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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1378 September Term 2005 _______________________________

CARLTON EDWARD BOWSER V.

JOSEPHINE I. RESH, ET AL.

_______________________________ Murphy, C.J., Salmon, Karwacki, Robert L. (Ret., Specially Assigned), JJ. _______________________________ Opinion by Salmon, J. Filed: September 20, 2006

This case has its origin in an accident that occurred on a two-lane highway in Garrett County, Maryland, on November 11, 1999, at approximately 5:50 p.m. One of the vehicles involved in the

accident was a 1994 Dodge van driven by Francis Resh ("Mr. Resh"). At the time of the accident, the front-seat passenger in the van was Howard Dillsworth; the backseat passenger was Mr. Resh's wife, Josephine Resh, who is also the daughter of Mr. Dillsworth. The accident happened when the van driven by Mr. Resh struck a skidloader (also referred to in the testimony as a "Bobcat") operated by Carlton Bowser. Mr. Resh was only slightly injured in

the accident, but his wife, Mr. Dillsworth, and Mr. Bowser all suffered more serious injuries. Approximately four months after the accident, Mr. Dillsworth died. Thereafter, Josephine Resh was appointed as the personal

representative of his estate. On February 14, 2002, Mrs. Resh, individually, filed a

negligence suit against Mr. Bowser in the Circuit Court for Garrett County. She alleged that the November 11, 1999, accident was the Included in the complaint was a

exclusive fault of Mr. Bowser.

count alleging loss of consortium, which was brought by Mr. and Mrs. Resh jointly. Additionally, Mrs. Resh, as personal

representative of her father's estate, brought a suvivorship action and, in her individual capacity, a wrongful death claim against Mr.

Bowser.1

Mr. Bowser filed an answer to the complaint, along with He named as counter-defendants Mr. and Mrs. Resh, and Mrs. Resh, in her capacity as personal

a counterclaim. individually,

representative of the estate of Mr. Dillsworth.

In the counter

claim, Mr. Bowser asserted that Mr. Resh's negligence caused the accident, and his negligence was imputable to both Mr. Dillsworth and Mrs. Resh, because at the time of the accident Mr. Resh was acting as the agent for both. Counter-claimant also contended

that Josephine Resh was liable for her husband's negligence due to the fact that she was the owner of the van. In addition to seeking

damages for his personal injury, Mr. Bowser asked for contribution and/or indemnity for all claims made by the plaintiffs in the original action. Mr. Bowser later settled with the Reshes' insurer his claim for personal injury arising out of the accident. In connection

with that settlement, Mr. Bowser signed, on September 29, 2003, a release. Subsequently, a stipulation of dismissal was filed as to Mr. Bowser's bodily injury claim. On January 14, 2005, Mr. Bowser filed an amended counterclaim for indemnity and/or contribution. In addition to the allegations

set forth in the original counterclaim, Mr. Bowser alleged in the amended counterclaim that Mrs. Resh negligently entrusted the operation of her vehicle to her husband and that her negligence in doing so, combined with the negligence of Mr. Resh, caused or

An amended complaint was filed in June 2002, but there were no changes in that complaint that are material to any issue raised in this appeal.

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contributed to the accident.

He also alleged that Mrs. Resh was

the agent and/or "employee" of Mr. Dillsworth at the time of the accident and that her own negligence in entrusting the Dodge van to her husband was imputable to Mr. Dillsworth. On May 27, 2005, which was almost a year and one-half after the release was signed, Mr. and Mrs. Resh filed what they called a "Motion to Dismiss Carlton Bowser's Counter-Claim for

Indemnification and/or Contribution."

Despite the title of the

motion, it was, in legal effect, a motion for summary judgment as to all claims made in the counterclaim because it relied upon a document not attached to Mr. Bowser's counterclaim, i.e., the release signed on September 29, 2003. by the Reshes, despite the fact The release was relied upon that neither of them had

specifically pleaded that defense as they were required to do pursuant to Maryland Rule 2-323(g)(12). On June 20, 2005, the trial judge granted the Reshes' motion to dismiss the counterclaim for indemnification and/or

contribution.

Three days after the counterclaim was dismissed, on The parties stipulated at

June 23, 2005, a jury trial commenced.

trial that the jury would be required only to answer questions concerning liability. The jurors were asked to answer six questions on a special verdict sheet. The questions propounded, and the jurors' answers

to those questions, were as follows: 1. Do you find that Carlton E. Bowser, Jr., was negligent and that his negligence was

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a proximate cause November 11, 1999?

of

the

accident No

on

T

Yes

2. Do you find that Francis Resh was negligent and that his negligence was a cause of the accident on November 11, 1999?

T

Yes

No

3. Do you find that Francis Resh was the agent of Josephine I. Resh? Yes

T

No

4. Do you find that Francis Resh was the agent or employee of Elmer Dillsworth? Yes

T

No

5. Do you find Josephine I. Resh was the agent of Elmer Dillsworth? Yes

T

No

6. Do you find that Josephine I. Resh was the sole owner and an occupant of the Resh vehicle such that she had the right to control the operation of her vehicle even though she was not actually driving it? Yes

T

No

Mr. Bowser filed a motion for judgment notwithstanding the verdict and/or a new trial, which was denied. He then filed this

appeal2 in which he raises seven questions, viz.:
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After the appeal was filed, the parties stipulated as follows: STIPULATION AND AGREEMENT The parties, by counsel, hereby confirm and memorialize their agreement, previously referred to in the record, and acknowledged by the June 3, 2005 order of the Honorable James S. Sherbin, that this case was to be and was tried, on issues pertaining to liability only, the parties previously having resolved all issues of damages by agreement. (continued...)

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1.

Did the trial court err when it denied Bowser's motion for partial judgment concerning the issues of agency and imputed negligence? Did the lower court err when it denied Bowser's motion for partial summary judgment concerning the issues of agency and imputed negligence? Did the trial judge err when he refused to instruct the jury concerning the issue of negligent entrustment? Did the trial court err when it refused to instruct the jury concerning the defense of assumption of risk? Did the lower court err when it dismissed Bowser's counterclaim for indemnification and/or contribution? Did the trial court err when it referred to injuries while instructing the jury and thereby invit[e] the jury to consider injuries contrary to the court's prior in limine ruling that the jury was not to consider injuries? Did the trial court err when it denied Bo w s e r ' s moti on for judgment notwithstanding the verdict and/or for new trial?

2.

3.

4.

5.

6.

7.

I. A.

FACTS DEVELOPED AT TRIAL

The Happening of the Accident

The subject accident occurred on Underwood Road near Mr. Bowser's residence in Garrett County. At the time of the accident, Mr. Resh was driving with his low-beam headlights on, and it was

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(...continued) Accordingly, the parties also stipulate and agree that the appeal noted by Defendant Bowser in these proceedings is an appeal from a final judgment.

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either dark (Mr. Bowser's testimony) or "getting dark" (Mr. Resh's testimony). Underwood Road is a two-lane highway, and the Reshes'

vehicle was proceeding southbound in the right lane of that road. Mr. Resh, who was sixty years old at the time of the accident, was very familiar with Underwood Road, having driven it regularly for many years. About 300 feet north of the scene of the accident,

the 1994 van driven by Mr. Resh passed Mr. Bowser's farmhouse. Meanwhile, on the evening of the accident, Mr. Bowser, aged sixty-nine, had used his skidloader to carry a load of firewood to his house. After dumping the firewood, Mr. Bowser drove to the end

of his driveway, looked north on Underwood Road, saw no oncoming vehicles, and proceeded to turn right onto the roadway. He then

proceeded southbound on Underwood Road at a speed of no greater than six miles per hour. He intended to travel southbound for

about 300 feet, then to turn right and park the skidloader in his barn. Mr. Bowser ordinarily did not drive the skidloader on public roads at night, and the vehicle was not licensed to be operated on public roadways. There were no taillights or reflectors on the

skidloader, nor was the vehicle equipped with the required "Slow Moving Vehicle" emblem on the rear. The vehicle was, however,

equipped with two white halogen lights on the front and one on the rear. The three lights were activated at all times here relevant.

A short distance past Mr. Bowser's house, Mr. Resh saw the skidloader in the roadway, hit his brakes, and swerved, but the van, nevertheless, collided with the much slower moving vehicle. 6

Immediately

before

impact,

but

after

Mr.

Resh

had

seen

the

skidloader, Mrs. Resh hollered from the backseat, "Watch out." B. Testimony Regarding Ownership of the 1994 Van

At the time of the accident, the Reshes had been married for approximately thirty-seven years. Resh's name alone. The 1994 van was titled in Mrs.

In regard to the ownership of the vehicle, Mrs.

Resh's testimony was as follows: Q [ATTORNEY FOR THE RESHES]: The van that was being

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