Barrett v. Nwaba

Opinion by KENNEY, J. William Barrett appeals the judgment of the Circuit Court for Baltimore County denying his partial motion for judgment on the issue of James Nwaba’s primary negligence under the Maryland boulevard rule. Barrett presents one question for our review, which we have slightly reworded: Did the circuit court err in denying his motion for judgment? Because we answer that question in the affirmative, we shall reverse the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY William Barrett and James Nwaba were involved in a two car collision on January 9, 2002, at approximately 5:40 p.m.

Barrett was traveling eastbound on Eastern Avenue in Essex, Maryland. In the area of the collision, Eastern Avenue has two eastbound lanes. A median separates the eastbound traffic from the westbound. Barrett was following a large ²⁸⁶ tractor trailer in the right-hand lane, when both vehicles stopped at a red light at, or before, the intersection of Eastern and Southern Avenues. 1 When the light turned green, Barrett passed the truck in the left-hand lane, and then merged back into the right-hand lane.

Barrett’s vehicle was struck in the rear passenger door by Nwaba’s vehicle as Nwaba attempted to exit a gas station and to turn right onto Eastern Avenue. The collision occurred approximately one-eighth of one mile from the Southern Avenue intersection. As a result of the accident, Barrett incurred various expenses, including substantial medical bills. On September 4, 2002, Barrett filed a complaint in the District Court of Maryland for Baltimore County, alleging that Nwaba had negligently caused the accident.

He sought $25,000 in damages. The case was removed to the Circuit Court for Baltimore County, where a jury trial commenced on March 4, 2004. At trial, Barrett testified that he passed the truck and traveled four to five car lengths ahead of it before merging back into the right-hand lane. According to Barrett, his entire vehicle had re-entered the right-hand lane and he had driven another three or four car lengths before being struck in the rear passenger’s door.

Following the collision, Barrett’s vehicle ended up in the left lane of Eastern Avenue and struck the center median. Barrett recalled that the collision was “pretty hard,” and that he was “knocked unconscious.” He sustained injuries to his jaw, neck, and back. Following the accident, Barrett experienced headaches and “popping” of his jaw, which he had not experienced before. ²⁸⁷ On cross-examination, Barrett said that, although he intended on exiting Eastern Avenue onto North Point Boulevard, which was only two to three blocks from the traffic signal, he passed the truck because he "Vas not going to wait. He [the truck driver] was just sitting there.

When he started taking off, you could see he had such a heavy load, I just proceeded to go around him.” The truck had only traveled two to three car lengths from the traffic signal before he was able to pass it and re-enter the right-hand lane. Barrett did not see Nwaba’s vehicle before the accident. Nwaba testified regarding the scene of the accident with the aid of a diagram. 2 He explained that there were two driveways leading into the gas station, an entrance near Southern Avenue, and an exit farther east near Fairview Avenue. He “guessed” that there was a traffic signal at the intersection of Southern and Eastern Avenues and believed that the tractor trailer was stopped there.

According to Nwaba, he was attempting to exit onto Eastern Avenue from the driveway near Fairview Avenue. Before exiting, he looked to his left and saw only the tractor trailer in the right-hand lane. 3 He then looked to his right and again to his left, and, believing that it was safe to exit, he proceeded to pull out of the gas station into the right-hand lane. As he exited at “snail’s speed,” Nwaba heard a “bump.” At the time of collision, only one-half of Nwaba’s vehicle had entered onto Eastern Avenue. Nwaba never saw Barrett’s vehicle or, aside from the tractor-trailer, any other eastbound vehicles on Eastern Avenue.

During cross-examination, Nwaba acknowledged that Eastern Avenue was illuminated by artificial light from the gas station so that he could see oncoming traffic. Following the collision, Nwaba’s vehicle came to a stop across Eastern Avenue on the curb near Fairview Avenue. ²⁸⁸ The final witness to testify was Officer Bruce Pfeiffer. He arrived at the scene shortly after the collision, and found the two vehicles close to .the median strip in the left-hand lane. He explained that directly before the gas station there are two traffic signals on Eastern Avenue, which were separated by approximately 100 feet.

The signal immediately before the gas station was located at Southern Avenue and further west, there is a signal at Ashby Avenue. According to Officer Pfeiffer, the accident occurred approximately one-eighth of one mile from Southern Avenue. From the “debris scatter,” Officer Pfeiffer determined that the “area of impact” was “nine foot ten inches north of the south curb of Eastern [Avenue],” and that the right-hand lane “at that particular location is nineteen f[ee]t eight inches wide.” There were no skid marks at the scene of the accident. Following the collision, Officer Pfeiffer testified that Barrett’s vehicle traveled eighty-seven feet before coming to a stop at the center median.

When Officer Pfeiffer interviewed Barrett at the hospital, Barrett reported that he was proceeding east on Eastern Avenue when he stopped at the traffic light at the intersection of Southern and Eastern Avenues. When the signal permitted, Barrett continued east when a car reportedly pulled from the gas station and struck his vehicle in the passenger side. Although Officer Pfeiffer made a diagram from his accident investigation, the diagram, marked for identification as Defendant’s Exhibit 11, was not admitted into evidence. Officer Pfeiffer did not testify as an expert and gave no opinion as to the cause of the accident.

At the close of all evidence, Barrett moved for partial judgment on the issue of Nwaba’s primary negligence pursuant to Maryland Rule 2-519. 4 He argued that the undisputed evidence established that he was in the right-hand lane for ²⁸⁹ three to four car lengths at the time Nwaba pulled onto Eastern Avenue and struck his vehicle. Therefore, the Maryland boulevard rule, codified at Maryland Code (1977, 2002 Repl.Vol.), §§ 21-403-21-404 of the Transportation Article (“Trans.”), imposed on Nwaba a duty to yield to the traffic on Eastern Avenue and because he failed to do so, Nwaba was negligent as a matter of law. Accordingly, Barrett requested that the court find Nwaba negligent and submit only the issue of Barrett’s contributory negligence to the jury. In denying Barrett’s motion, the court noted that the jury need not credit Barrett’s undisputed testimony and that the jury could possibly conclude, based upon the other evidence presented, that Nwaba was not negligent in attempting to enter Eastern Avenue.

On March 5, 2004, the jury found that Nwaba was not negligent and therefore, did not consider whether Barrett was contributorily negligent. On March 15, 2004, within ten days of the entry of the judgment, Barrett filed a motion for judgment notwithstanding the verdict under Rule 2-532 and, alternatively, a motion for a new trial pursuant to Rule 2-533. The circuit court denied both motions on June 11, 2004. This timely appeal followed.

STANDARD OF REVIEW Pursuant to Maryland Rule 2-519(a), “A party may move for judgment on any or all of the issues in any action at the close of the evidence offered by an opposing party, and in a jury trial at the close of all of the evidence. The moving party shall state with particularity all reasons why the motion should be granted.” “ ‘[T]he trial judge must consider the evidence, including the inferences reasonably and logically drawn therefrom, in the light most favorable to the party against whom the -motion is made. If there is any evidence, no matter how slight, legally sufficient to generate a jury question, the motion must be denied....’” Tate v. Bd. of Ed. of Prince George’s County, 155 Md.App. 536, 545 , 843 A.2d 890 ²⁹⁰ (2004) (quoting James v. General Motors Corp., 74 Md.App. 479, 484-85 , 538 A.2d 782 (1988)) (emphasis in Tate). We review a trial court’s grant of a motion for judgment under the same analysis used by the trial court.

Moore v. Myers, 161 Md.App. 349, 362 , 868 A.2d 954 (2005). In other words, “ ‘[w]e assume the truth of all credible evidence on the issue, and all fairly debatable inferences therefrom, in the light most favorable to the party against whom the motion is made.’ ” Id. (quoting Tate, 155 Md.App. at 544 , 843 A.2d 890 ) (alteration in Moore). DISCUSSION According to Barrett, the evidence, even when viewed in the light most favorable to Nwaba, established that Barrett was the favored driver on a highway and that Nwaba, upon attempting to enter that highway, failed to yield as required by the “boulevard rule.” Barrett, therefore, contends that the circuit court erred in denying his “motion for judgment with regard to [Nwaba’s] negligence as a matter of law.” We agree.

The so called boulevard rule, codified at Trans. §§ 21-403-21-^404, imposes a duty upon a driver entering or crossing a highway from another highway, private roadway, driveway, or other place to stop and yield the right-of-way to any through traffic on the highway. Washington Metro. Area Transit Auth. v. Seymour, 387 Md. 217, 227 , 874 A.2d 973 (2005) . Transportation § 21-101 defines “[rjight of way” as “the right of one vehicle or pedestrian to proceed in a lawful manner on a highway in preference to another vehicle or pedestrian.” Because Nwaba was attempting to enter Eastern Avenue from a private parking lot or driveway, Trans. § 21-404 is applicable in the instant case.

Seymour, 387 Md. at 228 , 874 A.2d 973 . Section 21-404 is given the same interpretation as § 21-403, which applies to vehicles entering or crossing from another highway. Dean v. Redmiles, 280 Md. 137, 143 , 374 A.2d 329 (1977). ²⁹¹ The purpose of the boulevard rule is “ ‘to accelerate the flow of traffic over through highways by permitting travellers thereon to proceed within lawful speed limits without interruption.’ ” Covington v. Gernert, 280 Md. 322, 324 , 373 A.2d 624 (1977) (quoting Greenfeld v. Hook, 177 Md. 116, 132 , 8 A.2d 888 (1939)). As the Court of Appeals explained in Belle Isle Cab Co. v. Pruitt, 187 Md. 174 , 49 A.2d 537 (1946), “That purpose would be completely frustrated if such travellers were required to slow down at every intersecting highway, and the vast sums which have been spent in their construction in an effort to accommodate the great volume of automobile traffic which is so indispensable a part of modern life, would be largely wasted.

On the other hand the safety of the travelling public demands that the rules defining the relative rights of travellers on through highways and on highways intersecting them be clear, unmistakable and definite. If the duty of stopping and yielding right of way, is positive and inflexible, the inhibited traveller on the favored highway may know that he may safely exercise the privilege of uninterrupted travel thereon which the statute gives. If, however, the relative rights of travellers on the two types of highway are held to depend upon nice calculations of speed, time, and distance the rule would encourage recklessness and the privilege of uninterrupted travel would mean little more than the privilege of having a jury guess in the event of a collision whose guess was wrong.” Id. at 179 , 49 A.2d 537 (quoting Greenfeld, 177 Md. at 125 , 8 A.2d 888 ). “The duties to stop and to yield are separately stated in the statute, though they are certainly co-ordinate: the former is required to enable one to make the observations necessary to comply with the latter.” Goosman v. A. Duie Pyle, Inc., 206 F.Supp. 120, 125 (D.Md.1962). As originally interpreted and applied, the boulevard rule imposed a positive and exacting “duty o[n] the unfavored driver to yield the right of way ... to traffic on the whole of the favored road.” Creaser v. Owens, 267 Md. 238, 243 , 297 A.2d 235 (1972).

Because the favored driver has a right to ²⁹² assume that the unfavored driver will abide by his duty, “if the unfavored driver failed to yield the right-of-way and a collision ensued, the unfavored driver was absolutely liable as a matter of law.” Mallard v. Earl, 106 Md.App. 449, 457 , 665 A.2d 287 (1995). Accordingly, the unfavored driver could only escape liability when sued by the favored driver if the evidence established that the favored driver was contributorily negligent and the unfavored driver did not have the last clear chance' to avoid the collision. Creaser, 267 Md. at 244 , 297 A.2d 285 . The General Assembly’s adoption of a definition of “right-of-way” in 1971 that protected the favored driver only when operating in a lawful manner eased the sometimes harsh effects of an absolute application of the boulevard rule by relieving an unfavored driver of liability where the evidence established that the favored driver’s unlawful conduct was a proximate cause of the collision.

Mallard, 106 Md.App. at 457 , 665 A.2d 287 . See also Gazvoda v. McCaslin, 36 Md.App. 604, 612 , 375 A.2d 570 (1977) (“The departure from the past arises when the favored driver is not proceeding in a lawful manner. Then the boulevard rule no longer applies, and the favored driver is not entitled to preference over the unfavored driver.”). Relying upon the revised definition of “right-of-way” and its attendant modification of the boulevard rule, Nwaba asserts that the circuit court did not err in denying Barrett’s motion for judgment because there was sufficient evidence presented to establish that Barrett was operating in an unlawful and negligent manner.

Quoting Gazvoda, 36 Md.App. at 613 , 375 A.2d 570 , Nwaba argues that, “ ‘if there is evidence sufficient to permit a finding of fact that the favored driver was proceeding in a manner that was not lawful, then it is for the jury to determine whether the favored driver has lost his statutory preference.’ ” In Dennard v. Green, 335 Md. 305 , 643 A.2d 422 (1994), however, the Court of Appeals explained that the expanded definition of “right-of-way” was not a significant departure ²⁹³ from the application of the boulevard rule because Maryland courts “had never absolved a favored driver from all of the consequences of his or her unlawful driving while on the boulevard”; “ ‘if it can be shown that the favored driver could have avoided the accident if he had been operating lawfully and with due care, then the negligence of the favored driver should be an issue for the jury.’ ” Id. at 312-13, 314 , 643 A.2d 422 (quoting Kopitzki v. Boyd, 277 Md. 491, 496 , 355 A.2d 471 (1976)). The Dennard Court further reasoned that, when all of the potentially negligent parties are before the court, no jury issue as to the proximate cause can be presented unless there is a factual issue as to which of those parties caused the accident, unless the evidence permits more than one conclusion to be drawn, that is, the evidence and the inferences from it are conflicting in that regard. As between the