Chalmers v. Willis

• Decision Date: 05 July 1967
• Docket Number: No. 383,383
• Citation: 231 A.2d 70,247 Md. 379
• Parties: Rita CHALMERS and Harry C. Chalmers v. Ella N. WILLIS.
• Court: Maryland Court of Appeals

Page 379

247 Md. 379

231 A.2d 70

Rita CHALMERS and Harry C. Chalmers v. Ella N. WILLIS.

No. 383.

Court of Appeals of Maryland.

July 5, 1967.

George J. Goldsborough, Jr., Easton, for appellants.

Dorothy H. Thompson, Easton (Ernest M. Thompson, Easton, on the brief), for appellee.

Argued before HAMMOND, C. J., and HORNEY, MARBURY, OPPENHEIMER and McWILLIAMS, JJ.

Reargued before HAMMOND, C.J., and HORNEY, MARBURY, OPPENHEIMER, BARNES, McWILLIAMS and FINAN, JJ.

OPPENHEIMER, Judge.

We are called upon to decide whether a friend, who accompanies a learning driver with only a learner's permit for the purpose of giving the driver instruction and help in learning to drive, must be held, as a matter of law, to have assumed the risk of injury in an accident in which no other vehicle and no unexpected emergency was involved and in which the only explanation given of the accident was the conduct of the driver. The question is one of first impression in Maryland.

The facts are virtually undisputed. The appellants, Mr. and Mrs. Chalmers, and the appellee, Mrs. Willis, and her husband, were friends. Mrs. Chalmers is 43 years of age, Mrs. Willis is 53. Since about 1953, Mrs. Willis had been anxious to learn to drive, but, after one or two brief lessons, circumstances beyond her control and unrelated to her learning capacity, prevented her from pursuing her endeavor. In March of 1965, Mrs. Chalmers agreed, solely as an act of friendship, to teach Mrs. Willis how to drive. Mrs. Willis obtained a learner's license on March 31, 1965. The automobile owned by Mr. and Mrs. Willis was used for the lessons.

The first lesson, of about two hours duration, took place on Saturday, April 3. On that day, Mrs. Chalmers, behind the wheel, began the instructions with the rudiments of starting, stopping and steering. After about 45 minutes, Mrs. Willis took over. For an hour and a quarter to an hour and a half Mrs. Willis drove up and down a lane, and around a circle through an isolated and untraveled development known as Waverly Island Estates. Mrs. Chalmers testified that Mrs. Willis did 'very well', had no difficulty and nothing occurred which suggested she was not 'perfectly at ease behind the wheel.'

On the next day, Sunday, April 4, Mrs. Chalmers gave Mrs. Willis the second lesson. Mrs. Willis took the wheel and drove from Waverly, where the Chalmers lived, to Oxford, a distance of at least ten miles, drove down a ramp or incline to a ferry slip, and then, after a stop for a cigarette, turned the car around and drove back through Oxford. Mrs. Willis testified that, in driving through the town, she encountered pedestrians, bicyclists, narrow roads and other cars, and had 'absolutely no difficulty.' She said nothing to Mrs. Chalmers to indicate she was nervous or unsure. During the two days, Saturday and Sunday, until the accident, Mrs. Willis testified that she had no difficulty or problem of any kind.

On the return trip from Oxford, Mrs. Willis, at the suggestion of Mrs. Chalmers, turned off the main road into a development known as Oaklands, where Mrs. Willis went in and 'around and around' a circle and came out again without incident. At the entrance to Waverly, there are two brick pillars. Waverly Road, beyond the pillars, has a paved surface of 20 feet. Before making the left turn into Waverly Road, Mrs. Willis was instructed by Mrs. Chalmers with respect to observing traffic. Mrs. Willis testified that she momentarily stalled the car, but then started again and made the left-hand turn through the entrance pillars. She slowly started down Waverly Road, and the physical evidence indicates that she had proceeded at least 50 feet from the entrance pillars. She then drove off the road to her left into a shallow ditch and struck a telephone pole nine feet from the side of the road. No other vehicles were on the road, at least near the accident. Mrs. Willis' only explanation of the accident was that 'I didn't pull my wheel back or let the wheel come back.' Mrs. Chalmers tried, unsuccessfully, to prevent the collision.

During the two trips in which Mrs. Chalmers was instructing Mrs. Willis, Mrs. Willis had driven a total of approximately 40 miles before the accident. Nothing had happened during that time. Mrs. Willis testified that she had no momentary lapse of control, and nothing happened to demonstrate to her or to Mrs. Chalmers that she, Mrs. Willis, had any hesitancy about operating the car. Mrs. Willis testified further that, on the day of the accident, she had made 'any number of similar turns.' It was stipulated that Mrs. Willis, during the two days prior to the accident, had driven carefully and cautiously at all times.

Mrs. Chalmers and her husband brought suit in the Circuit Court for Talbot County for injuries sustained and losses incurred as a result of the collision. The case was tried before a jury. Mrs. Willis' motions for a directed verdict at the conclusion of the Chalmers' case and the entire case were denied. The trial judge instructed the juty, fully and carefully, on the issues of primary and contributory negligence. Mrs. Willis asked for no instructions as to assumption of risk. No exceptions were taken on behalf of Mrs. Willis to the charge, except as to the failure of the judge to rule as a matter of law that Mrs. Chalmers was not entitled to recover because she had assumed the risk of the accident. The jury returned a verdict for Mrs. Chalmers. Thereafter, on motion duly made by Mrs. Willis, the judge granted judgment in her favor n. o. v. Mrs. Chalmers appealed; no cross-appeal was taken by Mrs. Willis. The only question before us, therefore, is whether the judgment n. o. v. was properly awarded.

The court below, in a memorandum opinion, held that the negligence of Mrs. Willis was imputed to Mrs. Chalmers, and that the 'accident was caused by the inexperience and lack of skill of the learner driver which was a risk that the instructor clearly knew and fully understood when she agreed to act as such and ride in the car operated by the learner. Accordingly we rule that the plaintiff assumed the risk of this accident as a matter of law and is precluded from recovery for that reason.'

In Slutter v. Homer, 244 Md. 131, 139-140, 223 A.2d 141 (1966), we referred to the criticisms of the imputed negligence theory as unrealistic and fictitious, and characterized it as a 'controversial doctrine.' In any case, however, that doctrine is not here applicable. Whatever effect the doctrine may have as to third parties, it is inapplicable as between the parties engaged in a common enterprise. Powers v. State, Use of Reynolds, 178 Md. 23, 29-31, 11 A.2d 909 (1940); Restatement, Torts, Second, § 491.

While no issue of imputed negligence is involved, the question of whether the plaintiff is barred from recovery, because she assumed the risk of what happened as a matter of law, is a close one. This Court has consistently recognized that while, in some cases, there is an overlapping between contributory negligence and assumption of risk, there is a distinction between the two. Baltimore County v. State, Use of Keenan, 232 Md. 350, 359-360, 193 A.2d 30 (1963), and cases therein cited. In Gibson v. Beaver, 245 Md. 418, 226 A.2d 273 (1967), Chief Judge Hammond, for the Court, quoted Prosser, Torts § 55, p. 303 (2d ed.1955), as follows:

'The defense of assumption of risk rests upon the plaintiff's consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of harm from a particular risk. Such consent may be found: * * * by implication from the conduct of the parties. When the plaintiff enters voluntarily into a relation or situation involving obvious danger, he may be taken to assume the risk, and to relieve the defendant of responsibility. Such implied assumption of risk requires knowledge and appreciation of the risk, and a voluntary choice to encounter it.'

and said:

'In determining whether a plaintiff had knowledge and appreciation of the risk, an objective standard must be applied and a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him.' 245 Md. at 421, 226 A.2d at 275.

As in the case of contributory negligence, when the undisputed facts permit only one reasonable conclusion, we have approved the granting of a summary judgment or the direction of a verdict because we found, as a matter of law, that the plaintiff had assumed the particular risk. Gibson, and cases cited therein at 245 Md. 422, 22l A.2d 273. However, again as with contributory negligence, the issue of whether the plaintiff had assumed the risk is generally one for the trier of the facts. E. g., Keenan, supra, at 232 Md. 366-367, 193 A.2d 60; Velte v. Nichols, 211 Md. 353, 356-357, 127 A.2d 544 (1957); Bull Steamship Lines v. Fisher, Use of Globe Indemn. Co., 196 Md. 519, 526-527, 77 A.2d 142 (1950). See also, Williamson Truck Lines, Inc. v. Benjamin, 244 Md. 1, 222 A.2d 375 (1960); Restatement, Torts, Second, § 496; Prosser, op. cit. supra, § 67, at 453-454.

In this case, two questions are involved: first, whether a plaintiff helping a driver whom the plaintiff knows has only a learner's permit is barred, as a matter of law, from recovery against the driver for injuries sustained in an accident in which the inexperience of the driver plays a part; and, second, if that question is answered in the negative, whether the court below was correct in holding that the appellant was barred from recovery as a matter of law, because of the assumption of risk, on the evidence in the case and in the posture in which the case comes to us.

On the first question, courts in other jurisdictions are divided. New York and Kentucky hold that one who is licensed to operate a motor vehicle and who voluntarily accompanies a driver for the purpose of teaching him to drive, assumes the risk of the learner's inexperience and may not recover damages for personal injuries caused...