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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 0757 September Term 2007

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BOARD OF COUNTY COMMISSIONERS OF CECIL COUNTY, MARYLAND

V. KARL W. DORMAN ______________________________________ Salmon, Woodward, Graeff,

JJ. ______________________________________ Opinion by Salmon, J. ______________________________________

Filed: August 28, 2009

This case concerns a very serious motorcycle accident that occurred on a narrow country road located in Cecil County, Maryland, about one-tenth of a mile west of the intersection of Nottingham Road and Pulaski Highway (Rt. 40). In the vicinity of the accident scene, Nottingham Road is straight and flat. The west bound lane of Nottingham Road is nine-feet, seven-inches wide and the east bound lane is eight-feet, seven-inches wide. Nottingham Road has grassy strips on both sides of the roadway. A line of utility poles, all set close to the roadway, are in the grassy strips on both sides. In addition, a short distance down the road from the place where the accident occurred, on the right side of the roadway for westbound motorists, trees and bushes border the strip. On the afternoon of June 3, 2002, Staff Sergeant Karl W. Dorman, a member of the Maryland National Guard, was off duty and riding his motorcycle. He left Pulaski Hwy. and turned (west bound) onto Nottingham Road. The Sergeant was familiar with the roadway because he had lived in the area most of his life. Sergeant Dorman slowed his motorcycle to 30 miles per hour and saw a Toyota pickup proceeding in the opposite direction (east bound) on Nottingham Road. The pickup had its left turn signal on and was driven by Bernice P. Hollifield. Ms. Hollifield then abruptly turned her pickup directly into the path of Sergeant Dorman's motorcycle. She made the left turn in an attempt to enter the driveway to Steeles Motel, which was located to Sergeant Dorman's immediate right. Ms. Hollifield's left turn maneuver caused her vehicle to strike the left side of the motorcycle, which re-directed the cycle and its passenger to the right and into a utility pole located in the grassy strip. As a result of the collision with the pole, a portion of Sergeant Dorman's right leg was amputated.

On August 2, 2002, about two-months post-accident, Sergeant Dorman hired an attorney to represent him. An investigation revealed that the utility pole that Sergeant Dorman's motorcycle struck was 27-29 inches1 from the paved (westbound) portion of Nottingham Road. In April 2003, about ten months post-accident, Sergeant Dorman's attorney retained Fred Hanson, a highway safety engineer, to provide an opinion as to the potential liability of certain utility companies for locating and maintaining the utility pole in close proximity to the roadway. The safety engineer suggested to plaintiff's counsel, shortly after he was hired, that the utility companies might have been required to obtain permits to locate the poles along Nottingham Road and suggested that counsel contact various state and county highway departments for further information. On April 21, 2003, an agent of plaintiff's counsel sent out freedom of information requests to various state and county agencies to determine, inter alia, whether Nottingham Road was a state or county road and also to ascertain the width of the right-of-way adjacent to the road and whether any permitting procedures were in effect concerning the location of the utility poles. On May 21, 2003, even though counsel did not know at that point whether the pole was located in Cecil County's right-of-way,2 Sergeant Dorman's attorney sent Cecil County a notice of a possible future claim against it for the subject accident. An accident reconstruction expert hired by Sergeant Dorman testified that the nearest point of the utility pole to the paved portion of westbound Nottingham Road was 29 inches. Another expert hired by Sergeant Dorman, however, testified that the utility pole was 27 inches from the paved portion of the roadway. Counsel for Sergeant Dorman learned on August 23, 2003, that Nottingham Road was maintained by the County.
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Sergeant Dorman, on May 10, 2005, filed a complaint in the Circuit Court for Cecil County, in which he sought damages for injuries suffered in the June 3, 2002 accident. He named as defendants, among others, the Board of County Commissioners for Cecil County (hereafter "the County") and Bernice Hollifield. Contemporaneously with the filing of his complaint, Sergeant Dorman filed a motion to waive the requirement set forth in Maryland Code (1974), section 5-304, of the Courts and Judicial Proceedings Article ("C.J."), that a person intending to sue a local government for unliquidated damages must give that local government notice of intent to sue within 180 days of the accident. The grounds for the motion was that "prior to his engagement of a highway safety engineer in April 2003, ten (10) months after the accident, [p]laintiff had no inkling that Cecil County might bear responsibility for the location of the subject utility pole." Sergeant Dorman filed an amended complaint on May 17, 2005, in which he named as defendants, among others, Verizon Maryland, Inc. ("Verizon") and Delmarva Power and Light Company. The complaint alleged that Verizon owned the utility pole that was struck by Sergeant Dorman and that Delmarva Power and Light "owned, leased, or used" that pole. According to the amended complaint, the utility companies breached their duty to the plaintiff because they, or their corporate predecessors, 1) "were responsible for locating and/or installing and/or maintaining" in its present location " the . . . utility pole [that the plaintiff struck]" and 2) they breached their duty to plaintiff "not to locate, install or continue to locate and maintain its/their utility pole in such close proximity to the paved portion of Nottingham Road." The County filed a motion to dismiss the complaint due to the plaintiff's failure to
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provide it with written notice of intent to sue within 180 days of the subject accident as required by Cts. & Jud. Proc., Section 5-304. A hearing was held concerning the competing motions relating to the notice statute. At the conclusion of the hearing, the court ruled that Sergeant Dorman had shown "good cause" for failing to give the County notice of intent to sue within 180 days of the accident. The motions judge also found that the County had failed to show any prejudice occasioned by the late notice. A written order denying the County's motion was entered on August 10, 2005. Verizon and Delaware Power and Light each filed motions for summary judgment, which Sergeant Dorman opposed. A hearing on the motions was held on June 4, 2007. The motions judge ruled in favor of the utility companies and in doing so relied on Coates v. Southern Maryland Electric Coop., 354 Md. 499 (1999).3 In granting summary judgment in favor of the utility companies, the judge said, in relevant part: As the [Coates] Court held in its holding number 4, utilities are under no tort duty to make any massive engineering inspection of all of their poles now existing along streets and roads of the state. They may reasonably assume that the poles that have remained standing for any significant length of time without serious incident, do not incommode or unreasonably imperil traffic on the road. *** The Coates case[] further stated, absent significant changes to the road or the site, experience may be the best guide for attempts to amalgamate any of the other factors. If a pole has existed at a relatively unchanged site for any significant length of time without serious problem, there may be little reason to anticipate a future collision, for it suggests that motorists are able to navigate that part of the road without incident. And what I am getting to, of course, is the duty on the owners of the pole to motorists and specifically in The judge who granted summary judgment in favor of the utility company was not the trial judge.
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this case to the Plaintiff. In the instant action, there is not evidence to dispute that the pole has remained in its current location for at least 40 years without any incident reported to or by the police, Delmarva, Verizon or the nearest landowner. *** Moreover, assuming that Delmarva and/or Verizon even own the pole, they were entitled to reasonably assume that a pole that had remained standing for over 40 years without serious incident does not incommode or unreasonably imperil traffic on the road. There is no issue of fact as to whether the pole incommodes or unreasonably imperils traffic on the road because it does not. Therefore, Delmarva or Verizon and perhaps the County Commissioners owed no duty to the Plaintiff and Summary Judgement as Delmarva and Verizon is hereby granted and I will sign an order to that effect. Sergeant Dorman, on June 27, 2007, entered into a settlement with Ms. Hollifield's insurer in which her insurer paid the plaintiff $750,000.00. As part of the settlement, the parties executed a joint tortfeasor's release.4 This left the County as the sole remaining defendant. Trial commenced on August 20, 2007, and ended eight days later. The County moved for judgment in its favor as to liability at the end of the plaintiff's case and, once again, when the evidentiary phase of the case had concluded. The County's motions for judgment were

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The Release contained the following provision, among others:

. . . The Plaintiff hereby agrees that all damages recoverable by him against anyone other than Hollifield are hereby reduced under the provision of the Uniform Contribution Among Tortfeasors Act to the extent of the statutory pro rata share of Hollifield, and agrees that Hollifield is to be considered a joint tortfeasor with any other tortfeasors liable to the plaintiff for damages arising out of the NAccidentN to the same extent as if Hollifield was adjudicated to be a joint tortfeasor by a final judgment of a court of record after a trial on the merits. (Emphasis added.)
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denied. The jury awarded Sergeant Dorman slightly more than 3.2 million dollars in damages. The verdict was enrolled on August 30, 2007. The County filed a motion to remit the judgment to $200,000.00 pursuant to Md. Code Ann., Cts. & Jud Proc. Art.,

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