Lowman v. Consolidated Rail Corp.

BLOOM, Judge. In an action brought by appellants, Oliver F. Lowman Jr. and his wife, Margaret, against Cornelius Sheppard and appellee, Consolidated Rail Corporation (Conrail), the Circuit Court for Baltimore County (Hennegan, J.) granted Conrail’s motion for summary judgment and subsequently, without affording the Lowmans a further hearing as they requested, denied their motion for reconsideration and directed the entry of a final judgment in favor of Conrail pursuant to Md. Rule 2-602(b). In this appeal, Mr. and Mrs. Lowman assert that the court erred not only in granting the summary judgment but also in refusing their request for hearing on their motion for reconsideration and Conrail’s request for entry of final judgment. We find no error in either ruling and, therefore, we will affirm the judgment.

BACKGROUND Appellant Oliver F. Lowman Jr. was employed by Conrail. Conrail employees work in various locations, known as ⁶⁸ “duty stations,” and require transportation from one duty station to another. At the time of the occurrence that gave rise to this case, Conrail had a contract with Lowery Associates, Inc., under which Lowery undertook to transport Conrail employees to their various duty stations, using passenger vehicles. On October 11, 1979, Mr. Lowman was riding in the front passenger seat of a van owned by Lowery Associates, being transported from one duty station to another.

The driver of the van, Robert Dunham, stopped the vehicle in the left lane of Pulaski Highway in order to make a left turn onto Kresson Street. While the van was stopped, it was hit in the rear by a car driven by Cornelius Sheppard, and Mr. Lowman sustained personal injuries. The Lowmans filed suit against Sheppard and Conrail on October 8, 1982. Sheppard was difficult to locate and was not served with process until July 29, 1985.

Mr. Lowman sought damages from Conrail pursuant to the Federal Employer’s Liability Act (FELA; 45 U.S.C. § 51 et seq. (1939)), under the theory that Conrail is engaged in interstate rail commerce and that the van used to transport employees between duty stations constituted a work place under the contemplation of that statute. The complaint alleged that the van was an unsafe workplace, and thus a basis for liability, because the driver was attempting to make an illegal left turn; because the van was not properly equipped with seat belts, interior padding, or head rests; and because the van should have had an additional set of brake lights to warn drivers approaching from behind it. On October 2, 1984, Conrail filed a motion for summary judgment.

Attached to the motion was the affidavit of a traffic engineer, who asserted under oath that left turns at that intersection were legal. Also attached were an affidavit by the operator of the van, who swore that the van was properly equipped, and copies of certain of Mr. Lowman’s answers to interrogatories and portions of his deposition testimony. Appellants responded on October 18, 1984, in- ⁶⁹ eluding in their response other portions of Mr. Lowman’s answers to interrogatories and parts of his deposition. On December 17, 1984, Judge Hennegan heard argument on the motion in his chambers, without a court reporter.

The parties were apparently unaware that the court had even ruled on the motion until they later discovered a docket entry to the effect that the motion had been granted and judgment entered in favor of Conrail on December 17, 1984. On May 3, 1985, Conrail filed a motion for final judgment under Md. Rule 2-602, mislabeled as a motion under Rule 3-602. Appellants filed a response on May 9, 1985, and coupled with it a motion for reconsideration and revision of the order granting summary judgment. Appellants requested a hearing on both motions.

The court granted the motion for final judgment on June 5, 1985. No hearing was held. Summary Judgment It is well settled that the court may, and should, grant a motion for summary judgment when there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law. Md. Rule 2-501; King v. Bankerd, 303 Md. 98, 111 , 492 A.2d 608 (1985); White v. Friel, 210 Md. 274, 285 , 123 A.2d 303 (1956); Frush v. Brooks, 204 Md. 315 , 104 A.2d 624 (1954).

To satisfy the court that summary judgment is proper, the moving party must demonstrate what the material facts are and that there is no genuine dispute as to them. The court is able to make an initial determination of what issues and facts are possibly in dispute by examining the pleadings. The pleadings will also disclose what facts are material. A material fact is one the resolution of which will somehow affect the outcome of the case.

King v. Bankerd, 303 Md. at 111 , 492 A.2d 608 ; Lynx, Incorporated v. Ordnance Products, Inc., 273 Md. 1, 8 , 327 A.2d 502 (1974). To succeed on a motion for summary judgment, ⁷⁰ then, the moving party must, through affidavits or other sworn statements of fact based on personal knowledge, demonstrate that no material fact is actually disputed. If the moving party convinces the court that none of the material facts put at issue by the pleadings is disputed and that on the basis of all the undisputed material facts he is entitled to judgment as a matter of law, judgment should be entered in his favor. King v. Bankerd, 303 Md. at 111 , 492 A.2d 608 .

It is thus incumbent upon the other party to demonstrate that there is indeed a genuine dispute as to a material fact. He does this by producing factual assertions, under oath, based on the personal knowledge of the one swearing out an affidavit, giving a deposition, or answering interrogatories. See Hoffman-Chevrolet, Inc. v. Washington County National Savings Bank, 297 Md. 691, 712 , 467 A.2d 758 (1983). “Bald, unsupported statements or conclusions of law are insufficient.” Id. “It is never sufficient to defeat a motion for summary judgment that the opposing party allege in a general way that there is a dispute as to a material fact____” Brown v. Suburban Cadillac, Inc., 260 Md. 251, 257 , 272 A.2d 42 (1971). In the instant case, the pleadings (specifically, the original declaration or complaint), by asserting that Conrail was liable under the FELA for failure to provide appellant with a safe workplace, raised the following factual issues: 1.

Did the driver of the van attempt to make an illegal left turn? 2. Was the van properly equipped with passive restraint devices and other safety features such as seat belts, head rests, and interior padding? 3. Was the van sufficiently equipped with brake lights? Conrail’s motion for summary judgment answered each of these questions in Conrail’s favor and demonstrated that there was no genuine dispute of fact pertaining to those issues.

First, Conrail attached to the motion the affidavit of one Kenneth Watkins, whose title is “Transportation ⁷¹ Engineer II.” Mr. Watkins made oath, upon personal knowledge, that the records of the Baltimore City Department of Transit and Traffic indicated that on the date of the accident there was no sign indicating that left turns were prohibited at the intersection where the accident occurred. He further swore that such a prohibition formerly existed but had been removed in June of 1977 and had not been reimposed. In connection with that issue, Conrail also attached to its motion part of Mr. Lowman’s deposition wherein he testified that he could not remember if there were any “no left turn” signs at the intersection. Addressing the other two issues, Conrail also attached to its motion portions of the deposition of Mr. Dunham, the driver of the van, who testified that he had inspected the van on the day of the accident and that he “kept it in excellent shape.” He swore that “[e]verything was working perfectly, good signal lights, brake lights, and everything.” He also avowed that the van was “fully equipped, everything that goes with the van.

Seat belts, everything was inside of it.” Conrail thus satisfied the requirements of Md. Rule 2-501. Although it is the burden of the moving party to demonstrate that no material facts are genuinely disputed, once he has presented statements of facts, under oath and upon the personal knowledge of competent witnesses, as to each material fact in issue, it then falls upon his opponent to counter the motion with competent evidence placing at least one of those material facts in dispute. This appellants failed to do. It is pellucid that [t]he gravamen of the summary judgment rule ... is that the opposing party must set forth, in his affidavit in opposition to the motion, such facts as would be admissible in evidence ... which show in some detail that there is a genuine dispute regarding at least one material fact.

If he is unable to do this, he must explain his inability____ ⁷² Brown v. Suburban Cadillac, 260 Md. at 257 , 272 A.2d 42 . The only facts appellants presented in support of their