Cohen v. Rubin

• Decision Date: 10 June 1983
• Docket Number: No. 1307,1307
• Citation: Cohen v. Rubin, 55 Md.App. 83, 460 A.2d 1046 (Md. App. 1983)
• Parties: Steven Marc COHEN, et al. v. Edith RUBIN, Personal Representative of the Estate of Philip Scott Rubin, et al.
• Court: Court of Special Appeals of Maryland

Page 83

55 Md.App. 83

460 A.2d 1046

Steven Marc COHEN, et al. v. Edith RUBIN, Personal Representative of the Estate of Philip Scott Rubin, et al.

No. 1307.

Court of Special Appeals of Maryland.

June 10, 1983.

James R. Eyler, with whom were Richard P. Kidwell and Miles & Stockbridge, Baltimore, on brief, for appellants.

Peter G. Angelos, with whom was Howard J. Schulman, Baltimore, on brief, for appellees.

Argued before MASON, LISS and GETTY, JJ.

GETTY, Judge.

This appeal arises out of an action for negligent operation of an automobile, negligent entrustment of the vehicle by the owner-father to his son and wrongful death. On February 2, 1982, a Baltimore County jury rendered the following verdicts.

1. $2,000.00 compensatory damages in favor of the Estate of Philip Scott Rubin against the defendants, Steven and Sidney Cohen.

2. $250,000.00 punitive damages in favor of the Estate of Philip Scott Rubin against the defendant, Steven Cohen.

3. $200,000.00 compensatory damages in favor of the plaintiff, Milton Rubin, surviving parent of Philip Scott Rubin, against the defendants, Steven and Sidney Cohen.

4. $250,000.00 compensatory damages in favor of the plaintiff, Edith Rubin, as surviving parent of Philip Scott Rubin, against the defendants, Steven and Sidney Cohen.

On April 26, 1982, judgment absolute was entered for the above amounts with the exception of the $250,000.00 punitive damage award against Steven Cohen. The Court reserved its ruling with respect to that award. ¹ The defendants noted a timely appeal from the judgments rendered, and the plaintiffs noted a cross appeal.

The appellants'/cross-appellants' issues are:

1. Did the trial court err in submitting the question of the driver's negligence to the jury or, in the alternative, in giving the jury instructions on last clear chance and the duties and burdens of drivers and pedestrians?

2. Was the evidence of negligent entrustment wrongfully admitted and legally insufficient such that submission of that issue to the jury constitutes reversible error?

3. Did the trial court commit prejudicial error in submitting a punitive damage claim to the jury on the issue of negligent entrustment?

4. Did the trial court err in admitting into evidence the autopsy report, photographs of the vehicle showing the decedent's blood and tissue and photographs of the decedent's injuries?

5. Did the trial court err in admitting certain expert testimony relative to the speed of the vehicle at the time of the accident?

6. Did the trial court err in failing to admit certain docket entries, depositions and interrogatory responses relating to the alleged negligence of a party dismissed with prejudice prior to trial?

The cross appellants allege that the trial court erred in sustaining a demurrer to the punitive damage claim predicated upon the Wrongful Death Act, Md.Cts. & Jud.Proc., Code Ann. sec. 3-904(d).

The Facts

On August 21, 1979, at approximately 1:40 a.m., Philip Scott Rubin was fatally injured by a vehicle being driven by Steven Cohen. The accident occurred on Maryland Route 528 (Ocean Highway) near the 74th Street intersection in Ocean City, Maryland. At the time of the accident, Philip Rubin, age thirteen, and a companion, Brian Kovens, were returning to their motel from a "Mr. Donuts" shop located across Route 528 from the motel where the boys were staying.

Immediately prior to the accident the two boys were standing on the traffic median in the center of Ocean Highway approximately twenty feet south of the pedestrian crosswalk. They had previously crossed the southbound lanes of Ocean Highway and as they proceeded across the northbound lanes, Philip, who was several feet ahead of his companion, was struck and killed; Brian Kovens retreated to the median unscathed.

Brian testified that before crossing the northbound lanes they looked to their right and saw car lights "at least two blocks away." A driver proceeding south on Ocean Highway testified that the traffic light controlling north and south bound traffic was green at the time of the accident.

Steven Cohen, between 10:00 p.m. and the time of the accident, had shared two pitchers of beer with a friend, drank four or five beers and smoked a water pipe containing marijuana at his apartment. Sometime after 1:00 a.m., Steven drove Elise and Ellen Wolod from his apartment toward the Sheraton Hotel where they were residing. After entering Ocean Highway in a northerly direction, Steven challenged another motorist to a race and accelerated his car to seventy-five or eighty miles per hour, according to Elise Wolod who was seated beside the driver.

Miss Wolod stated that Steven ignored her pleas to slow down and she then observed the two boys on an island in the street three blocks ahead. Her testimony concerning the incident is as follows:

A Then, as we were driving, I could see like about three blocks away on the left hand side on an island there were two boys and I saw one boy walk out and then I saw both boys step down, but I saw one start to walk back and one kept on going, and I said, "Steve, slow down, there are two kids out there."

Q At that point, did the boys continue to cross the street?

A The one boy did.

Q What did Steve do when you said to him, "Steve, slow down there are two boys up there?"

A The car did not slow down and then, like, before I knew it, I said, "Steve, stop," and it was too late.

Q What happened then?

A He hit a boy.

Officer William Galten of the Ocean City Police Department determined that the Cohen vehicle left skid marks measuring 255' 8" and 209' 10"; Philip Rubin's body was recovered 55' 2" north of the final resting place of the vehicle. Sgt. Myron Lofgren, a member of the Minnesota State Highway Patrol testified, over objection, as an accident reconstruction expert. He concluded that the point of impact was 32' to 34' from the median island and in the center portion of the middle of the three northbound lanes of Ocean Highway. Sgt. Lofgren further concluded that Philip Rubin was 10' or 20' south of the south line of the crosswalk and that the Cohen vehicle, as it began its four wheel skid was travelling at 85 miles per hour or 124.6' per second.

Evidence was introduced concerning Steven Cohen's driving record to establish that Sidney Cohen supplied the vehicle involved in the fatal accident when he was aware of his son's tendencies to drive recklessly and in a dangerous manner. This evidence consisted of disciplinary infractions for entering the school parking lot in the wrong direction on two occasions. Sidney Cohen was advised of these infractions by the Assistant Principal.

The trial court also admitted, as to Sidney Cohen, transcripts of three traffic violations committed by Steven Cohen. On April 13, 1978, Steven was charged with operating a motor vehicle at 38 miles per hour in a 25 mile per hour zone near Pikesville Senior High School. Sidney Cohen testified at trial that he was not present at the hearing in District Court; in a prior deposition he stated he was present at the trial for the April 13th incident.

On December 16, 1978, Steven was cited for driving 53 miles per hour in a 30 mile per hour zone. At the District Court hearing, February 13, 1979, Steven was accompanied by his father, Sidney Cohen, who represented to the court that his son was a careful driver and aware of the point system. Steven was granted probation before judgment and was ordered to attend a Baltimore County Traffic School program.

In the early morning hours of March 4, 1979, while still on probation, Steven was charged with striking three vehicles and leaving the scene without providing identifying information. He received a fine and a suspended thirty day jail sentence. Accompanied by his father and legal counsel, Steven appeared before the District Court on a motion for reconsideration of his most recent conviction. He, Steven, had received a notice from the MVA that his license would be suspended effective June 19, 1979.

Sidney Cohen represented to the court that his son contacted the owners of the three vehicles and assured them that they would be reimbursed for their damages. Mr. Cohen pleaded for a disposition other than conviction and advised the Court that Steven drove "only on family chores". The District Court granted probation before judgment. Two months later, Steven was in Ocean City, driving a car purchased for him by his father in April as a graduation present and Philip Scott Rubin was dead.

The Law

Contributory Negligence

Appellants first contention is that the deceased was guilty of contributory negligence as a matter of law by reason of being outside the designated cross-walk and placing himself in a marked cross walk, must be considered in relation to Sec. 21-503(a) of the Transportation Article. The statute requires a pedestrian shall yield the right of way, under such circumstances, to any vehicle approaching on the roadway.

The Court of Appeals, construing the statute, has consistently held that a pedestrian crossing between intersections raises a factual issue of negligence, but such fact, standing alone, is insufficient to establish that the pedestrian is prima facie guilty of negligence. Nelson v. Seiler, 154 Md. 63, 139 A. 564 (1927); Weissman v. Hokamp, 171 Md. 197, 188 A. 923 (1937); Thursby v. O'Rourke, 180 Md. 223, 23 A.2d 656 (1942); Love v. State, 217 Md. 290, 142 A.2d 590 (1958); Boyd v. Simpler, 222 Md. 126, 158 A.2d 666, (1960). No absolute rule as to what does, and what does not, constitute contributory negligence can be formulated that would be applicable to all cases. Like primary negligence, it is relative and not absolute in nature. What constitutes contributory negligence, therefore, depends upon the particular circumstances of each case. Thursby v. O'Rourke, supra, Ford v. Bradford, 213 Md. 534, 132 A.2d 488 (1957). Contributory negligence as a matter of law cannot be found, unless the evidence permits of but...