Mallard v. Earl

HOLLANDER, Judge. This case concerns the scope and application of the Boulevard Rule in a situation in which the favored and unfavored ⁴⁵² drivers have both been sued by the favored driver’s passenger. Appellant, Dale Mallard, was the favored driver in an automobile that collided with a bus operated by appellee, Franklin Hall; appellee Matthew Earl was a passenger in Mallard’s car. Earl filed suit in the Circuit Court for Prince George’s County against Mallard, Hall, and Hall’s employer, appellee Board of Education for Prince George’s County (the “Board”).

After the court denied Mallard’s motions for judgment, the jury found that Mallard had been negligent but that Hall had not been negligent. Thereafter, the court denied Mallard’s motion for judgment notwithstanding the verdict (“JNOV”). From the judgment entered against him, Mallard has appealed. Earl has filed what he has styled as a “conditional cross-appeal;” he asks us to reach his cross-appeal only if we reverse or vacate the judgment against Mallard.

ISSUES Mallard raises several issues for our consideration: I. Did the Trial Court err in not granting Defendant Mallard’s Motions for Judgment and Motion for Judgment Notwithstanding the Verdict? A. Did the Trial Court erroneously permit the issue of negligence of the favored driver, Appellant Mallard, vel non, to reach the jury in violation of the statutory right-of-way under the Boulevard Rule? B. Assuming Arguendo That Legally Sufficient Evidence Was Presented At Trial To Divest the Appellant of His Statutory Right-Of[-]Way Under The Boulevard Rule, Was The Evidence Presented At Trial Was [sic] Insufficient to Establish That Any Alleged Excessive Speed or Inattention By Appellant Mallard Was The Proximate Cause of the Accident?

II

Did the trial court erroneously refuse to instruct the jury on the continuing duty under Maryland’s Boulevard Rule of the unfavored driver to continuously yield the right-of-way to favored drivers as the unfavored driver crosses the boulevard? ⁴⁵³ Earl asks us, in the event we reverse or vacate the judgment against Mallard, to consider two additional issues: I. Did the trial court err by refusing to instruct the jury regarding the unfavored driver’s duty to yield the right of way throughout his journey across the boulevard[?] II. Did the trial court err when it refused to admit into evidence a copy of the docket entries from the case known as State v. Franklin Hall, from the District Court of Maryland for Prince George’s County, showing that defendant Hall had tendered a plea of guilty for failing to yield the right of way, and by refusing to admit into evidence the transcript from said case containing statements made by defendant Hall[?] We hold that the trial court erred in denying Mallard’s motions for judgment and judgment notwithstanding the verdict. We further hold that Earl’s claim of error as to the jury instruction is meritorious. Accordingly, we shall reverse and remand for a new trial concerning Earl’s claim against Hall only.

As a result, we decline to reach Earl’s remaining issue. FACTUAL BACKGROUND On the morning of June 6, 1990, motor vehicles operated by Mallard and Hall collided in the town of Seabrook, Maryland at the intersection of Good Luck Road and a sideroad. Good Luck Road runs east-west with two lanes in each direction, divided by a double yellow line; it has a posted speed limit of 35 miles per hour. The two-lane sideroad changes at Good Luck Road: To the north, it is undivided and is called Palamar Drive; to the south, it is divided by a grass median and is called Woodstream Drive.

Palamar and Woodstream both are governed by stop signs at the intersection with Good Luck Road. Also, from the intersection, Good Luck Road curves gradually northward along both the eastbound and westbound lanes. At the time of the accident, Mallard, who was 17 years old, was driving his father’s automobile eastbound on Good Luck Road. Earl and his two sisters were passengers in Mallard’s ⁴⁵⁴ vehicle.

Hall was driving a school bus south on Palamar. The bus, which fortunately was empty, was about 40 to 45 feet in length. The parties contest various details of the collision, but it is undisputed that Mallard’s car hit the bus between its right rear wheel and rear bumper while the bus was crossing Good Luck Road. At trial, Mallard and his passengers (including Earl) all testified that Mallard was driving between 35 and 40 miles per hour.

Prior to the collision, “thrash” music 1 was playing on the tape player, and Mallard’s passengers were engaged in conversation. Nevertheless, the passengers testified that Mallard had not chosen the music, did not control the volume, and did not take part in the conversation. Moreover, they said that Mallard apparently was paying “full attention” to his driving and did not drive recklessly. None of Mallard’s passengers noticed the bus until they heard Mallard yell “look out” just before impact, and they could not recall whether Mallard ever took any specific evasive action.

Mallard asserted that he first saw the intersection as he was about 275 and 300 feet from it, while driving in the fast eastbound lane. 2 Further, he saw Hall’s bus at a distance of about 250 to 275 feet, as the bus approached the stop sign at Palamar. According to Mallard, when Mallard was about 175 to 200 feet from the intersection, he observed that Hall failed to stop at the stop sign and rolled across the two westbound lanes of Good Luck Drive. Seeing this, Mallard “let up on the gas,” expecting the bus to accelerate across Good Luck and enter Woodstream. Instead, he said, the bus stopped with its front on Woodstream and its rear partially blocking the fast ⁴⁵⁵ eastbound lane.

Mallard testified that he swerved into the westbound lanes to avoid the bus, but had to swerve back into the eastbound lanes to avoid oncoming westbound traffic. He hit the brakes, but to no avail. Mallard admitted, through deposition testimony read at trial, that he “didn’t slam on [his] brakes at any point in time until [he] was about to hit the bus.” Mallard estimated that the whole incident, from the time Hall entered the eastbound lanes until impact, occurred in less than five seconds. Hall painted a contrasting picture.

He averred that, at the point that he approached Good Luck, he came to a complete stop at the stop sign, but he could only see up to 60 feet eastbound and 50 feet westbound. After looking both ways, he began to proceed slowly across Good Luck. Hall first saw Mallard’s car when the bus entered the fast westbound lane, but before it had crossed the median. Hall estimated that when he then saw Mallard’s car it was about 120 to 150 feet away in the curbside eastbound lane.

Hall acknowledged that he only caught a glimpse of Mallard and, based on that glimpse, Hall “flinched.” But, as he believed he could traverse Good Luck safely, he accelerated his bus. He admitted never looking back toward Mallard, but denied stopping the bus prior to the collision. Although Hall is a professional driver, he could not offer even an approximation of Mallard’s speed. Hall believed, however, that Mallard was travelling “well in excess” of 35 miles per hour.

DISCUSSION I. Mallard’s Motions For Judgment Preliminarily, we observe that a party is entitled to a motion for judgment or for JNOV when the evidence at the close of the case, taken in the light most favorable to the nonmoving party, does not legally support the nonmoving party’s claim or defense. I.O.A. Leasing Corp. v. Merle Thomas Corp., 260 Md. 243, 248-49 , 272 A.2d 1 (1971); Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961). On review, this Court must assume the truth of all credible evidence and ⁴⁵⁶ all inferences of fact reasonably deducible from it tending to sustain the decision of the trial court in favor of the nonmoving party. Campbell v. Baltimore Gas & Elec.

Co., 95 Md.App. 86, 94 , 619 A.2d 213 , cert. denied, 331 Md. 196 , 627 A.2d 538 (1993). “[I]f there be any evidence, however slight, legally sufficient as tending to prove negligence, ... the weight and value of such evidence will be left to the jury.” “Legally sufficient” means “that a party who has the burden of proving another party guilty of negligence, cannot sustain this burden by offering a mere scintilla of evidence, amounting to no more than surmise, possibility, or conjecture that such other party has been guilty of negligence, but such evidence must be of legal probative force and evidential value.” Myers v. Bright, 327 Md. 395, 399 , 609 A.2d 1182 (1992) (quoting Fowler v. Smith, 240 Md. 240, 246 , 213 A.2d 549 (1965) (emphasis added in Myers)). See also Franklin v. Gupta, 81 Md.App. 345, 354 , 567 A.2d 524 (1990). If, however, the evidence, taken as a whole, does not rise above speculation, hypothesis, and conjecture, then the trial court should not allow the jury to consider the issue, and the denial of a motion for judgment or JNOY would be error. Myers, 327 Md. at 399 , 609 A.2d 1182 ; see also Higgins v. City of Rockville, 86 Md.App. 670, 687 , 587 A.2d 1168 , cert. denied, 323 Md. 309 , 593 A.2d 669 (1991).

As noted, to support his assertion that he was entitled to judgment, Mallard has relied on the Boulevard Rule. Although the Rule has roots in cases prior to 1939, the widely acknowledged source of the Rule is Greenfeld v. Hook, 177 Md. 116 , 8 A.2d 888 (1939). See Dean v. Redmiles, 280 Md. 137, 143-47 , 374 A.2d 329 (1977) (tracing history of the Boulevard Rule). The Rule arises from the historical statutory mandate that a driver at an intersection who is required to stop before entering the intersection (called the “unfavored driver”) must yield the right-of-way to a driver not required to stop before entering (called the “favored driver”).

Id. at 143-44 , 374 A.2d 329 ; Creaser v. Owens, 267 Md. 238, 244-45 , 297 ⁴⁵⁷ A.2d 235 (1972). Originally, if the unfavored driver failed to yield the right-of-way and a collision ensued, the unfavored driver was absolutely liable as a matter of law. Creaser, 267 Md. at 245 , 297 A.2d 235 . After 1971, when the Legislature modified the definition of “right-of-way,” 3 the Court began to recognize a significant exception to the otherwise inflexible Boulevard Rule.

Consequently, the rule no longer affords absolute protection to the favored driver who is driving in an unlawful manner. Dennard v. Green, 335 Md. 305 , 311 n. 2, 313-314, 643 A.2d 422 (1994); see also Covington v. Gernert, 280 Md. 322 , 373 A.2d 624 (1977) (first case governed by new definition); Redmiles, 280 Md. at 161 , 374 A.2d 329 . As the Court said in Redmiles , “[t]he favored driver ... [is] not excused by the boulevard rule from his duty of exercising due care for his passenger.” Id., 280 Md. at 160-61, 374 A.2d 329 . Even so, to render the Boulevard Rule inapplicable, it is not enough that the favored driver proceeds unlawfully.

The rule still holds the unfavored driver liable for a collision if the favored driver’s unlawful conduct was not a proximate cause of the collision. Myers, 327 Md. at 405 , 609 A.2d 1182 (mere fact that favored driver’s speed exceeded the posted limit is “not enough to support a verdict based on negligence unless there is some further showing that this excessive speed is a direct and proximate cause of the injury.”). In the seminal case of Dean v. Redmiles, 280 Md. 137 , 374 A.2d 329 (1977), the Court considered the precise question at issue here: “the liability of the favored driver to a passenger in his [own] vehicle.” Id. at 139 , 374 A.2d 329 . The Court engaged in an exhaustive analysis of the case law with respect to the Boulevard Rule and concluded that the Boulevard Rule ⁴⁵⁸ does not “insulate this driver from liability to his passenger....” Id. at 139-40 , 374 A.2d 329 .

The Court classified eight categories of boulevard law cases: [T]he suit of the favored driver against the unfavored driver, the unfavored driver against the favored driver, the passenger of an 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 and unfavored drivers are suing each other. Id. at 144 , 374 A.2d 329 (emphasis added); see also Id. at 144-46 , 374 A.2d 329 (collecting cases for each category). Upon reviewing the dynamics of each category, the Court distilled several principles governing Boulevard Rule cases. As a general matter, the Rule is an expression of the policy encouraging the expedited flow of traffic on the favored boulevard, and a driver violating the Rule does so at his or her own risk.

Id. at 147 , 374 A.2d 329 . Further, “A favored driver may assume that others will obey the law and he need not anticipate their violation of the law. However, the favored driver may not proceed in complete disregard of obvious danger.” Id. at 148 , 374 A.2d 329 (citations omitted). The unfavored driver, when sued by the favored driver, is guilty of negligence as a matter of law in the absence of a showing of contributory negligence on the part of the favored driver.

Id. at 147-48 , 374 A.2d 329 . Similarly, the unfavored driver, as plaintiff, is vulnerable to a motion for judgment because the unfavored driver’s failure to yield ordinarily constitutes contributory negligence as a matter of law. Id. at 147 , 374 A.2d 329 . And, as a corollary, the unfavored driver is generally liable to his or her own passengers.

Id. at 148 , 374 A.2d 329 . But see Dennard, 335 Md. 305 , 643 A.2d 422 (jury verdict against the passenger of unfavored driver and in favor of the favored and unfavored drivers upheld on grounds that jury was entitled to find passenger had failed to prove that the negligence of ⁴⁵⁹ either driver was a proximate cause). Moreover, and perhaps most pertinent here, the Boulevard Rule “does not relieve the favored driver from the duty to use that degree of care for a passenger in his vehicle which one expects a normally prudent driver to exercise on behalf of his passenger.” Redmiles, 280 Md. at 149 , 374 A.2d 329 . Further, in some boulevard law cases, the proximate cause of the collision may be attributed to the concurrent negligence of both the favored and the unfavored drivers.

Id. at 156 , 374 A.2d 329 (citing Yellow Cab Co. v. Bonds, 245 Md. 86, 90 , 225 A.2d 41 (1966)). Under such circumstances, in a suit by a passenger against either or both drivers, so long as each driver’s negligence constituted a proximate cause of the collision, the negligence of one driver does not excuse the negligence of the other driver. Id. (citing same).

Here, the parties agree that Mallard was the “favored driver” and Hall the “unfavored driver” under the Boulevard Rule. They also agree that Hall had a duty under the rule to stop and yield the right-of-way to Mallard. Mallard contends, however, that the evidence was insufficient to permit the jury to find that Mallard had been travelling in an unlawful manner. Consequently, he claims that he is entitled to protection from liability under the Boulevard Rule.

Based on our review of the law and the evidence, we agree that the evidence was not legally sufficient to warrant denial of Mallard’s motions. We explain. Of the various Boulevard Rule cases involving suits by the passenger in the favored vehicle against the favored driver, particularly those reviewed in Redmiles , several have factual patterns relevant to the analysis of the instant matter. In particular, two pairs of cases stand out: first, Sun Cab Co. v. Cusick, 209 Md. 354 , 121 A.2d 188 (1956) and Kopitzki v. Boyd, 277 Md. 491 , 355 A.2d 471 (1976); second, Sun Cab Co. v. Hall, 199 Md. 461 , 86 A.2d 914 (1952) and White v. Yellow Cab Co., 216 Md. 286 , 140 A.2d 285 (1958).

In Cusick , the unfavored driver admitted that he failed to stop at a stop sign. But he testified that the favored driver, a ⁴⁶⁰ taxicab operator, was “driving at an excessive speed” or at “a great rate of speed.” The favored driver denied speeding and claimed that he was only driving 25 miles per hour. Based on the lengthy skid marks, the Court allowed that the cab probably was travelling at a speed faster than 25 miles per hour. Nonetheless, the Court said: [T]he driver of the taxicab had the right to assume that [an unfavored driver] would stop and yield the right of way to him____ Even though the cab may have been travelling at a rapid rate of speed, it was the gross negligence of [the unfavored driver], and not the cab’s rate of speed, that was the proximate cause of the accident.

It would be mere conjecture to say that the cab might not have been struck if its rate of speed had been different. Id. at 360 , 121 A.2d 188 (emphasis added). Accordingly, based on the evidence, the Court held that the favored driver was entitled to judgment. In Kopitzki , the favored driver argued that the trial court erred by not directing judgment in his favor against the favored passenger, based on the Boulevard Rule, despite evidence that the favored driver had been speeding and drinking.

The testimony established that the favored driver was travelling at a rate between 70 and 90 miles per hour on a boulevard having a speed limit of either 45 or 50 miles per hour. The favored driver, after passing to the right of a car cruising in the left lane, collided with an unfavored driver who had been attempting to cross the road. The Court held that, because the favored driver clearly had been driving nearly twice the posted speed limit, the issue of whether the favored driver’s speed and inattentiveness was a proximate cause of the collision properly had been submitted to the jury. 277 Md. at 497 , 355 A.2d 471 . Cf.

Yellow Cab Co. v. Bonds, 245 Md. 86, 91-92 , 225 A.2d 41 (1966) (in a rear-end collision between two favored drivers, tailgating cab could not avoid the car in front of it when the forward car slowed to allow an unfavored driver to cross the boulevard; the question of cab’s ⁴⁶¹ inattentiveness as proximate cause of collision was properly submitted to jury). What the Court said is pertinent here: “Ordinarily, in most boulevard cases, it is not material what the favored driver was doing. The accident would never have happened if the unfavored vehicle had yielded right of way, and the conduct of the unfavored driver is the sole proximate cause of the accident. But if it can be shown that the favored driver could have avoided the accident if he had been operating lawfully and with due care, then the negligence of the favored driver should be an issue for the jury.” Id. at 496, 355 A.2d 471 (citation omitted).

In Hall , the passenger testified that the favored cabdriver turned his head to talk to the passenger,