Fopma v. Board of County Commissioners

Marbury, J., delivered the opinion of the Court. On March 28, 1966, O. Carl Fopma, individually and as father and next friend of Jeifery Fopma, infant, filed suit in the Circuit Court for Prince George’s County to recover for personal injuries sustained by Jeifery and medical expenses incurred by Mr. Fopma. The declaration alleged that the infant’s injuries arose as a result of the negligence of the appellee Board of County Commissioners for Prince George’s County, Maryland (Board). After testimony was presented, a jury returned a verdict in favor of O. Carl Fopma for $2,205.15, and in favor of Fopma, as father and next friend of Jeifery, for $5,000.

Upon a timely motion filed by the appellee Board, the trial judge granted its motion for judgment n.o.v. From the judgment entered as the result of that action Fopma has noted this appeal. On July 12, 1965, Jeffery Fopma, then seven years old, resided with his family on Wilhelm Drive in Lanham, Maryland. Directly to the rear of the Fopma house, there was a large, open drainage ditch running parallel to Wilhelm Drive and crossing beneath Nashville Road, a street that intersects Wilhelm Drive at right angles. Behind the houses on each side of the drainage ditch, the developer of the subdivision had erected a tall, wooden fence.

At a distance of from three to four feet from the sidewalk on Nashville Road the Board had erected next to the drainage ditch a chain link fence forty-two inches high and fifty feet in length. In the area enclosed by the chain link fence there was some grass and a concrete covering over a drainage pipe which was six feet in diameter. An opening of 5.3 feet existed between each end of the chain link fence and the edge of the wooden fence. On the day of the accident Jeffery and another youth ²³⁴ were riding their bicycles through one five foot opening in the fence, across the pipe that was covered with concrete, and through the other five foot opening, concluding the trip on the sidewalk.

On several occasions Jeffery had been told by his parents not to play in that area because they considered it to be dangerous. During the course of the ride, either Jeffery or his bicycle slipped and the boy