Dalmo Sales of Wheaton, Inc. v. Steinberg, Nos. 121

• Court: Court of Special Appeals of Maryland
• Writing for the Court: WILNER
• Citation: 407 A.2d 339,43 Md.App. 659
• Docket Number: Nos. 121,210
• Decision Date: 18 October 1979
• Parties: DALMO SALES OF WHEATON, INC., et al. v. Dorothy L. STEINBERG, et vir, (two cases).

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43 Md.App. 659 407 A.2d 339 DALMO SALES OF WHEATON, INC., et al.
v.
Dorothy L. STEINBERG, et vir, (two cases). Nos. 121, 210. Court of Special Appeals of Maryland. Oct. 18, 1979.

[407 A.2d 340]

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Albert D. Brault, Rockville, with whom were Stephen H. Ring and Brault, Graham, Scott & Brault, Rockville, on the brief, for appellants.

Edward H. Kerman, Washington, D. C., with whom was Lawrence P. Mann, Washington, D. C., on the brief, for appellees.

Argued before WILNER, COUCH and WEANT, JJ.

WILNER, Judge.

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On December 4, 1974, Dorothy Steinberg decided to do some Christmas shopping. She should have stayed home; for as she was walking along a sidewalk in front of an appliance store, a car operated by Peter Vida came across the sidewalk from an abutting parking lot, struck her, and pushed her through the store window. Her injures were serious, painful, and permanent. As a result of this occurrence, in a multi-count Declaration filed in the Circuit Court for Montgomery County, Mrs. Steinberg and her husband sued Vida, Northwestern Mutual Life Insurance Co. (Northwestern), and Dalmo Sales of Wheaton, Inc., Luskin's of D.C. & Va., Inc., and Luskin's-Dalmo, Inc. (collectively called Luskins).

The action against Vida was based upon his alleged negligence in operating the vehicle that struck Mrs. Steinberg. The other defendants are, respectively, the owner of the real property upon which the appliance store, the sidewalk, and the adjacent parking lot are located (Northwestern) and an assignee of a sublease of said property who was, at the time of the occurrence, actually in possession of it (Luskins).

The claims made against Northwestern and Luskins were that (1) the store, sidewalk, and parking lot were "occupied, maintained, and controlled" by them, (2) they negligently maintained the sidewalk and parking lot in a dangerous and defective condition by failing to maintain a curb or other barrier that would prevent the encroachment of the sidewalk by vehicles from the parking lot or otherwise retard or halt vehicular traffic across the sidewalk, (3) they knew or should have known that such deficiencies might create an unreasonable risk to people using the sidewalk, and (4) Mrs. Steinberg's injuries were a direct result of that negligence.

After trial, a jury returned a verdict of $580,000 in favor of the Steinbergs and against all defendants. The court, in post-trial proceedings, reversed the award against Northwestern by entering judgment Non obstante veredicto (N.O.V.) in its favor, but by denying similar relief to Luskins,[407 A.2d 341] allowed the verdict to stand against it. Vida sought no post-trial relief either in the Circuit Court or here, and we are

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therefore not concerned with the action or judgment against him. What we have is an appeal by Luskins from the judgment against it and a cross-appeal by the Steinbergs from the judgment N.O.V. in favor of Northwestern.

A resolution of the several issues raised in these two appeals requires, of course, some understanding of the circumstances that led to this unfortunate episode; and that, preliminarily, necessitates a description of the scene of the accident. Here, a picture is truly worth a thousand words. To conserve as many of those words as possible, the Court will use the diagram below which, though not drawn precisely to scale, is based upon the testimony and exhibits in the case and, we think, fairly depicts the scene.

As we hope is evident from this unprofessional diagram, Mrs. Steinberg, having parked her car around the corner, was proceeding along the sidewalk and was about to enter the Luskins store when she was struck by the Vida car. The front of the Luskins store consisted of a metal-skinned wooden base 16 inches high, on top of which was store window plate glass.

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A critical fact in this case, in terms of whether Luskins or Northwestern have any liability to Mrs. Steinberg, is that there was no barrier, in the form of a curb, wheel blocks, or bollards, to inhibit automobiles parked or being driven on the parking lot from encroaching on the sidewalk. The evidence showed that the parking lot sloped up to meet the sidewalk at grade, leaving somewhat of a rut or gully just before the two joined. If a person pulled a standard sized vehicle up to the point that the front tires settled into this gully I. e., nearly flush with the beginning of the sidewalk, the car would overhang or encroach upon the sidewalk by some two and a half feet, leaving then only three and a half feet for pedestrian traffic. The encroachment would be even greater if the car were backed into such a position, because the trunk overhang exceeds that of the hood.

The car that struck Mrs. Steinberg belonged to Mr. Vida's roommate, Paul Riggs. It was a 1966 Oldsmobile Delta 88, that had a number of mechanical defects. The battery was weak; in cold weather, if the car did not start up right away, the battery was prone to give out, thus requiring a "jump start" to start the car. The car had an automatic transmission; however, (1) the linkage was so loose that the gear level (and thus the gear) could slide from one position to another without substantial effort on the part of the driver by just a touch of the finger, and (2) the gearshift indicator did not always reflect the true gear position, being off by one or one and a half positions. Thus, it was possible for the car, while parked, to be in a forward gear without the driver knowing of it. Finally worst of all, and apparently unknown to Mr. Vida there was evidence of a defective "neutral lockout switch", allowing the car to start while in a forward gear.

On the morning of December 4, 1974, Mr. Vida had some business to transact at the State Employment Security Administration office located across Georgia Avenue from the Luskins store. Finding no more convenient parking space, he parked the car on the Luskins lot in the space noted on the above diagram. He did not intend to transact any business with Luskins, and thus ignored a sign in the Luskins window

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warning that parking on that lot was reserved for Luskins customers. Leaving the car, Mr. Vida crossed the street and attended to his business, returning an hour or so later. When his first attempt to start the car failed, Vida took off the emergency brake, put the car in neutral gear, and tried to [407 A.2d 342] push it from the front end. It moved, if at all, no more than a few inches.

At some point, the owner of the car parked immediately to Vida's left, one Susan Ogden, returned, and agreed to permit Vida to connect his jumper cables to her battery in an effort to start his car. Ms. Ogden repositioned her car to approach the left fender of Vida's car at an angle, in order to facilitate the booster operation. With the cables in place, but without resetting the emergency brake, Vida attempted once again to start his car, without success. He exited the car, adjusted the cables, and reentered the car through the front passenger door. Instead of sliding over to the driver's seat under the steering wheel, however, where he would have been in a position to apply the brake pedal, he lay across the front seat, his legs hanging out of the right front door, and from that position turned the ignition key. With its hood up and the cables attached, the car instantly jumped forward, its motor running, and struck Mrs. Steinberg as she was walking by. It is evident that either the engine started with the car already in gear or that the car slid simultaneously into a forward gear. Because the car had been sitting a while in forty-degree weather, the automatic choke was set so as to cause the car to run at a "high" idling speed. The impact pinned Mrs. Steinberg's legs against the 16-inch base and threw her torso backward through the plate glass window. Part of the window dropped on her legs in the manner of a guillotine.

With this background, we may proceed to consider the questions raised in these appeals, beginning with those presented by Luskins.

I. Should The Court Have Directed A Verdict Or In The Alternative Granted Judgment N.O.V. In Favor Of Luskins?

Luskins does not dispute that, at the time of the accident,

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Mrs. Steinberg was its business invitee; nor does it deny that it had a duty to exercise reasonable care to ensure that invitees such as Mrs. Steinberg could traverse the public portions of its property without unreasonable risk of injury to themselves. The crux of the issue here is whether that duty extended to the type of risk or exposure that unfurled itself in this case. Given the existing layout of the property, was the possibility that a car might come over the sidewalk and strike a pedestrian who was lawfully thereon a reasonably foreseeable one one that Luskins had a duty to anticipate and guard against?

This is innately a question of law, but one that depends for its resolution upon the facts proved in the record. Because the issue arises in the context of whether a directed verdict (or judgment N.O.V.) should have been granted, we are dealing in essence with the question of whether the evidence in the case sufficed to establish the alleged duty and its breach, and thus to warrant submission of the case to the jury and to sustain its verdict. In considering this issue, then, we must assume the truth of all evidence (together with all inferences that may naturally and legitimately be deduced from it) tending to support Steinberg's factual allegations and theory of recovery. Moran v. Fabergee, 273 Md. 538, 332 A.2d 11 (1975); Eyerly v. Baker, 168 Md. 599, 178 A. 691 (1935); Buchanan v. Galliher and Harless, 11 Md.App. 83, 87, 272 A.2d 814 (1971).

In this regard, the record reveals that the property in question was originally developed in 1952 by People's Drug Stores for its own use. Early in 1953, People's sold the property building, sidewalk, and parking lot to Northwestern, which, in...