Cleary v. Fager's Island, Ltd.
| Decision Date | 06 August 2020 |
| Docket Number | Civil Case No.: 1:17-cv-02252-JMC |
| Parties | DANIEL W. CLEARY, Plaintiff v. FAGER'S ISLAND, LTD. et al., Defendants. |
| Court | U.S. District Court — District of Maryland |
The case is before me for all proceedings by the consent of the parties pursuant to 28 U.S.C. § 636(c). (ECF Nos. 98 & 99). Now pending before the Court are eight pretrial motions. (ECF Nos. 57, 59, 60, 70, 74, 82, 83, 84). The parties have filed their respective oppositions and replies, as described in detail below. No hearing is needed. See Loc. R. 105.6 (D. Md. 2019). For the reasons described herein:
On August 16, 2014 Daniel Cleary ("Plaintiff") was a front seated passenger in a golf cart1 owned and operated by a group of restaurant/bar and hotel entities ("Fager's Island" or "Fager's") in Ocean City, Maryland. See (ECF No. 57-1 at 1). On the day of the incident, a Fager's employee offered a golf cart ride to Plaintiff when he was near 60th street and Coastal Highway. Id. Fager's uses golf carts for the purpose of transporting patrons and/or business invitees from the public street and/or parking lots to their businesses. Id. at 1 n.1. According to Plaintiff, after picking him and his friends up, the Fager's employee "drove straight, with full acceleration, westbound on 60th Street, until making a sharp left turn (almost 90 degrees), at the end of 60th Street, into Fager['s] parking lot." Id. Plaintiff alleges that prior to turning left, the Fager's employee gave no warning, and did not slow down. Id. During the turn, Plaintiff was ejected from the golf cart. Id.
Plaintiff argues that Maryland law precludes the introduction of any evidence related to the non-use of seat belts in this case. (ECF No. 57-1). At the time of the incident, the Defendants allege that the subject golf cart had seat belts. Id. at 1. Defendants further contend that there was a warning taped to the front of the golf cart windshield cautioning that "all riders must wear seat belts." Id. at 2. Plaintiff disagrees and responds that this windshield warning first appeared during a site visit by counsel and experts in the summer of 2018. Id. at 2 n.2. In support thereof, Plaintiff provides deposition testimony from Fager's corporate representative, Mr. Meyers, wherein he said that a sign requiring riders to "keep hands and feet inside at all times," was posted on the golf carts in August of 2014, but he could not confirm that a seat belt instruction was present at the time of the incident. (ECF No. 57-1 at 23). Further, Plaintiff points to an exhibit included in one of Defendants' expert's reports that depicts a Google "street view" of the premises in question prior to the incident, including a golf cart that does not contain a seat belt instruction. (ECF No. 65 at 23-27). Finally, Plaintiff testified that he was unaware that there were seat belts in the golf cart. (ECF No. 57-1 at 11)
Defendants argue that Plaintiff was contributorily negligent for failing to wear a seat belt and for not abiding by the seat belt warning. (ECF No. 61 at 3) ("[E]vidence of Plaintiff's failure to use his seat belt is admissible to prove his contributory negligence . . . ."). Plaintiff articulates that Maryland Transportation Code Annotated § 22-412.3, relating to "Motor Vehicles," precludes the introduction of any evidence related to the non-use of seat belts. Id. In full, this statute states:
Md. Code Ann., Transp. § 22-412.3(h).
Defendants argue that a golf cart does not meet the definition of "motor vehicle" under the statute such that its preclusion of seat belt evidence does not apply. (ECF No. 61 at 3). This Court agrees that the golf cart in question does not meet the definition of a "motor vehicle" for purposes of the above statute for the reasons articulated by Defendants. Id. at 3-5. Thus, the statutory prohibition on seat belt evidence does not apply. That, however, does not end the inquiry.
Even in the absence of the statute, Maryland common law disfavored the introduction of seat belt evidence as evidence of contributory negligence or in support of an argument that the failure to wear a seat belt contributed to or exacerbated the injuries. See Cierpisz v. Singleton, 247 Md. 215, 227 (1967), Ramrattan v. Burger King Corp., 656 F. Supp. 522, 527 (D. Md. 1987) (). Defendants attempt to use Cierpisz in support of their argument, notwithstanding its holding, based on the following language from the opinion:
We hold, also, that the failure to use the seat belt, standing alone, is not evidence sufficient to support a finding of contributory negligence. Some future case in which the availability of the belt will be known to the plaintiff and in which there will be evidence indicating the failure to use it was a substantial factor in producing or aggravating the plaintiff's injuries may require us to consider holding that the issue, with proper instructions, ought to be submitted to a jury. This case does not require it and we do not so hold.
Cierpisz, 247 Md. at 227 (emphasis added).
Defendants argue that this is that "future case" referred to by the Court of Appeals. (ECF No. 61 at 4). The Court disagrees. First, Plaintiff testified that he was not aware of the availability of a seat belt in the golf cart. (ECF No. 57-1 at 11). Second, there is no evidence that the seat beltinstruction now found on Defendants' golf cart was present at the time of the accident based on Defendant's representative's inability to confirm it. (ECF No. 57-1 at 2 n.3) (citing ECF No. 57-1 at 22-23).
Further, there is photographic evidence of at least one golf cart that did not have the seat belt instruction at a time prior to the accident. (ECF No. 75 at 22-27). Moreover, it is far from a universal experience that golf carts include seat belts, such that it cannot amount to "common knowledge." Under either a subject or objective standard, it cannot be said in this case that the availability of a seat belt was known—or should have been known—by Plaintiff at the time of the accident.
Maryland, clearly, had a public policy disfavoring such evidence even before the seat belt statute was passed as expressed in Cierpisz. In fact, one could argue that including such an evidentiary prohibition in the very statutory scheme that mandates seat belt usage underscores that policy. According to Plaintiff, in this situation, there is "particularly no societal consensus that all reasonable [people] will use a seat belt when driving in a golf cart." (ECF No. 65 at 2). Plaintiff also argues that any evidence related to seat belt warning signs is not admissible because there is no credible evidence that such signs existed. Id. In the context of golf carts in which seat belts are not standard and, at least as to this model, not required equipment, the situation is more akin to that facing courts before seat belts in automobiles were universally accepted as common and effective safety equipment. As noted in Cierpisz, one's failure to use a seat belt is not evidence sufficient to support a finding of contributory negligence because 247 Md. at 226 (quoting Roethe, Seat Belt Negligence in Automobile Accidents, 97 Wis. L. Rev. 1, 288 (1967)) (internal quotation marks omitted).
This lack of consensus, combined with Defendants' own lack of awareness as to the presence of seat belts in the golf cart, and no reliable evidence that instructions were present, does not provide the jury with a reasonable basis to apply the principles of contributory negligence or its sister doctrine—assumption of risk, as a plaintiff cannot be said to have a assumed a risk of which he was neither aware nor should have been aware based on common experience. Even if a sign was present, as Plaintiff effectively argues, the presence of a seat belt sign does not make Plaintiff's non-use of a seat belt admissible because a "reasonable person could reject signs requiring the use [of] seat belts on...
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