McQuay v. Schertle

• Citation: 730 A.2d 714,126 Md. App. 556
• Decision Date: 02 June 1999
• Docket Number: No. 582,582
• Parties: Pamela J. McQUAY, Personal Representative of the Estate of Rebecca Lynn Wozniak, et al. v. Michael J. SCHERTLE, Jr., et al.
• Court: Court of Special Appeals of Maryland

730 A.2d 714

126 Md. App. 556

Pamela J. McQUAY, Personal Representative of the Estate of Rebecca Lynn Wozniak, et al. v. Michael J. SCHERTLE, Jr., et al.

No. 582, Sept. Term, 1998.

Court of Special Appeals of Maryland.

June 2, 1999.

Edward J. Lilly (Roger A. Doumar and Law Offices of Peter G. Angelos, Baltimore, on the brief), for appellants.

John T. Ward (April Falcon Doss and Ward, Kershaw and Minton, P.A., Baltimore, on the brief), for appellees.

Argued before WENNER, SONNER and BYRNES, JJ.

BYRNES, Judge.

Rebecca Lynn Wozniak was killed when an eight ton tractor load of wood pulp fell on the parked car in which she was sitting, crushing it. Michael John Schertle, Jr., a warehouseman employed by both Baltimore Forest Products and the Terminal Corporation, was driving the tractor when the accident happened. In the Circuit Court for Baltimore City, Pamela J. McQuay, Personal Representative of the Estate of Ms. Wozniak, and Ms. Wozniak's four minor children, appellants, sued Mr. Schertle and his employers, appellees, in a survival claim and wrongful death action founded on negligence. At the conclusion of a five-week trial, the jury found Mr. Schertle negligent and Ms. Wozniak contributorily negligent. On that basis, judgment was entered in favor of Mr. Schertle and his employers.

The Estate of Ms. Wozniak and Ms. Wozniak's children appeal the lower court's judgment, presenting the following questions for review, which we have reordered and slightly reworded:

I. Did the trial court err in submitting the issue of contributory negligence to the jury?

II. Did the trial court err in instructing the jury that the violation of certain Maryland Port Administration parking regulations by Ms. Wozniak could be considered evidence of contributory negligence?

III. Did the trial court err in refusing to instruct the jury that Ms. Wozniak was presumed to have exercised due care for her own safety?

For the reasons that follow, we conclude that the trial court properly submitted the issue of contributory negligence to the jury and properly declined to instruct the jury on the presumption of due care, but that it erred in instructing the jury with respect to two of the three parking regulations. Because we also conclude that this error was prejudicial, we vacate the judgment and remand the case for a new trial on the issue of contributory negligence and, if necessary, on damages.¹

FACTS AND PROCEEDINGS

The tragic accident that gave rise to this case happened on June 20, 1996, on the grounds of the Dundalk Marine Terminal. That night, Mr. Schertle and a co-worker, Mark Stanley, were transporting bales of wood pulp from Shed 3B to Shed 4. To accomplish this task, Mr. Schertle was using a heavy industrial machine known as a Taylor tractor, which is like a forklift except that it lifts loads by the sides with a clamp instead of from underneath with a fork. Mr. Schertle's Taylor tractor was equipped with headlights and a bright yellow strobe light mounted on the top of the cab. Mr. Stanley was operating a similar but somewhat smaller tractor. By the time the accident happened, Mr. Schertle and Mr. Stanley had been working for three hours and had completed many round trips between the sheds.

Shed 3B and Shed 4 are connected by a 26-foot wide industrial two-way thoroughfare with two sets of railroad tracks (two rails each), one in each travel lane of the road. A large warehouse with a loading dock is situated between the sheds and along the north side of the industrial road. The warehouse is equipped with exterior lights that illuminate the road.

For each trip, Mr. Schertle loaded wood pulp onto the tractor in Shed 3B, drove his tractor to Shed 4, deposited the wood pulp, and then returned to Shed 3B to pick up another load. Mr. Schertle's route took him out of the bay door of Shed 3B, left onto the industrial road, straight (with the large warehouse on his right) approaching Shed 4, and right into Shed 4. The loads that Mr. Schertle was moving were made up of 32 bales of wood pulp arranged in 4 units of 8 bales each across the front of his tractor. Each load was wrapped in white paper and weighed more than 8 tons. Because the loaded wood pulp was wider than Mr. Schertle's tractor and because the tractor's cab, in which he was seated, was located behind the load, Mr. Schertle's forward view was obstructed. He could not drive the loaded tractor and look ahead to see where he was going. He could see the road, however, by looking at the ground as he was driving. For that reason, instead of driving the tractor in reverse from Shed 3B to Shed 4, Mr. Schertle maneuvered it by positioning it over one set of railroad tracks on the industrial road and driving over them, looking down to see that he was maintaining his position. In this fashion, he would run the tractor astride the railroad tracks until the tracks led him into Shed 4.

Ms. Wozniak drove to the Dundalk Marine Terminal that night with her friend, Deborah Carakoulakis, and Ms. Wozniak's boyfriend, Richard ("Ricky") Wozniak, a longshoreman, so that Mr. Wozniak could pick up his paycheck from an office in Shed 3B.² There was conflicting evidence about whether Ms. Wozniak had been drinking that night, and, if so, the amount of alcohol that she had consumed.

Ricky Wozniak occupied the front passenger seat of the car and Ms. Carakoulakis was seated in the middle of the back seat.³ When the three arrived at Shed 3B, Mr. Wozniak exited the car. Ms. Wozniak then drove from near the side door to Shed 3B to a point parallel to and immediately adjacent to the railroad track that was closest to the bay door to Shed 3B. The front of her car was facing, and approximately 120 feet from, the bay door, which was on the north side of Shed 3B. The front right headlight was slightly north and to the west of the northwest corner of Shed 3B. On the west side of Shed 3B, near the northwest corner of the building, was a faded sign attached to the wall of the shed. It read "No Parking Any Time." Another "No Parking Any Time" sign was attached to the wall of the large warehouse, above the loading dock.

Shortly before 10:00 p.m., Mr. Schertle and Mr. Stanley drove their empty tractors from Shed 4 along the railroad tracks on the industrial road and into Shed 3B to pick up loads of wood pulp. There were no other vehicles in the industrial road at that time. Mr. Schertle parked his tractor in Shed 3B and then spent approximately 3 to 4 minutes assembling a load of wood pulp for transport. He testified that once the tractor was loaded up, he drove it out of the bay door, eased forward slowly, looked to his right and to his left, and, seeing no vehicles, lights, or people, moved forward at approximately 2 to 3 miles per hour. He turned left onto the railroad tracks on the industrial road and proceeded to drive toward Shed 4, looking down at the tracks to stay on course.

After Mr. Schertle had driven about 110 feet (which took approximately 30 to 40 seconds), he spotted the front of Ms. Wozniak's car in his immediate path of travel. According to Mr. Schertle, the car's headlights were off. He applied his brakes and managed to bring his Taylor tractor to a halt without hitting the car. The sudden stop caused the tractor to tilt forward, however, and the wood pulp cargo toppled onto the car, crushing it and killing Rebecca Wozniak instantly. Both Mr. Schertle and Mr. Stanley testified that they had never seen a car parked in that area before.

Ms. Carakoulakis testified that when Ms. Wozniak stopped her car by the industrial road, she kept the motor running and the headlights on. Ms. Wozniak then turned around, facing the back seat, to talk. The two women did not see the tractor approaching them until seconds before the accident. Ms. Carakoulakis explained that once they realized their peril, it was too late. Ms. Carakoulakis was trapped in the car until emergency workers arrived and cut her out of the vehicle.

Ricky Wozniak testified that when he was inside Shed 3B picking up his paycheck, he could hear the tractors running "because it echoes in the whole shed." He witnessed the accident as he was leaving Shed 3B. He ran to the car and attempted to extricate the women, but could not do so because the doors were jammed. He then noticed that the car engine was still running and that the headlights were on. By reaching through a hole in the car's windshield, he turned the headlights off.

Mr. Schertle's co-worker, Mark Stanley, was inside Shed 3B when the accident occurred. As he was driving out of the bay door with his load, Mr. Schertle came running up to him, yelling. Mr. Stanley saw the accident scene and noticed Ricky Wozniak nearby. According to Mr. Stanley, Ms. Wozniak's car did not have its headlights on.

Officer Sean K. Hames, who was assigned to the Maryland Port Administration Police, responded to the scene of the accident. He testified that as he approached, he could see the rear of the Taylor tractor and the front of Ms. Wozniak's car. The car's headlights were off but the motor was still running. He saw Ricky Wozniak reach through a hole in the windshield and turn the ignition off. According to Officer Hames, the switch for the car's headlights would not have been accessible through the hole in the windshield.

DISCUSSION

I. Was Contributory Negligence a Jury Question?

Appellants first argue that the trial court erred in denying their "motion for judgment" on contributory negligence and sending that issue to the jury.⁴ They maintain that the evidence adduced at trial was not sufficient to make Rebecca Wozniak's contributory negligence a jury question. We disagree.

"Contributory negligence is that degree of reasonable and ordinary care that a plaintiff fails to undertake in the face of an appreciable risk which cooperates with the defendant's negligence in bringing about the plaintiff's harm." County Commissioners v. Bell Atlantic, 346 Md. 160, 180, 695 A.2d 171 (1997); ...