Cooper v. Singleton

CHARLES E. MOYLAN, JR. (Retired, Specially Assigned), J. Harvard Law School Professor Edmund M. Morgan, one of the legendary titans of the law of presumptions, said of the subject as early as 1937: Every writer of sufficient intelligence to appreciate the difficulties of the subject-matter has approached the topic of presumptions with a sense of hopelessness and has left it with a feeling of despair.[ 1 ] The first of the early titans was James Bradley Thayer who, even before the turn of the 20th Century, had observed: [T]he numberless propositions figuring in our cases under the name of presumptions, are quite too heterogeneous and noncomparable in kind, and quite too loosely conceived of and expressed, to be used or reasoned about without much circumspection.[ 2 ] Dean Charles McCormick, another of the early Olympians, added to the diagnosis: ⁶²⁸ One ventures the assertion that “presumption” is the slipperiest member of the family of legal terms, except its first cousin, “burden of proof.”[ 3 ] Indeed, the virus that infects the present case is the undifferentiated use of the term “burden of proof,” as the appellant proffers conclusions about the “burden of persuasion” from premises dealing only with the “burden of production.” The term remains as slippery as ever. A Vehicular Domino Effect The appellant, Gleen Cooper (hereinafter the “plaintiff’), sued the appellee, Richard Singleton (the “defendant”), for damages incurred as a result of the defendant’s allegedly negligent driving of an automobile. The six-car collision giving rise to this action occurred on June 28, 2010, at the intersection of Great Seneca Highway and Queenstown Lane in Montgomery County.

Involved was a chain reaction. Four cars had come to a stop, one behind the other, at a red light controlling the intersection, when a fifth car, driven by the defendant, went out of control and struck the rear end of the fourth car in the line. That fourth car was pushed forward into the rear end of the third car. That third car, in turn, was pushed forward into the second car, which was that being driven by the plaintiff.

The plaintiffs car, in its turn, was then pushed forward into the first car in the line. 4 For purposes of simplifying the analysis of this case, involving only one of the plaintiffs and the single defendant, it will be convenient to factor out the other dominos and to speak simply of the defendant’s car having rear-ended the plaintiffs car. The analysis will come out exactly the same way. On February 23, 2012, the plaintiff filed suit against the defendant in the Circuit Court for Montgomery County, alleging negligent driving. Following a three-day trial before a ⁶²⁹ jury, presided over by Judge Terrance McGann, the jury verdict was that the defendant had not been negligent.

The present appeal followed. The Defense of Sudden Incapacity At trial, the defendant presented the defense of sudden incapacity. In Moore v. Presnell, 38 Md.App. 243, 246-47 , 379 A.2d 1246 (1977), cert. denied, 282 Md. 736 (1978), Chief Judge Gilbert described that theory of defense: According to the overwhelming weight of authority, where the driver of a motor vehicle suddenly and unforeseeably becomes physically or msntally incapacitated, he is not liable for injury resulting from the operation of the vehicle while so incapacitated. An exception to the general rule exists where a person knows that he is suffering from an illness which will likely cause his loss of consciousness.

Where, as here, a prima facie case of negligence has been established by the plaintiff, the burden of proof shifts to the defendant to demonstrate that a sudden illness or attack occurred, and that it could not have been anticipated. The rationale behind the defense of unanticipated unconsciousness is that the driver was suddenly deprived of his senses by “blacking out” so that he could not comprehend the nature and quality of his act, and thusly, is not responsible therefor. (Emphasis supplied). With respect to the proof of sudden incapacity, this Court’s opinion, 38 Md.App. at 248-49 , 379 A.2d 1246 , was also informative: Appellee, as we have stated, successfully raised a jury question through the testimony of Leon Anderson, who, driving his automobile behind Mrs. Presnell’s car, said that she, immediately prior to the impact, appeared as if she “just passed out.” The evidence clearly established that Mrs. Presnell did not react, when confronted with an imminent collision, as a conscious person would.

She made no ⁶³⁰ attempt to avert the accident, and there was no visible braking action. The medical history of Mrs. Presnell revealed that she was not an unlikely candidate for sudden lapses of consciousness. She had a history of cardiovascular disease and hypertension that could have caused her to “black out.” Examination of the contents of her purse, as we have seen, disclosed three vials of medicine, one of which contained “Aldomet.” The only medical testimony with respect to “Aldomet” was that it was “a blood pressure medicine.” That evidence, standing alone, as it did, was obviously insufficient in the minds of the jurors to outweigh the theory of the sudden, unexpected loss of consciousness. Mrs. Presnell had no apparent history of fainting spells, nor does the fact that she was receiving medication for hypertension make her loss of consciousness foreseeable.

In sum, we think the evidence of the sudden, unexpected loss of consciousness was sufficient to entitle the jury to find as a fact that the automobile collision was the result of such a loss of consciousness, and that Mrs. Presnell’s estate was not liable to the appellants. (Emphasis supplied). The Maryland Pattern Jury Instruction-Civil 18:9 also explains the sudden incapacity defense: A person has the duty to take reasonable actions to be sure that he or she can safely drive a motor vehicle. A failure to do so that results in a motor vehicle accident is evidence of negligence.

However, a person may defend by showing that there was a sudden and unforeseen incapacity that rendered him or her unable to avoid or prevent the accident causing the injury. Unforeseen incapacity is one that a reasonable person would not have any reason to anticipate. (Emphasis supplied). The defendant in this case presented a formidable and detailed case of sudden incapacity.

The incapacity was a grand mal seizure. Dr. David M. Katz, the defendant’s treat ⁶³¹ ing neurologist, testified by video deposition de bene esse. Dr. Katz has been treating the defendant since the late 1990s. From at least that time through the date of the accident, the defendant had been subject to a condition that made him potentially vulnerable to grand mal seizures.

The defendant’s last known seizure before the accident in the present case was in 2004, when a gastrointestinal illness accompanied by vomiting and diarrhea resulted in a temporary reduction of the blood levels of his prescribed anti-seizure medication. Since that incident in 2004, the defendant’s seizure condition had been well controlled by his prescribed medication. Dr. Katz testified that the defendant has been consistently in compliance with the doctor’s orders. During every medical visit from 2004 through 2010, Dr. Katz determined that the defendant was able safely to operate a motor vehicle, and on each such occasion Dr. Katz cleared the defendant to do so.

The last such visit was in April of 2010, two months before the accident. Dr. Katz gave his considered medical opinion that in spite of the defendant’s history of a very well controlled seizure disorder, the defendant had a breakthrough seizure on June 28, 2010, which could not have been anticipated and which rendered the defendant suddenly and unexpectedly incapacitated and unable to operate his motor vehicle. Dr. Katz’s opinion was factually supported by the testimony of 1) the defendant’s wife, Valerie Singleton; 2) the defendant’s stepdaughter, Nichol May Shannon; and 3) the defendant himself. Although the plaintiff contested the defendant’s sudden incapacity defense, he offered neither testimony nor other evidence to negate it factually.

A Presumption As Persuasive Evidence To prove the defendant’s negligence, the plaintiff relied exclusively on what he contends should be the probative force of an alleged presumption of negligence, as he would have had it communicated to the jury by a requested non-standard jury instruction. At the end of the case, Judge McGann gave standard jury instructions. He explained that the burden was on the plaintiff to persuade the jury of the defendant’s negli ⁶³² gence by a preponderance of the evidence. He explained that the defendant was offering the defense of sudden incapacity and that the defendant had the burden of persuading the jury of the existence of that defense by a preponderance of the evidence.

The defendant and the plaintiff each asked for an additional non-standard instruction. Judge McGann declined to give either. Although the non-standard instruction that the plaintiff requested is only peripheral to the plaintiffs precise appellate contention, it has some bearing on the discussion of the actual contention. The additional instruction that the plaintiff asked for was the following, taken essentially verbatim from Andrade v. Housein, 147 Md.App. 617, 623 , 810 A.2d 494 (2002): An evidentiary presumption of negligence arises where a motor vehicle is lawfully stopped on a highway awaiting for traffic to clear before an intersecting highway and that vehicle is suddenly struck from behind by another vehicle, resulting in personal injuries and property damage to the driver and the front vehicle.

From that presumption, a trier of fact may reasonably infer negligence on the part of the driver of the following vehicle. The presumption, however, is rebuttable. The procedural consequences, once a prima facie case is established, require that the person against whom the presumption is directed assume the burden of going forward with the evidence, but the burden of persuasion remains with the plaintiff. (Emphasis supplied).

A Single and Precise Contention The plaintiff framed his contention with admirable precision. It is: The Trial Judge Erred by Improperly Instructing the Jury on the Parties’ Respective Burdens of Proof. Before wandering too far into the labyrinth of presumption law, it is prudent to note what is not contended and what, therefore, this case is not about. It is not about the failure to ⁶³³ give the requested non-standard instruction per se.

The plaintiffs references to the requested instruction are offered in support of his argument that Judge McGann misallocated to the parties their proper burdens of persuasion. The requested instruction represents, according to the plaintiff, the right allocation as opposed to the allegedly wrong allocation that was actually given. The case, moreover, is not about the failure to inform the jury about the existence of a presumption of negligence. The contention deals with the instruction that was given, not with the requested instruction that was not given.

The contention was not about how to persuade the jury of the defendant’s negligence. It was about the alleged error of not telling the jurors that the burden was on the defendant to persuade them of his non-negligence. The Standard of Review As we undertake our review of Judge McGann’s allocation of the respective burdens, it behooves us to keep the standard of review in the front of the mind. As Judge Adkins wrote for the Court of Appeals in CSX Transportation, Inc. v. Pitts, 430 Md. 431, 458 , 61 A.3d 767 (2013): We review a trial judge’s decision whether to give a jury instruction under the abuse of discretion standard.

Moreover, we will overturn a jury verdict and grant a new trial based on such an error only if it rises to the level of prejudicial error. (Emphasis supplied). See also Conyers v. State, 354 Md. 132, 177 , 729 A.2d 910 (1999) (“The trial court committed no abuse of discretion.”). An aspect of showing reversible error in a civil jury instruction, moreover, is the requirement that the complaining party was actually prejudiced by the allegedly erroneous instruction.

As the Court of Appeals explained in Barksdale v. Wilkowsky, 419 Md. 649, 662 , 20 A.3d 765 (2011): We have been consistent, though, in stating that the “focus of our inquiry is on the probability, not the possibility, of prejudice.” Thus, the general rule is that a complainant ⁶³⁴ who has proved error must show more than that prejudice was possible; she must show instead that it was probable. (Emphasis supplied). Our concerns, therefore, are with the clear abuse of discretion and, should there have been such an abuse, with resulting prejudice. The Danger of Abstract Propositions As the moment approached for Judge McGann to instruct the jury, both the plaintiff and the defendant were keenly sensitive to whether their respective bodies of proof might qualify for a supplemental boost from a favorable allocation of the burden of persuasion.

The defendant initially sought a non-standard instruction to the effect that “the mere happening of an accident creates no presumption of negligence on the part of the defendant.” The plaintiff, in his turn, sought the diametrically opposite non-standard instruction to the effect that “when a lawfully stopped vehicle is rear-ended by another vehicle, there is a presumption of negligence on the part of the following driver.” Judge McGann granted neither request. His decision not to tilt the scales either way may have reflected the wisdom of Judge Rodowsky in Ristaino v. Flannery, 317 Md. 452, 454 , 564 A.2d 790 (1989): We granted certiorari to consider the following question: “Is it reversible error to instruct the jury that the mere happening of the accident creates no presumption of negligence on the part of the defendant where the manner in which the accident happened does indeed create a rebuttable presumption of negligence?” As explained below, our forthright answer is, “It all depends. ” (Emphasis supplied). The lesson is that the judge’s decision either to recognize a presumption or to forego the presumption “all depends” on the facts of the case. A danger may lie in taking general statements of law and extracting from them an abstract proposition.

Ristaino v. Flannery, 317 Md. at 459 , 564 A.2d 790 , ⁶³⁵ elaborated on the danger of building syllogisms out of abstract propositions: As an abstract proposition,, the position taken by Defendant in this case is correct. The mere happening of an accident, even with resulting harm, e.g., that the plaintiff slipped and fell on the land occupier’s premises, or that two motor vehicles collided, considered in a factual vacuum devoid of the surrounding facts and circumstances, does not involve any proof of negligence. Jurors, however, are not generally given to conceptualizing about accidents in the abstract. When the trial judge instructs, jurors rightfully assume that the judge is talking about the case before them and is stating the law to be applied by the jurors, unless the instruction properly explains otherwise.

(Emphasis supplied). Andrade v. Housein In our judgment, the plaintiff is attempting to extract just such an abstract proposition from Andrade v. Housein, 147 Md.App. 617 , 810 A.2d 494 (2002), the opinion on which he relies almost exclusively on the present appeal. It is an opinion, therefore, demanding very close analysis. On close analysis, it turns out to be a very slender reed on which the plaintiff relies, in no less than three regards. 1.

It Would Have Been An Inartfully Pedantic Instruction The plaintiffs requested non-standard jury instruction was taken essentially verbatim from Andrade, 147 Md.App. at 623 , 810 A.2d 494 . Andrade , however, was not discussing jury instructions. It was not even a jury case. It was a statement of controlling law, concerned with the correctness of a trial judge’s legal ruling.

Such expositions of the law are aimed at trained lawyers and judges. A statement of law in a judicial opinion, however, is not necessarily appropriate fodder for jury consideration, even when quoted with punctilious accuracy- ⁶³⁶ Judge McGann recognized this dichotomy between what is appropriate for judges and lawyers, on the one hand, and what is appropriate for jurors, on the other hand. In rejecting the requested non-standard instruction, he observed: I’m [not] going to expect a jury to understand that theory. This is for lawyers.

This is for judges. I’m not going to give that instruction. There’s no way they’re going to understand that ... I don’t dispute it’s the law.

It’s a question whether I instruct. Instructions are to help the jury. (Emphasis supplied). In concluding that such terms as “a true evidentiary presumption,” “a reasonable inference,” “a rebuttable presumption,” “a prima facie case,” “the burden of going forward with the evidence,” and “the burden of persuasion remaining with the plaintiff’ would confuse the jurors more than they would assist them, we could not say that Judge McGann abused his discretion, if this issue were squarely before us.

It may or may not be. Although, in his brief, the plaintiff refers repeatedly to his requested non-standard instruction that was not given, that instruction is offered simply in support of the plaintiffs argument that the instruction affirmatively given— that, on the issue of negligence, the burden of persuasion was on the plaintiff—was erroneous. The thrust of the plaintiffs challenge is to what Judge McGann did do, not to what he did not do. In any event, Judge McGann did not abuse his discretion in declining to give the requested supplemental instruction based on Andrade v. Housein.

A committee drafting model jury instructions would unquestionably have said that the requested instruction in this case, even if correct, would have to be rewritten in much simpler language. 2. The Logical Fallacy of the Undistributed Middle There is a second respect in which the plaintiffs reliance on Andrade is questionable. Andrade is the only case (or academic authority) cited for the plaintiffs core thesis that “a true evidentiary presumption of negligence arises where a ⁶³⁷ motor vehicle is lawfully stopped on a highway awaiting for traffic to clear before entering an intersecting highway and that vehicle is suddenly struck from behind by another vehicle.” 147 Md.App. at 623 , 810 A.2d 494 . Standing alone, that is an abstract proposition.

What does have precedential value, however, are not the mere words of Andrade , but the actual holding of Andrade . That holding, of course, can only be distilled from what was necessarily decided. The procedural context of Andrade was highly unusual. The plaintiffs vehicle in that case was struck from behind.

The defendant (the driver of the striking vehicle) did not appear at trial and no defense whatsoever was presented. Defense counsel nonetheless moved for a directed verdict at the end of the plaintiffs case. The trial judge initially granted the motion but, after further argument, “reserved on the judgment.” When the defense presented no evidence, the judge granted the motion. The holding of Andrade was that the fact of being struck from behind was enough in and of itself to save the plaintiffs case against the defendant from a directed verdict.

The trial judge was in error, as a matter of law, in directing the verdict against Andrade. What the opinion said about a presumption of negligence arising from the rear-ending, however, was said in the unusual circumstance of an absolute absence of any possible explanation for the rear-ending. The effect of Andrade , as opposed to the words of Andrade , was that the fact of the rear-end collision was enough to satisfy Andrade’s burden of production and to prevent judgment being entered against him as a matter of law. What Andrade did do was to give the plaintiff the benefit of a permitted inference of negligence, which was enough to create a factfinding issue and to save the plaintiff from an adverse judgment against him as a matter of law.

The academic authorities are unsettled as to whether such a permitted inference of fact, although unquestionably present, truly rates the dignity of being called a “presumption.” Nothing was said in Andrade about any burden of persuasion. No such issue was before the Court. ⁶³⁸ There have been several Maryland cases, by interesting contrast, where a stopped automobile was rear-ended by another without any such presumption of negligence arising. In Brehm v. Lorenz, 206 Md. 500, 504 , 112 A.2d 475 (1955), the plaintiff was injured “when an automobile in which Mrs. Brehm was sitting, and which had momentarily come to a stop on Reisterstown Road in Baltimore, was struck in the rear by an automobile driven by defendant.” No presumption of negligence arose in that case. To be sure, the plaintiffs vehicle had once been stopped, briefly resumed its forward movement, and then for a legitimate reason came to a second and sudden stop before being struck by the vehicle following it.

Under the plaintiffs theory in the present case, a presumption of the defendant’s negligence could have arisen with the defendant then assuming the burden of production of establishing the plaintiffs sudden stop as the actual reason for the subsequent collision. The analysis by the Court of Appeals, however, did not follow that route. It simply looked at the totality of circumstances without breaking the analysis down into distinct procedural steps. In Herbert v. Klisenbauer, 12 Md.App. 135 , 277 A.2d 625 (1971), the plaintiffs car came to a sudden stop and was then rear-ended by the car following behind it. “[T]his case shares the common characteristic of an intruding vehicle violating the rules of the road, causing the forward of two cars traveling in the same direction to come to an abrupt stop, and thereafter being struck in the rear by the following vehicle.” Id. at 138-39 , 277 A.2d 625 .

The opinion of this Court could also have assumed negligence on the part of the defendant with the defendant then satisfying his burden of production by offering the plaintiffs sudden stop as the reason for the collision. It did not. The defendant was simply found to be non-negligent as a matter of fact and a presumption did not even enter into the discussion. The difference between those two cases and Andrade is that in Andrade there was an absolute vacuum with respect to a possible explanation for the collision.

It is conceivable, therefore, that the presumption of negligence Andrade mentions ⁶³⁹ only arises in such a factual vacuum. The defendants in those two cases were not required to rebut a presumption of negligence. It may well be that the evidence of sudden incapacity in the present case is more akin to the evidence of sudden stops in Brehm v. Lorenz and Herbert v. Klisenbauer than it is to the total evidentiary vacuum of Andrade . In Andrade , the presumption was, of course, necessary to