Faith v. Keefer, No. 1499

CourtCourt of Special Appeals of Maryland
Writing for the CourtHOLLANDER.
Citation127 Md. App. 706,736 A.2d 422
PartiesHenry FAITH, Individually, etc. v. Timothy Lee KEEFER.
Docket NumberNo. 1499
Decision Date03 September 1999

736 A.2d 422
127 Md.
App. 706

Henry FAITH, Individually, etc.
v.
Timothy Lee KEEFER

No. 1499, Sept. Term, 1998.

Court of Special Appeals of Maryland.

September 3, 1999.


736 A.2d 425
Robert J. Feldman, Towson (Charles Edward Mentzer, Baltimore, on the brief), for appellant

Lawrence E. Ballantine and Adam Sampson, Towson, for appellee.

Argued before HOLLANDER, THIEME, and PAUL E. ALPERT (Ret., Specially assigned), JJ.

736 A.2d 423

736 A.2d 424
HOLLANDER, Judge

This appeal arises from a fatal automobile accident that occurred in Washington County on January 17, 1997. Thirty-seven year old Rebecca Faith ("Rebecca" or the "decedent"), a passenger in a vehicle driven by nineteen year old Timothy Lee Keefer ("Keefer"), appellee, was killed when the car collided with a utility pole. On April 15, 1997, a wrongful death and survival action was filed against appellee in the Circuit Court for Washington County by the decedent's husband, Henry Faith ("Henry"), individually and on behalf of the decedent's estate and the couple's daughter, Tricia Nicole, and by Steven Rhyme ("Rhyme"), the ex-husband of the decedent, on behalf of, Daniel Rhyme, the son of Rhyme and the decedent. The plaintiffs below are the appellants here.1

736 A.2d 426
After the circuit court granted appellee's Motion for Summary Judgment, appellants timely noted this appeal. They present two questions for our consideration, which we have rephrased:

I. Did the circuit court err in denying appellants' Motion in Limine, seeking to exclude appellee's belated answers to interrogatories, filed after Keefer had invoked his privilege under the Fifth Amendment?

II. Did the circuit court err in granting summary judgment in favor of Keefer based on contributory negligence, assumption of the risk, and agency?

For the reasons that follow, we shall uphold the trial court's denial of appellants' motion in limine, but reverse the award of summary judgment in favor of appellee. Accordingly, we shall remand the matter to the circuit court for further proceedings.

Factual Summary2

Shortly before 1:47 a.m. on January 17, 1997, appellee was driving eastbound on Maryland Route 144 (also known as Western Pike), in a 1989 Ford Mustang GT that was co-owned by Rebecca and her husband, Henry. Western Pike is a two lane roadway with a posted speed limit of 40 miles per hour. Two yellow road signs were posted on the approach to a curve in the road, warning of the curve and a maximum speed of 30 miles per hour. As Keefer proceeded around the bend of the curve, at or near the intersection of Round Top Road, he lost control of the vehicle. The car collided with a utility pole, causing the pole to snap in half. Rebecca, the vehicle's only passenger, suffered a crushed chest when the side of the vehicle collapsed.

Kristine Brown was the first person on the scene.3 She had been heading westbound on Maryland Route 144 when she saw the Mustang traveling eastbound at an estimated speed of 65 or 70 miles per hour. Moments later, Ms. Brown heard the collision and immediately turned to check on the condition of the people involved in the accident. She promptly called for medical assistance.

Fire and rescue personnel extricated appellee from the vehicle and transported him to Washington County Hospital. Deputy Richard Schleigh of the Washington County Sheriff's Department, who was the first police officer at the scene, testified at his deposition on May 7, 1998, that he was notified of the accident at 1:47 a.m. and arrived at the scene at 2:07 a.m. The deputy stated:

When I first arrived I observed a black Mustang. It had damage to the passenger side where it was—had impacted a utility pole. The driver's seat was empty, the passenger[`s] seat still had a female occupant in it who was deceased.

Deputy Schleigh further testified that there was a prominent odor of alcohol in the car and that "[s]everal Busch Lite 32-ounce beer bottles were found on the passenger side floor." The deputy did not recall whether the bottles were open, however. He also reported that a blood sample taken from Keefer at the emergency room revealed that his blood alcohol level measured "0.18 grams of alcohol per 100 millimeters of blood," and that "[d]riving while intoxicated is 0.1" grams of alcohol per 100 millimeters of blood. As to the cause of the accident, the deputy stated:

The primary cause of the accident was the high speed causing ... [appellee] to be unable to negotiate the turn of the curve in the road. Secondary would

736 A.2d 427
have been the alcohol concentration. It would have impaired his ability to operate the vehicle properly.

At his deposition on May 7, 1998, Dr. Howard Weeks, a medical examiner, explained that neither a blood analysis nor an autopsy was performed on the decedent, because "the crushing injury [to Rebecca's] chest wall" was the obvious cause of death. In addition, Dr. Weeks opined that, based on the "severity of [the] crushed chest," the decedent did not suffer any conscious pain and suffering as a result of the collision; death "occurred instantly upon impact."

As a result of the collision, appellee was criminally charged with homicide by motor vehicle while intoxicated, homicide by motor vehicle while under the influence of alcohol, driving while intoxicated, negligent driving, and driving at an unreasonable speed. Those charges were pending during much of the discovery phase of the civil suit, and were not resolved until April 1998.

On July 21, 1997, appellants' counsel had written to appellee's counsel, stating: "Enclosed is a complete set of pleadings filed in the above matter. When you deem it appropriate, please answer the pleadings[.]" In his brief, appellee claims that the "pleadings" included Interrogatories, a Request for Admissions of Fact, and a Request for Production of Documents. On August 7, 1997, appellee filed a Certificate Regarding Discovery, indicating that he served on appellants' counsel a Response to the Request for Admissions of Fact and Request for Production of Documents. Subsequently, on November 14, 1997, the circuit court issued a scheduling order requiring completion of all discovery by May 15, 1998.

Appellee was deposed on February 16, 1998. At the outset of the deposition, Keefer's lawyer noted that he had advised appellants' counsel that Keefer intended to invoke his Fifth Amendment privilege because of the criminal charges pending against him. His counsel further noted that, upon the conclusion of the criminal matter, Keefer would be available to answer any questions concerning the collision. Keefer's attorney said:

I was advised by Mr. Beasley [the attorney representing Keefer in his criminal case] that the criminal trial is scheduled for April of this year, and prior to the criminal trial going forward he was not going to permit Mr. Keefer to answer any questions which might violate his Fifth Amendment right of self incrimination because of the pending criminal trial.
Last week I spoke to [appellants' counsel] and advised him that today's deposition might be very short and fruitless because of Mr. Beasley's concerns, and asked if we could postpone it. [Appellants' counsel] ... said that he would prefer to move forward.
I note that the scheduling order in this matter indicates that discovery cutoff is not until mid-May. Mr. Beasley has advised me that after Mr. Keefer's criminal trial in April [1998] he will permit Mr. Keefer to answer any questions that [appellants] may have with regard to the accident of January 17, 1997.
I explained this to [appellants' counsel], and it was his indication that he preferred to go forward with today's deposition....

Accordingly, Keefer answered only a few questions. He testified that the "last two or three weeks that she was alive," Rebecca lived in a boarding house in Hancock, Maryland, where he also resided. Keefer also said that he had only known the decedent for "[a] couple of weeks," and acknowledged that they had been involved in a sexual relationship. Thereafter, appellee asserted his Fifth Amendment privilege each time he was questioned about the collision.

Henry was also deposed on February 16, 1998. He averred that for the two weeks prior to the collision, Rebecca lived at home with him from Monday through

736 A.2d 428
Thursday, but on the weekends she resided in an apartment in Hancock, "to get her head straight." Henry also testified that Rebecca had been treated for a drinking problem "during the summer" before the accident. Apparently, the decedent was required to undergo treatment due to "an alcohol conviction for driving."

According to Keefer, in April 1998 he "pled guilty to homicide by motor vehicle while intoxicated as a result of criminal charges brought against [him] for the accident which gave rise to the lawsuit." Thereafter, in correspondence dated May 19, 1998, appellee's counsel reiterated to appellants' counsel that Keefer was available for deposition. The letter stated, in pertinent part:

Prior to the start of Mr. Keefer's deposition, I advised you that [Keefer's criminal attorney would not permit him to answer certain questions] ... based on the [p]endency of his criminal trial which was scheduled for April of this year. As you know, Mr. Keefer pled guilty in that matter and was sentenced.
Pursuant to the agreement placed on the record, Mr. Keefer is now available to answer any questions by way of deposition and I expect to have his signature on the enclosed Answers to Interrogatories in the next several days.

* * *

I also advised you that I would be preparing a Motion for Summary Judgment. I will probably include, in that Motion, the assumption of risk argument based on the information in Mr. Keefer's Answers to Interrogatories with respect to Ms. Faith's purchase of the alcohol that he drank that evening....

Appellants opted not to re-depose Keefer. In their brief, appellants assert that appellee's "11th hour offer [to re-depose Keefer] was at...

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61 practice notes
  • Hill v. Wilson, No. 00790
    • United States
    • Maryland Court of Special Appeals
    • October 4, 2000
    ...this alone does not make the act negligent if an ordinarily prudent person may have made the same error." Faith v. Keefer, 127 Md.App. 706, 747, 736 A.2d 422, cert. denied, 357 Md. 191, 742 A.2d 521 (1999) (citing Sanders v. Williams, 209 Md. 149, 120 A.2d 397 In support of their conte......
  • Samuels v. Tschechtelin, No. 2044
    • United States
    • Court of Special Appeals of Maryland
    • October 13, 2000
    ...case, depending upon how the fact-finder resolves the dispute. King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Faith v. Keefer, 127 Md.App. 706, 734, 736 A.2d 422, cert. denied, 357 Md. 191, 742 A.2d 521 (1999). In opposing the motion, the non-moving party must present more than &quo......
  • James B. Nutter & Co. v. Black, No. 1563, Sept. Term, 2013.
    • United States
    • Court of Special Appeals of Maryland
    • September 30, 2015
    ...(2008) (“[T]he trial court is not required to imagine all reasonable offshoots of the argument actually presented.”); Faith v. Keefer, 127 Md.App. 706, 737–38, 736 A.2d 422 (1999) (“As these contentions [as to why the trial court erred in granting summary judgment] have been raised for the ......
  • Waterman v. Batton, No. CIV. CCB-02-1725.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 11, 2003
    ...this failure to take care contributes to his injury. See Kassama v. Magat, 136 Md.App. 637, 767 A.2d 348, 359 (2001); Faith v. Keefer, 127 Md.App. 706, 736 A.2d 422, 444 (1999). The defendant has the burden of proving contributory negligence. See Moodie v. Santoni, 292 Md. 582, 441 A.2d 323......
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63 cases
  • Sadler v. Loomis Co., No. 1356
    • United States
    • Court of Special Appeals of Maryland
    • July 5, 2001
    ...case, depending upon how the factfinder resolves the dispute. King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Faith v. Keefer, 127 Md.App. 706, 734, 736 A.2d 422, cert. denied, 357 Md. 191, 742 A.2d 521 (1999). Moreover, mere general allegations or conclusory assertions of a disputed......
  • Ragin v. Porter Hayden, No. 706
    • United States
    • Court of Special Appeals of Maryland
    • June 29, 2000
    ...case, depending upon how the fact-finder resolves the dispute. King v. Bankerd, 303 Md. 98, 111, 492 A.2d 608 (1985); Faith v. Keefer, 127 Md.App. 706, 734, 736 A.2d 422, cert. denied, 357 Md. 191, 742 A.2d 521 (1999). In opposing the motion, the non-moving party must present more than "mer......
  • Waterman v. Batton, No. CIV. CCB-02-1725.
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • December 11, 2003
    ...this failure to take care contributes to his injury. See Kassama v. Magat, 136 Md.App. 637, 767 A.2d 348, 359 (2001); Faith v. Keefer, 127 Md.App. 706, 736 A.2d 422, 444 (1999). The defendant has the burden of proving contributory negligence. See Moodie v. Santoni, 292 Md. 582, 441 A.2d 323......
  • Asmussen v. CSX Transp., Inc., No. 814, Sept. Term, 2019
    • United States
    • Court of Special Appeals of Maryland
    • September 10, 2020
    ...order's deadlines without establishing good cause for their failure to comply with the dates originally set. Faith v. Keefer , 127 Md. App. 706, 733, 736 A.2d 422 (1999). To permit parties to shirk scheduling-order deadlines without substantial compliance and good cause for the modification......
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