Board of County Commissioners v. Dorman

⁴⁴⁵ SALMON, J. This case concerns a very serious motorcycle accident that occurred on a narrow country road located in Cecil County, Maryland, about one-tenth of a mile west of the intersection of Nottingham Road and Pulaski Highway (Rt.40). In the vicinity of the accident scene, Nottingham Road is straight and flat. The west bound lane of Nottingham Road is nine-feet, seven-inches wide and the east bound lane is eight-feet, seven-inches wide. Nottingham Road has grassy strips on both sides of the roadway.

A line of utility poles, all set close to the roadway, are in the grassy strips on both sides. In addition, a short distance down the road from the place where the accident occurred, on the right side of the roadway for westbound motorists, trees and bushes border the strip. On the afternoon of June 3, 2002, Staff Sergeant Karl W. Dorman, a member of the Maryland National Guard, was off duty and riding his motorcycle. He left Pulaski Hwy. and turned (west bound) onto Nottingham Road.

The Sergeant was familiar with the roadway because he had lived in the area most of his life. Sergeant Dorman slowed his motorcycle to 30 miles per hour and saw a Toyota pickup proceeding in the opposite direction (east bound) on Nottingham Road. The pickup had its left turn signal on and was driven by Bernice P. Hollifield. Ms. Hollifield then abruptly turned her pickup directly into the path of Sergeant Dorman’s motorcycle.

She made the left turn in an attempt to enter the driveway to Steeles Motel, which was located to Sergeant Dorman’s immediate right. Ms. Hollifield’s left turn maneuver caused her vehicle to strike the left side of the motorcycle, which re-directed the cycle and its passenger to the right and into a utility pole located in the grassy strip. As a result of the collision with the pole, a portion of Sergeant Dorman’s right leg was amputated. On August 2, 2002, about two-months post-accident, Sergeant Dorman hired an attorney to represent him.

An investigation revealed that the utility pole that Sergeant Dorman’s ⁴⁴⁶ motorcycle struck was 27-29 inches 1 from the paved (westbound) portion of Nottingham Road. In April 2003, about ten months post-accident, Sergeant Dorman’s attorney retained Fred Hanson, a highway safety engineer, to provide an opinion as to the potential liability of certain utility companies for locating and maintaining the utility pole in close proximity to the roadway. The safety engineer suggested to plaintiffs counsel, shortly after he was hired, that the utility companies might have been required to obtain permits to locate the poles along Nottingham Road and suggested that counsel contact various state and county highway departments for further information. On April 21, 2003, an agent of plaintiffs counsel sent out freedom of information requests to various state and county agencies to determine, inter alia, whether Nottingham Road was a state or county road and also to ascertain the width of the right-of-way adjacent to the road and whether any permitting procedures were in effect concerning the location of the utility poles.

On May 21, 2003, even though counsel did not know at that point whether the pole was located in Cecil County’s right-of-way, 2 Sergeant Dorman’s attorney sent Cecil County a notice of a possible future claim against it for the subject accident. Sergeant Dorman, on May 10, 2005, filed a complaint in the Circuit Court for Cecil County, in which he sought damages for injuries suffered in the June 3, 2002 accident. He named as defendants, among others, the Board of County Commissioners for Cecil County (hereafter “the County”) and Bernice Hollifield. Contemporaneously with the filing of his complaint, Sergeant Dorman filed a motion to waive the require ⁴⁴⁷ ment set forth in Maryland Code (1974), section 5-804, of the Courts and Judicial Proceedings Article (“C.J.”), that a person intending to sue a local government for unliquidated damages must give that local government notice of intent to sue within 180 days of the accident.

The grounds for the motion was that “prior to his engagement of a highway safety engineer in April 2003, ten (10) months after the accident, [pjlaintiff had no inkling that Cecil County might bear responsibility for the location of the subject utility pole.” Sergeant Dorman filed an amended complaint on May 17, 2005, in which he named as defendants, among others, Verizon Maryland, Inc. (“Verizon”) and Delmarva Power and Light Company. The complaint alleged that Verizon owned the utility pole that was struck by Sergeant Dorman and that Delmarva Power and Light “owned, leased, or used” that pole. According to the amended complaint, the utility companies breached their duty to the plaintiff because they, or their corporate predecessors, 1) “were responsible for locating and/or installing and/or maintaining” in its present location “the ... utility pole [that the plaintiff struck]” and 2) they breached their duty to plaintiff “not to locate, install or continue to locate and maintain its/their utility pole in such close proximity to the paved portion of Nottingham Road.” The County filed a motion to dismiss the complaint due to the plaintiffs failure to provide it with written notice of intent to sue within 180 days of the subject accident as required by Cts. & Jud. Proc, Section 5-304.

A hearing was held concerning the competing motions relating to the notice statute. At the conclusion of the hearing, the court ruled that Sergeant Dorman had shown “good cause” for failing to give the County notice of intent to sue within 180 days of the accident. The motions judge also found that the County had failed to show any prejudice occasioned by the late notice. A written order denying the County’s motion was entered on August 10, 2005.

Verizon and Delaware Power and Light each filed motions for summary judgment, which Sergeant Dorman opposed. A hearing on the motions was held on June 4, 2007. The ⁴⁴⁸ motions judge ruled in favor of the utility companies and in doing so relied on Coates v. Southern Maryland Eleetnc Coop., 354 Md. 499 , 731 A.2d 931 (1999). 3 In granting summary judgment in favor of the utility companies, the judge said, in relevant part: As the [Coates ] Court held in its holding number 4, utilities are under no tort duty to make any massive engineering inspection of all of their poles now existing along streets and roads of the state. They may reasonably assume that the poles that have remained standing for any significant length of time without serious incident, do not incommode or unreasonably imperil traffic on the road. * * * The Coates case[ ] further stated, absent significant changes to the road or the site, experience may be the best guide for attempts to amalgamate any of the other factors.

If a pole has existed at a relatively unchanged site for any significant length of time without serious problem, there may be little reason to anticipate a future collision, for it suggests that motorists are able to navigate that part of the road without incident. And what I am getting to, of course, is the duty on the owners of the pole to motorists and specifically in this case to the Plaintiff. In the instant action, there is not evidence to dispute that the pole has remained in its current location for at least 40 years without any incident reported to or by the police, Delmarva, Verizon or the nearest landowner. Moreover, assuming that Delmarva and/or Verizon even own the pole, they were entitled to reasonably assume that a pole that had remained standing for over 40 years without serious incident does not incommode or unreasonably imperil traffic on the road.

There is no issue of fact as to whether the pole incommodes or unreasonably imperils ⁴⁴⁹ traffic on the road because it does not. Therefore, Delmarva or Verizon and perhaps the County Commissioners owed no duty to the Plaintiff and Summary Judgement as Delmarva and Verizon is hereby granted and I will sign an order to that effect. Sergeant Dorman, on June 27, 2007, entered into a settlement with Ms. Hollifield’s insurer in which her insurer paid the plaintiff $750,000.00. As part of the settlement, the parties executed a joint tortfeasor’s release. 4 This left the County as the sole remaining defendant.

Trial commenced on August 20, 2007, and ended eight days later. The County moved for judgment in its favor as to liability at the end of the plaintiffs case and, once again, when the evidentiary phase of the case had concluded. The County’s motions for judgment were denied. The jury awarded Sergeant Dorman slightly more than 3.2 million dollars in damages.

The verdict was enrolled on August 30, 2007. The County filed a motion to remit the judgment to $200,000.00 pursuant to Md.Code Ann., Cts. & Jud Proc. Art., § 5-303(a) (“... the liability of a local government may not exceed $200,000.00 for an individual claim ...” if the suit is for unliquidated damages). The Circuit Court, without a hearing, granted the County’s motion and remitted the judgment to $200,000.00.

The County then filed a motion for satisfaction of judgment based upon the words of the release signed by Sergeant Dorman and Ms. Hollifield and the Uniform Contribution Among Tortfeasors Act. The County asserted that an application of a credit in the amount of Ms. Hollifield’s pro rata share (50% of $3.2 million ⁴⁵⁰ or $1.6 million) was required; and, because $1.6 million exceeded the $200,000.00 judgment against it, the judgment should be reduced to zero. Sergeant Dorman opposed the motion, arguing that the court should apply the 50% credit first, thereby reducing the judgment to $1.6 million, and next reduce that judgment to $200,000.00 as required by section 5-303(a) of the Courts and Judicial Proceedings Article. The motions judge agreed with Sergeant Dorman and a final judgment in the amount of $200,000.00 was entered.

The County filed a timely appeal in which it raises numerous issues. 5 One of those issues is whether the trial judge erred when it denied the County’s motion for judgment based on the County’s contention that it did not owe Sergeant Dorman a duty to remove (or require others to remove) the utility pole. We agree with the County as to that point and shall hold that the trial court erred in denying the County’s motion for judgment made at the end of the evidentiary phase of the case. It is therefore unnecessary to decide the other issues raised by the County. 6 L The date that Nottingham Road was built was not shown in the record. The record does indicate, however, that Notting ⁴⁵¹ ham Road was neither designed nor built by the County.

The pole that Sergeant Dorman struck was initially erected by a utility company in 1955. The pole was replaced in 1961. The history of Nottingham Road was summarized by David Hollenbaugh, Deputy Director of Public Works for Cecil County, in a letter to Sergeant Dorman’s attorney dated October 20, 2003. That letter was admitted into evidence at trial as plaintiff’s exhibit 22 and reads, in relevant part, as follow's: Prior to the 1970’s, the county Road System was maintained by the State Road Commission.

Since then, the County Road System has been maintained by the Cecil County Department of Public Works. Much of the County Road System consists of various roads that have historically been maintained by the State and subsequently the County as a result of historic use by citizens of the County. However, many of these roads were never formally planned or dedicated. Apparently, Nottingham Road is one of these roads.

As a result, the County maintains its right of way based upon the historic width of the maintained right of ways as has been maintained over the last 20-30 years. Generally, whenever the County attempts to do any work along any such road, the county makes every effort to limit its disturbance to the historically maintained right of way. The right-of-way adjoining Nottingham Road, in which the utility pole in question was located, was once owned by the State of Maryland. That right-of-way, or easement, is shown on a State Roads plat that was admitted into evidence.

As shown on the plat, the right-of-way is quite narrow, but its exact width, at least to the eyes of the members of this Court, cannot be precisely determined. Fred Hamscon, the highway safety engineer retained by the plaintiff, testified in regard to his understanding as to the width of the County’s right-of-way, as follows: My understanding is that the county owns some distance, maybe—maybe only half a foot or so beyond the location of the pole, I think. I’m not sure. I don’t recall the exact location of the pole within the county right-of-way. ⁴⁵² There was no evidence that either Nottingham Roád or the State’s easement next to the road was ever formally deeded or otherwise assigned to Cecil County.

Presumably at least, the County acquired the State’s right to the easement by prescription, i.e., by using it for more than twenty years subsequent to the date in “the 1970’s”, when the County took over maintenance of that roadway. Wendell Cover, Sergeant Dorman’s accident reconstruction expert, who commenced his investigation of the subject accident about two and one-half years after it occurred, testified that he observed “some chunks” out of the pole-not related to the subject aceident-that indicated “prior contact” with the pole. He also observed other areas of damage to the pole that were the result of the collision of Sergeant Dorman’s motorcycle and leg with the pole. Sergeant Dorman’s accident reconstructionist also testified that had the subject pole been set back four feet or more from the edge of the paved portion of the roadway, Sergeant Dorman’s leg would not have struck the pole and instead his body would have come to rest in a nearby grassy yard.

He further opined that if Sergeant Dorman had not struck the utility pole he would not have lost a part of his leg. There was no evidence presented that either the County or the utilities that maintain the pole, were ever notified that any motorist had ever struck the pole prior to the subject accident. During the course of Sergeant Dorman’s lawsuit, one of appellee’s theories as to why the County should be held liable was that the County was responsible for the negligent construction and design of Nottingham Road. In regard to the negligent construction and/or design theory, Mr. Hamscon gave extensive testimony, in which he made the following points: ♦ The 1973 Cecil County Road Code provided for minimum lane widths of ten feet and five feet shoulders. ♦ The American Association of State Highway Transportation Officials (hereinafter AASHTO) publishes guide ⁴⁵³ lines for highway safety and design, as well as guides for accommodating utilities on highway right-of-ways; ♦ Nottingham Road did not meet those guidelines in various ways, namely a) the 1940 AASHTO policy on highway classification specified a minimum pavement width of twenty-eight feet for single lane roadways and provided for a minimum four feet shoulder; b) the 1954 policy specified a shoulder 4-8 feet in width for low volume two lane highways; c) the 1965 AASHTO policy provided for minimum cross-section pavement widths of 26-36 feet allowing for 4 feet minimum shoulder widths; d) roads, such as Nottingham Road, were to have twenty feet minimum roadway, plus 4-6 feet useable shoulder; e) the 1965 AASHTO policy guides also provided that overhead poles should be located clear of shoulders preferably 15 feet or more from the edge of the pavement; f) the 1989 AASHTO publication recognized that motorists leave the roadway due to a variety of causes and therefore specified a “clear zone,” which should be kept clear of fixed object hazards, for a distance of 7-10 feet for roads such as Nottingham Road.

Mr. Hamscon admitted at trial, however, that the policies just mentioned apply to new highway construction. There is no requirement in AASHTO that the County retrofit or redesign roadways. In his brief, filed in this Court, Sergeant Dorman concedes that the County was not under an obligation to redesign or reconstruct Nottingham Road; instead appellee maintains that the County had thirty-three years to contact the utilities and ask them to remove or relocate the pole. That theory was based on the proposition that because AASHTO publications, which dealt with the best practices for new construction, gave the County at least constructive knowledge that the placement of the utility pole in question was dangerous. 7 ⁴⁵⁴ II.

In the case at hand, there was testimony elicited from ■ plaintiffs expert, Mr. Hamscon, which, if credited, would have established a duty that the County owed to motorists, such as Sergeant Dorman. Mr. Hamscon testified: [Tjhere is no requirement [in AASHTO that old roadways be made wider or that shoulders be widened to eliminate hazards]. AASHTO is very clear in some of its standards of care, they say this is not a mandate to initiate a building program. That is clear.

What in this case clearly should have been done was to take an initiative to get that telephone pole off of the shoulder, which would have involved contacting the utility, advising the utility of the hazard, and maybe ■ informing them forcibly if necessary this is our property, Nottingham Road is property of Cecil County as of the 70’s, get your pole off of here. But whether a duty exists is not legitimately established by calling an expert witness to the stand, no mater how qualified that expert might be. The existence, vel non, of a duty is a legal issue to be determined by the court after “weighing the various policy considerations and reaching a conclusion that the plaintiffs interests are, or are not, entitled to legal protection against the conduct of the defendant.” Coates, supra, 354 Md. at 509 , 731 A.2d 931 , (quoting Rosenblatt v. Exxon, 335 Md. 58, 77 , 642 A.2d 180 (1994)). In establishing whether a duty exists, courts first apply a “ ‘foreseeability of harm’ test, which is based upon the recognition that duty must be limited to avoid liability for unreasonably remote consequences.” Id.

(quoting Rosenblatt, supra, 335 Md. at 77 , 642 A.2d 180 ). Foreseeability, however, is not the ⁴⁵⁵ only test to be utilized in determining the existence of a duty. “There is also the mix of public policy considerations” that must be weighed before imposing a duty upon the defendant. Coates, 354 Md. at 523 , 731 A.2d 931 . A local government is charged with the duty of keeping its roads in good repair and in a condition reasonably safe for travel and use by the public and may be held liable for injuries caused by a defect in the road resulting from its negligence.

County Commissioners of Carroll County v. Staubitz, 231 Md. 309, 314 , 190 A.2d 79 (1963). See Smith v. Baltimore, 156 Md.App. 377, 383 , 846 A.2d 1121 (2004). (A local government generally owes a duty to persons lawfully using sidewalks or other public ways. The duty is to make those ways reasonably safe for passage.); See also, Pierce v. Baltimore, 220 Md. 286, 288, 290-92 , 151 A.2d 915 (1959) (The City of Baltimore breached a duty owed to the plaintiff to remove obstacles when the plaintiff, who was walking at night where pedestrians would be expected to walk, tripped over a plate raised seven or eight inches over a drain covering and fell into a strip of land owned by Baltimore City).

Under some circumstances, the local government’s duty to keep its highways safe and to remedy any dangers extends to dangers on private property adjacent to the traveled way. See, e.g., Havre de Grace v. Fletcher, 112 Md. 562, 570 , 77 A. 114 (1910). In the Fletcher case, the plaintiff was using a public street maintained by the city of Havre de Grace. Id. at 565 , 77 A. 114 .

The plaintiff was injured when an eight foot high stack of beer kegs fell on her. Id. at 566 , 77 A. 114 . According to the plaintiff, the city of Hagerstown had permitted the owners of the kegs to stack them near the sidewalk “in such a manner as to be dangerous to persons passing along and upon said street” and failed to require the owners of the beer kegs to remove them. Id. at 566-67 , 77 A. 114 .

The Fletcher Court held that the “duty neglected by the defendant in this case was a duty to the plaintiff in respect to the right which as a member of the public she enjoyed in the free and safe use of the public street, and the special and ⁴⁵⁶ peculiar damages she had suffered by the breach of the duty by the defendant,” which entitled plaintiff to bring a cause of action against the city of Havre de Grace. Id. at 570 , 77 A. 114 . Fletcher , however, is distinguishable from the case at hand because Sergeant Dorman was not injured on the roadway and,- unlike the beer kegs, the utility pole posed no hazards to motorists lawfully on Nottingham Road. Appellee, although acknowledging ■ that it “perhaps ... appears at first glance” that Coates, supra, controls this case, argues that a “reasonable analysis” of the Coates opinion reveals that it does not.

Besides attempting to distinguish Coates , appellee maintains that the duty of a local government to keep its highways safe includes a duty to exercise ordinary care to remedy or cause to be remedied those conditions off the traveled portion of the roadway that “it knows or should know create a danger” to highway use. Dorman cites three cases in support of his position, viz: Keen v. Havre de Grace, 93 Md. 34, 38-39 , 48 A. 444 (1901) (Pedestrian fell into a hole in the sidewalk of which the city of Havre de Grace had prior knowledge); Washington County v. Gaylor, 140 Md. 375, 377 , 117 A. 864 (1922) (Motorist lawfully driving on a highway was injured at a time when the winds were moderate; a large decaying tree limb that extended across the highway fell and injured the motorist; the condition of the limb “had existed some time before the accident” making it a jury issue as to whether the County Commissioners had knowledge of the limb’s condition; and therefore plaintiff had met his burden of proving that the County had breached its duty of keeping the roadways reasonably safe); and Magaha v. Hagerstown, 95 Md. 62, 71-2 , 51 A. 832 (1902) (City liable when a pedestrian fell on an icy city-owned street, even though the ice was caused by the fact that a saloon keeper was allowed to empty water in large quantities into the street). The common thread running through the cases just cited is that the governmental entity is charged with the duty to keep the streets and highways it maintains safe by removing materials or objects on adjoining property that interfere with or endanger travel within the confines of the road or public walkway, and, when ⁴⁵⁷ necessary, to repair the roads or walkways. Neither of those duties were breached in this case.

In his brief, appellee places major reliance on the case of Phelps v. Howard County, 117 Md. 175 , 82 A. 1058 (1912), and a later appeal arising out of the same case, Earp v. Phelps, 120 Md. 282 , 87 A. 806 (1913). The facts in the two Earp appeals were summarized by Judge Wilner, speaking for the Coates majority, as follows: The plaintiff, a passenger on a hay wagon driven by a team of five horses, was injured when the “lazy board” upon which he was seated collided with a telegraph pole. He sued the county—the owner of the road—and the telegraph company, alleging that the pole was located too close to the roadway, such that the collision ensued even though the wagon was entirely on the roadway, and that its placement thus violated the defendants’ duty to keep the public roads in a safe condition for public travel. The first appeal arose from the granting of the defendants’ demurrers, the argument being that the complaint was not sufficiently definite in describing the alleged negligence.

We concluded that the complaint was sufficient, that whether the road was made unsafe by the location of the pole was an issue of fact, to be determined after considering “the dimensions, conformation and established use of the roadway.” Phelps v. Howard Co., 117 Md. at 179 , 82 A. at 1059 . We said, in that regard: There may be conditions under which the erection and maintenance of a telegraph pole as near as the one in question to the traveled portion of a highway would not be regarded as an unreasonable interference with the rights of the public. But it could not be held, as a matter of law, that such an object could under all circumstances be so located with impunity. Id.

On remand, trial was held, resulting in a judgment for the plaintiff. It was established that the plaintiff was sitting on the “lazy board,” which extended about two-and-a-half feet beyond the hub of the left rear wheel. Immediately on the ⁴⁵⁸ left side of the road was the pole, and immediately on the right side was a tree. The entire roadway between those objects-221/2 feet-was paved, and the evidence showed that the road “was used all the way from the tree to the telegraph pole.” Earp v. Phelps, supra, 120 Md. at 286 , 87 A. at 808 .

In order to pass another wagon, the driver moved to the left, and, with the wheels of the wagon still entirely on the road, the plaintiffs legs collided with the pole. In that second appeal, we took as established that the plaintiff was brought into contact with the pole while the wagon was in the traveled part of the road and while he was riding in a proper and customary manner. The question, then, was whether the pole was “so placed in the highway as to injuriously incommode its use for the purposes of public travel or constitute ‘a source of danger by reason of its close proximity to the travelled [sic] portion of the road.’ ” Id. at 288 , 87 A. at 808 , quoting in part from Phelps v. Howard Co., supra. We answered in the affirmative.

The pole, as located, “was an object against which a vehicle on the travelled [sic] way could readily strike in passing.” Id. The road space available for travel “was considerably less than the usual legal width of 30 feet, and it can not be said to have been so wide as to make the danger of collision with the pole too remote and improbable to be reasonably anticipated by those who were responsible for its location.” Id. at 288-89, 87 A. 806 , 87 A. at 809 . Accordingly, we declined to hold as a matter of law that the pole could be erected and maintained at that location -without liability “for the injury it occasioned to one using the road in a lawful and customary way.” Id. at 289 , 87 A. at 809 . We noted in that regard that, although the issue was essentially one of fact and in the particular case was submitted to and decided by a jury, it cannot “be made the subject of mere conjectural or capricious judgment and should not be submitted to the jury in the absence of proof legitimately tending to support the theory upon which recovery is sought.” Id.

The cnticalfact in Earp, of course, was that the collision and injury ⁴⁵⁹ occurred while the plaintiff and the vehicle ivere lawfully on the traveled portion of the