Haney v. Gregory

• Decision Date: 30 November 2007
• Docket Number: No. 2134 Sept. Term 2006.,2134 Sept. Term 2006.
• Citation: 177 Md. App. 504,936 A.2d 388
• Parties: Robert L. HANEY v. Jose D. GREGORY.
• Court: Court of Special Appeals of Maryland

936 A.2d 388

177 Md. App. 504

Robert L. HANEY v. Jose D. GREGORY.

No. 2134 Sept. Term 2006.

Court of Special Appeals of Maryland.

November 30, 2007.

Louis P. Tanko of Annapolis, for appellant.

Kyle Blakeley of Towson, for appellee.

Argued before HOLLANDER, SALMON, and LAWRENCE F. RODOWSKY, (retired, specially assigned), JJ.

RODOWSKY, J.

In this motor vehicle tort action, rising out of an accident in which the app ellee's vehicle rear-ended the vehicle of the appellant, plaintiff below, judgment was entered in favor of the appellee on a jury verdict. The appellant contends that the trial court erred in granting an emergency instruction. The appellee asserts lack of preservation of that issue and that the emergency instruction was generated by the evidence.¹ For the reasons hereinafter stated, we shall reverse.

The accident occurred on the northbound side of the Jones Falls Expressway, Interstate 83, on February 23, 2004, at about 8:50 a.m. There is no evidence that the weather conditions were other than clear and dry. The site of the accident was in the area north of where Howard Street overpasses the expressway. In that area, the roadway rises up a hill or knoll.

On the morning in question, the appellant, Robert L. Haney (Plaintiff or Haney), was proceeding northbound in the fast lane. He testified that, when he was "coming over a hill," he saw a police car stopped behind a minivan that had apparently stalled. Both the minivan and the police car were in the fast lane. He looked to his right in an attempt to merge, but there was no room, so he "started to slow down, and started coming to a stop." As he came to a stop, the rear of his vehicle was struck by one operated by the appellee, Jose D. Gregory (Defendant or Gregory). On cross-examination, Plaintiff denied that he stopped suddenly. There was conflicting evidence whether the light on top of the police car was flashing.

The only other eyewitness to the accident was Defendant, who was called to testify in Plaintiffs case. Gregory acknowledged giving the following description of the accident in his answers to interrogatories:

"`As we crossed under the Howard Street Bridge, the highway inclines upwards, so that the road over the crest is not visible. As I came up over the hill, a car to my front came into my view, and was almost at a standstill, with no brake lights. Thereafter the driver of the car in front of mine hit the brakes, at which time I applied my brakes, but was unable to prevent my car from coming into contact with the rear of the Plaintiff's vehicle.'"

Under further examination by Plaintiff, Gregory explained that the events were sequential. He said:

"When I came over the hill, the [brake] lights [of Plaintiffs vehicle] weren't on, and it was daytime so I presumed the car was moving, and right when I came over the hill and — it was almost a matter of two seconds, two or three split seconds — the brake lights [on the Haney vehicle] weren't on, and then they were on, and by the time I realized, it was too late."

When examined by his counsel, Gregory testified that he was traveling "about 40, 45 miles an hour" and that he believed the speed limit was either 45 or 50 miles per hour. There was no other evidence of the speed limit. Again describing the accident on examination by his counsel, Gregory said there was "plenty of space" between his car and that of Haney, but he "lost" the Haney car "over the hill once it went up over." He testified that, when he "came up over the hill, [he] saw the car there and [he] thought it was still moving because [he] didn't see brake lights, and it was daytime. And the lights, the brake lights went on like, almost right before I hit him, and I rear-ended his car, and — this couple of seconds is kind of a blur" because the car spun around a couple of times following the impact.

When asked by his counsel how fast the Haney car was moving, Gregory replied that "[i]t didn't seem like it was moving."

"Q Okay. So you are saying it was moving slow?

"A Uh — huh.

"Q Is that a yes?

"A Yes, I don't recall how slow.

"Q Okay. And when was the point when you realized that that car wasn't moving — or let me scratch that. When was the point that you realized that you had to hit your brakes?

"A When I saw his brake lights and realized he wasn't moving, it was kind of within like, two seconds' time, when we go over the hill."

There was no evidence of the grade of the hill for northbound traffic approaching the brow of the hill. There was no evidence as to whether there is a downside slope for northbound traffic after reaching the brow of the hill, or whether the road levels at that unspecified higher elevation. There was no evidence of the distance from the brow of the hill to the place at which the stalled minivan and the police car were standing. There was no evidence of the sight distance required for Interstate Highways at the time of final design approval for the subject segment of the Jones Falls Expressway. Haney testified that he first saw the police car when he was approximately 150 yards away. Gregory acknowledged that he had not noticed the police car or the minivan at any time before the actual impact.

At the conclusion of the evidence, the court excluded the jury from the court-room. Defendant renewed his motion for judgment, which was denied. Plaintiff did not make any motion for judgment.²

The court then considered, on the record, the parties' requested instructions. They had been submitted to the court at some earlier stage of the proceedings. Plaintiff acknowledged that he had no additional instructions, but, in response to a question by the court, Plaintiff stated that he objected to certain instructions requested by Defendant. After obtaining a ruling that the court would not grant Defendant's request for an unavoidable accident instruction, Plaintiff said that his other objection was to

"the one entitled Acts in Emergencies; that is recorded in Maryland Pattern 1823[sic]. The primary reason for objecting, it says, `When the driver of a motor vehicle is faced with a sudden and real emergency, which was not created by the driver's own conduct — `I don't think there has been any evidence of an emergency, just because we have a stopped vehicle ahead. The emergency was created by the driver's own conduct, in fact; in other words, Mr. Gregory was driving too fast, and not keeping enough space. That is what causes there to be an emergency, that he couldn't stop in time. There was no emergency. It is just a normal event of everyday driving a vehicle that may be stopped in the roadway, for whatever reason, whether it is because there is traffic, construction. There is no evidence of emergency.

"This issue of emergency talks about things such as where an unforeseen leak in the road coming from an apartment building that is spilling water into the road which freezes, and then — that is something you are not expecting. You totally expect traffic to stop. It is a regular — not just a daily occurrence, many times a day occurrence where traffic will stop. It is just not rising to the level of an emergency. The only thing that would make it an emergency was the Defendant Gregory's conduct in being too close; he created his own emergency. So it is a totally inappropriate instruction.

"And that is true whether or not there were lights, emergency lights on the police officer's car or not, because there is conflicting testimony on that issue."

The Defendant argued "that the emergency is a stalled car in the fast lane of the Interstate on the downslope."³ In response, the court stated: "I agree with that. I will give this instruction."

We distill from the questions presented and arguments in the briefs of the parties the two dispositive issues set forth below:

1. Did the Plaintiff fail properly to object to the emergency instruction so that Plaintiffs issue has not been preserved for appellate review?

2. If preserved, did the trial court err when it granted Defendant's request for the emergency jury instruction?

I

Maryland Rule 2-520(e) provides, and since July 1, 1984, has provided:

"(e) Objections. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection. Upon request of any party, the court shall receive objections out of the hearing of the jury."

In the instant matter, Plaintiff did not object to the emergency instruction "after" the court had instructed the jury. The consequence, Defendant contends, is that the inclusion of the instruction in the court's charge to the jury cannot be claimed on appeal to be error. Defendant's submission relies on the text of the rule, without referring us to any authority. Plaintiff has not favored us with a reply brief directed to the preservation issue.

Basically, Defendant's position is that an objection to an instruction that is made before the conclusion of the charge to the jury is per se ineffective for preservation purposes. The notion is that the rule limits effective objections to a window of time, opening with the conclusion of the charge to the jury and closing with the expiration of promptness thereafter. As we explain below, that reading is not required by the purpose of the rule, is inconsistent with the concept of substantial compliance that was recognized under predecessor rules, is not required by the "legislative" history of Rule 2-520(e), and is inconsistent with the construction by the Court of Appeals of identical language in Rule 4-325(e), which was adopted contemporaneously with Rule 2-520(e), as part of the Rules Reorganization Project, effective July 1, 1984.

The purpose of Rule 2-520(e) was restated by the Court of Appeals in Hoffman v. Stamper, 385 Md. 1, 867 A.2d 276 (2005), where the Court said:

"Maryland Rule 2-520(e) requires, as a...