaintiff has professed her own ignorance of the notice requirement of

the statute. Silver Aff. ¶5. If there were no subsequent cases regarding ignorance of the

statute then plaintiff will have satisfied her burden merely by professing her ignorance of

the statute. This however, is not the case. Subsequent to the decision in Rios, in response

to arguments for ignorance as good cause for noncompliance, it was held “if that gets to

be the defense . . . the statute is gone.” Mitchell v. Hous. Auth. of Balt. City, 26 A.3d 1012

at 1032 (Md. Ct. Spec. App. 2009). This is the standard that should be applied, mere

ignorance of the law is no excuse for its violation.

Finally, plaintiff may be granted good cause if she can show that a representative

of the local government misled her. The record shows that an employee of the county

government, her friend Peggy Freedman, encouraged the plaintiff to notify Kamenetz of

the injury. Freedman Aff. ¶5. The issue at bar is whether Freedman was acting in her

official capacity as a representative of the government, or if she was merely having a

conversation with a friend and colleague. Official capacity has been held to exist “only to

the extent that . . . actions implement government law, policy, or custom.” Ashton v.

Brown, 660 A.2d 447 at 468 (Md. 1995). As Freedman’s advice to plaintiff does not fall

within the situations described above, it can be presumed that she was having a

conversation with a friend, rather than acting as a government official when she

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encouraged plaintiff to contact Kamenetz. At no other time did plaintiff contact anybody

in the county’s government who would have been able to advise her of the notice

requirement of the LGTCA.

CONCLUSION

Plaintiff has not substantially complied with the LGTCA in that she has not

provided actual notice under the guidelines of the LGTCA; nor did she substantially

comply with its requirements. Alternatively, the court should not excuse Plaintiff’s

failure to comply as she has failed to demonstrate good cause for her failure to; so given

the fact that she has failed to show: that a reasonably prudent person could have made the

same mistake, that she was so seriously injured as to prevent compliance, that she was

unable to obtain counsel, ignorance of the statute as a substantially good cause, or that

she was misled by a government official.

Respectfully submitted, __________________________________ Nathaniel A. Baker 1401 N. Charles Street Baltimore, Maryland 21201 (410) 123-4567 Counsel for Defendant Fine