Robertson v. Shell Oil Co.

367 A.2d 962, 34 Md. App. 399, 1977 Md. App. LEXIS 527
CourtCourt of Special Appeals of Maryland
DecidedJanuary 4, 1977
Docket294, September Term, 1976
StatusPublished
Cited by12 cases

This text of 367 A.2d 962 (Robertson v. Shell Oil Co.) 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
Robertson v. Shell Oil Co., 367 A.2d 962, 34 Md. App. 399, 1977 Md. App. LEXIS 527 (Md. Ct. App. 1977).

Opinion

Moore, J.,

delivered the opinion of the Court.

Appellant, Clarence L. Robertson, a school bus driver employed by Baltimore County, was injured in a fall after stepping onto an excavated area of a Shell service station owned by appellee, Carroll N. Griffin. Mr. Robertson, his wife and his Workmen’s Compensation carrier thereafter filed suit in the Circuit Court for Baltimore County against Mr. Griffin, Shell Oil Company and a third defendant, Petroleum Services, Incorporated, a general contractor employed for the installation of a new tank and pump for unleaded gasoline. Petroleum Services filed a motion for summary judgment on the basis of Mr. Robertson’s deposition and a color photograph showing the excavated area adjacent to the pump island where he sustained his injury. 1

The court below (Turnbull, J.) ruled that Mr. Robertson was contributorily negligent as a matter of law, and from an Order granting summary judgment in favor of all appellees, this appeal has been taken. We conclude that the court erred in its finding and we therefore reverse and remand.

I

Returning from his daily afternoon run, the appellant *401 drove his school bus into the Holabird Shell service station, located at Holabird and Vesper Avenues in Baltimore County, at approximately 4:00 p.m., on October 29,1970. The appellant, who lived one block from the station, was a regular customer, stopping for gas every 2 to 3 days.

On this particular day, sunny and clear, Mr. Robertson drove his vehicle alongside one of the two service islands, 2 or 3 feet from the island’s curb. According to his deposition, he took one stride from the bottom step of the bus directly onto the service island. In doing so, he stepped across an unpaved area, approximately 14 inches in width, where the appellee, Petroleum Services, Inc., had run a pipe underground from a newly-installed storage tank (located on the other side of the service station) to a new pump for unleaded gasoline. The surface over the storage tank had been repaved. The trench for the pipeline — which was nearly 18 feet long — had been filled with dirt, gravel and stones, but had not yet been paved. The photograph, attached to appellees’ motion for summary judgment, 2 showed that the filled area was slightly lower than the surrounding concrete pavement. In his deposition, Mr. Robertson testified that he did not notice the unpaved strip either when he drove into the station or when he alighted from the bus.

Appellant remained outside the bus for about five minutes. At one point, he stepped off the pump island and walked towards the front of the bus as the station attendant checked the oil. At no time, according to appellant, did he ever see the unpaved surface. After giving the attendant his credit card, he attempted to proceed back into the bus from the service island. He took one step toward the vehicle, placing his right foot on the unpaved area; he lost his balance and fell forward, sustaining a serious injury to his right leg. He deposed: “Either it gave away with me [sic] or the side of it crumbled when I stepped there and it caused me to pitch forward or stagger.”

*402 Concerning appellant’s opportunity to perceive the exposed area, the following colloquy appears in his deposition:

“Q Before you stepped off of the island, did you observe where you were placing your right foot?
A No, I didn’t notice anything.
Q Did you look?
A Well, I imagine I did.
Q Do you recall what you saw?
A If I had seen anything I certainly wouldn’t have stepped in it.”

Finding the area to be an “open and obvious condition which presented danger to anyone who trod upon it” and which the appellant himself considered dangerous, according to his statement, the court held — without passing on the issue of primary negligence — that the appellant was barred from recovery because he was contributorily negligent as a matter of law. The court stated, in part:

“It seems to me, gentlemen, that where there is an open and obvious condition, which a plaintiff knows or should know is likely to he a dangerous condition, and the plaintiff walks into such condition, either without looking or having looked, nonetheless, stepping into that condition, that under the authorities, it is contributory negligence as a matter of law. The best that the plaintiff testified to in his deposition with regard to looking was, ‘I imagine I looked.’ That certainly cannot be taken as affirmative evidence of looking. If, however, it were taken as affirmative evidence thát the plaintiff did, in fact, look before he stepped, then he would be guilty of contributory negligence in stepping into a condition which he himself, by inference at least, considered to be a dangerous condition.” (Emphasis added.)

*403 II

As a general proposition, questions of primary and contributory negligence are for the jury. It is equally well recognized that the facts of a given case may establish that a defendant has been guilty of negligence or a plaintiff has been guilty of contributory negligence, as a matter of law. Southern Maryland Electric, Inc. v. Blanchard, 239 Md. 481, 485, 212 A. 2d 301, 304 (1965). The vehicle for taking either issue from the jury can be a motion for summary judgment pursuant to Maryland Rule 610, although the Court of Appeals has stated, “[u]sually it is neither advisable nor practicable to enter a summary judgment in a tort action.” Driver v. Potomac Electric Power Co., 247 Md. 75, 79, 230 A. 2d 321, 324 (1967).

Where a summary judgment on the issue of contributory negligence is pursued, the law pertaining to the consideration and disposition of such a motion is well settled. The purpose, of course, is not to try the case on the merits. As Judge Smith observed in Rooney v. Statewide Plumbing, Inc., 265 Md. 559, 563, 290 A. 2d 496, 498-99 (1972):

“The purpose is not to try the case on its merits, but to determine whether any real dispute exists as to any material fact. If the pleadings, depositions, admissions, and affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, then summary judgment should be granted. If there is a genuine dispute as to any material fact, then, it should not be granted. In reviemng such a motion we must be concerned primarily with deciding whether or not a factual issue exists. Therefore, all inferences should be resolved against the party making the motion. However, when the moving party has set forth sufficient grounds for summary judgment, the party opposing the motion must show with some precision that there is a genuine dispute as to a material fact.” (Emphasis added.)

*404 The motion for summary judgment in the case sub judice

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Williams v. United States
D. Maryland, 2023
Cador v. YES Organic Market
Court of Special Appeals of Maryland, 2022
Garval v. City of Rockville
938 A.2d 51 (Court of Special Appeals of Maryland, 2007)
Son v. Margolius, Mallios, Davis, Rider & Tomar
689 A.2d 645 (Court of Special Appeals of Maryland, 1997)
Leakas v. Columbia Country Club
831 F. Supp. 1231 (D. Maryland, 1993)
Doehring v. Wagner
562 A.2d 762 (Court of Special Appeals of Maryland, 1989)
Potomac Electric Power Co. v. Smith
558 A.2d 768 (Court of Special Appeals of Maryland, 1989)
Cheney v. Bell National Life Insurance
520 A.2d 402 (Court of Special Appeals of Maryland, 1987)
Lunsford v. Bd. of Ed. of Pr. Geo's Co.
374 A.2d 1162 (Court of Appeals of Maryland, 1977)

Cite This Page — Counsel Stack

Bluebook (online)
367 A.2d 962, 34 Md. App. 399, 1977 Md. App. LEXIS 527, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robertson-v-shell-oil-co-mdctspecapp-1977.