Appiah v. Hall, 2730 Sept.Term, 2007.

• Decision Date: 31 December 2008
• Docket Number: No. 2730 Sept.Term, 2007.,2730 Sept.Term, 2007.
• Citation: 962 A.2d 1046,183 Md. App. 606
• Parties: Betty A. APPIAH, et al. v. Bruce Edward HALL, et al.
• Court: Court of Special Appeals of Maryland

962 A.2d 1046

183 Md. App. 606

Betty A. APPIAH, et al. v. Bruce Edward HALL, et al.

No. 2730 Sept.Term, 2007.

Court of Special Appeals of Maryland.

December 31, 2008.

M. Albert Figinski and Jeffrey J. Utermohle (Law Offices of Peter G. Angelos, P.C., on the brief), Baltimore, MD and David E. Haynes, Cochran Firm, on the brief, Washington, DC, for Appellants.

Thomas J. Minton (Goldman & Minton, P.C., on the brief), Baltimore, MD, for Appellees.

Panel: KRAUSER, C.J., DAVIS, J., and J. FREDERICK SHARER, J. (retired, specially assigned).

DAVIS, Judge.

Appellants, Betty A. Appiah, as personal representative of the Estate of Stephen A. Appiah, deceased, and Veronica Agyarko, appeal from the grant of summary judgment in favor of the Maryland Port Administration (MPA) and P & O Ports of Baltimore, Inc. (P & O), appellees, by the Circuit Court for Baltimore City, dated December 14, 2007. Appellants present two questions for our review, which we have rephrased as follows:

1. Did the circuit court err in finding that MPA and P & O retained insufficient control to subject them to liability under Restatement (Second) of Torts § 414?

2. Did the circuit court err in granting summary judgment by disregarding disputes of material fact?

Appellees present the following two questions for our review:

1. Was appellants' appeal premature?

2. Is appellants' suit barred by the statute of limitations?

For the reasons that follow, appellants' appeal was not filed prematurely and we answer both of appellants' questions in the negative. Because of the manner of the circuit court's disposition of appellees' claim that suit was barred by limitations, we are constrained to comment upon the procedure employed. We shall, in the final analysis, affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

The case arises from an accident at Seagirt Marine Terminal (Seagirt) on September 30, 2003, in which a longshoreman-mechanic, Stephen Appiah (Mr. Appiah), was struck and fatally injured by a truck owned by Den-El Transfer, Inc. (Den-El) and driven by Bruce Hall. At the time of the accident, Mr. Appiah was working for his employer, Marine Repair Services, Inc. (Marine Repair), who, in turn, was working for Mediterranean Shipping.¹

Seagirt is owned by MPA, which is a State agency established by the legislature to own, promote and develop Maryland's port facilities. Md.Code, Transp. §§ 2-107; 6-202 (2006 Repl. Vol., 2008 Supp.). Although the State of Maryland owns Seagirt, MPA does not conduct stevedoring (vessel loading and unloading) or terminal operations there. Instead, MPA contracts that work out to private entities.

On February 16, 2001, MPA entered into a lease agreement (the Lease Agreement) with Marine Repair, under which MPA leased a small space at Seagirt to Marine Repair in an area known as Reefer Row. Under the terms of that lease, Marine Repair was to use the premises exclusively for the repairing of containers and chassis and other associated work. Other than Marine Repair's Lease Agreement with MPA, Marine Repair had no other contracts of any kind with either P & O or MPA.

On October 25, 2001, MPA entered into an operating agreement (the Seagirt Agreement) with P & O. Under the terms of the agreement, P & O, as an independent contractor, was to provide stevedoring services, operate an entry gate and perform other related terminal work for the MPA on 190 acres of the total 284 acres comprising Seagirt, including the Reefer Row area. At the time of the accident, P & O acted as "terminal operator" at Seagirt pursuant to the Seagirt Agreement. P & O has been the operator of Seagirt since the facility opened in 1990.

A few days prior to the date of the accident, P & O unloaded a refrigerated container, or "reefer," of Bailey's Irish Creme from a vessel owned by Mediterranean Shipping and brought that reefer to a slot in Reefer Row. On the day of the accident, the reefer in question was to be delivered to Washington Wholesale Liquors (WWL) in Washington, D.C. After a customs broker notified WWL that the reefer had arrived in Baltimore and was available for pick up, WWL hired Den-El to transport the reefer from Seagirt to WWL's D.C. warehouse.

On the afternoon of September 30, 2003, Den-El's driver, Hall, showed up at Seagirt to pick up the reefer and was directed by P & O to proceed to the Marine Repair office trailer. When Hall arrived at the office trailer, he was met by a Marine Repair mechanic supervisor, Pat Ciociola, who had hooked up another reefer for Hall earlier that same day. Ciociola instructed Hall to find Mr. Appiah to hook up the reefer for him.

Hall drove his truck over to the location in Reefer Row where, from having made an earlier trip, he knew the reefer of Bailey's was located and backed his truck up close to the reefer. Hall then found Mr. Appiah and gave him some paperwork. Mr. Appiah retrieved a forklift, ladder and generator (genset), parked the forklift behind Hall's truck and proceeded to install the genset on the reefer and disconnect the shore power. As Hall waited in his truck for some time, Ciociola arrived on the scene, removed the forklift parked between the truck and the reefer and drove away with the ladder.

Hall saw Ciociola driving the forklift away with the ladder on board and thought he saw Ciociola giving him an "all clear wave." Hall then drove his truck in reverse in order to latch onto the reefer, unaware that Mr. Appiah was still rolling up the power cord from the shore power source. In the process of backing up, the truck that Hall was driving struck Mr. Appiah, severely injuring him. Mr. Appiah died four days later.

On June 23, 2005, Mr. Appiah's surviving spouse and personal representative, Betty Appiah (Ms. Appiah), filed a wrongful death and survivorship action in the Circuit Court for Baltimore City. Ms. Appiah sued four defendants: (1) Hall, the truck driver who struck Mr. Appiah; (2) Den-El, Hall's employer; (3) P & O, the stevedoring and terminal operations company of the site where the accident occurred and; (4) MPA. Ms. Appiah filed two amended complaints and, on September 28, 2006, Mr. Appiah's mother, Veronica Agyarko, filed her own complaint in the Circuit Court for Baltimore City. She sued the same six defendants² named in Ms. Appiah's Second Amended Complaint and essentially replicated the same allegations. On March 22, 2007, the circuit court ordered that Ms. Appiah's and Agyarko's cases be consolidated. On October 26, 2007, Ms. Appiah—as did Agyarko—filed a Third Amended Complaint, citing new allegations and facts in support of appellants' cause of action.

Appellees moved for summary judgment at the close of discovery. A hearing was held on December 14, 2007, in which the circuit court granted appellees' motions for summary judgment.

As to the other two defendants, Hall and Den-El, in May 2007, appellants agreed to settle all claims they had against them. On October 12, 2007, however, appellants filed a Motion to Enforce Settlement Agreement against Hall and Den-El. On November 28, 2007, the circuit court issued an Order granting the Motion to Enforce Settlement Agreement. On December 7, 2007, appellants filed a Motion to Vacate Order Enforcing Settlement Agreement³ and, on December 17, 2007, appellants filed a Reply to the Opposition to [Appellants'] Motion to Vacate Order Enforcing Settlement filed by Hall and Den-El on December 13, 2007. On January 7, 2008, the circuit court denied appellants' Motion to Vacate the Order Enforcing Settlement Agreement.

Ms. Appiah timely filed a Notice of Appeal on January 16, 2008, which stated:

Please enter an appeal of [appellant], [Ms.] Appiah in her various capacities as to all judgments entered in the above-captioned action and as to the Order of November 28, 2007 granting plaintiff's Motion to Enforce Settlement and the Order of January 7, 2008 denying [Ms. Appiah]'s Motion to Vacate the Order of November 28, 2007.

Agyarko timely filed a Notice of Appeal on January 25, 2008. On August 14, 2008, appellants dismissed Den-El and Hall as defendants in the suit.

Additional facts will be discussed infra as warranted.

STANDARD OF REVIEW

A trial court may grant summary judgment where the motion and response show there is no dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. See Md. Rule 2-501(f). We review the grant of a motion for summary judgment de novo. Stanley v. American Fed'n of State and Mun. Employees Local No. 553, 165 Md.App. 1, 13, 884 A.2d 724 (2005) (citing Coroneos v. Montgomery County, 161 Md.App. 411, 422, 869 A.2d 410 (2005)). Where there is no dispute as to a material fact we determine if the trial court's decision was legally correct. Id. (citing Rockwood Cas. Ins. Co. v. Uninsured Employers' Fund, 385 Md. 99, 106, 867 A.2d 1026 (2005); Faith v. Keefer, 127 Md.App. 706, 734, 736 A.2d 422 (1999)). A material fact is one that will alter the outcome of the case, depending upon the factfinder's resolution of the dispute. Faith, 127 Md.App. at 734, 736 A.2d 422 (citing King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985)). "To generate a material factual dispute, the evidence adduced by the non-moving party must be more than `mere general allegations which do not show facts in detail and with precision.'" Id. (quoting Beatty v. Trailmaster Prods., Inc., 330 Md. 726, 738, 625 A.2d 1005 (1993)). In reviewing the grant of summary judgment, we construe the facts properly before the court and any reasonable inferences that may be drawn from them, in the light most favorable to the nonmoving party. Id. We generally limit our review to the grounds relied upon by the trial court. Id. (citing Blades v. Woods, 338 Md. 475, 478, 659 A.2d 872 (1995)). Ordinarily, we will uphold the grant of summary judgment only on the grounds relied on by the trial court. Stanley, 165 Md.App. at 13, 884 A.2d 724 (citing Pac....