Burdette v. ROCKVILLE CRANE RENTAL, CORP.

• Decision Date: 04 February 2000
• Docket Number: No. 249,249
• Citation: 130 Md. App. 193,745 A.2d 457
• Parties: Gary BURDETTE et al. v. ROCKVILLE CRANE RENTAL, INC. et al.
• Court: Court of Special Appeals of Maryland

745 A.2d 457

130 Md. App. 193

Gary BURDETTE et al. v. ROCKVILLE CRANE RENTAL, INC. et al.

No. 249, Sept. Term, 1999.

Court of Special Appeals of Maryland.

February 4, 2000.

Paul T. Stein (Stein, Sperling, Bennett, DeJong, Driscoll, Greenfeig & Metro, P.C., on the brief), Rockville, for Appellants.

Thomas P. Ryan (Amy Leete Leone and McCarthy, Wilson & Ethridge, on the brief), Rockville, for Appellees.

Argued before KENNEY, BYRNES, and PAUL E. ALPERT (Ret'd, specially assigned), JJ. KENNEY, Judge.

Gary Burdette and Leslie Burdette appeal from a jury verdict in favor of appellees, John Johnson and Rockville Crane Rental, Inc. Gary Burdette, individually and as the father and next friend of Leslie Burdette, filed a wrongful death and survival action against appellees as a result of the May 1, 1996, death of Constance Burdette. Constance Burdette, who was Gary Burdette's wife and Leslie Burdette's mother, was fatally injured when her automobile collided with a vehicle owned by Rockville Crane Rental, Inc., and operated by Mr. Johnson.

After a trial in the Circuit Court for Montgomery County, the jury found that (1) Mr. Johnson was negligent in operating appellees' vehicle and (2) Mrs. Burdette was contributorily negligent. Judgment was entered in favor of both appellees.¹

The Accident

Mrs. Burdette's usual route to work was to travel along Emory Lane and then turn left onto Muncaster Mill Road. Emory Lane ended at Muncaster Mill Road, forming a "T" intersection. Both roads were two-lane, with one lane in each direction, but both roads had "right-turn only" lanes at the intersection. Emory Lane had a stop sign at the intersection; Muncaster Mill Road had no traffic signal or sign there. The speed limit on Muncaster Mill Road was 40 miles per hour.

On the morning of May 1, 1996, Mrs. Burdette stopped at the stop sign on Emory Lane, with one car stopped in front of her and one behind her. After the car in front turned onto Muncaster Mill Road, Mrs. Burdette moved her white BMW coupe forward past the stop sign and then paused again. Because Muncaster Mill Road had high ground on both sides of it, drivers stopped at the stop sign on Emory Lane could not see as far down Muncaster Mill Road as they could if they advanced past the stop sign. Mrs. Burdette moved forward and paused at the point, approximately 17 feet past the stop sign, at which the pavement of Emory Lane actually intersected with the pavement of Muncaster Mill Road. There were no traffic markings or signs where she paused.² John Capasso, the driver behind Mrs. Burdette on Emory Lane, testified that while waiting behind her he could not see down Muncaster Mill Road to the left, i.e., south, because of the raised ground along the side of the road.

While Mrs. Burdette's BMW was at the end of Emory Lane, a van driven by Roger Davis was next to her car, in the "right-turn only" lane on Emory Lane. Traffic on Muncaster Mill Road was heavy, and Mrs. Burdette waited in that position for approximately 20 seconds. Mr. Davis could see over the BMW toward the left (south). Intending to go right (north), Mr. Davis remained stationary because he could see a truck approaching from the south.

Mrs. Burdette, however, proceeded forward and began to turn left (south) onto Muncaster Mill Road. Mr. Davis testified that as Mrs. Burdette proceeded forward, her head was turned toward her right, looking past the front of his van.

Kathy Smith was driving south on Muncaster Mill Road. As she approached Emory Lane, she could see Mr. Davis's van. Ms. Smith saw a white BMW come out from behind the van "kind of quick" and start to turn left. Ms. Smith braked, because she was concerned that the BMW would turn in front of her and then slow down. Ms. Smith also looked farther to her left to see if another car would follow the BMW from Emory Lane.

Mr. Johnson was driving north on Muncaster Mill Road in the Ford pickup truck that Mr. Davis had seen approaching. Mr. Johnson testified that the last time he checked his speedometer, at the top of the slight rise down which he was proceeding toward Emory Lane, it read 35 miles per hour. Mr. Johnson was behind another car, which drove past Emory Lane. When Mr. Johnson first noticed the BMW, it was already moving "right into [his] lane." He estimated that he was approximately 100 to 150 feet from the BMW when it started to pull out. He initially steered his truck slightly to the left and then braked hard. The brakes locked, and the truck skidded 84-90 feet in a straight line before hitting the driver's door of the BMW.³ The collision occurred primarily in the same lane in which Mr. Johnson had been traveling, but overlapped the edge of the lane toward the center of the road. Just prior to the collision, as his skidding truck approached the BMW, Mr. Johnson could see Mrs. Burdette looking to her right, away from him. The injuries that Mrs. Burdette suffered in the accident proved fatal.

The Trial and Verdict

After four days of trial, the jury returned its verdict, answering "Yes" to each of the following questions: (1) "Was [the] defendant, John P. Johnson, negligent?"; (2) "Was the negligence of Defendant Johnson a cause of the plaintiffs' injuries?"; (3) "Was Constance Burdette negligent?"; and (4) "Was the negligence of Constance Burdette a cause of her injuries?" The court therefore entered judgment for appellees.

Questions Presented

Appellants present four questions for our review:

1. Did the trial court commit reversible error in denying appellants' motion to strike a juror for cause ... ?

2. Did the trial court commit reversible error in refusing to permit plaintiffs' experts to testify as to their opinions concerning the cause of the collision... ?

3. Did the trial court commit reversible error in failing to instruct the jury of the Boulevard Rule's limitations?

4. Did the trial court commit reversible error in failing to instruct the jury as to the doctrine of Last Clear Chance?

Discerning no error, we shall affirm.

Discussion

I.

After opening statements, the trial court heard testimony from John Capasso, the driver behind Mrs. Burdette. During the recess that followed, Juror 11-A asked to speak with the judge. The following exchange then occurred:

JUROR 11-A: My mother, in September of 1997, living in Prescott, Arizona, pulled out in front of a very busy street and was hit broadside. She survived. She is doing fine. She has no memory of why she did it. She is the most cautious person in the world. It just has an eerie similarity, what I am presented with. She had very clear vision. She was smacked broadside. She clearly was at fault, and I am finding it hard to sort of—I am finding myself feeling very awkward listening to this because I have the clear understanding my mother was at fault. She definitely could see. She made a mistake. I feel like I may be somewhat biased.

...

As soon as the circumstances arose I had a strong feeling that my mother was at fault in this case, and I think that is what my family has concluded. She pulled out. That is what the people said. It is a very busy street. It is a huge intersection. It is a highway. She did it every day. She is 76 years old. She is bright, alert.

She just pulled right out in front of the guy, and she is the most cautious person in the world. I just feel like it is hard for me to shake the sense that that is a very possible thing to do, to make that mistake, because my mother did it.

THE COURT: Do you feel that your mother's experience ... would affect your capacity to objectively evaluate this matter?

JUROR 11-A: I will do my best to objectively evaluate it. The reason I am bringing it to you is because it sounds too familiar.

THE COURT: I appreciate that.

JUROR 11-A: Before this happened the thought that my mother, who was so cautious about traffic, and every time we would go to visit them in Prescott she would say, "You make sure you look left, this is a dangerous highway." The fact that she would pull out in front of these people just astonishes me, and it still astonishes me that she would have made that mistake. She clearly made a mistake. It has an impact on me. It makes it seem very believable to me that somebody who is a good driver, who is a cautious driver, would completely—and so I am bringing that to your attention.

I will try to put everything aside and I will be happy to be a juror, but I wanted to let you know.

THE COURT: Well, we appreciate your bringing your thoughts and reflections to our attention. Why don't we do this, you come back tomorrow and you will participate unless I deem otherwise.

After the initial conference with Juror 11A, the court informed both parties that it would speak further with the juror at the close of all the evidence, so as to assess whether the juror still felt he could be impartial and base his decision on the law. The first conference with Juror 11A was the last trial event on the first day of trial. Appellant's counsel did not move to strike Juror 11A on that day, but did so at a "preliminary matters" bench conference on the next day, before the resumption of testimony. Near the end of the trial, after the jury had been instructed and closing arguments had been given, the court had another conference with the parties and Juror 11A. The court asked the juror if he felt "that the experience of a family member would affect your capacity to decide this case fairly and impartially based solely on the evidence and the applicable law," or if he felt "that it would have such an impact that you couldn't do it?" The juror responded: "I feel like I would be fair."

Appellants' counsel then asked the juror if he had any "beliefs or biases" against drivers who "make turns from stop signs and get in collisions?" The juror answered:

I think what I said on Monday is what I still believe, which is that even careful people can make mistakes. That was my conclusion from my experience that I had with my mother. I found my

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