Dennard v. Green

ALPERT, Judge. This is an appeal from an automobile negligence action filed against two appellees, Douglas M. Green and Hugo A. Procopio, Jr., by appellant, Karen Dennard, on January 23, 1990, seeking damages arising from an automobile accident occurring on July 14, 1988. The case was tried before a Prince George’s County jury on April 8-10, 1992 on the issue of liability only. 1 At the close of all the testimony, Dennard moved for a directed verdict against both Green and Procopio, which motions were denied. The jury then returned a verdict in favor of both Green and Procopio.

On May 18, 1992, Dennard’s subsequent motion for Judgment Notwithstanding the Verdict (JNOV) was denied without explanation. Dennard then noted a timely appeal asking us to resolve whether: UNDER MARYLAND’S BOULEVARD RULE, THE DRIVER OF AN UNFAVORED VEHICLE WHO FAILS TO YIELD THE RIGHT-OF-WAY WHILE ATTEMPTING TO CROSS A FAVORED HIGHWAY MAY AVOID LIABILITY TO HIS PASSENGER ’ WITHOUT SHOWING THAT THE DRIVER OF THE FAVORED VEHICLE WAS NEGLIGENT. We would answer the above in the affirmative. That would not, of course, aid Dennard in her argument that at least one of the two defendant/appellees in this case was negligent.

In her rendition of the statutory preference known as the Boulevard Rule, Dennard has failed to include a significant statutorily-added phrase which, as we will explain, significantly alters the application of said Rule to her detriment. Accordingly, we affirm. ⁶⁵⁷ Background The automobile accident giving rise to this suit occurred on July 14, 1988, at the four-way intersection of Rhode Island Avenue and Howard Road, in a residential area of Hyattsville, Maryland. Rhode Island Avenue, at the place of the collision, is a two-way favored road with a speed limit of twenty-five miles per hour; Howard Road is an unfavored route with a stop sign where it meets Rhode Island Avenue. Dennard, a passenger in a vehicle driven by Green, was severely injured when Green, while attempting to cross the intersection, struck another vehicle, driven by Procopio.

The only witnesses that testified at trial were the three parties themselves. Regarding the circumstances surrounding the accident, Dennard testified as to the following: Green, who was travelling westbound on Howard Road and intended to cross over Rhode Island, came to a stop at the stop sign at the intersection. Dennard, sitting in the right front seat of Green’s car, looked to the right (as far down Rhode Island as she could see) and saw no cars coming. Green then proceeded halfway across the intersection, where he again came to a stop.

Dennard indicated that she first observed Procopio’s vehicle (travelling southbound) as a “red flash” out of her right eye and only when it was about a car length away, just before the collision. Dennard further testified that during the momentary “red flash” she determined that Procopio was speeding. Portions of Green’s depositions were entered at trial, and they did not significantly contradict Dennard’s testimony. Green indicated that he indeed stopped upon arriving at the stop sign at the intersection and, after looking left and encountering hedges that blocked his view, edged out two feet into the intersection to gain a clearer view.

He did not look right during this “first” stop at the intersection. Once out into the intersection, Green then stopped again, looked left, then right, then left again, and started to look right again as he slowly proceeded through the intersection. Green testified that at the point of his “second” stop (while ⁶⁵⁸ sitting out in the intersection) he could see about 80 yards while looking left and that there were no hills or other obstructions blocking his view. In looking right up Rhode Island Avenue, Green stated that he had a clear view there as well.

It was as he started to look right for the second time that Green first observed Procopio’s car which, from his vantage point, was about twenty yards away. 2 Green’s next move, just before impact, was to turn to the left and attempt to stop in order to allow Procopio’s car room to maneuver around him to the right. During his testimony at trial Green added two pieces of information that were not in his deposition. He testified that Procopio was going “anywhere between 45 and 50 miles per hour” before impact (in a 25 miles per hour zone) and that approximately five to eight seconds elapsed between the time of his second stop in the intersection, and the point of collision. Procopio’s testimony came in the form of both his deposition transcript and live testimony.

His deposition testimony indicated that the weather was partly cloudy and that he was travelling twenty-five miles per hour, in accordance with the posted speed limit, as he approached the intersection of Rhode Island Avenue and Howard Road. Procopio also indicated that he did not see Green’s vehicle until it was “three feet from [his] door.” During his live testimony, Procopio added that “Rhode Island Avenue in the vicinity of the accident was a flat, straight two-way road separated by a double yellow line,” and that on the day of the accident the weather was clear and sunny. In addition, he reiterated that he had not seen Green’s vehicle until it was three feet from his door. At the close of all of the evidence, Dennard moved for judgment against both Green and Procopio.

Both motions were denied. Judge Martin then instructed the jury regard ⁶⁵⁹ ing the applicable law which they were to apply to their determination of the relevant factual issues. The jury returned a verdict in favor of both Green and Procopio. Dennard subsequently filed a timely Motion for JNOV or, in the alternative, a new trial, which was denied.

Dennard argues on appeal, based on Maryland’s “Boulevard rule,” that “the driver of an unfavored vehicle [appellee Green] who fails to yield the right-of-way while attempting to cross a favored highway may not avoid liability to his passenger [Dennard] without a showing that the driver of the favored vehicle [appellee Procopio] was negligent.” In other words, Dennard contends that under the statutory preference of the Boulevard rule, at least one of the two appellees in this case must be negligent as a matter of law. (Emphasis added.) This was indeed the substance of Dennard’s Motion for JNOY: Although it is true that the mere happening of an accident does not prove negligence, the evidence in this case excluded the possibility of a collision between these two vehicles without at least one driver having been negligent. There are no facts that could support finding of unavoidable accident, act of God, justified emergency or any of the other legally recognized circumstances in which a collision between two vehicles could occur without negligence. If the jury believed the version of Defendant Green as to the excessive speed of Defendant Procopio, then it would have to find Defendant Procopio negligent.

If the jury believed the version of Defendant Procopio that he was proceeding at posted speed limit, then it would have to find, pursuant to the Boulevard Law instruction of the Court, that Defendant Green failed to yield the right-of-way, rendering him negligent. Consequently, we are presented with the relatively simple issue of whether the trial judge acted properly in submitting the issue of the appellees’ negligence to the jury or, conversely, whether, under the Boulevard Rule, one or both ⁶⁶⁰ of the appellees are negligent as a matter of law. 3 First, however, as a threshold matter, we must determine whether the Boulevard Rule is indeed applicable to the facts and circumstances of the instant case. I. It is well-settled that there are two physical conditions precedent to the application of the Boulevard Rule. Oddis v. Greene, 11 Md.App. 153 , 273 A.2d 232 (1971).

An intersection of a favored highway and an unfavored intersecting street, at which unfavored street traffic was required to (1) stop by some form of traffic control device and (2) yield the right-of-way to traffic approaching on the favored highway, is the first of the two necessary physical factors. A collision 4 that occurred as a direct consequence of the entrance of the unfavored vehicle onto the favored highway in disregard of its obligation to yield, is the second. Id. at 157 , 273 A.2d 232 . Upon our review of the evidence contained in the record below, we agree with Dennard that the facts and circumstances of the instant case present perhaps the most classic application of Maryland’s “Boulevard Rule.” II.

Having determined that the Boulevard Rule is indeed applicable to the case at bar, we now turn to a discussion of ⁶⁶¹ the origination and development of this well-known statutory preference. The Boulevard Rule has evolved from the judicial construction of certain statutory requirements that are relevant to granting the right-of-way in various traffic situations. Bright v. Myers, 88 Md.App. 296, 300-01 , 594 A.2d 1177 (1991), reversed on other grounds, 327 Md. 395 , 609 A.2d 1182 (1992). See also Tippett v. Quade, 19 Md.App. 49, 58 , 309 A.2d 481 (1973).

The statutory requirement is currently codified in Md.Transp.Code Ann. (hereinafter “TR”) § 21-403 (1992); Bright, 88 Md.App. at 304 n. 6, 594 A.2d 1177 . The specific subsection applicable to the facts sub judice is TR § 21-403(c) Vehicle entering stop or yield intersection or through highway; which provides as follows: (c) Stopping in obedience to stop signs.— If a stop sign is placed at the entrance to an intersecting highway, even if the intersecting highway is not part of a through highway, the driver of a vehicle approaching the intersecting highway shall: (1) Stop in obedience to the stop sign; and (2) Yield the right-of-way to any other vehicles approaching on the intersecting highway. Id. There is a long line of cases that have dealt with the intricacies concerning the appropriate application of the Boulevard Rule.

Its essential purpose, however, has remained unchanged. It is to give preference to drivers on highways when they encounter other drivers attempting to enter or cross through highways, Myers v. Bright, 327 Md. 395 , 398 n. 1, 609 A.2d 1182 (1992), reversing on other grounds, Bright v. Myers, supra, and to protect both the favored and unfavored drivers [and passengers] of motor vehicles lawfully entering an intersection. Cooper v. Allen, 243 Md. 9 , 219 A.2d 920 (1966). This purpose is sufficiently accomplished if “uninterrupted travel is encouraged by protecting the favored driver’s right-of-way and recklessness is ⁶⁶² discouraged by penalizing the unfavored driver for failure to yield the right-of-way.” 5 Dail v. Tri-City Trucking Co., 39 Md.App. 430 , 387 A.2d 293 cert, denied, 283 Md. 741 (1978).

It is commonly regarded that the Boulevard Rule was originally espoused in Greenfeld v. Hook, 177 Md. 116 , 8 A.2d 888 (1939), where the Court of Appeals said: [I]t is the positive and imperative duty of a person driving an automobile over an unfavored highway, when he approaches an intersecting highway lawfully designated as a “boulevard” or “stop street,” to stop before entering the intersection, and having stopped, to exercise reasonable care and diligence to discover whether traffic thereon is approaching the intersection, and, having entered the intersection, to yield the right of way to such traffic, by permitting it to proceed without interruption, and that that duty persists throughout his passage across the favored way. Id. at 132 , 8 A.2d 888 . In Dean v. Redmiles, 280 Md. 137 , 374 A.2d 329 (1977), the Court of Appeals “reviewed its prior holdings relative to the Boulevard Rule,” id. at 143 , 374 A.2d 329 and characterized the variety of cases reaching [it] arising under [that] Rule [as generally] fallpng] into eight categories: [(1)] the suit of the favored driver against the unfavored driver, [(2)] the unfavored driver against the favored driver, [ (3) ] the passenger of an unfavored driver against the favored driver, [ (4) ] the passenger of an unfavored driver against both drivers, [ (5) ] the passenger of the favored driver against both drivers, [ (6) ] the passenger of the favored driver against the unfavored driver, [ (7) ] the passenger of the favored driver against the favored driver, and, finally, [(8)] counterclaims so ⁶⁶³ that the favored and unfavored drivers are suing each other. Id. at 144 , 374 A.2d 329 .

After discussing various cases representative of each of the eight classifications, the court acknowledged that the majority of litigation involved suits between favored and unfavored drivers. Id. at 147 , 374 A.2d 329 . It is self-evident, however, that the case sub judice falls squarely into one of the more uncommon categories characterized above in Redmiles — namely, the passenger of an unfavored driver against both drivers. Since the decision in Greenfeld , and up until 1977, the duty of an unfavored driver to stop and yield the right-of-way was mandatory, positive, and inflexible.

Creaser v. Owens, 267 Md. 238, 246 , 297 A.2d 235 (1972). Even in cases where we might have been persuaded that the facts of a given case failed to warrant the application of the Boulevard Rule because of the blatant primary negligence of the favored driver, we fell prey to the seemingly indestructible precedent afforded the Rule. See e.g., Johnson v. Dortch, 27 Md.App. 605 , 342 A.2d 326 cert, denied, 276 Md. 745 (1975) (judgment entered upon a directed verdict for the favored driver in a suit by the unfavored driver affirmed, despite the presence of sufficient evidence to indicate that the favored driver was