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Bell v. Heitkamp Inc.4/28/1999
that the plaintiff had not proven entitlement to punitive damages. Id. at 250-52. We said:
"It is clear that the actions of appellants amounted to negligence, but, based on the standards set out in the cited cases in the Law of Torts, both supra, we must decide whether that is "an aggravated form of negligence, differing in quality rather than in degree from ordinary lack of care" and is "more than any mere mistake resulting in inexperience, excitement, or confusion . . .; more than mere thoughtlessness or inadvertence, or simple inattention." Law of Torts."
"The quantity of the negligence in this case does not change the quality of that negligence so that it becomes different from ordinary lack of care. We hold that the conduct of appellants in this case, while clearly negligent, was not so extraordinary or outrageous as to raise that conduct to the qualitative level necessary to establish a foundation for the award of punitive damages." Medina, 62 Md. App. at 251-52.
In the case sub judice, the breach of duty on the part of the defendants that was assumed - failure to cover Hole No. 3 and failure to warn of danger - was a far lesser breach than in Medina. After all, here it is undisputed that a four-foot orange fence was placed around the hole. It follows that if the much more egregious breach of duty in Medina was insufficient to prove implied malice, the breach here would not be sufficient to prove actual malice.
D. McClamb, Jr.'s Right to Bring a Wrongful Death Action
Section 3-904(h) of the Courts and Judicial Proceedings Article of the Maryland Code (1998 Repl. Vol.) reads:
"Child of parents who have not participated in a marriage ceremony. - For the purposes of this section, a person born to parents who have not participated in a marriage ceremony with each other is considered to be the child of the mother. The person is considered to be the child of the father only if the father:"
"(1) Has been judicially determined to be the father in a proceeding brought under § 5-1010 of the Family Law Article or § 1-208 of the Estates and Trusts Article; or"
"(2) Prior to the death of the child:"
"(i) Has acknowledged himself, in writing, to be the father;"
"(ii) Has openly and notoriously recognized the person to be his child; or"
"(iii) Has subsequently married the mother and has acknowledged himself, orally or in writing, to be the father."
At the time McClamb, Sr., died, his girlfriend, Sharon Baker, was two months pregnant. Prior to McClamb, Sr.'s death, Sharon Baker told him of her pregnancy, and McClamb, Sr., was delighted by the news. Moreover, he orally acknowledged to Maxine Bell, Curtis Malone, and Sharon Baker that he was to become the father of the baby. He never, however, acknowledged paternity in writing, and he never married Ms. Baker.
The parties are at odds over one narrow issue, viz: whether McClamb, Sr., ever "open and notoriously recognized the person [McClamb, Jr.] to be his child" (emphasis added) within the meaning of section 3-904(h)(2)(ii). Appellees contended that he had not. The defendants'/appellees' arguments can be summed up as follows:
1. The Supreme Court has recognized that a fetus is not a "person" within the meaning of the Fourteenth Amendment. Roe v. Wade, 410 U.S. 113, 158 (1973); Kandel v. White, 339 Md. 432, 442 (1995);
2. In the wrongful death statute, the word "person" is defined as "includ an individual, receiver, trustee, guardian, executor, administrator, fiduciary, or representative of any kind, or any partnership, firm, association, public or private corporation, or
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