Fry v. Carter

RAKER, J. In this wrongful death and survival action, we must decide whether, in a negligence action following the collision of a tractor-trailer and a roadside worker, it was error for a trial court to instruct the jury on unavoidable accident. We shall hold that such an instruction was inapplicable given the facts of this case and, further, that an unavoidable accident instruction should never be given in a negligence action. I. Howard C. “Skip” Fry, Jr. (Fry) worked as a traffic control manager for Dewey Jordan, Inc., a company that builds highways and bridges. On the morning of October 7, 1999, at approximately 9:00 a.m., Fry was killed alongside a highway when he was struck by roof trusses extending over the side of a passing flat-bed tractor-trailer.

At the time of the accident, Fry and his assistant, Melvin Shank, were preparing to close a portion of Interstate Highway 270 (1-270) near the exit ramp to Interstate Highway 70 ³⁴⁵ (1-70). Fry and Shank were in the “gore” 1 between the right south-bound lane of 1-270 and the exit ramp of 1-70; they were not on the roadway. Fry wore a bright orange safety vest and stood about twenty-five feet south of Shank. Both men were pushing bright orange barrels toward 1-270 in preparation for shutting down the right, southbound lane.

Fry’s barrel separated from its base, and he bent over it in an attempt to reattach the barrel to its base. That same morning, respondent Sonny James Carter, an employee of respondent Structural Systems, Inc., was driving a tractor-trailer south on 1-270, transporting a wide load of roof trusses to a job site. Carter drove frequently through the area where the accident occurred in his personal vehicle and in tractor-trailers, and he knew about the ongoing construction. Carter had a blanket permit from the Maryland State Highway Administration (SHA) to carry a wide load measuring twelve feet in width or less. 2 On the day of the accident, his load of roof trusses was lined up flush with the left-hand side of the truck and overhung the right side of the trailer bed.

The maximum width of the load at the beginning of the trip was eleven feet, five inches. 3 The highway had two southbound lanes. Because of the construction, the lanes measured only eleven feet wide rather than the standard twelve feet. Carter testified that he saw a “Construction Ahead” sign approximately one mile before the construction site. As he approached the gore where Fry and Shank were preparing to close the lane, Carter was traveling ³⁴⁶ in the right lane. 4 He noticed Shank standing on the shoulder of the road but did not notice Fry.

When he saw Shank, Carter sounded the tractor-trailer’s horn to warn him. Carter attempted to move into the left lane but at that time another vehicle was in the left lane. Instead, Carter moved his truck as far left as possible while remaining in the right lane. Shank stepped back, and, as Carter passed, Carter looked into his rearview mirror to check the position of the roof trusses.

As he was looking into the rearview mirror, he noticed Fry starting to straighten up after adjusting the barrel. The trusses, which protruded into the gore, struck Fry in the head and killed him. Fry’s wife, Janice H. Fry, and his two adult daughters, Gabrielle I. Fry and Adrienne C. Dennis, brought suit against respondents Sonny James Carter, his employer and trailer owner Structural Systems, Inc., and tractor owner James S. Grimes, Inc., 5 alleging that their negligence caused the wrongful death of Fry. The Circuit Court for Montgomery County granted petitioners’ motion for judgment on the issues of contributory negligence and assumption of the risk, but denied their motion for judgment on the issue of negligence.

Over petitioners’ objection, 6 the court instructed the jury on unavoidable accident as follows: “[A]n unavoidable accident is an inevitable occurrence which is not to be foreseen or prevented by vigilance, care, and attention and not occasioned by or contributed to in any manner by an act or omission of the party claiming the ³⁴⁷ accident was unavoidable. And in this case, the defendant claims that the accident was unavoidable.” The jury returned a verdict of in favor of respondents. Petitioners noted a timely appeal to the Court of Special Appeals, and respondents filed a conditional cross-appeal. 7 The Court of Special Appeals affirmed in an unreported opinion, holding that the trial court properly denied petitioners’ motion for judgment on negligence because there was sufficient evidence from which the jury could have found no negligence. The intermediate appellate court also held that, under the circumstances, an unavoidable accident instruction was proper.

We granted the Fry family’s petition for writ of certiorari to consider the single issue of whether the trial court erred by instructing the jury on unavoidable accident. Fry v. Carter, 372 Md. 684 , 814 A.2d 570 (2003). We hold that it was reversible error to instruct the jury on unavoidable accident. We have also reexamined the question and conclude that an instruction on unavoidable accident should not be given in any negligence case.

II

Before this Court, petitioners argue that the trial court erred in instructing the jury on unavoidable accident. They contend that collisions between a driver and a pedestrian are not inevitable and that they are almost always the product of negligence. They argue that Carter had ample opportunity to avoid the accident; therefore, the trial court erred in giving an unavoidable accident instruction. Respondents counter that the trial court properly instructed the jury on unavoidable accident because there was evidence that the accident was inevitable.

They maintain that the negligence of a third party rendered the accident inevitable, ³⁴⁸ presenting the theory that because SHA was negligent in not notifying oversize load permit holders of narrow lanes in the area and because the lanes were narrowed to eleven feet from the standard twelve feet, Carter could not have prevented the collision. Under this “special circumstance,” an unavoidable accident instruction was appropriate. Respondents further argue that, even if the trial court erred in giving the instruction, any error was harmless.

III

An unavoidable accident is an occurrence that is not foreseeable or anticipated and could not have been prevented by the exercise of ordinary care under the attendant circumstances. Although many states still permit a trial judge to instruct the jury in motor vehicle accident cases on the concept of unavoidable accident, several states have reexamined the doctrine and have disapproved, limited or totally abolished its use on the grounds that the instruction was unnecessary, confusing, misleading and superfluous. See G.L. Blum, Annotation, Instructions on “Unavoidable Accident,” “Mere Accident,” or the Like, in Motor Vehicle Cases— Modem Cases 21 A.L.R. 5th 82 , § 4 (2002). Moreover, there is an increasing trend by courts that have addressed the use of the instruction to find that the confusion and harm engendered by the use of the instruction far outweighs its usefulness.

See City of Phoenix v. Camfield, 97 Ariz. 316 , 400 P.2d 115 (1965); Sadorus v. Wood, 230 A.2d 478, 480 (D.C.1967); Smith v. Canevary, 553 So.2d 1312, 1314-15 (Fla.Dist.Ct.App.1989); George v. Guerette, 306 A.2d 138, 142 (Me.1973); Buford v. Riverboat Corp., 756 So.2d 765, 771 (Miss.2000); Graham v. Rolandson, 150 Mont. 270 , 435 P.2d 263, 272 (1967); Hunter v. Johnson, 178 W.Va. 383 , 359 S.E.2d 611, 613 (1987). The classic definition in Maryland of an unavoidable accident was articulated by Judge MeSherry in 1894 as “an inevitable occurrence, not to be foreseen and prevented by vigilance, care and attention, and not occasioned or contributed to, in any manner, by the act or omission of the company, ³⁴⁹ its agents, employees or servants.” Washington Turnpike v. Case, 80 Md. 36, 45-46 , 30 A. 571, 573 (1894). In other words, in order to constitute an unavoidable accident, the event must have occurred without negligence on the parties’ part. The unavoidable accident instruction has had a checkered history in Maryland.

Our review of the jurisprudence in Maryland addressing the “unavoidable accident” instruction reveals little guidance and often inconsistent language. Since the end of the nineteenth century, approximately twenty-five cases in this Court have addressed the form of the instruction and the propriety of its use. Although trial judges have been permitted to instruct juries in motor vehicle accident cases on the concept of unavoidable accident under certain circumstances, those circumstances often have been conflicting. For example, we have held that the instruction was appropriate when, along with evidence of negligence, there is evidence that an accident occurred without negligence; we also have held the instruction to be inapplicable when there is evidence of negligence.

Compare Kaline v. Davidson, 146 Md. 220, 223-24 , 126 A. 68, 69-70 (1924) (giving of instruction appropriate because of evidence that the accident was unavoidable), with Vizzini v. Dopkin, 176 Md. 639, 642-43 , 6 A.2d 637, 638-39 (1939) (holding that granting of unavoidable accident instruction is error because of evidence of negligence). Our cases have stated that whether an unavoidable accident instruction is appropriate depends on the facts and circumstances of each individual case. Vizzini, 176 Md. at 642 , 6 A.2d at 638 . This Court has upheld the granting of an unavoidable accident instruction under limited circumstances.

See, e.g., Kaffl v. Moran, 233 Md. 473, 478-79 , 197 A.2d 240, 242 (1964) (giving of instruction upheld because court mentioned “unavoidable accident” as an informal phrase rather than as a formal instruction); Lloyd v. Yellow Cab Co., 220 Md. 488, 492-96 , 154 A.2d 906, 908-10 (1959) (upholding informal oral mention of unavoidable accident but observing that a formal unavoidable accident instruction would have been inappropriate under the circumstances); State v. Lupton, 163 Md. 180, 193-94 , 161 A. 393, 399 (1932) (instructing on ³⁵⁰ unavoidable accident acceptable because of evidence that the defendant was not negligent but noting that the instruction “might well have been refused”); Kaline, 146 Md. at 228-24 , 126 A. at 69-70 (giving of instruction appropriate because of evidence that the accident was unavoidable). Another line of cases has held that an unavoidable accident instruction is inappropriate when a case presents evidence of negligence. See, e.g., Perlin Packing Co. v. Price, 247 Md. 475 , 231 A.2d 702 (1967); People’s Drug Stores v. Windham, 178 Md. 172 , 12 A.2d 532 (1940); Vizzini v. Dopkin, 176 Md. 639 , 6 A.2d 637 (1939); Paolini v. Western Mill & Lumber Corp., 165 Md. 45 , 166 A. 609 (1933); Schapiro v. Meyers, 160 Md. 208 , 153 A. 27 (1931). In Vizzini v. Dopkin, we held the giving of an unavoidable accident instruction to be reversible error. 176 Md. at 643 , 6 A.2d at 639 .

On a “sleeting and freezing” night, Dopkin’s automobile struck and injured pedestrian Vizzini as he crossed the street. Dopkin argued that although he was looking straight ahead as he drove, he did not see Vizzini cross in front of him and only heard a thump as the accident occurred. The trial court granted Dopkin’s request for an unavoidable accident instruction. On appeal from a jury verdict in favor of Dopkin, Vizzini objected to the unavoidable accident instruction.

This Court held that it was error to grant the instruction. We reasoned: “There was evidence in this case from which the jury might have found that the accident was not unavoidable, but that it might have been avoided by the exercise of care and caution on the part of the defendant. According to the plaintiff, he was crossing Park Heights Avenue at an intersection where he had the right of way, at a place which required the defendant to yield. The defendant said he was looking straight ahead and did not see the man pass in front of him, when it is obvious that he did pass in front of him.

His failure to see the plaintiff does not relieve him of responsibility. The fact that there was rain, snow, or sleet, resulting in less visibility, is no excuse or reason for not seeing the plaintiff. When weather conditions or darkness are such as ³⁵¹ to interfere with or shorten the view of the road, it only serves to increase the degree of care required of a driver.” Id. at 643 , 6 A.2d at 639 . Because there was evidence of negligence — that the accident could have been avoided — the trial court erred by instructing the jury on unavoidable accident.

In Paolini v. Western Mill & Lumber Corp., this Court held that it was error to instruct the jury on unavoidable accident in light of evidence of negligence. 165 Md. at 54-55 , 166 A. at 613 . Paolini, an automobile driver, sued Western Mill & Lumber Corporation for personal injuries and property damage following a collision with a company truck on a rainy March day. The parties disputed many facts, particularly as to which party had the right of way. The trial court granted the company’s request for an unavoidable accident instruction.

This Court reversed, remarking that “[i]n this case ... the collision could have been avoided by care on one side or the other, plaintiff or defendant, and the description of unavoidable accident appears to be inapplicable. An unavoidable accident is defined by Judge McSherry in Washington Turnpike v. Case, [ 80 Md. 36 , 30 A. 571 (1894)], as ‘an inevitable occurrence, not to be foreseen and prevented by vigilance, care and attention, and not occasioned or contributed to, in any manner, by the act or omission of the company, its agents, employees or servants.’ ” “The defendant’s second prayer, we think, should not have been granted.” Id. at 55 , 166 A. at 613 . Evidence of negligence precluded an unavoidable accident instruction. Our cases also have held that the instruction was inappropriate because an evidentiary foundation was lacking.

See, e.g., State v. Greaves, 191 Md. 712 , 62 A.2d 630 (1948); Fogle v. Phillips, 191 Md. 114 , 60 A.2d 198 (1948); Garozynski v. Daniel, 190 Md. 1 , 57 A.2d 339 (1948); American Stores Co. v. Herman, 166 Md. 312 , 171 A. 54 (1934). In Fogle , the Phillips’ car approached the crest of a hill from the north, and Fogle ³⁵² approached the crest from the south; the two cars collided because Fogle was in Phillips’ lane. 191 Md. at 117, 60 A.2d at 199 . At trial, Fogle argued that he had driven into the southbound lane to avoid four pedestrians. When he reached the top of the hill, he saw the Phillips’ car, applied his brakes, and attempted to move back into his lane.

Fogle claimed that he did not have the opportunity to avoid the Phillips’ car and that, under the circumstances, the accident was unavoidable. This Court held that the trial court properly refused to instruct the jury on unavoidable accident because there was no evidence to show that the accident was unavoidable. Id. at 119-20 , 60 A.2d at 200 . In doing so, we recounted earlier cases discounting the notion that automobile accidents occur without negligence: “It must be rarely true that, when two people moving toward a meeting point, both in control of their movements and relative positions, actually collide, the collision can be classed as an inevitable accident.” Id. at 118 , 60 A.2d at 199 quoting Coplan v. Warner, 158 Md. 463, 467 , 149 A. 1, 3 (1930).

We observed that Fogle did not claim “that there was any sudden action by the pedestrians which caused him to swerve to the left of the road. On the contrary, his testimony is that he saw them ‘from seventy-five or one hundred feet or maybe a little more.’ He picked them up with his lights and then started bearing left. He said this was ‘quite a ways from the top of the hill.’ He also said he was driving from 35 to 40 miles an hour. There is, in all this evidence, nothing from which the jury could conclude that the accident with the Phillips’ car was unavoidable. ... [T]he granting of [Fogle’s] second prayer would have permitted the jury to speculate on something which had no evidence to support it.

The real question was whether [Fogle], under all the circumstances, was negligent, and not whether he could not have avoided the collision at the last minute.... The sole question for the jury, therefore, was the negligence vel non of [Fogle].” Id. at 119-20, 60 A.2d at 200 . The instruction on negligence fairly covered the legal issues, and an unavoidable accident instruction was inappropriate. ³⁵³ In State v. Greaves, 191 Md. 712 , 62 A.2d 630 (1948), pedestrian Clarence Whitaker was killed by a driver, Greaves, while walking at the base of a mountain. Id. at 715-16 , 62 A.2d at 631-32 .

In response to a sign indicating a steep downgrade and directing drivers to descend in second gear, Greaves shifted into second gear to begin his descent. About halfway down the snow-covered mountain road, however, Greaves shifted back up into high gear. Greaves’ car started to skid as he approached Whitaker. Although Greaves tried to straighten course, his car struck Whitaker.

The trial court instructed the jury on unavoidable accident; on appeal, it was argued that the instruction was misleading. This Court looked beyond the fact that the skidding occurred, noting as follows: “Mere skidding is not evidence of an unavoidable accident. In this case the facts do not tend to show that the appellee had his car under such control as was required of him under the conditions under which he was traveling. Perhaps there was nothing the appellee could do when his car started to skid, but there is nothing to show that the car would have skidded had he obeyed the sign at the top of the mountain and kept his car in second gear all the way down.

Unless there is something in the evidence showing that this accident could not have been foreseen and prevented by vigilant care and attention an unavoidable accident prayer would lead to mere speculation.... [The] testimony does not give rise to any inference that the accident could not have been avoided by care exercised before the slushy place was reached. The jury should not have been allowed to guess about it.” Id. at 718-19 , 62 A.2d at 633 . We held that the trial court erred in instructing the jury regarding unavoidable accident because there was insufficient evidence that the accident could not have been avoided. Notably, this Court has never found error in a trial court’s refusal to instruct the jury on unavoidable accident.

See, e.g., Perlin Packing Co. v. Price, 247 Md. 475 , 231 A.2d 702 (1967); Baltimore Transit Co. v. Prinz, 215 Md. 398 , 137 A.2d 700 ³⁵⁴ (1958); Fogle v. Phillips, 191 Md. 114 , 60 A.2d 198 (1948); Garozynski v. Daniel, 190 Md. 1 , 57 A.2d 339 (1948); People’s Drug Stores v. Windham, 178 Md. 172 , 12 A.2d 532 (1940); Gwynn Oak Park v. Becker, 177 Md. 528 , 10 A.2d 625 (1940); York Ice Machinery Corp. v. Sachs, 167 Md. 113 , 173 A. 240 (1934); Harrison v. Smith, 167 Md. 1 , 172 A. 273 (1934); American Stores Co. v. Herman, 166 Md. 312 , 171 A. 54 (1934); Schapiro v. Meyers, 160 Md. 208 , 153 A. 27 (1931); Beall v. Ward, 158 Md. 646 , 149 A. 543 (1930); Coplan v. Warner, 158 Md. 463 , 149 A. 1 (1930); Casey v. Suter, 36 Md. 1 (1872). This is significant because, in many of these cases, the Court found that proper general instructions on negligence, proximate cause, and the burden of proof covered all the matters of law. See, e.g., Fogle, 191 Md. at 120 , 60 A.2d at 200 ; Garozynski, 190 Md. at 5 , 57 A.2d at 341 ; Harrison, 167 Md. at 3-4 , 172 A. at 274 ; Beall, 158 Md. at 654 , 149 A. at 547 ; Coplan, 158 Md. at 467-68 , 149 A. at 2-3 ; Casey, 36 Md. at 3-4 ; see also, e.g., Butigan v. Yellow Cab Co., 49 Cal.2d 652 , 320 P.2d 500, 504-05 (1958) (noting that “[i]t is particularly significant that no decision in this state ... has held that refusal to give the instruction was reversible error” and noting cases where refusal to give instruction was not error because “the jury was fully instructed on the general rules of liability for negligence”); Fenton v. Aleshire, 238 Or. 24 , 393 P.2d 217, 221 (1964) (noting several cases holding refusal to give instruction not reversible error because instruction is merely “clumsier” manner of instructing jury on principles of negligence). In the instant case, the trial court erred by instructing the jury on unavoidable accident because there was ample evidence from which the jury could infer Carter’s negligence.

Carter argues that the accident was unavoidable because of SHA’s negligence in not informing oversize load-hauling permit holders of the narrowed lanes in the area of the accident. He contends that there was nothing he could have done to avoid hitting Fry because the lanes were narrowed to eleven feet and because there was a car in the left lane rendering a sudden swerve impossible. These circumstances involving the ³⁵⁵ negligence of a third party, he argues, justify an unavoidable accident instruction. The evidence at trial was conflicting, and the parties disputed the nature and number of signs warning of construction.

It is clear, however, that the plaintiff presented evidence of negligence on the part of the defendant Carter. Carter was familiar with the highway and knew that construction was ongoing in the area. On the day of the accident, he saw a sign warning of construction ahead. An arrow panel sign was posted in the gore near where Fry and Shank were working, indicating that vehicles should move into the left lane.

From a distance, Carter saw Shank in the road. When he saw Shank, Carter slowed his speed from 35-40 miles per hour to 30-35 miles per hour and sounded his horn. Fry, a six-foot-tall man wearing an orange safety vest, was in the same vicinity as Shank, unnoticed by Carter. The evidence, when viewed in the light most favorable to the plaintiff, indicates that the accident