Brooks v. Bienkowski

• Decision Date: 05 February 2003
• Docket Number: No. 01780,01780
• Citation: 818 A.2d 1198,150 Md. App. 87
• Parties: Jonathan Paul BROOKS v. Mieczyslaw BIENKOWSKI.
• Court: Court of Special Appeals of Maryland

818 A.2d 1198

150 Md. App. 87

Jonathan Paul BROOKS v. Mieczyslaw BIENKOWSKI.

No. 01780, Sept. Term, 2001.

Court of Special Appeals of Maryland.

February 5, 2003.

Reconsideration Denied April 10, 2003.

Ronald A. Baradel (Ruth-Ann E. Lane and Council, Baradel, Kosmerl & Nolan, P.A., on the brief), Annapolis, for appellant.

Clay M. Barnes (Barnes and Raine, P.A., on the brief), Towson, for appellees.

Argued before SALMON, HOLLANDER, PAUL E. ALPERT (Ret., Specially Assigned), JJ.

SALMON, Judge.

We are called upon to decide whether this Court, in entertaining an appeal from a judgment entered by a circuit court in banc panel, is restricted to reviewing the record provided to that panel or whether our review is of the record that was before the trial judge, even though some of that record was not before the in banc panel. This same issue was mentioned, but not decided, in Langston v. Langston, 136 Md. App. 203, 219-22, 764 A.2d 378 (2000), aff'd, 366 Md. 490, 784 A.2d 1086 (2001), and Azar v. Adams, 117 Md.App. 426, 431-34, 700 A.2d 821 (1997). We shall hold that we must review the record that was before the trial court when it entered its final judgment.

Also to be decided is whether the trial court abused its discretion in denying a motion for new trial in a case in which personal injury, wrongful death, and survivorship claims were brought and where the jury found in favor of the plaintiff as to liability and awarded him some economic damages but gave him no money for (1) loss of solatium;¹ (2) the value of the household services his deceased spouse would have rendered to him had she lived; and (3) non-economic damages for plaintiff's claimed post-traumatic stress disorder.

I. UNDISPUTED FACTS

This case has its origin in an accident that occurred at 5:42 a.m. on June 13, 1997, during a very heavy rainstorm. On that date, a car driven by Jonathan Brooks, struck and killed Kazimiera Bienkowski ("Mrs.Bienkowski") near the intersection of Wellham and Cromwell Avenues in Arbutus, Maryland.

Prior to the accident, Mrs. Bienkowski, aged fifty-four, and her husband, Mieczyslaw Bienkowski ("Mr.Bienkowski"), aged sixty-one, lived on Vista Avenue with their daughter and her husband. The Bienkowskis were natives of Poland who had emigrated to this county in 1993. The two had been married for thirty-two years at the time of Mrs. Bienkowski's death. They lived less than one block from the scene of the subject accident.

On the morning of the accident, Mr. and Mrs. Bienkowski were walking to the Ferndale light rail station to catch a train, which would have taken them to Baltimore, where both worked for the Joseph A. Bank Company. The Bienkowskis' usual route to the light rail station was to walk a short distance down Vista Avenue, take a right at the intersection of Vista and Wellham Avenues, then walk one block westbound on the sidewalk that parallels Wellham Avenue (on its north side), cross Wellham by walking southbound at the crosswalk controlling the intersection of Wellham and Cromwell Avenues, then proceed to the station.

The accident happened approximately midway² between the intersections of Wellham and Cromwell Avenues. Wellham Avenue is a two-lane road running east and west. Both lanes are approximately eleven feet in width; the lanes are separated by a double yellow line. On both sides of the travel lanes of Wellham Avenue is a solid white line; that line is three feet from the sidewalk (hereinafter "the three-foot shoulder"). In the vicinity of the spot where Mr. Brooks's vehicle collided with Mrs. Bienkowski, there is no height differential between the sidewalk and any portion of Wellham Avenue. The sidewalk is four feet in width.

Shortly before the accident, both Mr. and Mrs. Bienkowski were walking westbound on the sidewalk, on the north side of Wellham Avenue. According to police photographs taken within an hour of the accident, water had puddled on the sidewalk near where the accident occurred. The parties disagree, strenuously, as to whether Mrs. Bienkowski was still on the sidewalk when she was struck by Mr. Brooks's vehicle.

Mr. Brooks was driving his 1992 Pontiac westbound on Wellham Avenue immediately prior to the accident. He, like the Bienkowskis, was very familiar with the area.

A motorist approaching the accident site from the east (as Mr. Brooks did) would traverse a bridge that crosses Interstate 97; at the west end of the bridge, the area where the accident occurred comes into the driver's view; Wellham Avenue goes down hill and curves slightly to the right, then back to the left; at the base of the hill, the roadway straightens and intersects with Vista Avenue, at which point the driver starts up a slight incline. Wellham Avenue does not become level again until it intersects with Cromwell Avenue.

Mr. Bienkowski was walking ahead of his wife when she was struck. As a consequence he did not see the collision, nor was he struck by Mr. Brooks's vehicle. He did, however, hear the collision and saw his wife's body being thrown through the air. He ran to her, tried to give her aid and comfort, then ran to his home to get his son-in-law to help him. An ambulance was called, and the two then ran back to the scene of the accident.

The ambulance arrived at 5:49 a.m. Emergency medical personnel treated a laceration to Mrs. Bienkowski's head while she lay in the roadway, then put her in an ambulance, but Mrs. Bienkowski had no pulse and was "in full arrest" at that point. She was taken to a nearby hospital where she was pronounced dead.

Damage to Mr. Brooks's vehicle was to the right (passenger side) front area above the right headlight. Below the headlight there was a minor scrape on the bumper; additionally, there were hood dents—one above the right headlight and another near the windshield on the right side of the hood.

The accident was investigated by Anne Arundel County Police Officer C. Craig Russell, who arrived at the accident scene twenty to twenty-five minutes post accident. Officer Russell prepared an accident investigation report in which he said, inter alia, that he could find no evidence of accident-related skid marks.

Under the heading "conclusions," the accident report reads, in part:

Due to the lack of a clearly defined point of impact or other evidence which could confirm the positions of both Vehicle # 1 and Pedestrian # 1 prior to the accident, it is not possible to state with absolute certainty where the parties involved in this accident were located prior to impact. However, it can be concluded that [Mrs. Bienkowski] was not on the sidewalk, therefore she had to be walking on either the shoulder or travel portion of the roadway itself....

Officer Russell said in his report that he reached this last-mentioned conclusion for the following reasons:

• Pedestrian # 1's husband stated he was walking on the sidewalk was uninjured and made no contact with Vehicle #1, indicating Pedestrian # 1 could not have been walking on the sidewalk.

• The point of impact between Pedestrian # 1 and Vehicle # 1 was approximately 1.1 feet in from the right side of the vehicle. Thus eliminating the possibility of a glancing or sideswipe impact.

• Due to the location of the point of impact between Vehicle # 1 and Pedestrian # 1, Vehicle # 1 would have to have been driving so far onto the shoulder (assuming Pedestrian # 1 was walking completely on the shoulder) that it would likely have struck Pedestrian # 1's husband walking on the sidewalk.

• The damage to Vehicle # 1, location of injuries to Pedestrian # 1, and location of the point of impact in respect to Pedestrian # 1's final resting position, suggest Pedestrian # 1 was heading toward the south side of the roadway.

• The nature and condition of the sidewalks, roadway, and Pedestrian # 1's destination, make it likely that she would cross the street somewhere between or at the intersections of Wellham Avenue and Cromwell and Vista Avenues.

• The driver of Vehicle # 1 indicted [sic] he believed Pedestrian # 1 was crossing the street in a diagonal manner when he struck her.

(Footnotes omitted.)

The investigating officer also reached these additional (but related) conclusions: (1) Mrs. Bienkowski was struck by Mr. Brooks's vehicle while she was in the "travel portion" of Wellham Avenue; (2) the primary cause of the accident was Mrs. Bienkowski's "illegal position in the roadway and her failure to yield" to Mr. Brooks's vehicle; (3) Mrs. Bienkowski's "dark clothing" was a "major contributing factor" to the accident because wearing all black in dark or near-dark conditions made it "nearly impossible for an approaching driver to identify and recognize ... [her] until coming right up on her"; (4) Mr. Brooks's speed, which was four to six miles over the posted thirty-mile per hour speed limit, coupled with "the heavy rain and darkness," dictated that Mr. Brooks should have slowed his speed; and (5) Mr. Brooks's speed was a "contributing factor" in the accident.

Mr. Bienkowski filed a three-count complaint in the Circuit Court for Anne Arundel County, claiming that the June 3, 1997, accident resulted from the sole negligence of Mr. Brooks. Count I alleged that Mr. Bienkowski was emotionally traumatized, incurred medical bills, lost wages, and suffered other injuries as a result of the accident. Count II was a survivorship action filed by Mr. Bienkowski in his capacity as Personal Representative of Mrs. Bienkowski's estate. He sought in Count II recompense for medical bills, conscious pain and suffering of the decedent, and funeral expenses. Mr. Bienkowski's wrongful death claim was set forth in Count III, in which he asked for the recovery of economic damages caused by his wife's death, as well as solatium damages.

II. THE TRIAL

A jury trial was held, presided over by the Honorable Robert Heller. The trial lasted four days, and the jury deliberated for six hours on the fifth day.

A significant portion of the evidence focused upon...