Absolon v. Dollahite

ELDRIDGE, J. The issue before us in this case is whether a violation of Maryland Code (1977, 2002 Repl.Vol.), § 21-203 of the Transportation Article, establishes contributory negligence as a matter of law. 1 We shall hold that it does not. ⁵⁴⁹ I. This action is based on an incident where Sue Ann Absolon was struck by an automobile driven by Paul Dollahite at the intersection of Route 855, also known as Rockville Pike, and Church/Monroe Street, in Montgomery County. Absolon was on her way home from work, and had to cross Rockville Pike westbound at its intersection with Church/Monroe Street. She waited for the pedestrian signal to turn to “walking person” before starting to cross the street in the marked crosswalk. The signal turned to a flashing “red hand” when Absolon reached the median.

After checking for oncoming traffic, Absolon left the median to continue crossing Rockville Pike. She was almost at the west curb when she was struck by Dollahite’s automobile. Dollahite was making a right turn from east bound Monroe Street onto south bound Rockville Pike. According to the record, the relevant traffic signals work in the following fashion.

The “walking person” signal, facing pedestrian traffic crossing Rockville Pike from east to west, on the south side of the intersection, starts simultaneously with the beginning of the “red” signal for vehicular traffic controlling north and south bound traffic on Rockville Pike, and a “green” signal for traffic going east and west on Monroe/Church Street. After the first 6.65 seconds, the crosswalk traffic signal converts from the “walking person” to a flashing “red hand” for 23.31 seconds. The vehicular traffic signals remain unchanged during this time, with a green light for Church/Monroe Street traffic. At the end of the 23.31 seconds, the crosswalk signal turns to a steady “red hand” for 6.31 seconds.

During this 6.31 seconds, the vehicular traffic signal remains red on Rockville Pike, but the other signal changes from “green” to “amber” for traffic on Church/Monroe Street. The signals then change to green for traffic on Rockville Pike, and to red for traffic on Church/Monroe Street. The defendants’ expert testified based on a sampling ⁵⁵⁰ of 20 pedestrians observed between 5:25 p.m. and 6:20 p.m. on August 17, 2000, that it took a pedestrian eight to ten seconds to cross from the median strip to the west curb of Rockville Pike. At the time of the accident that forms the basis for this action, the signal for vehicular traffic turning from Monroe/Church Street was green, and the pedestrian signal for pedestrian traffic crossing Rockville Pike was a flashing “red hand.” II.

Sue Ann Absolon and her husband filed this tort action in the Circuit Court for Montgomery County. In the initial complaint, the Absolons asserted claims based on negligence and loss of consortium against Dollahite. They later amended the complaint to include Dollahite’s employer, Garza, Regan, Rosenblatt and Soto (“Garza”), based on the discovery that, at the time of the accident, Dollahite was acting within the scope of his employment. The defendants filed a motion for summary judgment, contending that the Absolons’ claims were barred by Sue Ann Absolon’s contributory negligence.

Dollahite and Garza based the defense of contributory negligence on § 21-203 of the Transportation Article. The defendants asserted that the median strip was a “safety island” within the meaning of statute, and that the statute imposed an absolute duty on the pedestrian to stay on the median strip when the signal changed to a “flashing hand.” Dollahite and Garza pointed out that the statute did not distinguish between a steady and flashing signal and that, therefore, the pedestrian had a duty to wait on the median strip once the signal had changed from a “walking person” to a “flashing hand.” The defendants asserted that when Sue Ann Absolon stepped off the median strip in the face of a “flashing hand” signal, she violated her statutory duty, establishing contributory negligence as a matter of law. ⁵⁵¹ After hearing oral argument, Judge Chapin of the Circuit Court denied the motion. On the day trial was to commence before Judge Beard of the Circuit Court, Garza and Dollahite asked that the motion for summary judgment be reconsidered. Following oral argument, Judge Beard granted the motion for summary judgment, stating as follows: “[I]t is abundantly clear that the upraised hand is a no walk signal.... “Also the statute is mandatory; ... in its language it says, ‘shall not’, and the word ‘shall’ is almost never legislatively used without the specific intent of making it mandatory. “It says: ‘The pedestrian shall not depart from either the curb or the island,’ and if you look at the language in its entirety, the facts of this case are uncontested that that is what was done. “Essentially, ... it is .... contributory negligence per se.” The Absolons appealed, and the Court of Special Appeals affirmed.

Absolon v. Dollahitte, 142 Md.App. 706 , 791 A.2d 986 (2002). In its opinion, the Court of Special Appeals stated “that Sue Ann [Absolon] was in express violation of Section 21-203 of the Transportation Article when she stepped off of the median after the flashing red hand had appeared, thereby rendering her eontributorily negligent as a matter of law.” Absolon v. Dollahitte, supra, 142 Md.App. at 709 , 791 A.2d at 988 . The Court of Special Appeals acknowledged that, under Maryland law, “[i]n most cases, while the violation of a statute is evidence of negligence, it is not considered negligence per se.” Ibid. Nonetheless, according to the appellate court, “a pedestrian’s violation of Section 21-203 constitutes negligence as a matter of law.” Ibid.

In reaching this conclusion, the intermediate appellate court relied on Parker v. Davis, 900 F.Supp. 788, 793 (D.Md.1995), where the federal court noted that there was “no distinction [in § 21-201] between flashing ‘Don’t walk’ signals and signals which are constantly lit.” The Court of Special Appeals held that the duty imposed by the statute was “absolute,” that Sue Ann Absolon violated this ⁵⁵² duty when she stepped off the median in the face of a flashing “red hand” signal, and that her action rendered her contribu-torily negligent as a matter of law. Absolon v. Dollahitte, 142 Md.App. at 710 , 791 A.2d at 989 . The Absolons then petitioned this Court for a writ of certiorari, which we granted. Absolon v. Dollahite, 368 Md. 526 , 796 A.2d 695 (2002).

III

We shall hold that the alleged violation of § 21-203 of the Transportation Article constituted, at most, evidence of contributory negligence that should have been submitted to the jury. The violation of the statute did not establish contributory negligence as a matter of law, and the grant of summary judgment was improper. The trial court can properly grant summary judgment “if the motion and response show that there is no genuine dispute as to any material fact and that the party in whose favor judgement is entered is entitled to judgment as a matter of law.” Maryland Rule 2-501(e). See, e.g., Tyma v. Montgomery County, 369 Md. 497, 503-504 , 801 A.2d 148, 152 (2002); Jones v. Mid-Atlantic Funding Co., 362 Md. 661, 675-676 , 766 A.2d 617, 624-625 (2001); Okwa v. Harper, 360 Md. 161, 178 , 757 A.2d 118, 127 (2000); Williams v. Mayor and City Council of Baltimore, 359 Md. 101, 113 , 753 A.2d 41, 47 (2000); Brown v. Dermer, 357 Md. 344, 354-355 , 744 A.2d 47, 53 (2000); Hartford Ins.

Co. v. Manor Inn of Bethesda, Inc., 335 Md. 135, 144-145 , 642 A.2d 219, 224 (1994); Gross v. Sussex, Inc., 332 Md. 247, 255 , 630 A.2d 1156, 1160 (1993); Ungar v. Handelsman, 325 Md. 135, 146-147 , 599 A.2d 1159, 1164 (1992). In the instant case, the fact that Sue Ann Absolon stepped off the median strip in the face of a flashing “red hand” signal is undisputed. The trial court held, as a matter of law, that § 21-203 of the Transportation Article established an “absolute duty” for a pedestrian to remain on the median strip once the “red hand” signal began flashing. Therefore, under the ⁵⁵³ court’s holding, Sue Ann violated this duty when she stepped off the median strip.

The violation of the statutory duty was contributory negligence per se, according to the trial court, and summary judgment was an appropriate disposition. The Court of Special Appeals, when it affirmed the trial court’s judgment, also held that § 21-203 established an absolute duty and that its violation established contributory negligence per se. “[I]t is an ‘established rule of Maryland procedure that, in appeals from grants of summary judgment, Maryland appellate courts, as a general rule, will consider only the grounds upon which the [trial] court relied in granting summary judgment,’ ” Eid v. Duke, 373 Md. 2, 10 , 816 A.2d 844, 849 (2003), quoting Lovelace v. Anderson, 366 Md. 690, 695 , 785 A.2d 726, 729 (2001) (some internal quotation marks omitted). See also Wolfe v. Anne Arundel County, 374 Md. 20, 32 , 821 A.2d 52, 59 (2003). Thus, we restrict our review of the case at bar to the sole issue of whether the alleged violation of § 21-203 established Sue Ann Absolon’s contributory negligence as a matter of law.

The trial court’s holding of absolute duty and negligence as a matter of law, based on a statutory provision, is contrary to the long established general rule in Maryland that the violation of a statutory duty is only evidence of negligence, but does not establish negligence per se. See, e.g., Brown v. Dermer, supra, 357 Md. 344, 358-359 , 744 A.2d 47, 55 ; Bentley v. Carroll, 355 Md. 312, 325-326 , 734 A.2d