Robertson v. Shell Oil Co.

Moore, J., delivered the opinion of the Court. Appellant, Clarence L. Robertson, a school bus driver employed by Baltimore County, was injured in a fall after stepping onto an excavated area of a Shell service station owned by appellee, Carroll N. Griffin. Mr. Robertson, his wife and his Workmen’s Compensation carrier thereafter filed suit in the Circuit Court for Baltimore County against Mr. Griffin, Shell Oil Company and a third defendant, Petroleum Services, Incorporated, a general contractor employed for the installation of a new tank and pump for unleaded gasoline. Petroleum Services filed a motion for summary judgment on the basis of Mr. Robertson’s deposition and a color photograph showing the excavated area adjacent to the pump island where he sustained his injury. 1 The court below (Turnbull, J.) ruled that Mr. Robertson was contributorily negligent as a matter of law, and from an Order granting summary judgment in favor of all appellees, this appeal has been taken.

We conclude that the court erred in its finding and we therefore reverse and remand. I Returning from his daily afternoon run, the appellant ⁴⁰¹ drove his school bus into the Holabird Shell service station, located at Holabird and Vesper Avenues in Baltimore County, at approximately 4:00 p.m., on October 29,1970. The appellant, who lived one block from the station, was a regular customer, stopping for gas every 2 to 3 days. On this particular day, sunny and clear, Mr. Robertson drove his vehicle alongside one of the two service islands, 2 or 3 feet from the island’s curb.

According to his deposition, he took one stride from the bottom step of the bus directly onto the service island. In doing so, he stepped across an unpaved area, approximately 14 inches in width, where the appellee, Petroleum Services, Inc., had run a pipe underground from a newly-installed storage tank (located on the other side of the service station) to a new pump for unleaded gasoline. The surface over the storage tank had been repaved. The trench for the pipeline — which was nearly 18 feet long — had been filled with dirt, gravel and stones, but had not yet been paved.

The photograph, attached to appellees’ motion for summary judgment, 2 showed that the filled area was slightly lower than the surrounding concrete pavement. In his deposition, Mr. Robertson testified that he did not notice the unpaved strip either when he drove into the station or when he alighted from the bus. Appellant remained outside the bus for about five minutes. At one point, he stepped off the pump island and walked towards the front of the bus as the station attendant checked the oil.

At no time, according to appellant, did he ever see the unpaved surface. After giving the attendant his credit card, he attempted to proceed back into the bus from the service island. He took one step toward the vehicle, placing his right foot on the unpaved area; he lost his balance and fell forward, sustaining a serious injury to his right leg. He deposed: “Either it gave away with me [sic] or the side of it crumbled when I stepped there and it caused me to pitch forward or stagger.” ⁴⁰² Concerning appellant’s opportunity to perceive the exposed area, the following colloquy appears in his deposition: “Q Before you stepped off of the island, did you observe where you were placing your right foot?

A No, I didn’t notice anything. Q Did you look? A Well, I imagine I did. Q Do you recall what you saw?

A If I had seen anything I certainly wouldn’t have stepped in it.” Finding the area to be an “open and obvious condition which presented danger to anyone who trod upon it” and which the appellant himself considered dangerous, according to his statement, the court held — without passing on the issue of primary negligence — that the appellant was barred from recovery because he was contributorily negligent as a matter of law. The court stated, in part: “It seems to me, gentlemen, that where there is an open and obvious condition, which a plaintiff knows or should know is likely to he a dangerous condition, and the plaintiff walks into such condition, either without looking or having looked, nonetheless, stepping into that condition, that under the authorities, it is contributory negligence as a matter of law. The best that the plaintiff testified to in his deposition with regard to looking was, ‘I imagine I looked.’ That certainly cannot be taken as affirmative evidence of looking. If, however, it were taken as affirmative evidence thát the plaintiff did, in fact, look before he stepped, then he would be guilty of contributory negligence in stepping into a condition which he himself, by inference at least, considered to be a dangerous condition.” (Emphasis added.) ⁴⁰³ II As a general proposition, questions of primary and contributory negligence are for the jury.

It is equally well recognized that the facts of a given case may establish that a defendant has been guilty of negligence or a plaintiff has been guilty of contributory negligence, as a matter of law. Southern Maryland Electric, Inc. v. Blanchard, 239 Md. 481, 485 , 212 A. 2d 301, 304 (1965). The vehicle for taking either issue from the jury can be a motion for summary judgment pursuant to Maryland Rule 610, although the Court of Appeals has stated, “[u]sually it is neither advisable nor practicable to enter a summary judgment in a tort action.” Driver v. Potomac Electric Power Co., 247 Md. 75, 79 , 230 A. 2d 321, 324 (1967). Where a summary judgment on the issue of contributory negligence is pursued, the law pertaining to the consideration and disposition of such a motion is well settled.

The purpose, of course, is not to try the case on the merits. As Judge Smith observed in Rooney v. Statewide Plumbing, Inc., 265 Md. 559, 563 , 290 A. 2d 496, 498-99 (1972): “The purpose is not to try the case on its merits, but to determine whether any real dispute exists as to any material fact. If the pleadings, depositions, admissions, and affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted. If there is a genuine dispute as to any material fact, then, it should not be granted.

In reviemng such a motion we must be concerned primarily with deciding whether or not a factual issue exists. Therefore, all inferences should be resolved against the party making the motion. However, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact.” (Emphasis added.) ⁴⁰⁴ The motion for summary judgment in the case sub judice was based upon the claim that the “filled-in area” where appellant fell was in plain sight and would have been seen by the plaintiff had he been exercising ordinary care for his own safety; and upon his testimony, as set forth in the transcript of his pretrial deposition, that he either “failed to look where he was stepping or looked and did not see what he must have seen had he been exercising ordinary care and caution for his own safety.” In his ruling from the bench at the conclusion of oral argument on the motion, the trial court observed: “The plaintiff himself testified that if he had seen it, he would not have stepped into it. It follows from that, inevitably, that the plaintiff himself considered this condition to be one which presented danger to anyone who might step on to it so that we have an open and obvious condition which presented danger to anyone who trod upon it.” The difficulty we experience with the above pronouncement lies, we think, in the court’s apparent departure from the requirement that all inferences must be resolved against the party making the motion.

It is not, in our judgment, a proper inference from appellant’s testimony that there was an existent condition which appellant considered dangerous. We think it more appropriate, and in accordance with the rule, to interpret appellant’s statement, “If I had seen anything I certainly wouldn’t have stepped in it,” not as conceding the existence of a condition which presented danger at the time — but only as an expression of hindsight, after the fact of his serious injury. Simply put, we think there was an open and obvious condition, but whether it “presented danger to anyone who trod upon it” represents a genuine issue of fact having a substantial bearing upon the issue of contributory negligence (and, of course, primary negligence), and that this issue should have been left for determination by a jury. The Maryland cases, and the limited facts before the court in this case on the motion for summary judgment, compel this conclusion.

Before the doctrine of contributory negligence can be successfully invoked, the moving party has the burden of ⁴⁰⁵ demonstrating that the injured person failed to use due care to avoid dangers which he actually knows exist from past experience or knowledge of which may be imputed to him because the dangers are so obvious that any ordinarily prudent and cautious person would see and avoid them. Menish v. Polinger Co., 277 Md. 553, 559 , 356 A. 2d 233, 237 (1976); Honolulu, Ltd. v. Cain, 244 Md. 590, 599 , 224 A. 2d 433, 438 (1966); Texas Co. v. Washington B. & A. Railroad Co., 147 Md. 167, 173 , 127 A. 752, 755 (1925). To warrant withdrawal of a case from the jury on the grounds of contributory negligence, “the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.” Reiser v. Abramson, 264 Md. 372, 378 , 286 A. 2d 91, 93 (1972). We need not belabor the point that there was present in this case an open and