May v. Trieu
| Decision Date | 02 September 2021 |
| Docket Number | CV-21-66 |
| Parties | JEANINE MAY, Plaintiff, v. HUY TRIEU, Defendant |
| Court | Superior Court of Maine |
Before the court is plaintiff Jeanine May's motion for attachment. The court held oral argument on August 12, 2021. One of the reasons for oral argument was that counsel for Ms May had submitted significant additional evidence with her reply papers, and counsel for defendant Huy Trieu was entitled to an opportunity to respond.[1]
A court shall order an attachment if it finds that it is more likely than not that the plaintiff will recover judgment, including interest and costs, in an amount equal to or greater than the aggregate sum of the attachment and any available insurance or other security. M.R. Civ.P. 4A(c), 4B(c). This cases arises out of an accident in which Ms. May was seriously injured while running on the Church Road in Brunswick when she was struck by a vehicle driven by Dr. Trieu. The motion for attachment has been filed because it is not disputed that Dr. Trieu's insurance will only cover damages up to a limit of $100, 000 and Ms. May's medical expenses alone exceed that figure by a considerable amount.
This motion is particularly difficult because the parties have submitted very little evidence on how the impact occurred. There are no affidavits from either Ms. May or Dr. Trieu and there were apparently no other witnesses to the accident.[2] Aside from the basic facts of the accident, the court is largely left with inferences, the statutory provisions governing drivers and pedestrians, and the general principle that drivers and pedestrians must take due care for the safety of themselves and others and are obliged to see what is there to be seen.
The accident occurred in daylight at around 7:00 am on January 13, 2021. The court can take judicial notice that sunrise on that date occurred at approximately 7:12 am, but there was enough light to see, At that location, the Church Road is relatively straight and flat with no sidewalk and with fields on either side. There are no houses in the immediate vicinity of where Ms. May was hit by Dr. Trieu's vehicle.
The record contains photographs showing that, at the location of the crash, there was a dirt shoulder approximately 3 feet wide. Approximately the first 1, 5 feet of the shoulder nearest the paved road was bare dirt. The remainder of the shoulder was crusted with snow. Those photographs also show that that stretch of roadway was a no passing zone, although the roadway appears to have been wide enough so that a vehicle hugging the centerline could have passed a pedestrian walking on the edge of the roadway without leaving its lane.
Dr Trieu was driving to work, and his vehicle was travelling north on the Church Road. The posted speed limit was 40 miles per hour, and there is no evidence that Dr. Trieu was speeding. Ms. May is a runner, and was running south in the northbound lane facing oncoming traffic. There is no evidence that Dr. Trieu's vehicle left the paved portion of the roadway and traveled onto the shoulder.
Ms. May was hit by the extreme right front portion of Dr. Trieu's vehicle. This is confirmed by photographs attached to the affidavit of Wade Bartlett showing damage from the right front bumper to the right front door handle.[3] The major injuries sustained by Ms. May were to her right side indicating she had been facing Dr. Trieu's vehicle when she was struck.
There is a photo designating where Ms. May was lying after the impact, and the court estimates that this was approximately 7-8 feet from the edge of the pavement. From all of the above, the court infers that the impact occurred in the northbound lane near the edge of the pavement and that as a result of the impact, Ms. May's body was thrown to the side of the road.
According to Brunswick Patrolman Joshua Bernier, [4] he was dispatched to the scene at 7am after Dr, Trieu felt his vehicle hit something, turned around, saw Ms. May, and called 911. Bernier reported that Dr. Trieu stated that he had seen Ms May running from a distance prior to the accident and, at the scene, was attempting to remember the chain of events prior to the impact, Dr. Trieu also stated that he had been listening to a podcast, that he vaguely remembered a vehicle coming from the other direction, and that he may have been drinking a smoothie.
The governing statutory provisions are contained in 26 M.R.S. § 2056. Section 2056(2) provides as follows:
Where sidewalks are not provided, a pedestrian shall walk facing approaching traffic on the left side of the public way or on the way's shoulder when practicable. An operator of a motor vehicle who is passing a pedestrian on a public way or on the way's shoulder shall exercise due care by leaving a distance between the motor vehicle and the pedestrian of not less than 3 feet while the motor vehicle is passing the pedestrian. A motor vehicle operator may pass a pedestrian in a no-passing zone only when it is safe to do so.
Section 2056(8) then provides in pertinent part as follows:
The court agrees with counsel for Dr. Trieu that the first sentence of § 2056(2) means that a pedestrian is supposed to walk on the shoulder whenever that is practicable - not that the pedestrian has the option of walking on either the left side of the way or on the shoulder. In this case it appears that a person could have walked on the portion of the shoulder that was closest to the pavement. However, runners typically want to run on the pavement, where there is better footing. Pursuant to § 2056(8) and the last two sentences of§ 2056(2), regardless of whether a runner is on the shoulder or facing approaching traffic on the left side of the roadway, the operator of a motor vehicle needs to leave a three foot distance from a runner when passing, may not pass in a no passing zone unless it is safe to do so, and is required to exercise due care to avoid a collision.
This puts greater responsibility for avoiding a collision on the motor vehicle operator than on the runner. In this case there is also some evidence that Dr. Trieu was distracted. On this record, therefore, it is more likely than not that Dr. Trieu, having originally seen Ms. May approaching, will be found to have negligently caused the collision and the injuries to Ms. May.
At the same time, however, Ms. May also had a duty to use reasonable care to protect herself. Counsel for Ms. May correctly argues that Ms. May had no duty to anticipate negligent operation by Dr. Trieu. However, that principle only applies "until circumstances develop which show the assumption to be unwarranted." Blaisdell v. Reid, 352 A.2d 756, 758 (Me. 1976) (emphasis in original). A runner in the lane facing the flow of traffic must exercise due care in watching for approaching vehicles. In this case, absent evidence that Dr. Trieu's vehicle suddenly swerved toward Ms. May (and there is no such evidence on this record), it is more likely than not that Ms. May will be found to have been negligent in not seeing in time that Dr. Trieu's vehicle was approaching too closely and moving out of the way. It is notable that counsel for Ms. May has submitted an affidavit attesting that Ms. May had a habit of running as close to the edge of the roadway as possible and moving onto the shoulder in the exercise of due care when a car approached. Based on the only evidence before the court, the January 13, 2021 collision occurred on the pavement, and Ms. May should have been watching for any approaching vehicle but did not exercise due care by retreating to the shoulder.
However, based on this record, the court finds that it is likely that the negligence of Dr. Trieu substantially exceeded that of Ms. May and that Ms, May will therefore be entitled to a judgment reduced to some extent by comparative negligence.
The record reflects that as of the date of the motion for attachment, Ms. May's medical expenses have already amounted to approximately $1, 000, 000. It does not appear to be disputed that she has lost income totaling at least $50 000. These figures are likely to increase but, as discussed below, the court has no evidence on which to calculate any figure for those increases.
Counsel for Ms. May has submitted an affidavit of Attorney David Lipman, offered as an expert witness, estimating Ms May's damages at a minimum of $ 2.5 million. The problem with this is that, despite the court's respect for Attorney Lipman, it agrees with counsel for Dr. Trieu that the estimated size of a verdict is not a subject on which the court can credit an estimate offered by a retained attorney, offered as an expert, both for the...
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