May v. Giant Food, Inc.

• Decision Date: 01 September 1997
• Docket Number: No. 1368,1368
• Citation: 712 A.2d 166,122 Md.App. 364
• Parties: Florence MAY v. GIANT FOOD, INC. et al. ,
• Court: Court of Special Appeals of Maryland

Page 364

122 Md.App. 364

712 A.2d 166

Florence MAY v. GIANT FOOD, INC. et al.

No. 1368, Sept. Term, 1997.

Court of Special Appeals of Maryland.

June 29, 1998.

Jack A. Gold (Lawrence S. Lapidus and Karp, Frosh, Lapidus & Wigodsky, P.A., on the brief), Bethesda, for Appellant.

Michael L. Dailey (O'Malley, Miles , Nylen & Gilmore, P.A., on the brief), Calverton, for Appellees.

Argued before MOYLAN, HOLLANDER and EYLER, JJ.

HOLLANDER, Judge.

This tort case presents issues of causation and contributory negligence arising from an incident involving Florence May, appellant, who was knocked to the ground by the open passenger door of her moving vehicle. At the time, Ms. May's vehicle was being operated by Lewis Ratino, Jr., appellee, a courtesy clerk for Giant Food, Inc. ("Giant"), appellee. A jury in the Circuit Court for Montgomery County returned a special verdict, finding that Ratino was negligent and that appellant was contributorily negligent. Appellant timely filed her appeal and presents two questions for our consideration, which we have reframed:

I. Did the trial court err by permitting the jury to consider the unattended motor vehicle statute, Md.Code (1977, 1998 Repl.Vol.), § 21-1101 of the Transportation Article ("Trans."), as evidence of appellant's contributory negligence?

II. Did the trial court err by failing to rule, as a matter of law, that any contributory negligence was not the proximate cause of appellant's injuries?

III. Did the trial court err in refusing to give an intervening/superseding cause instruction?

We answer all three questions in the negative. Therefore, for the reasons that follow, we shall affirm.

Factual Background

On August 3, 1995, appellant, who was then 76 years old, went shopping at a Giant grocery store located in Montgomery County. When she finished her shopping, Ms. May left her grocery cart at the entrance of the store while she retrieved her vehicle from the parking lot. Appellant then drove her vehicle to the parcel pickup area at the front of the store. When she stopped the car, the passenger side was adjacent to the store, and the automobile was not on a perceptible grade. Appellant blew the horn several times in order to attract the attention of a Giant courtesy clerk who could assist her with her groceries. The events that followed are sharply disputed.

According to appellant, she shifted the automatic transmission of her vehicle into park and engaged the parking brake by pushing a pedal on the floor. Because a courtesy clerk apparently was not available, Ms. May exited the car. In doing so, she left the key in the ignition and the engine running. Ms. May then walked around the back of her vehicle, opened the front passenger door, and prepared to load her lone bag of groceries into the car. As appellant began to load her groceries, Ratino walked out of the store.

Appellant denied that her car started to move after she exited the vehicle. She also claimed that she was startled because Ratino entered her car without her permission. Further, she claimed that when Ratino began to operate appellant's car, she was struck by the passenger door. The following testimony of Ms. May is relevant:

[APPELLANT]: After I got out of the car and opened up that front passenger's door, I got up--went up to get my groceries when Mr. Ratino came out, and asked him where he had been. He hadn't been there. And I turned, I said, "Well, I'll go and get my car--get into my car."

[APPELLANT'S COUNSEL]: Did he make any reply?

A: No, he didn't.

Q: --when you said, "Where have you been?"

A: No, he didn't.

Q: What did he do?

A: I said I was going to go back to the car. Next thing I know, he went to the car, and--

Q: What do you mean, he went to the car?

A: He went in front of the car, and got into the driver's side of the car. I went to the door, the front door, which was open on the passenger's side. I was a little surprised at what he was doing. And I had my hand--the door, that door was open, because I was going to load my groceries there. And my hand was holding onto the handle of the front passenger door, when suddenly the car jolted, and I flew back to the ground. My head hit the ground, my whole--my back hit the ground. And I screamed, naturally. And then someone picked me up. I couldn't get up; I was flat on my back.

Q: Now, the time you left the car on the driver's side--

A: Yes, yes.

Q: --was your car moving?

A: No, it wasn't. I would have known. I would have seen it move, because I had opened--I had closed the door on the driver's side, went around the back of the car, and opened the door on the--the front door on the passenger's side. I certainly would have seen it moving.

Q: Were you surprised when Mr. Ratino got into the car?

A: I was surprised. I was startled.

* * * *

Q: Did you at any time give him permission to operate your vehicle?

A: I never gave him permission to go into the car.

Ratino was called as a plaintiff's witness. He is a high school graduate who possessed a valid driver's license on the date in question. In marked contrast to appellant's testimony, Ratino testified that when he came out of the store, he saw that appellant's car was moving backward and told her so. The following testimony is relevant:

[APPELLANT'S COUNSEL]: Did [appellant] tell you that she would prefer someone else to operate her vehicle?

[RATINO]: Yes, she did.

Q: And what did you say to that?

A: I said that if I get somebody else, the car will be out of the Giant Food zone--clear.

Q: How fast was it moving?

A: It was moving, I would say, five miles per hour. That's why I insisted on trying to help her.

Q: Was anyone behind the car?

A: I don't exactly know about that. I think there was one car within probably 100 feet.

* * * *

Q: All right. Where did Mrs. May go when you got into her car?

A: Well, what happened, as soon as she asked me to get in her car, I went in her car, and tried to stop the moving car. And where she went, she went to open the two doors. She went to open the two doors which would be on the passenger side, located both on the passenger side at the back door and the front door.

Q: So after you were in the driver's seat, you were aware that she was opening the passenger side door; is that right?

A: Yes. I was completely aware of that....

* * * *

Q: ... Once you got into the vehicle, and you were aware that Mrs. May was opening the passenger door, you stepped on the gas; isn't that right?

A: I stepped on the gas by accident....

According to Ratino, after he got into the driver's seat of Ms. May's automobile, but before stepping on the accelerator, appellant had opened the passenger door. He "told her to wait behind the metal bars so she wouldn't get injured, because I didn't know what in the world would happen, whether I was going to make a mistake or not, because nobody's perfect."

The manager of the store, Ellis Schlossenberg, corroborated Ratino's version of events. He testified that he came out of the store after the incident and appellant told him that her car was rolling. In response to appellant's request for help, Ratino jumped in the car, and the car door hit appellant. ¹

E.D. Archuletta, a customer at the Giant, also testified for the defense. ² As Archuletta was standing outside the store, he observed that appellant's car was moving. After Ratino shouted to appellant that her car was moving, Ratino went around the back of the car, entered the vehicle on the driver's side while the vehicle was moving, and stopped the car. In the process, appellant was knocked to the ground by the passenger door of her car.

At the conclusion of the evidence, the parties discussed jury instructions with the court in chambers. Following the conference, appellant's counsel summarized his objections to the proposed instructions, on the record. In addition, appellant's counsel submitted a legal memorandum to the court addressing his objections to certain instructions requested by appellees.

Appellant sought an "intervening/superseding cause" instruction, arguing that Ratino's act of entering the vehicle and stepping on the accelerator constituted a superseding or intervening cause of the events, notwithstanding any negligence on appellant's part. Relying on the tripartite test described in Yonce v. SmithKline Beecham Clinical Laboratories, Inc., 111 Md.App. 124, 151, 680 A.2d 569, cert. denied, 344 Md. 118, 685 A.2d 452 (1996), the trial court refused to give a superseding cause instruction. With respect to the issue of contributory negligence, appellant objected to any instruction concerning the unattended vehicle statute, Md.Code (1977, 1998 Repl.Vol.), § 21-1101 of the Transportation Article ("Trans."), especially in light of the court's refusal to give an intervening/superseding cause instruction. Nevertheless, the court approved appellees' request for a jury instruction concerning Trans. § 21-1101.

The following colloquy, which occurred in court, out of the jury's presence, is pertinent:

THE COURT: "To rise to the magnitude of a supervening cause which will insulate the original actor from liability, the new cause must, one, be independent of the original act." I don't think the evidence would justify that in this case.

"Second, adequate of itself to bring about the result, and three, one whose occurrence was not reasonably foreseeable to the original actor." I don't think this case meets that standard either.

The Court in its opinion, because of the failure of the evidence as a whole to meet two of the three elements, which would justify an instruction on supervening or superseding cause, based on the [Yonce ] case, the clients [sic] [declines?] to give a superseding cause instruction.

[APPELLANT'S COUNSEL]: Your Honor, I also want to note an objection, if I may, to the Court's giving [a] contributory negligence instruction. I think by my request for [a] superseding cause instruction, that it does cancel out the need that may...