Prince George's County v. Ervey

413 A.2d 256, 45 Md. App. 372, 1980 Md. App. LEXIS 272
CourtCourt of Special Appeals of Maryland
DecidedApril 15, 1980
DocketNo. 991
StatusPublished

This text of 413 A.2d 256 (Prince George's County v. Ervey) is published on Counsel Stack Legal Research, covering Court of Special Appeals of Maryland primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prince George's County v. Ervey, 413 A.2d 256, 45 Md. App. 372, 1980 Md. App. LEXIS 272 (Md. Ct. App. 1980).

Opinion

Weant, J.,

delivered the opinion of the Court.

The appellee, Daniel Ervey, filed suit against the appellant, Prince George’s' County, Maryland, to recover damages to his motorcycle resulting from an accident which [373]*373occurred on or about March 28, 1977. The suit, which was heard before the Circuit Court for Prince George’s County on July 20, 1979, resulted in a finding in favor of the appellee and a judgment against the appellant in the amount of $2,100.00, with interest from date and costs. A final judgment was entered July 26, 1979 and a timely notice of appeal filed August 9, 1979.

The accident occurred on Muirkirk Road in Prince George’s County while the appellee was driving eastbound on that road towards the Baltimore-Washington Parkway. Immediately after the appellee’s motorcycle passed a sign indicating the end of county maintenance by Prince George’s County and entered that portion of Muirkirk Road located east of said sign and maintained by the federal government through the National Park Service, it struck a hole and a piece of macadam causing the appellee to lose control and have the accident complained of. The National Park Police of the federal government reported to the scene of the accident and prepared the traffic accident report.1 It is agreed that the ensuing damage to the motorcycle was in the amount of $2,100.00.

It was further agreed that Prince George’s County had received a complaint in February, 1976 of the poor condition of the road east of the end of county maintenance sign, and that the county within days of its receipt had notified the National Park Service of the complaint. In response thereto the National Park Service informed the county that a resurfacing of that part of Muirkirk Road east of the end of county maintenance sign would begin in the next several months. From the time of the original complaint about the condition of the road through the time of the accident complained of, the county heard nothing more about the poor condition of Muirkirk Road. The part of the road maintained by Prince George’s County was in good shape and according to stipulation did not contribute to the accident.

At the hearing on this matter the appellee was the only [374]*374witness. He testified that his speed at the time of the accident was about thirty-five miles an hour, and that the low beam light which he was using allowed him to see approximately fifty feet ahead. He also indicated that there were patches of fog, but that he "could see good.”

On appeal the appellant challenges the court’s finding "that the county had a duty to warn somebody of this road condition,” and that the appellee was not negligent "so that his negligence was a cause and it would bar him from recovery in this case.” In so doing the appellant raises the following questions:

I. Does a county in the State of Maryland have a duty to warn travellers of rough conditions on federally controlled and maintained highways?
II. Assuming such a duty [does] exist, did the county breach that duty?
III. Assuming that there was a duty and a breach thereof, does the evidence establish that the breach was the proximate cause of the plaintiffs injury?
IV. Does the undisputed evidence produced at the trial by the plaintiff establish that plaintiff/appellee was contributorily negligent in his use of the roadways to bar any recovery against the appellant/county?

I.

The parties hereto have stipulated that Muirkirk Road east of the end of county maintenance sign was built by the federal government in the 1950’s as part of the Baltimore-Washington Parkway project, and that since its construction it has been maintained by the federal government through the National Park Service. The part complained of has never been maintained by Prince George’s County, nor has it ever been made part of the Prince George’s County roads system for the purpose of maintenance. It was further stipulated that only that part of the Muirkirk Road west of the county maintenance sign was [375]*375maintained by Prince George’s County. There were no warning signs posted by Prince George’s County indicating the poor condition of the road east of the end of maintenance sign, although there was a large orange sign posted just beyond the county maintenance sign which indicated "something about Baltimore Washington Parkway under construction.” This was apparently erected by the federal government.

It is conceded by the appellant that it has a duty to repair and maintain roads under its control, and that this duty may be discharged by the use of warning signs. However, it argues that "one cannot imply a duty to repair and maintain roadways over which the County has no control, and hence the question of adequacy of warnings does not arise unless the physical defect causing the injury is within the County’s duty to repair.” The appellee, on the other hand, contends that the duty to warn spreads into that part of Muirkirk Road which is located in the county but which is under the jurisdiction of the federal government for repair and maintenance, although we have been cited to no cases which so hold. As a matter of fact, we are not told by the appellee just how far into the eastern portion of Muirkirk Road Prince George's County's liability would extend, i.c., one foot, ten feet, a quarter of a mile, half a mile, a reasonable distance. In our view the appellee’s proposal could only bring about a very impractical result.

In the case of Godwin v. County Commissioners, 256 Md. 326, 260 A.2d 295 (1970), the Court of Appeals considered the problem of a county’s liability for the failure to keep a public road in St. Mary’s County in good construction and repair. The road in question was one whose construction, reconstruction, and maintenance had been mandated to the State Roads Commission by the Legislature, leaving to the county the responsibility to make timely and seasonable recommendations to the State Roads Commission for reconstruction and correction of unsafe, defective, and dangerous conditions. In considering this matter, the Court said at page 349, 260 A.2d at 306:

The duty of the County Commissioners to repair [376]*376and maintain the county roads was removed from them and totally transferred to the State Roads Commission by the Acts of 1947, Ch. 560. Thereafter the County Commissioners had neither the power nor the means to repair and maintain those roads. There then could be no liability because a duty and its breach must concur in order to have a cause of action.... The mere obligation to recommend cannot place a duty on the County Commissioners to repair and maintain inasmuch as they had neither the power nor the means to repair and maintain, and the State Roads Commission was under no obligation to carry out any recommendation, in any event. [Emphasis added, citation omitted].

The court in the matter of Gillespie v. City of Los Angeles, 36 Cal. 2d 553, 225 P.2d 522

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Related

Gillespie v. City of Los Angeles
225 P.2d 522 (California Supreme Court, 1950)
Godwin v. County Commissioners
260 A.2d 295 (Court of Appeals of Maryland, 1970)
Stevens v. Reading Street Railway Co.
121 A.2d 128 (Supreme Court of Pennsylvania, 1956)
McNulty v. Pennsylvania
314 F. Supp. 1274 (E.D. Pennsylvania, 1970)

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Bluebook (online)
413 A.2d 256, 45 Md. App. 372, 1980 Md. App. LEXIS 272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prince-georges-county-v-ervey-mdctspecapp-1980.