May v. Giant Food, Inc.

HOLLANDER, Judge. This tort case presents issues of causation and contributory negligence arising from an incident involving Florence May, appellant, who was knocked to the ground by the open passenger door of her moving vehicle. At the time, Ms. May’s vehicle was being operated by Lewis Ratino, Jr., appellee, a courtesy clerk for Giant Food, Inc. (“Giant”), appellee. A jury in the Circuit Court for Montgomery County returned a special verdict, finding that Ratino was negligent and that ³⁶⁸ appellant was contributorily negligent.

Appellant timely filed her appeal and presents two questions for our consideration, which we have reframed: I. Did the trial court err by permitting the jury to consider the unattended motor vehicle statute, Md.Code (1977, 1998 Repl.Vol.), § 21-1101 of the Transportation Article (“Trans.”), as evidence of appellant’s contributory negligence?

II

Did the trial court err by failing to rule, as a matter of law, that any contributory negligence was not the proximate cause of appellant’s injuries?

III

Did the trial court err in refusing to give an intervening/superseding cause instruction? We answer all three questions in the negative. Therefore, for the reasons that follow, we shall affirm. Factual Background On August 3, 1995, appellant, who was then 76 years old, went shopping at a Giant grocery store located in Montgomery County.

When she finished her shopping, Ms. May left her grocery cart at the entrance of the store while she retrieved her vehicle from the parking lot. Appellant then drove her vehicle to the parcel pickup area at the front of the store. When she stopped the car, the passenger side was adjacent to the store, and the automobile was not on a perceptible grade. Appellant blew the horn several times in order to attract the attention of a Giant courtesy clerk who could assist her with her groceries.

The events that followed are sharply disputed. According to appellant, she shifted the automatic transmission of her vehicle into park and engaged the parking brake by pushing a pedal on the floor. Because a courtesy clerk apparently was not available, Ms. May exited the car. In doing so, she left the key in the ignition and the engine running.

Ms. May then walked around the back of her vehicle, opened the front passenger door, and prepared to load her lone bag of groceries into the car. As appellant began to load her groceries, Ratino walked out of the store. ³⁶⁹ Appellant denied that her car started to move after she exited the vehicle. She also claimed that she was startled because Ratino entered her car without her permission. Further, she claimed that when Ratino began to operate appellant’s car, she was struck by the passenger door.

The following testimony of Ms. May is relevant: [APPELLANT]: After I got out of the car and opened up that front passenger’s door, I got up — went up to get my groceries when Mr. Ratino came out, and asked him where he had been. He hadn’t been there. And I turned, I said, “Well, I’ll go and get my car — get into my car.” [APPELLANT’S COUNSEL]: Did he make any reply? A: No, he didn’t.

Q: —when you said, “Where have you been?” A: No, he didn’t. Q: What did he do? A: I said I was going to go back to the car. Next thing I know, he went to the car, and— Q: What do you mean, he went to the car?

A: He went in front of the car, and got into the driver’s side of the car. I went to the door, the front door, which was open on the passenger’s side. I was a little surprised at what he was doing. And I had my hand — the door, that door was open, because I was going to load my groceries there.

And my hand was holding onto the handle of the front passenger door, when suddenly the car jolted, and I flew back to the ground. My head hit the ground, my whole — my back hit the ground. And I screamed, naturally. And then someone picked me up.

I couldn’t get up; I was flat on my back. Q: Now, the time you left the car on the driver’s side— A: Yes, yes. Q: —was your car moving? A: No, it wasn’t.

I would have known. I would have seen it move, because I had opened — I had closed the door on ³⁷⁰ the driver’s side, went around the back of the car, and opened the door on the — the front door on the passenger’s side. I certainly would have seen it moving. Q: Were you surprised when Mr. Ratino got into the car?

A: I was surprised. I was startled. * * ❖ * Q: Did you at any time give him permission to operate your vehicle? A: I never gave him permission to go into the car. Ratino was called as a plaintiffs witness.

He is a high school graduate who possessed a valid driver’s license on the date in question. In marked contrast to appellant’s testimony, Ratino testified that when he came out of the store, he saw that appellant’s car was moving backward and told her so. The following testimony is relevant: [APPELLANT’S COUNSEL]: Did [appellant] tell you that she would prefer someone else to operate her vehicle? [RATINO]: Yes, she did. Q: And what did you say to that?

A: I said that if I get somebody else, the car will be out of the Giant Food zone — clear. Q: How fast was it moving? A: It was moving, I would say, five miles per hour. That’s why I insisted on trying to help her.

Q: Was anyone behind the car? A: I don’t exactly know about that. I think there was one car within probably 100 feet. * $ * $ Q: All right. Where did Mrs. May go when you got into her car?

A: Well, what happened, as soon as she asked me to get in her car, I went in her car, and tried to stop the moving car. And where she went, she went to open the two ³⁷¹ doors. She went to open the two doors which would be on the passenger side, located both on the passenger side at the back door and the front door. Q: So after you were in the driver’s seat, you were aware that she was opening the passenger side door; is that right?

A: Yes. I was completely aware of that.... Q: ... Once you got into the vehicle, and you were aware that Mrs. May was opening the passenger door, you stepped on the gas; isn’t that right?

A: I stepped on the gas by accident.... According to Ratino, after he got into the driver’s seat of Ms. May’s automobile, but before stepping on the accelerator, appellant had opened the passenger door. He “told her to wait behind the metal bars so she wouldn’t get injured, because I didn’t know what in the world would happen, whether I was going to make a mistake or not, because nobody’s perfect.” The manager of the store, Ellis Schlossenberg, corroborated Ratino’s version of events. He testified that he came out of the store after the incident and appellant told him that her car was rolling.

In response to appellant’s request for help, Ratino jumped in the car, and the car door hit appellant. 1 E.D. Archuletta, a customer at the Giant, also testified for the defense. 2 As Archuletta was standing outside the store, he observed that appellant’s car was moving. After Ratino shouted to appellant that her car was moving, Ratino went around the back of the car, entered the vehicle on the driver’s side while the vehicle was moving, and stopped the car. In ³⁷² the process, appellant was knocked to the ground by the passenger door of her car. At the conclusion of the evidence, the parties discussed jury instructions with the court in chambers.

Following the conference, appellant’s counsel summarized his objections to the proposed instructions, on the record. In addition, appellant’s counsel submitted a legal memorandum to the court addressing his objections to certain instructions requested by appellees. Appellant sought an “intervening/superseding cause” instruction, arguing that Ratino’s act of entering the vehicle and stepping on the accelerator constituted a superseding or intervening cause of the events, notwithstanding any negligence on appellant’s part. Relying on the tripartite test described in Yonce v. SmithKline Beecham Clinical Laboratories, Inc., 111 Md.App. 124, 151 , 680 A.2d 569 , cert. denied, 344 Md. 118 , 685 A.2d 452 (1996), the trial court refused to give a superseding cause instruction.

With respect to the issue of contributory negligence, appellant objected to any instruction concerning the unattended vehicle statute, Md.Code (1977, 1998 Repl. Vol.), § 21-1101 of the Transportation Article (“Trans.”), especially in light of the court’s refusal to give an intervening/superseding cause instruction. Nevertheless, the court approved appellees’ request for a jury instruction concerning Trans. § 21-1101. The following colloquy, which occurred in court, out of the jury’s presence, is pertinent: THE COURT: “To rise to the magnitude of a supervening cause which will insulate the original actor from liability, the new cause must, one, be independent of the original act.” I don’t think the evidence would justify that in this case. “Second, adequate of itself to bring about the result, and three, one whose occurrence was not reasonably foreseeable to the original actor.” I don’t think this case meets that standard either. ³⁷³ The Court in its opinion, because of the failure of the evidence as a whole to meet two of the three elements, which would justify an instruction on supervening or superseding cause, based on the [Yonce ] case, the clients [sic] [declines?] to give a superseding cause instruction. [APPELLANT’S COUNSEL]: Your Honor, I also want to note an objection, if I may, to the Court’s giving [a] contributory negligence instruction.

I think by my request for [a] superseding cause instruction, that it does cancel out the need that may arise otherwise for a contributory negligence instruction. I want to note the fact that I did object to it in chambers, and I do object to it now. THE COURT: Very well. And I will just by way of closing say that the facts which plaintiffs counsel submits to support a supervening cause instruction — and that is Mr. Ratino jumping in the car and hitting the gas pedal — is not independent of the original act.

It’s all part of the same active transaction. It’s not independent of the original act. That said that it’s also, number three, an element, that it was foreseeable to the original actor, that being Mrs. May. So for those reasons, I won’t give the instruction.

In its instructions to the jury, the trial court stated, inter alia: A reasonable person changes conduct according to the circumstances, and a danger that is known, or should be known. Therefore, if the foreseeable danger increases, a reasonable person acts more carefully. To recover damages, or to be barred from recovery, the negligence must be a cause of an injury. There may be more than one cause of an injury.

That is, several negligent acts may work together. Each person whose negligent act is a cause of an injury is responsible. As to contributory negligence, a plaintiff cannot recover [if] the plaintiffs negligence is a cause of the accident. The defendant has the burden of proving by a preponderance of ³⁷⁴ the evidence that plaintiffs negligence was a cause of the accident.

And just two more, because I’m going to read you a statute in a moment. The violation of a statute which is a cause of plaintiffs injuries or damages is evidence of negligence. And finally, Maryland Transportation Article, Section 21.1101, dealing with unattended motor vehicles, reads as follows: It’s entitled Duty of a Driver upon Leaving Unattended Vehicle. “A person driving or otherwise in charge of a motor vehicle may not leave it unattended until the engine is stopped, the ignition locked, the key removed, and the brake effectively set.” After instructing the jury, the court invited counsel to the bench, and appellant’s counsel noted his exceptions. Subsequently, the jury was given a special verdict form containing four questions: 1.

With regard to the Plaintiffs complaint of Negligence, do you find that the Defendant, Lewis Ratino, Jr., was negligent? $ * $ * 2. Do you find that the Defendant’s [sic] negligence was a proximate cause of the injury? % % sfc * 3. Do you find that Florence May was contributorily negligent? $ * * * 4. In what amount, if any, do you award damages____ * $ $ * The jury answered yes to the first three questions and, consequently, did not reach the fourth.

We will provide additional facts in our discussion. ³⁷⁵ Discussion I. As this case involves issues of negligence, we repeat the essential elements of the tort: (1) a duty owed to the plaintiff; (2) a breach of that duty; (3) a causal connection between the breach of duty and the plaintiffs injury; and (4) damages. Rosenblatt v. Exxon Co., U.S.A., 335 Md. 58, 76 , 642 A.2d 180 (1994); Southland Corp. v. Griffith, 332 Md. 704, 712 , 633 A.2d 84 (1993); Yonce, 111 Md.App. at 136 , 680 A.2d 569 . Even if a plaintiff proves that a defendant was negligent, a plaintiff is barred from recovery if the defendant establishes that the plaintiff was contributorily negligent. Harrison v. Montgomery County Bd. of Educ., 295 Md. 442, 451 , 456 A.2d 894 (1983). “ ‘Contributory negligence is the neglect of the duty imposed upon all [individuals] to observe ordinary care for their own safety.

It is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.’ ” Baltimore Gas & Elec. Co. v. Flippo, 348 Md. 680, 703 , 705 A.2d 1144 (1998) (quoting Campfield v. Crowther, 252 Md. 88, 93 , 249 A.2d 168 (1969)). In this case, as we noted, the trial court permitted the jury to consider appellant’s alleged violation of Trans. § 21-1101 as evidence of her contributory negligence. Trans. § 21-1101 provides, in pertinent part: (a) Duty of driver upon leaving unattended, vehicle. — ... a person driving or otherwise in charge of a motor vehicle may not leave it unattended until the engine is stopped, the ignition locked, the key removed, and the brake effectively set. [3] ³⁷⁶ The statute does not define the term “unattended.” The purpose of the statute is primarily to protect the public “against a theft of or tampering with a motor vehicle and to prevent [vehicles] from moving under their own momentum should the brakes fail.” Liberto v. Holfeldt, 221 Md. 62, 66 , 155 A.2d 698 (1959).

To be sure, a violation of the statute may be evidence of negligence, but “it is not per se enough to make a violator thereof liable for damages.” Id. at 65 , 155 A.2d 698 ; see also Hartford Ins. Co. v. Manor Inn, 335 Md. 135, 155 , 642 A.2d 219 (1994); Mackey v. Dorsey, 104 Md.App. 250, 266 , 655 A.2d 1333 (1995). Because she contends that her vehicle was not “unattended” within the meaning of the statute, appellant complains that the trial court erred in instructing the jury as to Trans. § 21-1101. Based on our analysis of cases that have construed the term “unattended” as it is used in the statute, coupled with the plain meaning of the term, we cannot conclude, as a matter of law, that appellant’s unoccupied vehicle was either attended or unattended.

In our view, the matter presented a factual issue for the jury to resolve. It follows that the trial court did not err in giving the instruction. We explain. In Lustbader v. Traders Delivery Co., 193 Md. 433 , 67 A.2d 237 (1949), the Court determined that a driver of a delivery truck did not leave the vehicle unattended when a 17 year old occupant remained inside, even though the occupant did not have a driver’s license and did not know how to drive.

Id. at 438^10, 67 A.2d 237 . The Court said: The statute does not define “unattended”, but a reasonable interpretation is that it means without any one present who is competent to prevent any of the probable dangers to the public. These dangers are different under different circumstances. A car parked on the brow of a hill ... where one danger is that it can start by the force of gravity, requires ³⁷⁷ attendance by one competent to stop it.

On the other hand, where a car is not parked on a perceptible grade, the danger to be guarded against is the interposition of some human agency such as a mischievous child or a prospective thief. In such a case, the attendant would not have to be familiar with the mechanism or the operation of an automobile or the brakes.... The statute does not require a guarantee that a car cannot move or be moved to the damage of the public, but only that the reasonable precaution mentioned be taken. The person in charge of the car complies, so far as not leaving the car unattended, when he leaves with it a person who may be ordinarily capable of coping with the kind of emergencies that may be expected to arise under the particular circumstances of the case.

Id. at 439-40, 67 A.2d 237 (citation omitted). Hochschild, Kohn & Co. v. Canoles, 193 Md. 276 , 66 A.2d 780 (1949), is also instructive. There, the driver of an oil tank truck parked the vehicle on an inclined street in front of a customer’s house. He left the engine running while he walked to the backyard of the customer’s house to tighten the hose connection to the customer’s oil tank.

Although the truck rolled down the hill and crashed into the plaintiffs car, the truck driver argued that the oil truck was not “unattended.” The Court disagreed, stating: The appellant strenuously urges that the car was not unattended, because the driver in charge was back and forth. It would seem that this is answered by the result. He was so far away when the car started, that he could not reach it, and stop it. The truck was certainly, therefore, not attended by anyone who was able to prevent the very thing which the statute was intended to stop.

Id. at 284 , 66 A.2d 780 . Similarly, in Liberto, 221 Md. at 62 , 155 A.2d 698 , the automobile was considered to be unattended when the driver left it unoccupied for less than a minute, with the keys in the ignition, as she went into an animal hospital to get her dog. ³⁷⁸ Collins v. Luper, 12 Md.App. 109, 277 A.2d 445 (1971), is also noteworthy. There, when the driver and two passengers got out of the vehicle to urinate in some nearby bushes, the driver left the keys in the ignition. The driver’s father then drove by and stopped to talk to his son.

In the meantime, one of the occupants who had remained in the car got behind the wheel, drove off, and crashed into a pole, injuring one of the other occupants. Relying on Lustbader , we observed: “The term ‘unattended motor vehicle’ has been held to mean ‘without anyone present [in the vehicle] who is competent to prevent any of the probable dangers to the public.’ ” Id. at 113, 277 A.2d 445 (alteration in original) (quoting Lustbader, 193 Md. at 439 , 67 A.2d 237 ). Accordingly, we held that the car was not unattended, even though the remaining occupants were underage and apparently intoxicated. Of significance to us, the Collins Court did not hold that the determination of “unattended” turns on the occupancy vel non of the vehicle.

We are also guided by our recent decision in Mackey, 104 Md. App. at 250 , 655 A.2d 1333 . In that case, Dorsey was driving to work when he picked up Audrey Cooper, who had been wandering on the highway. Dorsey then stopped his car behind a police officer’s vehicle in the median of the road and got out to ask for assistance. The officer told Dorsey to take Cooper to the hospital.

When Dorsey returned to the car, it would not start. Consequently, he again exited the car, opened the hood, and, with the assistance of the police officer, checked the engine. Thereafter, Dorsey entered the car and successfully started it. While the engine was running, Dorsey got out of the car in order to close the hood.

In the meantime, Cooper, who had remained in the vehicle the entire time, locked the door, pulled away, and collided with a bus that was parked across the street. The bus driver sued Dorsey for negligence, citing Trans. § 21-1101 as evidence of Dorsey’s negligence. We upheld the trial court’s decision granting summary judgment in favor of Dorsey. In reaching that result, we observed that Cooper “very well could have been capable of preventing a third party from stealing the car.” Mackey, 104 Md.App. at 268 , 655 A.2d 1333 . ³⁷⁹ There was no discussion, however, as to whether Dorsey left the vehicle “unattended” when he exited to close the hood.

Instead, we assumed that Dorsey had left the vehicle unattended and held that Cooper’s negligence was an intervening cause that broke the chain of causation initiated by Dorsey’s act. Id. at 273 , 655 A.2d 1333 . We are also mindful of what the Court said in Hartford, 335 Md. at 155 , 642 A.2d 219 : “[A] vehicle is effectively unattended when its operator is far enough away from it so as not to be able to prevent the occurrence at which the statute is directed.” Nevertheless, we do not equate the term “unattended” with the term “unoccupied.” Although the Legislature did not define the statutory term, we are confident that if the Legislature meant to equate “unattended” with “unoccupied,” it would have said so. It is true that the vehicles in Lustbader, Collins, and Mackey were not deemed “unattended” because they were occupied, even though one occupant was an unlicensed minor and another was a disturbed person who the driver did not even know.

Further, we recognize that at least one jurisdiction has construed unattended to mean unoccupied. In Ceen v. Checker Taxi Co., 42 Ill.App.3d 93 , 355 N.E.2d 628, 631-32 (1976), the court held that a taxi driver violated the statute when he left the cab, with the motor running, to return a pair of shoes to a recent fare. Although there was a passenger in the cab when the driver got out of the car, the cabbie did not give any instructions to the passenger. When the cabbie returned, the cab was gone.

It turned out that the passenger had stolen the cab and was later involved in an accident with the plaintiff, who then sued the cab company. In construing the term “unattended,” the court stated: [T]he term “unattended” includes not only the situation where there is no one in the vehicle, but also where there is a person present, but that person cannot be trusted by the owner or is not responsible for watching over the vehicle or does not have immediate access to the vehicle’s controls or ³⁸⁰ is not capable of operating the vehicle if that becomes necessary. Id. 355 N.E.2d at 631-32 . On the other hand, in Carpenter v. Miller, 132 A.D.2d 859 , 518 N.Y.S.2d 67 (1987), the court did not equate “unattended” with “unoccupied.” There, the operator drove into a service station, pulled up to the pump island, got out of the car, and left the motor running while she went into the office to talk to the proprietor.

The court held that the car was not “unattended” because a gas station attendant was “nearby waiting to fill the gasoline tank.” Id. 518 N.Y.S.2d at 69 . In our view, the word “unattended” is not ambiguous; it does not mean “unoccupied.” 4 It is well settled that words used in a statute are accorded “ ‘their ordinary and popularly understood meaning, absent a manifest contrary legislative intention.’ ” Klingenberg v. Klingenberg, 342 Md. 315, 327 , 675 A.2d 551 (1996) (quoting In re Arnold M., 298 Md. 515, 520 , 471 A.2d 313 (1984)). When we interpret a statute with an undefined term, however, we sometimes consult a dictionary. See Rouse-Fairwood Ltd. Partnership v. Supervisor of Assessments, 120 Md.App. 667, 687 , 708 A.2d 19 (1998); Department of Assessments & Taxation v. Maryland-Nat’l Capital Park & Planning Comm’n, 348 Md. 2, 14 , 702 A.2d 690 (1997).

The word “attend” is defined, inter alia, as: “to pay attention to”; “to look after”; and “to be present with.” Merriam Webster’s Collegiate Dictionary 74 (10th ed.1997). The word “occupied” is defined, inter alia, as “to take up (a place or extent in space).” Id. at 804. Clearly, appellant’s vehicle was unoccupied. Moreover, the jury apparently believed that the car was moving.

We also know that appellant did not stop the vehicle, nor did ³⁸¹ she keep Ratino from operating it. Nevertheless, we do not believe that