Hansen v. Kaplan

Decision Date20 October 1980
Docket NumberNo. 1639,1639
Citation47 Md.App. 32,421 A.2d 113
PartiesChristopher Roy HANSEN v. Ruth KAPLAN et al.
CourtCourt of Special Appeals of Maryland

Edward B. Layne, Jr., Rockville, for appellant.

Thomas H. Talbott, with whom were Brault, Graham, Scott & Brault, Rockville, on brief, for appellee Connolly.

Korn & Rosenstein, Silver Springs, on brief, for appellee Kaplan.

Argued before MOYLAN, POLLITT, RICHARD M., (Specially Assigned), and FIGINSKI, M. ALBERT, (Specially Assigned), JJ.

FIGINSKI, Judge (Specially Assigned).

Appellees, plaintiffs below, instituted suit in the Circuit Court for Montgomery County, on December 2, 1977 seeking damages for personal injuries to Ruth Kaplan, and to the marital relationship of Ruth and Lawrence Kaplan. The suit was based on an automobile collision which occurred on May 4, 1977. On that date, Ruth Kaplan, after completing work as a special education teacher, went to a gym, Slender Lady, on East Diamond Avenue in Gaithersburg, Maryland. Recreation completed, she departed for home, travelling east on East Diamond Avenue. As she approached the intersection of East Diamond Avenue and Park Avenue in Gaithersburg, her journey was brought to an abrupt, injurious end, when a vehicle being driven westerly on East Diamond Avenue by defendant Hansen spun or ricocheted into her vehicle after striking a vehicle being driven by defendant Connolly. The impact between the Hansen and Connolly vehicles occurred at the intersection of Park Avenue and East Diamond Avenue. A stop sign regulated that intersection, making East Diamond Avenue the favored roadway, i. e., the boulevard, and Park Avenue the unfavored street, i. e., the stop-street.

The issues of liability and damages were bifurcated by order of the trial court on motion of defendant Connolly. At trial on the issue of liability, the case was submitted to the jury to determine the fault of both Hansen and Connolly. The evidence produced at trial made absolutely clear that appellees were faultless. The jury's verdict was in favor of defendant Connolly against appellees and in favor of appellees against defendant Hansen. A motion for judgment n.o.v. or a new trial by Hansen was denied. After final judgment on stipulated damages was entered, Hansen alone appealed. 1 Appellant does not challenge the trial judge's instructions to the jury nor does he point to any error in the conduct of the trial. Rather, appellant's argument, relying upon an analysis of the so-called boulevard rule, challenges the finding of liability, as to him, as contrary to law. Appellant contends that the trial court erred in failing to grant his motion for a directed verdict because, by the boulevard rule, the sole proximate cause of the accident here was defendant Connolly's intrusion into the boulevard. Appellant misperceives the reach and applicability of the boulevard rule. Moreover, even if that rule were applicable, appellant would not, on the facts of this case, have been entitled to a directed verdict as a matter of law.

A review of the critical facts established at trial is necessary for a proper analysis of the argument presented. Our review must consider the evidence and all logical and reasonable inferences deductible therefrom in the light most favorable to the appellee. Schwier v. Gray, 277 Md. 631, 636, 357 A.2d 100 (1976).

The collision occurred at approximately 7 p. m. on May 4, 1977. It had been drizzling and the roads were wet. The twilight was cloudy. Ruth Kaplan, proceeding east on East Diamond Avenue, was, as all concede and the jury was instructed, free from any negligence. As she approached the intersection of East Diamond and Park Avenues, she saw the Connolly vehicle pull slightly into the intersection apparently to make a left hand turn. 2 As she observed the Connolly vehicle, Mrs. Kaplan also saw the Hansen vehicle, proceeding westbound on East Diamond Avenue. Fearing that Hansen would be unable to get around Connolly without intruding into her lane, Mrs. Kaplan pulled over to the right as far as possible, short of the intersection, to give Hansen the ability to intrude her lane and avoid Connolly. Indeed, Mrs. Kaplan testified that she had brought her car to a stop "twenty to thirty feet from the corner" of the intersection of East Diamond and Park Avenues. Hansen, travelling faster than the flow of traffic, applied his brakes, causing his vehicle to wiggle, slide and fishtail. Hansen impacted the Connolly vehicle 3 and slid into Mrs. Kaplan's car. An eyewitness, Mr. Hayes, who was travelling behind the Hansen vehicle after being passed by it "on the right at an unreasonable speed", testified that a car proceeding westerly on East Diamond Avenue, as was his vehicle and the Hansen vehicle, could have continued "straight on" in the travel lane 4 of East Diamond Avenue "without coming into contact with" the Connolly vehicle. Another eyewitness, Mr. Iverson, testified that the Hansen vehicle, just prior to the accident, "seemed to be going at a speed higher than the normal traffic." His attention, he testified, was drawn to the Hansen vehicle "because of the wheels on the wet pavement and the engine noise and exhaust seemed to be louder than normal." Several witnesses placed the speed of the Hansen vehicle at thirty-five miles per hour. The speed limit was not precisely established, the testimony being that it was either twenty-five or thirty miles per hour.

In Dean v. Redmiles, 280 Md. 137, 143-159, 374 A.2d 329 (1977), the Court of Appeals, per Judge Smith, reviewed its "prior holdings relative to the boulevard law," id., 143, 374 A.2d 329, and found that "cases reaching (the Court of Appeals) arising under the boulevard rule fall into eight categories," id., 144, 374 A.2d 329:

"the suit of the favored driver against the unfavored driver, the unfavored driver against the favored driver, the passenger of an unfavored driver against both drivers, the passenger of the favored driver against both drivers, the passenger of the favored driver against the unfavored driver, the passenger of the favored driver against the favored driver, and, finally, counterclaims so that the favored drivers are suing each other."

After classifying and discussing the cases which fit these categories, the Court observed, id., 147, 374 A.2d 329:

"We have attempted in our citation of various types of suits arising under the boulevard rule to include most, if not all, of the cases reaching this Court. It will be seen that the vast preponderance of this litigation has concerned suits between favored and unfavored drivers. Accordingly, much of what has been said with reference to the boulevard rule must be placed in that context." (Emphasis added.)

The case reaching this Court in this appeal fits into none 5 of the eight categories noted in Dean v. Redmiles. Here, Ruth Kaplan was driving on the boulevard, or favored street, just as was the appellant. In addition, the Kaplan vehicle was not in the intersection at the time it was struck; instead, it was thirty feet from the intersection. In some boulevard rule decisions, e. g., McDonald v. Wolfe, 226 Md. 198, 203, 172 A.2d 481 (1961); Simco Sales v. Schweigman, 237 Md. 180, 186, 205 A.2d 245 (1964), it has been said that a collision outside the intersection does not bar applicability of the boulevard rule, if the collision is caused by the rule's violation. Each such case, however involved litigation between a favored and unfavored driver, not, as here, litigation between two drivers on the boulevard. Well before Dean v. Redmiles, supra, the Court of Appeals had placed outside the reach of the boulevard rule a vehicle which had entered the favored road, after clearing the intersection and ceasing to interfere with the flow of favored traffic through the intersection. See, McCann v. Crum, 231 Md. 65, 68, 188 A.2d 537 (1963); Shaneybrook v. Blizzard, 209 Md. 304, 312-13, 121 A.2d 218 (1956); Ness v. Males, 201 Md. 235, 239-40, 93 A.2d 541 (1953). In effect, these cases refused to apply the boulevard rule to vehicles which had become a part of the favored traffic flow. In Dean v. Redmiles, supra, 280 Md. 149, 374 A.2d 329, the Court of Appeals quoted from McCann and reiterated the exception to application of the boulevard rule. Likewise, in placing pedestrians, Folck v. Anthony, 228 Md. 73, 178 A.2d 413 (1962), and exiting vehicles, Palmer v. Scheid, 223 Md. 613, 616-17, 166 A.2d 244 (1960); Safeway Trials, Inc. v. Smith, 222 Md. 206, 212, 159 A.2d 823 (1960), beyond the reach of the boulevard rule, the Court of Appeals demonstrated judicial reluctance to apply the so-called rule outside the confines delineated by the clear words of the statute.

Constraint, not expansion, of the boulevard rule is the clear lesson of the authorities reviewed above. If there was ever any question with respect to that lesson, it surely was laid to rest by Covington v. Gernert, 280 Md. 322, 373 A.2d 624 (1977) and Gazvoda v. McCaslin, 36 Md.App. 604, 375 A.2d 570 (1977).

In Covington, a driver travelling the wrong way on a one-way favored street was denied the immunity of the boulevard rule. The Court of Appeals noted that the rule requires a driver approaching a stop sign to come to a full stop and "yield the right of way" to vehicles travelling on the favored street. A 1971 statutory re-definition of right of way was discovered and interpreted to grant preference only to vehicles proceeding in a lawful manner on the favored highway. The Court of Appeals, therefore, concluded that, because a driver travelling the wrong way on a one way thoroughfare was not proceeding in a lawful manner, such driver "was not entitled to preference over" the unfavored driver. 280 Md. at 325, 373 A.2d 624.

In Gazvoda, this Court scrutinized Covington's impact on the boulevard rule. There, Judge Powers, for this Court, wrote, 36 Md.App. at 612-13, 375 A.2d 570:

"The message of Covington v. Gernert is clear. The departure from the past...

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    • United States
    • Court of Special Appeals of Maryland
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    ...damages, the court's order on liability is not final for purposes of CJP § 12-301 until it decides damages. See Hansen v. Kaplan , 47 Md. App. 32, 34 n.1, 421 A.2d 113 (1980). Likewise, in the divorce and custody context, this Court has held that a "circuit court's rulings regarding legal p......
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    ...that "[c]onstraint, not expansion, of the boulevard rule is the clear lesson of the authorities reviewed above." Hansen v. Kaplan, 47 Md. App. 32, 37 (1980). Accordingly, we decline Yanes's invitation to extend the boulevard rule to Trans. § 21-402(a).Contributory Negligence After reviewing......
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    • Maryland State Bar Association Maryland Automobile Accident Deskbook (MSBA)
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