Cohen v. Rubin

Getty, J., delivered the opinion of the Court. This appeal arises out of an action for negligent operation of an automobile, negligent entrustment of the vehicle by the owner-father to his son and wrongful death. On February 2, 1982, a Baltimore County jury rendered the following verdicts. 1. $2,000.00 compensatory damages in favor of the Estate of Philip Scott Rubin against the defendants, Steven and Sidney Cohen. 2. $250,000.00 punitive damages in favor of the Estate of Philip Scott Rubin against the defendant, Steven Cohen. ⁸⁶ 3. $200,000.00 compensatory damages in favor of the plaintiff, Milton Rubin, surviving parent of Philip Scott Rubin, against the defendants, Steven and Sidney Cohen. 4. $250,000.00 compensatory damages in favor of the plaintiff, Edith Rubin, as surviving parent of Philip Scott Rubin, against the defendants, Steven and Sidney Cohen. On April 26,1982, judgment absolute was entered for the above amounts with the exception of the $250,000.00 punitive damage award against Steven Cohen.

The Court reserved its ruling with respect to that award. 1 The defendants noted a timely appeal from the judgments rendered, and the plaintiffs noted a cross appeal. The appellantsVcross-appellants’ issues are: 1. Did the trial court err in submitting the question of the driver’s negligence to the jury or, in the alternative, in giving the jury instructions on last clear chance and the duties and burdens of drivers and pedestrians? 2. Was the evidence of negligent entrustment wrongfully admitted and legally insufficient such that submission of that issue to the jury constitutes reversible error? 3.

Did the trial court commit prejudicial error in submitting a punitive damage claim to the jury on the issue of negligent entrustment? 4. Did the trial court err in admitting into evidence the autopsy report, photographs of the vehicle showing the decedent’s blood and tissue and photographs of the decedent’s injuries? 5. Did the trial court err in admitting certain expert testimony relative to the speed of the vehicle at the time of the accident? ⁸⁷ 6. Did the trial court err in failing to admit certain docket entries, depositions and interrogatory responses relating to the alleged negligence of a party dismissed with prejudice prior to trial?

The cross appellants allege that the trial court erred in sustaining a demurrer to the punitive damage claim predicated upon the Wrongful Death Act, Md. Cts. & Jud. Proc., Code Ann. sec. 3-904(d). The Facts On August 21, 1979, at approximately 1:40 a.m., Philip Scott Rubin was fatally injured by a vehicle being driven by Steven Cohen. The accident occurred on Maryland Route 528 (Ocean Highway) near the 74th Street intersection in Ocean City, Maryland.

At the time of the accident, Philip Rubin, age thirteen, and a companion, Brian Kovens, were returning to their motel from a "Mr. Donuts” shop located across Route 528 from the motel where the boys were staying. Immediately prior to the accident the two boys were standing on the traffic median in the center of Ocean Highway approximately twenty feet south of the pedestrian crosswalk. They had previously crossed the southbound lanes of Ocean Highway and as they proceeded across the northbound lanes, Philip, who was several feet ahead of his companion, was struck and killed; Brian Kovens retreated to the median unscathed. Brian testified that before crossing the northbound lanes they looked to their right and saw car lights "at least two blocks away.” A driver proceeding south on Ocean Highway testified that the traffic light controlling north and south bound traffic was green at the time of the accident.

Steven Cohen, between 10:00 p.m. and the time of the accident, had shared two pitchers of beer with a friend, drank four or five beers and smoked a water pipe containing marijuana at his apartment. Sometime after 1:00 a.m., Steven drove Elise and Ellen Wolod from his apartment ⁸⁸ toward the Sheraton Hotel where they were residing. After entering Ocean Highway in a northerly direction, Steven challenged another motorist to a race and accelerated his car to seventy-five or eighty miles per hour, according to Elise Wolod who was seated beside the driver. Miss Wolod stated that Steven ignored her pleas to slow down and she then observed the two boys on an island in the street three blocks ahead.

Her testimony concerning the incident is as follows: A Then, as we were driving, I could see like about three blocks away on the left hand side on an island there were two boys and I saw one boy walk out and then I saw both boys step down, but I saw one start to walk back and one kept on going, and I said, "Steve, slow down, there are two kids out there.” Q At that point, did the boys continue to cross the street? A The one boy did. Q What did Steve do when you said to him, "Steve, slow down there are two boys up there?” A The car did not slow down and then, like, before I knew it, I said, "Steve, stop,” and it was too late. Q What happened then?

A He hit a boy. Officer William Galten of the Ocean City Police Department determined that the Cohen vehicle left skid marks measuring 255' 8" and 209' 10"; Philip Rubin’s body was recovered 55' 2" north of the final resting place of the vehicle. Sgt. Myron Lofgren, a member of the Minnesota State Highway Patrol testified, over objection, as an accident reconstruction expert.

He concluded that the point of impact was 32' to 34' from the median island and in the center portion of the middle of the three northbound lanes of Ocean Highway. Sgt. Lofgren further concluded that Philip Rubin was 10' or 20’ south of the south line of the crosswalk and ⁸⁹ that the Cohen vehicle, as it began its four wheel skid was travelling at 85 miles per hour or 124.6' per second. Evidence was introduced concerning Steven Cohen’s driving record to establish that Sidney Cohen supplied the vehicle involved in the fatal accident when he was aware of his son’s tendencies to drive recklessly and in a dangerous manner.

This evidence consisted of disciplinary infractions for entering the school parking lot in the wrong direction on two occasions. Sidney Cohen was advised of these infractions by the Assistant Principal. The trial court also admitted, as to Sidney Cohen, transcripts of three traffic violations committed by Steven Cohen. On April 13, 1978, Steven was charged with operating a motor vehicle at 38 miles per hour in a 25 mile per hour zone near Pikesville Senior High School.

Sidney Cohen testified at trial that he was not present at the hearing in District Court; in a prior deposition he stated he was present at the trial for the April 13th incident. On December 16, 1978, Steven was cited for driving 53 miles per hour in a 30 mile per hour zone. At the District Court hearing, February 13,1979, Steven was accompanied by his father, Sidney Cohen, who represented to the court that his son was a careful driver and aware of the point system. Steven was granted probation before judgment and was ordered to attend a Baltimore County Traffic School program.

In the early morning hours of March 4,1979, while still on probation, Steven was charged with striking three vehicles and leaving the scene without providing identifying information. He received a fine and a suspended thirty day jail sentence. Accompanied by his father and legal counsel, Steven appeared before the District Court on a motion for reconsideration of his most recent conviction. He, Steven, had received a notice from the MVA that his license would be suspended effective June 19, 1979.

Sidney Cohen represented to the court that his son contacted the owners of the three vehicles and assured them that they would be reimbursed for their damages. Mr. Cohen ⁹⁰ pleaded for a disposition other than conviction and advised the Court that Steven drove "only on family chores”. The District Court granted probation before judgment. Two months later, Steven was in Ocean City, driving a car purchased for him by his father in April as a graduation present and Philip Scott Rubin was dead.

The Law Contributory Negligence Appellants first contention is that the deceased was guilty of contributory negligence as a matter of law by reason of being outside the designated cross-walk and placing himself in a marked cross walk, must be considered in relation to Sec. 21-503 (a) of the Transportation Article. The statute requires a pedestrian shall yield the right of way, under such circumstances, to any vehicle approaching on the roadway. The Court of Appeals, construing the statute, has consistently held that a pedestrian crossing between intersections raises a factual issue of negligence, but such fact, standing alone, is insufficient to establish that the pedestrian is prima facie guilty of negligence. Nelson v. Seiler, 154 Md. 63 , (1927); Weissman v. Hokamp, 171 Md. 197 , (1937); Thursby v. O’Rourke, 180 Md. 223 , (1942); Love v. State, 217 Md. 290 , (1958); Boyd v. Simpler, 222 Md. 126 , (1960).

No absolute rule as to what does, and what does not, constitute contributory negligence can be formulated that would be applicable to all cases. Like primary negligence, it is relative and not absolute in nature. What constitutes contributory negligence, therefore, depends upon the particular circumstances of each case. Thursby v. O’Rourke, supra, Ford v. Bradford, 213 Md. 534 , (1957).

Contributory negligence as a matter of law cannot be found, unless the evidence permits of but one interpretation which shows some distinct, prominent and decisive act in regard to which there is not room for ordinary and reasonable minds to differ. Thomas v. Baltimore Transit Co., 211 Md. 262 , (1956) and cases cited. ⁹¹ Sec. 21-504 of the Transportation Article imposes the following duty on drivers in relation to pedestrians: 21-504 Drivers to exercise due care. Notwithstanding any other provisions of this title, the driver of a vehicle shall: (1) Exercise due care to avoid colliding with any pedestrian; (2) If necessary, warn any pedestrian by sounding the horn of the vehicle; (3) Exercise proper precaution on observing any child or any obviously confused or incapacitated individual. The duty imposed on pedestrians (21-503) and the duty imposed on drivers relative to pedestrians (21-504) must be resolved by consideration of the circumstances of each case.

In Dix v. Spampinato, 28 Md. App. 81 , (1975), relied upon by the appellants herein, we determined that directed verdicts for the defendants were proper where the plaintiff was crossing a divided highway and walked in front of a car that had stopped to allow her to continue across the roadway. The driver of the stationary vehicle motioned for the plaintiff to cross and she did so without maintaining a look out and was struck by another vehicle proceeding in the same direction, but in the next lane, to the vehicle that had stopped. We said that the plaintiff had no right to assume that because one driver had yielded the right of way to her, that other drivers lawfully on the highway would do likewise. The factual scenario of the present case is markedly different than in Dix .

Here, the plaintiff stopped at the median, looked to his right, saw the vehicle two or three blocks to the south (2 blocks being 610' — 3 blocks 910') and proceeded to cross the roadway where he was struck, after proceeding 32' to 34' from the median, by a vehicle travelling in excess of 80 miles per hour in a 40 mile per hour zone in a well lighted area where no evasive action was taken by the driver until he applied his brakes 101' from the 74th Street intersection, at which point the victim was 80' or 90' ahead and the car ⁹² was traversing 124' per second. This is not a situation where ordinary and reasonable minds may not differ and, therefore, the issue of contributory negligence of Philip Scott Rubin was properly submitted to the jury. Last Clear Chance Appellants’ next assignment of error is the granting, by the trial court, of an instruction on the Doctrine of Last Clear Chance. The doctrine assumes primary negligence by the defendant, contributory negligence by the plaintiff and a showing of something new or independent, which affords the defendant a fresh opportunity (of which he fails to avail himself) to avert the consequences of his original negligence and the plaintiffs contributory negligence.

MacKenzie v. Reesey, 235 Md. 381 , 201 Atl. 2d 848, (1964). The instruction given by the trial court need not be repeated in toto; the elements of the doctrine, as set forth in MacKenzie, supra, were succinctly stated. The appellants, citing Perry v. McVey, 345 F. 2d 897 , (4th Cir. 1965) a diversity case applying Maryland law, contend that the instruction should not have been given, because the negligence of the defendant (Cohen) is concurrent, rather than sequential to the presumed negligence of the plaintiff and the defendant’s negligence, continuing unchanged until the accident occurs, may not serve again as the basis for a last clear chance instruction. Appellant’s argument overlooks the testimony of Elise Wolod that she observed the two boys from a distance of three blocks, advised the 1 appellant of their presence and admonished him to slow down, all of which he ignored.

This testimony, that Steven Cohen was made aware of the dangerous position of the two boys on the highway at a time when he could have availed himself of the opportunity to slow down to avoid the consequences of his original negligence due to driving at a highly excessive rate of speed, was sufficient for the trial court to grant the last clear chance instruction. ⁹³ Instructions Appellants allege that the trial court committed reversible error in instructing the jury concerning the relative burdens and duties of pedestrians and drivers. Most of the instructions were given to the jury on Friday, January 29, 1982. On Monday, February 1, 1982, the Court gave the following instruction: "Now, the Court will also give this additional instruction, in view of conflicting testimony that was given as to the nature of the accident itself by witnesses for the plaintiff, and witnesses for the defense. The Court, therefore, will add this to the instructions previously given.

In the absence of statutory regulation, the rights of motorists and pedestrians on public highways are reciprocal. Neither the motorist nor the pedestrian has the right to use a public street in disregard of the right of the other to use it. Each must accommodate his movements to the other’s lawful use of it. Highways are for the use of everybody, and no one is barred by age or physical condition from the use of them.

It is the duty of the pedestrian to use reasonable care in walking on a street, and to act as an ordinary careful person would act under similar circumstances. But the driver of a motor vehicle is required to exercise much greater vigilance and caution to look out for the pedestrian than the pedestrian is required to exercise to look out for the driver. This is because of the fact that the pedestrian cannot usually harm the motorist by the way he uses the street and needs to look only after his own safety, whereas the motorist may kill or seriously injure the pedestrian and therefore should look out for the safety of the pedestrian as well as his own. Moreover, while ordinary care is required of the driver of a motor vehicle, the vigilance must vary ⁹⁴ according to the danger naturally anticipated from the operation of the vehicle.

A