Atlantic Mut. Ins. Co. v. Kenney

• Decision Date: 01 September 1989
• Docket Number: No. 170,170
• Parties: ATLANTIC MUTUAL INSURANCE COMPANY, et al. v. Norman KENNEY, et al. ,
• Court: Maryland Court of Appeals

Page 116

323 Md. 116

591 A.2d 507

ATLANTIC MUTUAL INSURANCE COMPANY, et al. v. Norman KENNEY, et al.

No. 170, Sept. Term, 1989.

Court of Appeals of Maryland.

June 27, 1991.

Michael C. Rosendorf and Gilbert F. Shelsby, Jr. (Montedonico & Mason, Chartered, on brief), Baltimore, for petitioner.

Paul J. Webber (Francis B. Buckley, Rollins, Smalkin, Richards & Mackie, on brief), Baltimore, for respondent.

Argued before MURPHY, C.J., ELDRIDGE, ^* COLE, RODOWSKY, McAULIFFE, CHASANOW and THEODORE G. BLOOM, Judge of the Court of Special Appeals of Maryland (Specially Assigned), JJ.

McAULIFFE, Judge.

In this action the petitioners, Robert C. Hill and his insurer, Atlantic Mutual Insurance Company, sued to recover property damages resulting from a collision between Hill's vehicle and a vehicle operated by Francis Holmes. The action is not against Holmes; it is against Norman Kenney and Roadway Express, Inc., the operator and owner respectively of a 45-foot tractor trailer that petitioners claim was negligently parked so as to significantly interfere with the ability of the driver of each vehicle to observe the approach of the other.

The case was originally tried in the District Court of Maryland sitting in Anne Arundel County, where Judge Thomas Curley found for the petitioners and awarded judgment in the amount of $4,317.90. Respondents perfected an appeal on the record to the Circuit Court for Anne Arundel County, which reversed the judgment of the District Court and entered a judgment for costs in favor of respondents. We granted petitioners' petition for certiorari, and we now reverse the judgment of the circuit court and direct the reinstatement of the District Court judgment.

On 3 October 1986, Tracey Hill operated a motor vehicle owned by his father, Robert Hill, in the Linthicum area of Anne Arundel County. At noon on that day, he left the Westinghouse plant with a friend whom he was taking to the Baltimore-Washington International Airport. At the request of his friend, Hill stopped at a small shopping center on the way to the airport. The sole means of ingress to and egress from the shopping center consisted of two curb cuts on the east side of Route 170 (Camp Meade Road), the southernmost of which was marked for entrance into the shopping center, and the northernmost of which was marked for exit. Hill attempted to leave the shopping center by the only available exit, intending to turn left onto Route 170 and continue to the airport. As he approached the exit, Hill's vision to his left was obstructed, initially by vehicles parked in the parking lot in close proximity to Route 170, but ultimately, as he arrived at the intersection with Route 170, by a 45-foot tractor trailer parked on the east side of Route 170. The tractor trailer occupied all the space between the entrance and exit areas, an area designated as a "No Parking" zone by a posted sign.

Route 170 at this point is one lane in each direction, and the lanes are separated by a double yellow line. According to the police officer who investigated the accident, given the tractor trailer's parked position, an automobile northbound on Route 170 could "just about get through" between the double yellow line and the truck without going over the line.

Hill proceeded onto Route 170 in front of the parked tractor trailer. Just as the front of his vehicle reached the center line of Route 170, his vehicle collided with the Holmes vehicle, which was proceeding north on Route 170, passing the parked tractor trailer. Both drivers testified their view was obstructed by the truck. Hill said he did not see the Holmes vehicle until "about the point of impact." Holmes did not see the Hill vehicle until "it was like right in front of me." The point of impact was at the center line of Route 170. Damage was to the front of the Holmes vehicle and to the left front portion of the Hill vehicle.

Norman Kenney was the driver of the tractor trailer. He routinely made deliveries to the shopping center, but ordinarily did so in a 28-foot truck that he drove into the center, and to a loading dock serving the stores. On this occasion, however, he was driving the 45-foot tractor trailer, and the only way to maneuver a truck of that size into the shopping center was to back it in. This, Kenney said, would have been "suicide" because "you'd have cars running underneath your trailer when you're backing the thing in the driveway. You'd be surprised the people can't see a 45-foot trailer, they'll run right into you." ¹ Accordingly, Kenney decided to park the tractor trailer alongside the "No Parking" sign, and to deliver a pallet of goods by hand-truck. When asked how long it took him to deliver his cargo, Kenney said "well I had like a 140 pound skid--I put it on my hand-truck, and hand-trucked it back in the back--they (unclear words) and brought it back in about 15 minutes."

I. Primary Negligence

Logically, the first question raised by this set of facts is whether the evidence was sufficient to support the District Court's finding that Kenney was negligent in where he parked the tractor trailer. Procedurally, however, the question may not be properly before us. Respondents did not argue the absence of primary negligence before the District Court. Rather, they appear to have assumed primary negligence could be found, and argued recovery was barred by contributory negligence, or because any negligence on the part of Kenney was not a proximate cause of the accident. On appeal to the circuit court, respondents argued for the first time, that the tractor trailer may not have been illegally "parked," because it was only temporarily stopped for the purpose of making a delivery, and the sign posted at that point did not prohibit "stopping" or "standing." See §§ 11-144 & 21-1003 of the Transportation Article, Maryland Code (1977, 1987 Repl.Vol.).

Although the rules of procedure governing appeals on the record from the District Court to a circuit court are not as comprehensive as those governing appeals to the Court of Special Appeals or to this Court, we have said that the ordinary rules governing the scope of appellate review in the latter courts are generally applicable to appeals on the record in a circuit court. Ryan v. Thurston, 276 Md. 390, 391-93, 347 A.2d 834 (1975). Maryland Rule 8-131(a), applicable to appellate procedure in the Court of Special Appeals and in this Court provides, in pertinent part, as follows:

Ordinarily, the appellate court will not decide any other issue unless it plainly appears by the record to have been raised in or decided by the trial court, but the Court may decide such an issue if necessary or desirable to guide the trial court or to avoid the expense and delay of another appeal.

The rule "is simply enunciatory of the practice which has existed since 1825," Gordon v. State National Bank, 249 Md. 378, 383, 239 A.2d 915 (1968), and we see no reason not to apply it to appeals on the record from the District Court to a circuit court. The rule begins with the word "ordinarily" and we have recognized that an appellate court has discretion, under some circumstances, to consider and decide questions not tried and decided in the trial court. Crown Oil v. Glen, 320 Md. 546, 561, 578 A.2d 1184 (1990); Taub v. State, 296 Md. 439, 441-42, 463 A.2d 819 (1983). It does not appear that the circuit court did so in this case. Rather, Judge H. Chester Goudy, Jr. assumed that "there might have been negligence," but reversed the judgment because he found as a matter of law the negligence was not a proximate cause of the accident, or because the claim was barred by contributory negligence as a matter of law. ² We may, of course, in the exercise of our independent discretion, elect to consider the question even though the first appellate tribunal did not, Squire v. State, 280 Md. 132, 134, 368 A.2d 1019 (1977), and we shall do so in this case.

Respondents are correct in their observation that stopping a vehicle temporarily in a designated "No Parking" zone may not be a violation of the law. Section 21-1003(aa) of the Transportation Article provides that "[a] person may not park a vehicle at any other place where parking is prohibited by an official sign." Section 11-144 of that Article provides, however, that

'Park' means to halt a vehicle, whether or not it is occupied, other than temporarily:

(1) When necessary to avoid conflict with other traffic or in compliance with the directions of a police officer or a traffic control device; or

(2) For the purpose of and while actually engaged in loading or unloading property or passengers.

Prohibition against temporary stopping for purposes of loading or unloading may be accomplished by the erection of signs prohibiting "stopping," or, as more commonly seen, a sign prohibiting "stopping, standing, or parking."

Had this point been raised in the District Court, the trial judge would have had an opportunity to evaluate the evidence, and the inferences fairly deducible therefrom, to determine whether the tractor trailer operator was "actually engaged in loading or unloading property." ³ If the trial judge had found that the truck was illegally parked, that would not have ended the inquiry. The violation of a statute may furnish evidence of negligence, Aravanis v. Eisenberg, 237 Md. 242, 259-60, 206 A.2d 148 (1965), but only where the person alleging negligence is within the class of persons sought to be protected, and the harm suffered is of the kind which the statute was intended, in general, to prevent. Owens v. Simon, 245 Md. 404, 409, 226 A.2d 548 (1967); Slack v. Villari, 59 Md.App. 462, 471, 476 A.2d 227 (1984); Prosser & Keeton on The Law of Torts § 36, at 224-27 (5th ed. 1984). A statute prohibiting parking within a specified distance from an intersection or crosswalk is obviously intended to protect motorists and pedestrians from risks associated with obstruction of visibility. ⁴ Blessing v. Welding, 226...