Burdette v. ROCKVILLE CRANE RENTAL, CORP.

KENNEY, Judge. Gary Burdette and Leslie Burdette appeal from a jury verdict in favor of appellees, John Johnson and Rockville Crane Rental, Inc. Gary Burdette, individually and as the father and next friend of Leslie Burdette, filed a wrongful death and survival action against appellees as a result of the ¹⁹⁸ May 1, 1996, death of Constance Burdette. Constance Bur-dette, who was Gary Burdette’s wife and Leslie Burdette’s mother, was fatally injured when her automobile collided with a vehicle owned by Rockville Crane Rental, Inc., and operated by Mr. Johnson. After a trial in the Circuit Court for Montgomery County, the jury found that (1) Mr. Johnson was negligent in operating appellees’ vehicle and (2) Mrs. Burdette was contributorily negligent.

Judgment was entered in favor of both appellees. 1 The Accident Mrs. Burdette’s usual route to work was to travel along Emory Lane and then turn left onto Muncaster Mill Road. Emory Lane ended at Muncaster Mill Road, forming a “T” intersection. Both roads were two-lane, with one lane in each direction, but both roads had “right-turn only” lanes at the intersection. Emory Lane had' a stop sign at the intersection; Muncaster Mill Road had no traffic signal or sign there.

The speed limit on Muncaster Mill Road was 40 miles per hour. On the morning of May 1, 1996, Mrs. Burdette stopped at the stop sign on Emory Lane, with one car stopped in front of her and one behind her. After the car in front turned onto Muncaster Mill Road, Mrs. Burdette moved her white BMW coupe forward past the stop sign and then paused again. Because Muncaster Mill Road had high ground on both sides of it, drivers stopped at the stop sign on Emory Lane could not see as far down Muncaster Mill Road as they could if they advanced past the stop sign.

Mrs. Burdette moved forward and paused at the point, approximately 17 feet past the stop sign, at which the pavement of Emory Lane actually intersected with the pavement of Muncaster Mill Road. There were no ¹⁹⁹ traffic markings or signs where she paused. 2 John Capasso, the driver behind Mrs. Burdette on Emory Lane, testified that while waiting behind her he could not see down Muncaster Mill Road to the left, i.e., south, because of the raised ground along the side of the road. While Mrs. Burdette’s BMW was at the end of Emory Lane, a van driven by Roger Davis was next to her car, in the “right-turn only” lane on Emory Lane. Traffic on Muncaster Mill Road was heavy, and Mrs. Burdette waited in that position for approximately 20 seconds.

Mr. Davis could see over the BMW toward the left (south). Intending to go right (north), Mr. Davis remained stationary because he could see a truck approaching from the south. Mrs. Burdette, however, proceeded forward and began to turn left (south) onto Muncaster Mill Road. Mr. Davis testified that as Mrs. Burdette proceeded forward, her head was turned toward her right, looking past the front of his van.

Kathy Smith was driving south on Muncaster Mill Road. As she approached Emory Lane, she could see Mr. Davis’s van. Ms. Smith saw a white BMW come out from behind the van “kind of quick” and start to turn left. Ms. Smith braked, because she was concerned that the BMW would turn in front of her and then slow down.

Ms. Smith also looked farther to her left to see if another car would follow the BMW from Emory Lane. Mr. Johnson was driving north on Muncaster Mill Road in the Ford pickup truck that Mr. Davis had seen approaching. Mr. Johnson testified that the last time he checked his speedometer, at the top of the slight rise. down which he was proceeding toward Emory Lane, it read 85 miles per hour. Mr. Johnson was behind another car, which drove past Emory Lane.

When Mr. Johnson first noticed the BMW, it was already moving “right into [his] lane.” He estimated that he was approximately 100 to 150 feet from the BMW when it ²⁰⁰ started to pull out. He initially steered his truck slightly to the left and then braked hard. The brakes locked, and the truck skidded 84-90 feet in a straight line before hitting the driver’s door of the BMW. 3 The collision occurred primarily in the same lane in which Mr. Johnson had been traveling, but overlapped the edge of the lane toward the center of the road. Just prior to the collision, as his skidding truck approached the BMW, Mr. Johnson could see Mrs. Burdette looking to her right, away from him.

The injuries that Mrs. Burdette suffered in the accident proved fatal. The Trial and Verdict After four days of trial, the jury returned its verdict, answering “Yes” to each of the following questions: (1) ‘Was [the] defendant, John P. Johnson, negligent?”; (2) Was the negligence of Defendant Johnson a cause of the plaintiffs’ injuries?”; (3) “Was Constance Burdette negligent?”; and (4) “Was the negligence of Constance Burdette a cause of her injuries?” The court therefore entered judgment for appel-lees. Questions Presented Appellants present four questions for our review: 1. Did the trial court commit reversible error in denying appellants’ motion to strike a juror for cause ... ? 2.

Did the trial court commit reversible error in refusing to permit plaintiffs’ experts to testify as to their opinions concerning the cause of the collision ... ? 3. Did the trial court commit reversible error in failing to instruct the jury of the Boulevard Rule’s limitations? ²⁰¹ 4. Did the trial court commit reversible error in failing to instruct the jury as to the doctrine of Last Clear Chance? Discerning no error, we shall affirm.

Discussion I. After opening statements, the trial court heard testimony from John Capasso, the driver behind Mrs. Burdette. During the recess that followed, Juror 11-A asked to speak with the judge. The following exchange then occurred: JUROR 11-A: My mother, in September of 1997, living in Prescott, Arizona, pulled out in front of a very busy street and was hit broadside. She survived.

She is doing fine. She has no memory of why she did it. She is the most cautious person in the world. It just has an eerie similarity, what I am presented with.

She had very clear vision. She was smacked broadside. She clearly was at fault, and I am finding it hard to sort of — I am finding myself feeling very awkward listening to this because I have the clear understanding my mother was at fault. She definitely could see.

She made a mistake. I feel like I may be somewhat biased. As soon as the circumstances arose I had a strong feeling that my mother was at fault in this ease, and I think that is what my family has concluded. She pulled out.

That is what the people said. It is a very busy street. It is a huge intersection. It is a highway.

She did it every day. She is 76 years old. She is bright, alert. She just pulled right out in front of the guy, and she is the most cautious person in the world.

I just feel like it is hard for me to shake the sense that that is a very possible thing to do, to make that mistake, because my mother did it. THE COURT: Do you feel that your mother’s experience ... would affect your capacity to objectively evaluate this matter? ²⁰² JUROR 11-A: I will do my best to objectively evaluate it. The reason I am bringing it to you is because it sounds too familiar. THE COURT: I appreciate that.

JUROR 11-A: Before this happened the thought that my mother, who was so cautious about traffic, and every time we would go to visit them in Prescott she would say, “You make sure you look left, this is a dangerous highway.” The fact that she would pull out in front of these people just astonishes me, and it still astonishes me that she would have made that mistake. She clearly made a mistake. It has an impact on me. It makes it seem very believable to me that somebody who is a good driver, who is a cautious driver, would completely — and so I am bringing that to your attention.

I will try to put everything aside and I will be happy to be a juror, but I wanted to let you know. THE COURT: Well, we appreciate your bringing your thoughts and reflections to our attention. Why don’t we do this, you come back tomorrow and you will participate unless I deem otherwise. After the initial conference with Juror 11 A, the court informed both parties that it would speak further with the juror at the close of all the evidence, so as to assess whether the juror still felt he could be impartial and base his decision on the law.

The first conference with Juror 11A was the last trial event on the first day of trial. Appellant’s counsel did not move to strike Juror 11A on that day, but did so at a “preliminary matters” bench conference on the next day, before the resumption of testimony. Near the end of the trial, after the jury had been instructed and closing arguments had been given, the court had another conference with the parties and Juror 11 A. The court asked the juror if he felt “that the experience of a family member would affect your capacity to decide this case fairly and impartially based solely on the evidence and the applicable law,” or if he felt “that it would ²⁰³ have such an impact that you couldn’t do it?” The juror responded: “I feel like I would be fair.” Appellants’ counsel then asked the juror if he had any “beliefs or biases” against drivers who “make turns from stop signs and get in collisions?” The juror answered: I think what I said on Monday is what I still believe, which is that even careful people can make mistakes. That was my conclusion from my experience that I had with my mother.

I found my mother to be a very careful and cautious driver. This accident happened 2,000 miles from my purview, and I did not get out to Arizona to talk with them about it. She has no memory of the accident herself at all. It eradicated — she has no experience — memory at all of even being there.

So, there is nothing to be gained from talking to her. But in my own experience, my mother how she — this turn, always, and I would have my — the lesson that I took from it was the one I said Monday, which is that even careful people can sometimes make mistakes. I think that I have listened dutifully and carefully to the case, and can make the decision based on the merits of the case. [Emphasis added.] Appellants contend that the trial court, by denying their request to excuse Juror 11 A, “generated reversible error on three levels — (a) the Juror should have been stricken for cause following his disclosure; (b) the Juror’s bias should have been fully probed by the Trial Court; and (c) allowing the Juror to remain effectively denied the Appellants the full exercise of their peremptory challenge privilege.” On appeal, we will reverse a trial court’s ruling on the composition of the jury only if the trial court abused its discretion. Adams v. Owens-Illinois, Inc., 119 Md.App. 395, 402 , 705 A.2d 58 (1998).

We defer to the trial judge’s unique opportunity to observe the demeanor and suitability of potential jurors.... Under Maryland law, a juror must be discharged for cause ²⁰⁴ only when that juror cannot be impartial.... [A] juror may be struck for cause only ‘where he or she displays a predisposition against innocence or guilt because of bias extrinsic to the evidence to be presented.’ Although the cases cited are criminal, the same logic applies to civil cases; the linchpin in either is lack of bias and a resolve to be fair and impartial. Id. at 402-408 , 705 A.2d 58 (emphasis added; citing, inter alia, Gorman v. State, 67 Md.App. 398, 409 , 507 A.2d 1160 (1986); McCree v. State, 33 Md.App. 82, 98 , 363 A.2d 647 (1976)). (a) Appellants argue that Juror HA’s knowledge of his mother’s accident gave him an “obvious bias” against appellants, and that he should have been stricken for cause.

Appellants mention that many other potential jurors who responded positively to the court’s voir dire questions about automobile accidents were stricken for cause. Although Juror 11A did not respond affirmatively during voir dire, there was no indication that the juror had been evasive or secretive. The judge asked the jury pool if they or their immediate family members had been involved in litigation stemming from automobile accidents. During his conversations with the court during trial, Juror 11A never mentioned any litigation stemming from his mother’s accident.

It seems reasonable that, as the juror said, it was the testimony of the first witness that made the juror realize the similarities between Mrs. Burdette’s accident and his mother’s accident. He came forward immediately thereafter. Appellants cite Wyatt v. Johnson, 103 Md.App. 250 , 653 A.2d 496 (1995), for the premise that “[w]hen there is evidence of bias, the court may excuse a prospective juror even if that juror purports to be able to render a fair verdict.” In this case, the juror’s statements do not lead to a necessary or automatic inference that he was biased against any party; rather, as he reiterated several times, his mother’s experience taught him that “even careful people can make mistakes.” ²⁰⁵ This is not a statement that provides direct evidence of Has or prejudice. Wyatt also indicates that a trial court may excuse a juror even if the juror purports to be able to render a fair and impartial verdict.

The trial court is not required to excuse such a juror. The trial court had the discretionary ability to disregard the juror’s promises of impartiality and dismiss the juror from the jury. In deciding to retain the juror, the trial court had the benefit of first-hand observation. The court was faced with a decision based largely on the credibility to be given to the juror’s statements, and we will not say that the court abused its discretion in the choice that it made.

See Smith v. Pearre, 96 Md.App. 376, 392 , 625 A.2d 349 , cert. denied, 332 Md. 454 , 632 A.2d 151 (1993) (holding that trial court did not err in denying motion for new trial, despite failure by one juror to reveal during voir dire that he had a personal philosophy opposed to “people suing people”). (b) „ Appellants also contend that the trial court erred by not fully probing Juror llA’s potential bias. Appellants cite Wilson v. Morris, 317 Md. 284, 302 , 563 A.2d 392 (1989), in which the Court of Appeals held that a trial court had an affirmative obligation to inquire again as to whether a juror could render a fair and impartial verdict after the juror, following opening statements and a trip by the jury to the scene of the accident, stated that “these cases are costing too much money.” The failure of the trial court to conduct additional voir dire as to that juror’s fairness and impartiality was reversible error. Id. at 304 , 563 A.2d 392 .

Here, the trial court twice questioned the juror about the juror’s ability to render a fair and impartial verdict. The juror answered, “I will do my best to objectively evaluate it;” “I will try to put everything aside and I will be happy to be a juror, but I wanted to let you know;” and “I feel like I would be fair.” ²⁰⁶ Appellants’ counsel also questioned the juror, who answered, “I think that I have listened dutifully and carefully to the case, and can make the decision based on the merits of the case.” Appellants could have questioned the juror more extensively, but did not do so. Appellants have not suggested any specific questions or topics that the court should have discussed with the juror. We believe that the questioning that occurred was sufficient.

The trial court had the opportunity to observe the juror and assess his credibility. The juror’s responses permitted the trial court to determine that the juror would be able to participate in deliberations fairly and impartially. (c) Appellants’ third argument is that the trial court’s decision to keep the juror on the jury “effectively denied the appellants the full exercise of their peremptory challenge privilege.” At trial, after the juror came forward to report his mother’s accident, appellants’ counsel stated that, if the juror had made his revelation during voir dire, counsel would have used a peremptory challenge to remove that juror. In jury trials, a reasonable peremptory challenge right plays a vital role because it permits a party to eliminate a prospective juror with personal traits or predilections that, although not challengeable for cause, will, in the opinion of the litigant, impel that individual to decide the case on a basis other than the evidence presented.

King v. State Roads Commission, 284 Md. 368, 370 , 396 A.2d 267 (1979). There is no showing in this case, as there was in King , of any deviation from the applicable rule as to peremptory challenges during the initial jury selection process. Litigants do not have the right to peremptory challenges sufficient to remove every potential or actual juror whom they do not desire to have on the jury. Appellants present no support for their contention that litigants who do not get “new” peremptory challenges during trial are somehow deprived of their ²⁰⁷ rights.

Indeed, such a position would seem contrary to the recognition that neither the federal nor the Maryland constitution requires a grant of peremptory challenges. King, 284 Md. at 370 , 396 A.2d 267 . This case concerns the retention or removal of a juror from a sitting jury during trial. Acknowledging that a trial judge’s determination regarding the removal of a seated juror will not be reversed unless “ ‘arbitrary and abusive,’ ” we discern no such error.

State v. Cook, 338 Md. 598, 612 , 659 A.2d 1313 (1995) (quoting James v. State, 14 Md.App. 689, 699 , 288 A.2d 644 (1972)); see also Smith v. Pearre, supra.

II

Appellants argue that the trial court erred by refusing to allow appellants’ expert witnesses to give their opinions of the cause of the accident. Appellants presented testimony from Montgomery County Police Officer Charles Simpson and from Harry Kriemelmeyer, Jr., who were both accepted as experts in the field of collision reconstruction. Officer Simpson and Mr. Kriemelmeyer testified, with very slight differences, to the following determinations about the accident: (1) the posted speed limit on Muncaster Mill Road, on which Mr. Johnson was traveling, was 40 miles per hour; (2) Mr. Johnson’s Ford truck was traveling at approximately 64 miles per hour when Mrs. Burdette’s BMW began moving forward; (3) the BMW began moving forward when the vehicles were about 333 feet apart; (4) Mr. Johnson probably first perceived the BMW when the truck was approximately 235-242 feet from the eventual point of impact; (5) Mr. Johnson, if he had a normal reaction time, spent the next 1.6 seconds, while the truck traveled 150 feet, processing the information that he had to react to avoid the BMW; (6) Mr. Johnson braked after that short period, leaving skid marks that began 90 feet from the point of impact and continued, in a straight line, to the point of impact; and (7) the truck was traveling at a minimum speed of 46 miles per hour when it collided with the BMW. 4 ²⁰⁸ Appellants’ counsel then asked Officer Simpson: “Do you have an opinion that you can state to a reasonable degree of certainty, based on your education, your experience, and your investigation of this scene, as to what the cause of this collision was?” Appellees’ counsel objected, and the following bench conference occurred: [Appellants’ counsel]: I am assuming the objection goes to - THE COURT: The form of the question, the cause of the impact that is a factual determination by the jury. It is the way that the question is phrased ... more than anything else. [Appellants’ counsel]: I know it may go to the ultimate issue - THE COURT: No, it is the ultimate issue. [Appellants’ counsel]: I think an expert is allowed to express his opinion, even if it subsumes within it, the ultimate issue, and it is evidence for the jury to consider. [Appellees’ counsel]: This goes beyond the facts, as well.

I mean, it also is a legal issue as well. Your Honor will tell the jury, find the facts and apply the law, if there is one cause it is a combination of those issues, and that is within the province of the jury. [Appellants’ counsel]: Well, they are not bound — the jury is not bound to what he says, and Your Honor is going to instruct them on that, but he is and has been qualified as an expert. The experts are allowed to give their opinions and draw conclusions, and his function is to decide who was at fault in this collision. THE COURT: His opinions are based on the location and speed of the vehicle.

The causation is something a little bit more than that, Mr. Stein. And I think that it would be an invasion of the province of the jury for him to come to a factual conclusion as to what caused this accident. ²⁰⁹ He can render an opinion as to whether or not the impact would have occurred if the speed had been greater. That is different, that is a matter of computation. Causation brings into play a substantially greater number of factors, such as who was and who was not paying attention, and those kinds of things.

The ultimate issue being within the cognizance of an expert has very narrow applications. In (inaudible) cases, yes, and that kind of thing, but with respect to situations such as this, causation is solely within the province of the jury- The trial court also sustained objections to appellants’ proposal to ask Mr. Kriemelmeyer his “opinion with a reasonable degree of certainty in accident reconstruction as to whether or not it was reasonable or not for Mrs. Burdette to pull out,” and his opinion “within a reasonable degree of certainty as an accident reconstructionist as to what caused this collision and who was the cause of the collision.” 5 Mr. Kriemelmeyer did testify, however, that if Mr. Johnson had perceived the BMW as soon as it began moving, when Mr. Johnson was still approximately 333 feet from the BMW, there would have been no collision. Mr. Kriemelmeyer also testified that there would have been no collision if Mr. Johnson had been driving at 55 miles per hour, just 9 miles less than his actual speed, and still 15 miles per hour above the speed limit. Maryland Rule 5-702 provides: Expert testimony may be admitted, in the form of an opinion or otherwise, if the court determines that the testimony will assist the trier of fact to understand the evidence or to determine a fact in issue.

In making that determination, the court shall