Hansen v. Kaplan

Figinski, J., delivered the opinion of the Court. Appellees, plaintiffs below, instituted suit in the Circuit Court for Montgomery County, on December 2,1977 seeking damages for personal injuries to Ruth Kaplan, and to the marital relationship of Ruth and Lawrence Kaplan. The suit was based on an automobile collision which occurred on May 4, 1977. On that date, Ruth Kaplan, after completing work as a special education teacher, went to a gym, Slender Lady, on East Diamond Avenue in Gaithersburg, Maryland.

Recreation completed, she departed for home, travelling east on East Diamond Avenue. As she approached the intersection of East Diamond Avenue and Park Avenue in Gaithersburg, her journey was brought to an abrupt, injurious end, when a vehicle being driven westerly on East Diamond Avenue by defendant Hansen spun or ricocheted into her vehicle after striking a vehicle being driven by defendant Connolly. The impact between the Hansen and Connolly vehicles occurred at the intersection of Park Avenue and East Diamond Avenue. A stop sign regulated that intersection, making East Diamond Avenue the favored roadway, i.e., the boulevard, and Park Avenue the unfavored street, i.e., the stop-street.

The issues of liability and damages were bifurcated by order of the trial court on motion of defendant Connolly. At trial on the issue of liability, the case was submitted to the jury to determine the fault of both Hansen and Connolly. The evidence produced at trial made absolutely clear that appellees were faultless. The jury’s verdict was in favor of defendant Connolly against appellees and in favor of appellees against defendant Hansen.

A motion for judgment N.O.V. or a new trial by Hansen was denied. After final judgment on stipulated damages was entered, Hansen alone appealed. 1 Appellant does not challenge the trial judge’s ³⁴ instructions to the jury nor does he point to any error in the conduct of the trial. Rather, appellant’s argument, relying upon an analysis of the so-called boulevard rule, challenges the finding of liability, as to him, as contrary to law. Appellant contends that the trial court erred in failing to grant his motion for a directed verdict because, by the boulevard rule, the sole proximate cause of the accident here was defendant Connolly’s intrusion into the boulevard.

Appellant misperceives the reach and applicability of the boulevard rule. Moreover, even if that rule were applicable, appellant would not, on the facts of this case, have been entitled to a directed verdict as a matter of law. A review of the critical facts established at trial is necessary for a proper analysis of the argument presented. Our review must consider the evidence and all logical and reasonable inferences deducible therefrom in the light most favorable to the appellee.

Schwier v. Gray, 277 Md. 631, 636 (1976). The collision occurred at approximately 7 p.m. on May 4, 1977. It had been drizzling and the roads were wet. The twilight was cloudy.

Ruth Kaplan, proceeding east on East Diamond Avenue, was, as all concede and the jury was instructed, free from any negligence. As she approached the intersection of East Diamond and Park Avenues, she saw the Connolly vehicle pull slightly into the intersection, ³⁵ apparently to make a left hand turn. 2 As she observed the Connolly vehicle, Mrs. Kaplan also saw the Hansen vehicle, proceeding westbound on East Diamond Avenue. Fearing that Hansen would be unable to get around Connolly without intruding into her lane, Mrs. Kaplan pulled over to the right as far as possible, short of the intersection, to give Hansen the ability to intrude her lane and avoid Connolly. Indeed, Mrs. Kaplan testified that she had brought her car to a stop "twenty to thirty feet from the corner” of the intersection of East Diamond and Park Avenues.

Hansen, travelling faster than the flow of traffic, applied his brakes, causing his vehicle to wiggle, slide and fishtail. Hansen impacted the Connolly vehicle 3 and slid into Mrs. Kaplan’s car. An eyewitness, Mr. Hayes, who was travelling behind the Hansen vehicle after being passed by it "on the right at an unreasonable speed”, testified that a car proceeding westerly on East Diamond Avenue, as was his vehicle and the Hansen vehicle, could have continued "straight on” in the travel lane 4 of East Diamond Avenue "without coming into contact with” the Connolly vehicle. Another eyewitness, Mr. Iverson, testified that the Hansen vehicle, just prior to the accident, "seemed to be going at a speed higher than the normal traffic.” His attention, he testified, was drawn to the Hansen vehicle "because of the wheels on the wet pavement and the engine noise and exhaust seemed to be louder than normal.” Several witnesses placed the speed of the Hansen vehicle at thirty-five miles per hour.

The speed limit was not precisely established, the testimony being that it was either twenty-five or thirty miles per hour. In Dean v. Redmiles, 280 Md. 137, 143-159 (1977), the Court of Appeals, per Judge Smith, reviewed its "prior ³⁶ holdings relative to the boulevard law,” id., 143 , and found that "cases reaching [the Court of Appeals] arising under the boulevard rule fall into eight categories,” id., 144: "The suit of the favored driver against the unfavored driver, the unfavored driver against the favored driver, the passenger of an unfavored driver against both drivers, the passenger of the favored driver against both drivers, the passenger of the favored driver against the unfavored driver, the passenger of the favored driver against the favored driver, and, finally, counterclaims so that the favored drivers are suing each other.” After-classifying and discussing the cases which fit these categories, the Court observed, id., 147: "We have attempted in our citation of various types of suits arising under the boulevard rule to include most, if not all, of the cases reaching this Court. It will be seen that the vast preponderance of this litigation has concerned suits between favored and unfavored drivers. Accordingly, much of what has been said with reference to the boulevard rule must be placed in that context. ” [Emphasis added.] The case reaching this Court in this appeal fits into none 5 of the eight categories noted in Dean v. Redmiles.

Here, Ruth Kaplan was driving on the boulevard, or favored street, just as was the appellant. In addition, the Kaplan vehicle was not in the intersection at the time it was struck; instead, it was thirty feet from the intersection. In some boulevard rule decisions, e.g., McDonald v. Wolfe, 226 Md. 198, 203 (1961); Simco Sales v. Schweigman, 237 Md. 180,186 (1964), it has been said that a collision outside the intersection does not bar applicability of the boulevard rule, if the collision is caused by the rule’s violation. Each such case, however, ³⁷ involved litigation between a favored and unfavored driver, not, as here, litigation between two drivers on the boulevard.

Well before Dean v. Redmiles, supra, the Court of Appeals had placed outside the reach of the boulevard rule a vehicle which had entered the favored road, after clearing the intersection and ceasing to interfere with the flow of favored traffic through the intersection. See, McCann v. Crum, 231 Md. 65, 68 (1963); Shaneybrook v. Blizzard, 209 Md. 304, 312-3 (1956); Ness v. Males, 201 Md. 235, 239-40 (1953). In effect, these cases refused to apply the boulevard rule to vehicles which had become a part of the favored traffic flow. In Dean v. Redmiles, supra, 149 , the Court of Appeals quoted from McCann and reiterated the exception to application of the boulevard rule.

Likewise, in placing pedestrians, Folck v. Anthony, 228 Md. 73 (1962), and exiting vehicles, Palmer v. Scheid, 223 Md. 613, 616-7 (1960); Safeway Trials, Inc. v. Smith, 222 Md. 206, 212 (1960), beyond the reach of the boulevard rule, the Court of Appeals demonstrated judicial reluctance to apply the so-called rule outside the confines delineated by the clear words of the statute. Constraint, not expansion, of the boulevard rule is the clear lesson of the authorities reviewed above. If there was ever any question with respect to that lesson, it surely was laid to rest by Covington v. Gernert, 280 Md. 322 (1977) and Gazvoda v. McCaslin, 36 Md. App. 604 (1977). In Covington , a driver travelling the wrong way on a one-way favored street was denied the immunity of the boulevard rule.

The Court of Appeals noted that the rule requires a driver approaching a stop sign to come to a full stop and "yield the right of way” to vehicles travelling on the favored street. A 1971 statutory redefinition of right of way was discovered and interpreted to grant preference only to vehicles proceeding in a lawful manner on the favored highway. The Court of Appeals, therefore, concluded that, because a driver travelling the wrong way on a one way thoroughfare was not proceeding in a lawful manner, such driver "was not entitled to preference over” the unfavored driver. 280 Md. at 325. In Gazvoda , this Court scrutinized Covington’s impact on ³⁸ the boulevard rule.

There, Judge Powers, for this Court, wrote, 36 Md. App. at 612 -3: "The message of Covington v. Gernert is clear. The departure from the past arises when the favored driver is not proceeding in a lawful manner. Then the boulevard rule no longer applies, and the favored driver is not entitled to preference over the unfavored driver. This means that in a case arising from a vehicle collision which happens when one driver enters a through highway, if there is evidence sufficient to permit a finding of fact that the favored driver was proceeding in a manner that was not lawful, then it is for the jury to determine whether the favored driver has lost his statutory preference.

As the Court of Appeals said in Covington, '[the trial court] will not be permitted to regard [the entering driver] as having violated the boulevard rule.’ At the risk of justifiable criticism for indulging in the vice of self-quotation, this writer repeats what he said in a concurring opinion in this Court’s Beckward v. Hensel, 20 Md. App. at 560, 316 A.2d at 318: 'When the boulevard rule is applicable, it is virtually absolute, but, accepting the efficacy of that view, we still may not hold it applicable to every collision that happens in the intersection of a favored and an unfavored highway. The key is proximate cause. If the harm was proximately caused by breach of the duty imposed by the boulevard rule, then the rule must be strictly applied. But if the proximate cause was the breach by either party, of some other duty, then the boulevard rule is not applicable.’ What Covington v. Gernert, supra, does, and what we think justice demands, is to permit our ³⁹ judicial system, in the search for proximate cause — the underlying fault which caused the harm — to look behind doors hitherto barred.” Both Covington and Gazvoda involved suits between only a favored driver and an unfavored driver.

Neither involved litigation, as here, between two drivers on a favored highway. The parties have cited no case barring a search, from the facts, for the proximate cause of an accident in a case such as presented here. Our own research has uncovered no such case. Some instruction can be gleaned from Dail v. Tri-City Trucking Co., 39 Md. App. 430 (1978) where we looked carefully at the facts of the case 6 and refused to apply the boulevard rule to a situation outside the eight pigeonholes of Dean v. Redmiles .

We wrote, in Dail : "The boulevard rule’s purpose of facilitating the flow of traffic is fully effectuated if uninterrupted travel is encouraged by protecting the favored driver’s right of way and recklessness is discouraged by penalizing the unfavored driver for failure to yield the right of way. The favored driver is protected by 'virtual immunity against actions brought by the unfavored driver.’ The unfavored driver is penalized by being found contributorily negligent as a matter of law. The rule’s purpose would not be significantly advanced by barring an unfavored driver from recovery against a negligent party other than the favored driver. Indeed, it would be antithetical to the rule’s purpose to immunize such a negligent party from liability when that party’s actions caused the disruption of the flow of traffic on a ⁴⁰ through highway by causing the unfavored driver’s failure to yield the right of way.

In addition, it would be unfair to immunize that negligent party under such circumstances by applying