Montgomery County v. Herlihy

• Decision Date: 01 September 1989
• Docket Number: No. 1616,1616
• Citation: 83 Md.App. 502,575 A.2d 784
• Parties: MONTGOMERY COUNTY, Maryland v. Stephen HERLIHY, Personal Representative of the Estate of Sarah Herlihy, et al. ,
• Court: Court of Special Appeals of Maryland

Page 502

83 Md.App. 502

575 A.2d 784

MONTGOMERY COUNTY, Maryland v. Stephen HERLIHY, Personal Representative of the Estate of Sarah Herlihy, et al.

No. 1616, Sept. Term, 1989.

Court of Special Appeals of Maryland.

June 29, 1990.

Tasha Panarites, Asst. County Atty. (Clyde H. Sorrell, County Atty. and Joann Robertson, Sr. Asst. County Atty., on the brief), Rockville, for appellant.

Edward L. Norwind (Paulson, Nace, Norwind & Sellinger on the brief), Rockville, for appellee, Herlihy.

Glenn T. Harrell, Jr. (William B.

Spellbring, Jr., Timothy E. Howie and O'Malley, Miles & Harrell, on the brief), Upper Marlboro, for appellee, PEPCO.

Argued before BISHOP, KARWACKI and ROBERT M. BELL, JJ.

ROBERT M. BELL, Judge.

This appeal challenges the judgment of the Circuit Court for Montgomery County, entered on a jury's verdict, finding Montgomery County, Maryland, appellant, and not Potomac Electric Power Company (PEPCO), one of the appellees herein, responsible for injuries suffered by Sarah Herlihy, the decedent, in a fall. Pursuant to the jury's verdict, appellee Stephen Herlihy, Personal Representative of the decedent's estate, was awarded damages in the amount of $66,569.00. On appeal, appellant posits three questions:

1. Did [the motions judge] err in finding that a genuine dispute as to a material fact existed where plaintiff stated she had tripped on the sidewalk grate and PEPCO acknowledged responsibility for maintaining the grate?

2. Did [the trial judge] err in refusing to admit Sarah Herlihy's answers to interrogatories into evidence on the grounds that even though she had answered them while a party plaintiff, her subsequent death prior to trial acted as a bar to their admissibility by virtue of the Dead Man's Statute?

3. Did [the trial judge] err in refusing to apply the holding in Clark v. Strasburg, ¹ waiving the applicability of the Dead Man's Statute and denying appellant's motion for a new trial?

We answer the second question in the affirmative and, hence, will reverse and remand the case to the trial court for further proceedings, limited, however, to the issue of liability. ²

The decedent tripped and fell in the area of a grate embedded in a sidewalk, along which she and her employer were walking on April 3, 1985. The place where she fell was directly in front of the Chesapeake and Potomac Telephone Company; the grate in the sidewalk was owned by appellee PEPCO; and appellant was responsible for the maintenance of the sidewalk, which was cracked and uneven. The decedent injured her hip and shoulder in her fall.

Almost three years later, the decedent filed a personal injury action against appellant, PEPCO and C & P. ³ Appellant and PEPCO filed cross-claims. Discovery then proceeded.

Appellant propounded interrogatories to the decedent and, in turn, the decedent served interrogatories on appellant and PEPCO. As pertinent to the case sub judice, the questions propounded to the decedent, and her answers, are as follow:

4. Describe in as much detail as possible, in chronological sequence, everything that happened to you: (a) from the time you arrived at the premises up to and including the time of the alleged occurrence; and (b) from the time of the alleged occurrence until you were treated for your injuries.

ANSWER: I tripped over an improperly secured grating on the sidewalk in front of the PEPCO office and was then treated by the rescue squad.

5. Indicate when you first became aware of the possibility of any accident and the amount of time which elapsed between when you first noticed the potentially dangerous condition and when the accident occurred.

ANSWER: I was not aware of the dangerous condition of the grating prior to the accident.

10. Were there any obstructions to your view as you approached the scene of the accident?

ANSWER: There were no obstructions to my view, however, the condition of the grating was not patent.

Based on these answers, as well as its answers, and those of PEPCO, to interrogatories propounded to them by the decedent, appellant moved for summary judgment. By this time, the decedent had died of causes unrelated to the negligence action and appellee Stephen Herlihy, in his capacity as the personal representative of the decedent's estate, had been substituted as plaintiff. Following extensive briefing of the issue and oral argument, the motions judge denied appellant's motion.

The case proceeded to trial before a jury. Appellant unsuccessfully sought to introduce some of the decedent's interrogatory answers into evidence. Although appellee Herlihy did not object, PEPCO raised the Dead Man's Statute as a bar to their admission and the trial court adopted that rationale for its ruling excluding them. The case having been submitted to the jury, a verdict was entered in favor of appellee Herlihy and against appellant. The jury also determined that PEPCO was not liable for the decedent's injuries. Appellant's motion for new trial was denied and this appeal followed.

Appellant's first argument is that it was entitled to summary judgment as a matter of law. This is so, it maintains, because the decedent, in answers to interrogatories, stated that she tripped over the sidewalk grate and that PEPCO admitted its responsibility for maintaining the grate, citing in that regard, PEPCO's acknowledgement, in answers to interrogatories, that it repaired the grate following the accident. Thus, appellant urges us to reverse the trial court's denial of his motion for summary judgment and, apparently, enter judgment accordingly.

We first assume that appellant is correct that the pleadings, interrogatories, affidavits, and other papers presented to the motions judge, and considered by him, would have permitted entry of summary judgment in favor of appellant; nevertheless, in the absence of a showing of clear abuse of discretion, the court's refusal to enter summary judgment in appellant's favor will not be disturbed. See Metropolitan Mortgage Fd., Inc. v. Basiliko, 288 Md. 25, 29, 415 A.2d 582 (1980). In that case, the issue was: "[o]n appeal from a final judgment entered following a full trial of the general issue, may the correctness of a pretrial denial of a summary judgment, other than for abuse of discretion, be reviewed?" The trial judge denied all three of the plaintiff's motions for summary judgment and, after a non-jury trial on the merits, entered judgment in favor of the plaintiff against one, but not both, of the defendants. On appeal by the plaintiff from the judgment in favor of one of the defendants, the Court of Appeals affirmed. Recognizing that "whereas a 'court cannot draw upon any discretionary power to grant summary judgment' ... it, ordinarily, does possess discretion to refuse to pass upon, as well as discretion affirmatively to deny, a summary judgment request in favor of a full hearing on the merits; and this discretion exists even though the technical requirements for the entry of such a judgment have been met," (citing 6 PT. 2 Moore's Federal Practice, pp 56.15, at 56-601, 56.23, at 56-1390-91 (2d ed. 1980); 10 C. Wright & A. Miller, Federal Practice and Procedure: Civil, § 2728, at 554-55 (1973 & 1980 Supplement); Virgil v. Time, Inc., 527 F.2d 1122, 1131 n. 15 (9th Cir.1975), cert. denied, 425 U.S. 998, 96 S.Ct. 2215, 48 L.Ed.2d 823 (1976)), the Court opined:

It is essential to the entry of a summary judgment that there be no dispute as to any material fact. The procedure is not a substitute for trial, but is merely a preview to determine whether there exists a factual controvery requiring a trial.... Thus, while Md.Rule [2-501(e) ] states that when a movant is entitled to judgment as a matter of law, the court should render judgment forthwith, this does not mean that entry of judgment may not be delayed until after a trial on the merits, should, in the court's mind, the promotion of justice require it.... It is our view that an appellate court should be loath indeed to overturn, on a very narrow procedural ground, a final judgment on the merits entered in favor of the party resisting the summary judgment motion. This is aptly demonstrated by the present case where, after a full evidentiary hearing, the court determined that respondents' signatures to the guarantee agreements were not genuine. To turn the tables in this manner would be nothing short of substituting a known unjust result for a known just one.... (citations omitted)

288 Md. at 28-29, 415 A.2d 582.

The court therefore held:

... a denial (as distinguished from a grant) of a summary judgment motion, as well as foregoing the ruling on such a motion either temporarily until later in the proceedings or for resolution by trial of the general issue, involves not only pure legal questions but also the exercise of discretion as to whether the decision should be postponed until it can be supported by a complete factual record; and ... on appeal, absent clear abuse ..., the manner in which this discretion is exercised will not be disturbed.

Id.

Appellant has not demonstrated clear abuse of discretion in this case. Indeed, if an abuse of discretion argument can be attributed to appellant, it must relate to its argument that appellee "failed to properly controvert the material facts established by Appellant...." In that regard, appellant's position is simply that the only competent evidence before the court was that presented by it since the attempted controversion by appellees was unsuccessful and ineffective as a technical legal matter. As the Court of Appeals said in Basiliko, however, "an appellate court should be loath indeed to overturn, on a very narrow procedural ground, a final judgment on the merits...." Indeed, again as the Court said, to do so would be to substitute a known unjust result for a known just one.

Finally, the most persuasive reason for finding that appellant has not demonstrated a clear abuse of discretion is the recognition that it was not entitled to summary...