Haney v. Gregory

RODOWSKY, J. In this motor vehicle tort action, rising out of an accident in which the appellee’s vehicle rear-ended the vehicle of the ⁵⁰⁶ appellant, plaintiff below, judgment was entered in favor of the appellee on a jury verdict. The appellant contends that the trial court erred in granting an emergency instruction. The appellee asserts lack of preservation of that issue and that the emergency instruction was generated by the evidence. 1 For the reasons hereinafter stated, we shall reverse. The accident occurred on the northbound side of the Jones Falls Expressway, Interstate 83, on February 23, 2004, at about 8:50 a.m.

There is no evidence that the weather conditions were other than clear and dry. The site of the accident was in the area north of where Howard Street overpasses the expressway. In that area, the roadway rises up a hill or knoll. On the morning in question, the appellant, Robert L. Haney (Plaintiff or Haney), was proceeding northbound in the fast lane.

He testified that, when he was “coming over a hill,” he saw a police car stopped behind a minivan that had apparently stalled. Both the minivan and the police car were in the fast lane. He looked to his right in an attempt to merge, but there was no room, so he “started to slow down, and started coming to a stop.” As he came to a stop, the rear of his vehicle was struck by one operated by the appellee, Jose D. Gregory (Defendant or Gregory). On cross-examination, Plaintiff denied that he stopped suddenly.

There was conflicting evidence whether the light on top of the police car was flashing. The only other eyewitness to the accident was Defendant, who was called to testify in Plaintiffs case. Gregory acknowledged giving the following description of the accident in his answers to interrogatories: ⁵⁰⁷ “ ‘As we crossed under the Howard Street Bridge, the highway inclines upwards, so that the road over the crest is not visible. As I came up over the hill, a car to my front came into my view, and was almost at a standstill, with no brake lights.

Thereafter the driver of the car in front of mine hit the brakes, at which time I applied my brakes, but was unable to prevent my car from coming into contact with the rear of the Plaintiffs vehicle.’ ” Under further examination by Plaintiff, Gregory explained that the events were sequential. He said: “When I came over the hill, the [brake] lights [of Plaintiffs vehicle] weren’t on, and it was daytime so I presumed the car was moving, and right when I came over the hill and — it was almost a matter of two seconds, two or three split seconds — the brake lights [on the Haney vehicle] weren’t on, and then they were on, and by the time I realized, it was too late.” When examined by his counsel, Gregory testified that he was traveling “about 40, 45 miles an hour” and that he believed the speed limit was either 45 or 50 miles per hour. There was no other evidence of the speed limit. Again describing the accident on examination by his counsel, Gregory said there was “plenty of space” between his car and that of Haney, but he “lost” the Haney car “over the hill once it went up over.” He testified that, when he “came up over the hill, [he] saw the car there and [he] thought it was still moving because [he] didn’t see brake lights, and it was daytime.

And the lights, the brake lights went on like, almost right before I hit him, and I rear-ended his car, and — this couple of seconds is kind of a blur” because the car spun around a couple of times following the impact. When asked by his counsel how fast the Haney car was moving, Gregory replied that “[i]t didn’t seem like it was moving.” “Q Okay. So you are saying it was moving slow? “A Uh — huh. “Q Is that a yes? ⁵⁰⁸ “A Yes, I don’t recall how slow. “Q Okay. And when was the point when you realized that that car wasn’t moving — or let me scratch that.

When was the point that you realized that you had to hit your brakes? “A When I saw his brake lights and realized he wasn’t moving, it was kind of within like, two seconds’ time, when we go over the hill.” There was no evidence of the grade of the hill for northbound traffic approaching the brow of the hill. There was no evidence as to whether there is a downside slope for northbound traffic after reaching the brow of the hill, or whether the road levels at that unspecified higher elevation. There was no evidence of the distance from the brow of the hill to the place at which the stalled minivan and the police car were standing. There was no evidence of the sight distance required for Interstate Highways at the time of final design approval for the subject segment of the Jones Falls Expressway.

Haney testified that he first saw the police car when he was approximately 150 yards away. Gregory acknowledged that he had not noticed the police car or the minivan at any time before the actual impact. At the conclusion of the evidence, the court excluded the jury from the courtroom. Defendant renewed his motion for judgment, which was denied.

Plaintiff did not make any motion for judgment. 2 The court then considered, on the record, the parties’ requested instructions. They had been submitted to the court at some earlier stage of the proceedings. Plaintiff acknowledged that he had no additional instructions, but, in response to a question by the court, Plaintiff stated that he objected to certain instructions requested by Defendant. After obtaining a ruling that the court would not grant Defendant’s request ⁵⁰⁹ for an unavoidable accident instruction, Plaintiff said that his other objection was to “the one entitled Acts in Emergencies; that is recorded in Maryland Pattern 1823[sic].

The primary reason for objecting, it says, ‘When the driver of a motor vehicle is faced with a sudden and real emergency, which was not created by the driver’s own conduct — ‘ I don’t think there has been any evidence of an emergency, just because we have a stopped vehicle ahead. The emergency was created by the driver’s own conduct, in fact; in other words, Mr. Gregory was driving too fast, and not keeping enough space. That is what causes there to be an emergency, that he couldn’t stop in time. There was no emergency.

It is just a normal event of everyday driving a vehicle that may be stopped in the roadway, for whatever reason, whether it is because there is traffic, construction. There is no evidence of emergency. “This issue of emergency talks about things such as where an unforeseen leak in the road coming from an apartment building that is spilling water into the road which freezes, and then — that is something you are not expecting. You totally expect traffic to stop. It is a regular — not just a daily occurrence, many times a day occurrence where traffic will stop.

It is just not rising to the level of an emergency. The only thing that would make it an emergency was the Defendant Gregory’s conduct in being too close; he created his own emergency. So it is a totally inappropriate instruction. “And that is true whether or not there were lights, emergency lights on the police officer’s car or not, because there is conflicting testimony on that issue.” The Defendant argued “that the emergency is a stalled car in the fast lane of the Interstate on the downslope.” 3 In response, the court stated: “I agree with that. I will give this instruction.” ⁵¹⁰ We distill from the questions presented and arguments in the briefs of the parties the two dispositive issues set forth below: 1.

Did the Plaintiff fail properly to object to the emergency instruction so that Plaintiff’s issue has not been preserved for appellate review? 2. If preserved, did the trial court err when it granted Defendant’s request for the emergency jury instruction? I Maryland Rule 2-520(e) provides, and since July 1, 1984, has provided: “(e) Objections. No party may assign as error the giving or the failure to give an instruction unless the party objects on the record promptly after the court instructs the jury, stating distinctly the matter to which the party objects and the grounds of the objection.

Upon request of any party, the court shall receive objections out of the hearing of the jury.” In the instant matter, Plaintiff did not object to the emergency instruction “after” the court had instructed the jury. The consequence, Defendant contends, is that the inclusion of the instruction in the court’s charge to the jury cannot be claimed on appeal to be error. Defendant’s submission relies on the text of the rule, without referring'us to any authority. Plaintiff has not favored us with a reply brief directed to the preservation issue.

Basically, Defendant’s position is that an objection to an instruction that is made before the conclusion of the charge to the jury is per se ineffective for preservation purposes. The notion is that the rule limits effective objections to a window of time, opening with the conclusion of the charge to the jury and closing with the expiration of promptness thereafter. As we explain below, that reading is not Required by the purpose of the rule, is inconsistent with the concept of substantial compliance that was recognized under predecessor rules, is not required by the “legislative” history of Rule 2-520(e), and is ⁵¹¹ inconsistent with the construction by the Court of Appeals of identical language in Rule 4-325(e), which was adopted contemporaneously with Rule 2-520(e), as part of the Rules Reorganization Project, effective July 1,1984. The purpose of Rule 2 -520(e) was restated by the Court of Appeals in Hoffman v. Stamper, 385 Md. 1 , 867 A.2d 276 (2005), where the Court said: “Maryland Rule 2-520(e) requires, as a condition to seeking appellate review of a jury instruction, that the party object promptly after the instruction is given and ‘stat[e] distinctly the matter to which the party objects and the grounds of the objection.’ The purpose of the rule, as we have made patently clear on a number of occasions, is ‘to enable the trial court to correct any inadvertent error or omission in the oral [or written] charge, as well as to limit the review on appeal to those errors which are brought to the trial court’s attention.’ Fisher v. [Baltimore] Transit Co., 184 Md. 399, 402 , 41 A.2d 297, 298 (1945).

In that manner, ‘the trial judge is afforded “an opportunity to amend or supplement his charge if he deems an amendment necessary.’ ” Sergeant Co. v. Pickett, 283 Md. 284, 288 , 388 A.2d 543, 546 (1978) (quoting in part from State v. Wooleyhan Transport Co., 192 Md. 686, 689-90 , 65 A.2d 321, 322 (1949)). Although we have often said that objections must be precise, the purpose of precision is ‘that the trial court has no opportunity to correct or amplify the instructions for the benefit of the jury if the judge is not informed of the exact nature and grounds of the objection.’ Fearnow v. C & P Telephone, 342 Md. 363, 378 , 676 A.2d 65, 72 (1996).” Id. at 39-40, 867 A.2d at 299 . In the instant matter, there was nothing inadvertent about the trial court’s inclusion of the emergency instruction. Plaintiff could not have been more clear in stating his reasons for excepting to the request, and the court could not have been more clear in overruling the objection.

Nor is this a case in which the trial court departed from the request to which Plaintiffs objection was directed. Defendant sought the Pat ⁵¹² tern Jury Instruction, and the court gave the Pattern Jury Instruction. The issue in the circuit court was whether that instruction was generated by the evidence. There was nothing for the circuit court to correct based upon a post-charge reiteration of the exception.

Prior to the 1984 revision of the Maryland Rules, the only time limitation on taking exceptions to instructions was the submittal of the case to the jury. The General Rules of Practice and Procedure, adopted in 1941, provided in Part Three — Law Rules, § III, Rule 6, that objections to instructions could be made “[bjefore the jury retires to consider its verdict.” Maryland Code (1939, 1947 Cum.Supp.) at 2051. 4 State, use of Bowman v. Wooleyhan Transport Co., 192 Md. 686 , 65 A.2d 321 (1949), was decided under old Rule 6. The case was tried at a time when the insufficiency of the plaintiffs evidence to support a verdict was raised by a defendant’s request for an instruction, or prayer, that the evidence was legally insufficient. If granted, the jury would be instructed to retire and return with a verdict for the defendant; literally, a directed verdict.

In Wooleyhan, the defendant’s “B prayer” sought a directed verdict, which the court granted. The official record did not reflect an objection by the plaintiff to the “B prayer” until after the jury had returned the directed verdict. On appeal, the defendant contended that this exception did not preserve the plaintiffs issue. The trial judge, however, had supplemented the record by a certificate stating that, in a chamber’s conference before the charge to the jury, the plaintiff had objected to the “B prayer” on the ground that the evidence was legally sufficient.

Against this background, the Court of Appeals said: ⁵¹³ “The purpose of requiring the objection to any part of the charge to be presented to the trial judge before the jury retires is to give the trial judge an opportunity to amend or supplement his charge if he deems an amendment necessary. In the case before us the trial judge certified that the particular objection was made to him before he granted the prayer and delivered the charge to the jury, which he overruled. He specifically had the benefit of that objection before the jury retired. The only thing out of order in this case was the failure to have the stenographer in chambers to take down the objection.

This was later formally done at the suggestion and with the approval of the trial judge. Rule 6, Sub-section (c) and (d), supra, did not contemplate the dismissal of an appeal under the circumstances in this case. The trial judge passed on the question, after objection, before the jury retired and the question is before us here.” Id. at 689-90, 65 A.2d at 322-23 (citation omitted). The requirement that an exception to an instruction be taken “[bjefore the jury retires to consider its verdict” continued to be the only time limitation under former Rule 554 d, effective January 1, 1957.

See Order of the Court of Appeals of July 18, 1956, adopting the Twelfth Report of the Standing Committee on Rules of Practice and Procedure. Former Rule 554 d also required the trial court to give either party an opportunity to object “in open court,” out of the presence of the jury, upon an application made either before or after the conclusion of the charge to the jury. 5 A cross-reference ⁵¹⁴ following former Rule 554 d directed the reader to a then “similar criminal rule,” Rule 756 f. Former Rule 554 was in effect until the adoption of current Rule 2-520(e) in 1984. During the era of former Rule 554, the Court of Appeals decided a number o f cases that bear on the issue before us.

The appellant in Merritt v. Darden, 227 Md. 589 , 176 A.2d 205 (1962), contended that the trial court had erred in instructing on imputed negligence. At the conclusion of the charge to the jury, the appellant stated “that his objections would be the same as he had made in chambers immediately before the instruction was given in open court.” Id. at 597 , 176 A.2d at 209 . The Court of Appeals found preservation on the following rationale: “But inasmuch as it appears that the trial judge was fully aware of the principles of law advocated by counsel for the [appellant] before the instructions were given, we think that the objection made was substantial compliance with the requirements of the rule, and that what was done was sufficient to preserve the right' of the [appellant] to a review by this Court[.]” Id. at 597-98 , 176 A.2d at 209-10 . Bennett v. State, 230 Md. 562 , 188 A.2d 142 (1963), was an appeal by an abused spouse who had been convicted of murdering her husband.

The trial court had rejected the appellant’s requested instruction dealing with her right to arm herself in anticipation of an assault. Although no exception was taken after the charge to the jury, the Court of Appeals held that the issue was preserved based on what had transpired prior to the charge. The Court stated: ⁵¹⁵ “In the instant case, where the requests for instructions were submitted to the court in writing and written instructions to the jury were prepared by the court and were discussed in chambers with counsel for both parties before the charge was read to the jury in open court, it is clear that the trial court was fully aware of the particular instruction the defendant desired the court to give, for, in rejecting the second request, the court noted in writing thereon that it was ‘sufficiently covered in [the] court’s instructions.’ Moreover, the record discloses that the defendant not only objected then and there to the denial of the second requested instruction but also excepted to the refusal of the court to read it to the jury. And while no further exceptions were made to the prepared charge after it had been read to the jury, there was in this case no reason to repeat in the court room what had already been said and recorded by the reporter in chambers.” Id. at 568-69 , 188 A.2d at 145 .

The Court of Appeals characterized as “catching at straws” the argument of the appellee in Brown v. Bradshaw, 245 Md. 524, 535 , 226 A.2d 565, 571 (1967), that a claim of error in instructing the jury had not been preserved because the exception was made before the instructions were read to the jury. The Court held that “it will readily be perceived that where the trial judge confines his charge to the reading of the prayers and instructions offered by counsel it matters little whether the objection is registered before or after the reading.” Id. at 537 , 226 A.2d at 572 . Counsel for the appellant in Sergeant Co. v. Pickett, 283 Md. 284 , 388 A.2d 543 (1978), objected, after the charge had been given, to the failure to give certain requested instructions, but did so as to certain of them by referring only to the numbers which the appellant had placed on its requests. This was held insufficient under the rule in Belt’s Wharf Warehouses, Inc. v. International Prods.

Corp., 213 Md. 585, 591-92 , 132 A.2d 588, 591 (1957). With respect to one of the exceptions, however, counsel stated, “ ‘And ten, unavoidable [sic] consequences.’ ” 283 Md. at 287 , 388 A.2d at 545 (emphasis omitted). This ⁵¹⁶ reference was held to be sufficient, “when coupled with a mere cursory reading of the proffered instruction.” Id. at 289 , 388 A.2d at 546 . The Court of Appeals summed up as follows: “Thus, in the final analysis, we have allowed some ‘play in the joints’ where Rule 554 is invoked to preclude appellate review, at least to the extent of accepting substantial compliance with those requirements.

Here, further exposition by appellants’ counsel of the ‘ground’ for the principle of law reflected by the instruction would have been both fruitless and unnecessary insofar as the rule was concerned. Once the trial court had signified that it comprehended the precise point being asserted, but nevertheless rejected it out-of-hand, the requirements of the rule had been met. At a minimum, this certainly represented substantial compliance with Rule 554 d and e, and, we hold, was therefore sufficient to preserve the issue for appellate review.” Id. at 289-90 , 388 A.2d at 547 (footnote omitted). Current Rule 2-520(e) is a product of the Rules Reorganization Project.

When originally presented to the full Rules Committee at its meeting on April 21,1981, by the subcommittee chair, Judge John McAuliffe, the proposed rule required that a party “shall make the objection on the record before the jury retires to consider its verdict,” thereby continuing the then current limitation. The proposal also contained a provision, Reorganization Rule 2-523(d), under which “[t]he court may give its instructions at any time after the close of the evidence.” The latter proposal prompted discussion, inasmuch as it would permit the court to instruct after counsel’s closing arguments. A motion “that the rule be redrafted to require that ‘final’ instructions be given before closing arguments” was adopted. The Committee then considered when objections to instructions should be made.

It was “of