Rosenthal v. Mueller

• Decision Date: 03 December 1998
• Docket Number: No. 360,360
• Citation: 720 A.2d 1264,124 Md. App. 170
• Parties: Marilyn ROSENTHAL et vir. v. Lee McEvoy MUELLER et al.
• Court: Court of Special Appeals of Maryland

720 A.2d 1264

124 Md. App. 170

Marilyn ROSENTHAL et vir. v. Lee McEvoy MUELLER et al.

No. 360, Sept. Term, 1998.

Court of Special Appeals of Maryland.

December 3, 1998.

Leonard Orman, Baltimore, for Appellants.

Jacqueline M. Bunty, Baltimore, for Appellees.

Argued before MOYLAN and ADKINS, JJ., and JOHN F. McAULIFFE, Judge (retired), Specially Assigned.

MOYLAN, Judge.

This appeal turns on a simple principle. With respect to the legal phenomenon of "contributory negligence," the limiting adjective "contributory" is just as significant and just as necessary an element as is the noun "negligence." Untold thousands of acts of negligence, as purely abstract phenomena, go regularly unnoticed and are legally inconsequential unless they actually contribute to some adverse result.

The appeal arises from a personal injury suit brought by the appellants, Marilyn Rosenthal and Louis Rosenthal, wife and husband, against the appellees, Lee McEvoy Mueller and John Roger Mueller. Because the automobile accident itself involved only Marilyn Rosenthal and Lee McEvoy Mueller, however, we will for narrative convenience refer to them as the appellant and the appellee in the singular. At the conclusion of a jury trial in the Circuit Court for Baltimore City, the appellee was found negligent, but the jury also found that the appellant had been contributorily negligent. We are presented with a single issue on appeal:

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

We agree with the appellant that the trial court improperly submitted the issue of contributory negligence to the jury and reverse the judgment below.

On September 9, 1994, the appellant was driving southbound on Falls Road towards its intersection with Woodward Lane. Falls Road at that point is a two-lane roadway with one lane for northbound traffic and one for southbound traffic. The posted speed limit is forty miles per hour. Woodward Lane extends only to the east of Falls Road. It does not cross the road to the west. On the west side of the roadway at that point is what is described as either a passing lane or a shoulder area separated from the traveled portion of the roadway by a solid white line. The area to the right of the solid white line, moreover, is paved exactly as is the through-lane to the left of the solid white line. Farther to the right of the passing lane or shoulder is a curb and a guardrail. For southbound traffic on Falls Road, there is immediately before the intersection with Woodward Lane both the crest of a hill and a blind curve.

As the appellant approached the intersection, she observed ahead of her a truck at a complete stop in the southbound lane with its left turn signal blinking. The appellant, who had been traveling at approximately twenty-five miles per hour, attempted to pass the truck on the right-hand side in what she contends was a "passing lane" or, at least, the shoulder portion of the road, separated from the rest of the roadway by a solid white line. The appellant was in the process of passing the stationary truck when the right rear of her car was suddenly struck by the appellee's vehicle and propelled into the truck.

The appellee testified that as she came across the crest of the hill and around the blind curve, she unexpectedly saw immediately in front of her 1) the truck as it was poised to make the left-hand turn and 2) the appellant's vehicle as it was in the act of passing the truck on its right-hand side. She testified that when she rounded the curve and first saw the two vehicles in her path, they were only two or three car lengths away. The appellee was at that point in the main southbound lane of Falls Road. She was not herself on the shoulder or even contemplating a move to the shoulder in order to go around the truck. In the two to three seconds available to her from her first sighting of the other two vehicles until the moment of collision, the appellee, who was driving at approximately forty miles per hour, attempted to apply her brakes and come to a stop in the through lane. When the brakes failed or when the appellee realized that she could not stop in time, however, she veered sharply to the right toward the curb and the guardrail in order to avoid a collision. Her emergency tactic was simply to hit the guardrail and stop. At no time did she use or did she intend to use the "shoulder" as a lane. Her vehicle bounced over the curb, hit the guardrail, and then "rode" along the guardrail for approximately a car length before striking the appellant's vehicle.

The appellant requested the trial judge to rule that she was free of contributory negligence as a matter of law. The judge denied that motion and submitted the issue of contributory negligence to the jury, along with the issue of the appellee's primary negligence. That, the appellant claims, was error.

The burden, of course, is on the defendant to generate a prima facie case as to the plaintiff's contributory negligence. In Batten v. Michel, 15 Md.App. 646, 652, 292 A.2d 707, 711-12 (1972), this Court explained:

Contributory negligence is an affirmative defense and the burden of proving the plaintiff's contributory negligence rests upon the defendant. Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident; otherwise the negligence is not contributory.

With respect to the quality of the evidence that is legally sufficient to generate a jury issue, Fowler v. Smith, 240 Md. 240, 246-47, 213 A.2d 549, 554 (1965), has long been the benchmark:

Maryland has gone almost as far as any jurisdiction that we know of in holding that meager evidence of negligence is sufficient to carry the case to the jury. The rule has been stated as requiring submission if there be any evidence, however slight, legally sufficient as tending to prove negligence, and the weight and value of such evidence will be left to the jury. Ford v. Bradford, 213 Md. 534 [132 A.2d 488 (1957)]. Cf. Bernardi v. Roedel, 225 Md. 17, 21 [168 A.2d 886 (1961)]. However, the rule as above stated does not mean, as is illustrated by the adjudicated cases, that all cases where questions of alleged negligence are involved must be submitted to a jury. The words "legally sufficient" have significance. They mean that a party who has the burden of proving another party guilty of negligence, cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value.

(Emphasis in original).

Ironically, what the phrase "however slight" tantalizingly promises defendants, the definition of "legally sufficient" takes back in the very next breath. Evidence, however slight, is enough; but a mere scintilla of evidence is not enough.¹

The appellee relies on two scintillas of arguably negligent conduct by the appellant to support her argument that the appellant was contributorily negligent. The first is that the appellant failed to look in her rearview mirror before attempting to pass the truck. The appellant admits that that was the case. The second is that the appellant drove "off" the roadway and onto the shoulder just before the impact, in alleged violation of Md.Code (1998), § 21-304(c) of the Transportation Article.

We will grant that the appellee has at least a plausible argument in both of these regards. There will be circumstances in which the failure to look into the rear view mirror before switching lanes is negligence, primary or contributory. Although it is more problematic as to whether the appellant moved "off" the roadway in her passing maneuver, we will assume, arguendo, that she did. There will be circumstances in which driving a vehicle "off" the roadway will be negligence, primary or contributory.

What the appellee fails to appreciate is that her burden of production is not that of establishing a prima facie case as to some theoretical negligence by the appellant in the abstract. Her burden, rather, is to establish a prima facie case of contributory negligence, to wit, negligence that is a proximate cause of the accident. It is with respect to this second required element that the appellee has offered not even a scintilla of evidence, let alone legally sufficient evidence.

As early as Friedman v. Hendler Creamery Co., 158 Md. 131, 148, 148 A. 426 (1930), the Court of Appeals made it very clear that a plaintiff's negligence is not ipso facto contributory negligence unless it is a proximate cause of the accident:

Assuming, for the purpose of the question only, that these facts did show that plaintiff was negligent as a matter of law, yet unless such negligence was the direct and proximate cause of the accident, it would not bar her right to recover.

(Emphasis supplied).

In Schwarz v. Hathaway, 82 Md.App. 87, 90, 570 A.2d 348 (1990), Judge Robert Bell made the same point for this Court:

In order for a party to an accident to be held responsible for its happening, two things must have coalesced: The party was negligent, either primarily or contributorily, and his or her negligence was the proximate cause of the accident.

(Emphasis supplied).

In Schwarz v. Hathaway, the trial judge denied the plaintiff's motion for summary judgment with respect to the absence of contributory negligence and submitted that issue to the jury. This Court reversed the trial court and held, as a matter of law, that there was no contributory negligence on the plaintiff's part. We made that holding even in the face of evidence that established that the plaintiff may have been negligent in violating a provision of the Transportation Article that provides that "a pedestrian may not walk along a controlled access highway.":

Maryland Transportation Ann.Code, § 21-509 provides that except when "an emergency prevents the movement of a vehicle in which he is

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