Fry v. Carter

• Decision Date: 12 June 2003
• Docket Number: No. 113,113
• Citation: 825 A.2d 1042,375 Md. 341
• Parties: Gabrielle I. FRY, et al. v. Sonny James CARTER, et al.
• Court: Maryland Court of Appeals

825 A.2d 1042

375 Md. 341

Gabrielle I. FRY, et al. v. Sonny James CARTER, et al.

No. 113, Sept. Term, 2002.

Court of Appeals of Maryland.

June 12, 2003.

Paul D. Bekman (Michael P. Smith, Salsbury, Elements, Bekman, Marder & Adkins, L.L.C., on brief), Baltimore, for petitioners.

D. Elizabeth Walker (Amy Leete Leone, McCarthy Wilson, on brief), Rockville, for respondents.

Argued before BELL, C.J., ELDRIDGE, RAKER, WILNER, CATHELL, HARRELL and BATTAGLIA, JJ.

RAKER, J.

In this wrongful death and survival action, we must decide whether, in a negligence action following the collision of a tractor-trailer and a roadside worker, it was error for a trial court to instruct the jury on unavoidable accident. We shall hold that such an instruction was inapplicable given the facts of this case and, further, that an unavoidable accident instruction should never be given in a negligence action.

I.

Howard C. "Skip" Fry, Jr. (Fry) worked as a traffic control manager for Dewey Jordan, Inc., a company that builds highways and bridges. On the morning of October 7, 1999, at approximately 9:00 a.m., Fry was killed alongside a highway when he was struck by roof trusses extending over the side of a passing flat-bed tractor-trailer.

At the time of the accident, Fry and his assistant, Melvin Shank, were preparing to close a portion of Interstate Highway 270 (I-270) near the exit ramp to Interstate Highway 70 (I-70). Fry and Shank were in the "gore"¹ between the right south-bound lane of I-270 and the exit ramp of I-70; they were not on the roadway. Fry wore a bright orange safety vest and stood about twenty-five feet south of Shank. Both men were pushing bright orange barrels toward I-270 in preparation for shutting down the right, southbound lane. Fry's barrel separated from its base, and he bent over it in an attempt to reattach the barrel to its base.

That same morning, respondent Sonny James Carter, an employee of respondent Structural Systems, Inc., was driving a tractor-trailer south on I-270, transporting a wide load of roof trusses to a job site. Carter drove frequently through the area where the accident occurred in his personal vehicle and in tractor-trailers, and he knew about the ongoing construction. Carter had a blanket permit from the Maryland State Highway Administration (SHA) to carry a wide load measuring twelve feet in width or less.² On the day of the accident, his load of roof trusses was lined up flush with the left-hand side of the truck and overhung the right side of the trailer bed. The maximum width of the load at the beginning of the trip was eleven feet, five inches.³

The highway had two southbound lanes. Because of the construction, the lanes measured only eleven feet wide rather than the standard twelve feet. Carter testified that he saw a "Construction Ahead" sign approximately one mile before the construction site. As he approached the gore where Fry and Shank were preparing to close the lane, Carter was traveling in the right lane.⁴ He noticed Shank standing on the shoulder of the road but did not notice Fry. When he saw Shank, Carter sounded the tractor-trailer's horn to warn him. Carter attempted to move into the left lane but at that time another vehicle was in the left lane. Instead, Carter moved his truck as far left as possible while remaining in the right lane. Shank stepped back, and, as Carter passed, Carter looked into his rearview mirror to check the position of the roof trusses. As he was looking into the rearview mirror, he noticed Fry starting to straighten up after adjusting the barrel. The trusses, which protruded into the gore, struck Fry in the head and killed him.

Fry's wife, Janice H. Fry, and his two adult daughters, Gabrielle I. Fry and Adrienne C. Dennis, brought suit against respondents Sonny James Carter, his employer and trailer owner Structural Systems, Inc., and tractor owner James S. Grimes, Inc.,⁵ alleging that their negligence caused the wrongful death of Fry. The Circuit Court for Montgomery County granted petitioners' motion for judgment on the issues of contributory negligence and assumption of the risk, but denied their motion for judgment on the issue of negligence. Over petitioners' objection,⁶ the court instructed the jury on unavoidable accident as follows:

"[A]n unavoidable accident is an inevitable occurrence which is not to be foreseen or prevented by vigilance, care, and attention and not occasioned by or contributed to in any manner by an act or omission of the party claiming the accident was unavoidable. And in this case, the defendant claims that the accident was unavoidable."

The jury returned a verdict of in favor of respondents.

Petitioners noted a timely appeal to the Court of Special Appeals, and respondents filed a conditional cross-appeal.⁷ The Court of Special Appeals affirmed in an unreported opinion, holding that the trial court properly denied petitioners' motion for judgment on negligence because there was sufficient evidence from which the jury could have found no negligence. The intermediate appellate court also held that, under the circumstances, an unavoidable accident instruction was proper.

We granted the Fry family's petition for writ of certiorari to consider the single issue of whether the trial court erred by instructing the jury on unavoidable accident. Fry v. Carter, 372 Md. 684, 814 A.2d 570 (2003). We hold that it was reversible error to instruct the jury on unavoidable accident. We have also reexamined the question and conclude that an instruction on unavoidable accident should not be given in any negligence case.

II.

Before this Court, petitioners argue that the trial court erred in instructing the jury on unavoidable accident. They contend that collisions between a driver and a pedestrian are not inevitable and that they are almost always the product of negligence. They argue that Carter had ample opportunity to avoid the accident; therefore, the trial court erred in giving an unavoidable accident instruction.

Respondents counter that the trial court properly instructed the jury on unavoidable accident because there was evidence that the accident was inevitable. They maintain that the negligence of a third party rendered the accident inevitable, presenting the theory that because SHA was negligent in not notifying oversize load permit holders of narrow lanes in the area and because the lanes were narrowed to eleven feet from the standard twelve feet, Carter could not have prevented the collision. Under this "special circumstance," an unavoidable accident instruction was appropriate. Respondents further argue that, even if the trial court erred in giving the instruction, any error was harmless.

III.

An unavoidable accident is an occurrence that is not foreseeable or anticipated and could not have been prevented by the exercise of ordinary care under the attendant circumstances. Although many states still permit a trial judge to instruct the jury in motor vehicle accident cases on the concept of unavoidable accident, several states have reexamined the doctrine and have disapproved, limited or totally abolished its use on the grounds that the instruction was unnecessary, confusing, misleading and superfluous. See G.L. Blum, Annotation, Instructions on "Unavoidable Accident," "Mere Accident," or the Like, in Motor Vehicle Cases—Modern Cases 21 A.L.R. 5th 82, § 4 (2002). Moreover, there is an increasing trend by courts that have addressed the use of the instruction to find that the confusion and harm engendered by the use of the instruction far outweighs its usefulness. See City of Phoenix v. Camfield, 97 Ariz. 316, 400 P.2d 115 (1965)

; Sadorus v. Wood, 230 A.2d 478, 480 (D.C.1967); Smith v. Canevary, 553 So.2d 1312, 1314-15 (Fla.Dist.Ct. App.1989); George v. Guerette, 306 A.2d 138, 142 (Me.1973); Buford v. Riverboat Corp., 756 So.2d 765, 771 (Miss.2000); Graham v. Rolandson, 150 Mont. 270, 435 P.2d 263, 272 (1967); Hunter v. Johnson, 178 W.Va. 383, 359 S.E.2d 611, 613 (1987).

The classic definition in Maryland of an unavoidable accident was articulated by Judge McSherry in 1894 as "an inevitable occurrence, not to be foreseen and prevented by vigilance, care and attention, and not occasioned or contributed to, in any manner, by the act or omission of the company, its agents, employees or servants." Washington Turnpike v. Case, 80 Md. 36, 45-46, 30 A. 571, 573 (1894). In other words, in order to constitute an unavoidable accident, the event must have occurred without negligence on the parties' part.

The unavoidable accident instruction has had a checkered history in Maryland. Our review of the jurisprudence in Maryland addressing the "unavoidable accident" instruction reveals little guidance and often inconsistent language. Since the end of the nineteenth century, approximately twenty-five cases in this Court have addressed the form of the instruction and the propriety of its use. Although trial judges have been permitted to instruct juries in motor vehicle accident cases on the concept of unavoidable accident under certain circumstances, those circumstances often have been conflicting. For example, we have held that the instruction was appropriate when, along with evidence of negligence, there is evidence that an accident occurred without negligence; we also have held the instruction to be inapplicable when there is evidence of negligence. Compare Kaline v. Davidson, 146 Md. 220, 223-24, 126 A. 68, 69-70 (1924) (giving of instruction appropriate because of evidence that the accident was unavoidable), with Vizzini v. Dopkin, 176 Md. 639, 642-43, 6 A.2d 637, 638-39 (1939) (holding that granting of unavoidable accident instruction is error because of evidence of negligence).

Our cases have stated that whether an unavoidable accident instruction is appropriate depends on the facts and circumstances of each individual case. Vizzini, 176 Md. at 642, 6 A.2d at 638. This Court has upheld the granting of an...