Madore v. Baltimore County

³⁴¹ Powers, J., delivered the opinion of the Court. This appeal calls for the first appellate application of subsection (b), added by Ch. 519, Laws of Maryland, 1972, to Code, Art. 57, § 18. After the 1972 enactment, the entire § 18 read: “(a) No action shall be maintained and no claims shall be allowed against any municipal corporation or against any county or Baltimore City for unliquidated damages for any injury or damage to person or property unless within 180 days after the injury or damage was sustained, written notice setting forth the time, place or cause of the alleged damage, loss, injury or death shall be presented either in person or by registered mail by the claimant, his agent or attorney, or in the case of death, by his executor or administrator, to the county commissioners, county council, the corporate authorities of the municipal corporation or the city solicitor of Baltimore City, as the case may be. In Montgomery County and Howard County, written notice shall be presented to the county executive. “(b) Notwithstanding the provisions of (a) above, the court may, upon motion and for good cause shown, entertain the suit even though the required notice was not given, unless provided further the defendant can affirmatively show that its defense has been prejudiced thereby.” On 9 October 1975 Arthur Joseph Madore, Jr., appellant here, filed suit in the Circuit Court for Baltimore County, naming Baltimore County, Maryland, a municipal corporation, as the sole defendant.

The declaration claimed damages for injuries sustained by the appellant in an automobile collision which happened on 16 October 1974, while the appellant was operating his vehicle on Jarrettsville Pike, a public road built and maintained by Baltimore ³⁴² County. It was alleged that the County was negligent in the design and maintenance of the highway, and that as a result of that negligence the appellant was caused to lose control of his vehicle and cross the center line of the highway and collide head-on with an oncoming vehicle. It is not questioned that the claim made in the declaration was the kind of claim of which Art. 57, § 18 (a) required that written notice be presented to the appropriate municipal authorities. The declaration did not allege that notice had been given, nor did it refer to the statute at all.

The notice is a condition precedent to the right to maintain the suit, and compliance with the notice statute should be alleged in the declaration as a substantive element of the cause of action. Neuenschwander v. Wash. San. Com., 187 Md. 67, 76 , 48 A. 2d 593 (1946); Cotham and Maldonado v. Board, 260 Md. 556, 562-64 , 273 A. 2d 115 (1971).

The County’s response to the declaration was a motion to dismiss, under Maryland Rule 323, on the dual grounds of governmental immunity and failure to comply with Art. 57, § 18 by giving notice of the claim within 180 days of the injury. Appellant answered the motion by stating that he had good cause why the suit should be entertained; that he sustained severe injuries in the accident, was rendered unconscious and required extensive hospitalization, the last having terminated on 13 June 1975; that he consulted counsel within 30 days after his discharge; that he placed the County on notice on 8 August 1975; and that he was totally unaware of any possible liabilities and which parties might be responsible. Both parties requested a hearing. Judge Walter R. Haile held the hearing on 11 March 1976.

Rejecting the immunity defense in short order, Judge Haile wisely cut through form to reach substance, and considered the answer to the County’s motion to dismiss as if it were a motion by Madore, under Art. 57, § 18 (b), for the court to entertain the suit even though the required notice was not given. To meet his obligation to show good cause, appellant relied entirely upon his own testimony. He said that he regained ³⁴³ consciousness about a week after the accident, in St. Joseph’s Hospital. He remained there between five and six weeks until his discharge on 23 November in a wheelchair.

His left leg and left arm were in casts. His right leg was also injured. At home, where he lived with his parents, he was confined to the wheelchair or bed until January. On 31 March 1975 he returned to the hospital for removal of wires and pins, and again returned home after six days.

He began walking with crutches around the end of April. On 18 May 1975 he entered the hospital again, for reconstructive surgery, and was discharged on 28 June 1975. Appellant explained that during his time at home he was limited to the confines of his home, except for a few times that he went out. When he did, he was wheeled to the car in his wheelchair, and lifted into the car.

Asked if prior to seeing a lawyer in August 1975, he considered bringing an action or claim against anybody, Madore answered that in the beginning he thought he would be well on the road to recovery, and all he was worried about was getting his legs back. He said he had never been hospitalized before, and didn’t quite know how to handle the whole thing. His counsel did not press for a more responsive answer. On cross examination Madore agreed that both in the hospital and at home he could use the telephone, although he did so rarely.

About a week after the accident, he was aware of what was going on around him, but had thoughts about his health on his mind. He was asked if he could have gone to an attorney sooner if he had