Miller v. Montgomery County

BLOOM, Judge. In this action for personal injuries sustained by appellant, Andrew Kenneth Miller, in a motor vehicle collision, the Circuit Court for Montgomery County directed a verdict in favor of the appellees, Bruce T. Neel, James M. Leslie, Jr., and Montgomery County, Maryland. Appealing from the ensuing judgment against him, Mr. Miller contends: I. The trial court erred in granting a directed verdict as to all defendants where evidence of negligence existed as to each.

II

The court erred in sustaining a demurrer to the plaintiff’s allegation of spoilation [sic] of evidence because the count stated a separate cause of action for which relief could be granted. Cross-appealing, Montgomery County asserts III. The appellant’s expert, Dr. Parsonson, was not competent to offer an opinion on causation regarding a purported defect of the MM3 device on September 19 or September 10, 1980, because he had no expertise in the repair and maintenance of electromechanical devices and because he relied on the opinions of another expert whose opinions were not in evidence.

IV

Assuming appellant’s expert was competent to offer an opinion on causation, nonetheless the appellant failed to establish a sufficient factual basis for such an opinion. We shall affirm the judgment as to appellee Neel but reverse as to appellees Leslie and Montgomery County. In explaining our reasons for doing so, we shall first dispose of the cross-appellant’s issues and then discuss the appellant’s issues in reverse order. ²⁰⁶ FACTS The collision which gave rise to this litigation occurred at approximately 8:15 p.m. on September 19, 1980, at the intersection of Briggs Chaney Road and Columbia Pike (U.S. Route 29) in Montgomery County. Miller was a passenger in an automobile driven by Neel, which was travelling east on Briggs Chaney Road.

Confronted with a red light at the intersection of Briggs Chaney Road and Route 29, Neel brought his car to a stop. When the traffic signal light facing him turned to green, Neel proceeded into the intersection. The Neel automobile had traversed the southbound lanes of Route 29 and the median strip and was crossing the northbound lanes when it was hit broadside by appellee Leslie’s northbound vehicle. Route 29 is, for the most part, a four lane highway, with two northbound lanes separated from two southbound lanes by a median strip.

As it approaches this intersection, however, it widens to eight lanes, providing right and left turn lanes in addition to the through lanes. Briggs Chaney Road has one eastbound lane and one westbound lane. The signal lights governing northbound and southbound traffic on Route 29 and eastbound and westbound traffic on Briggs Chaney Road are suspended from wires over the intersecting lanes. Signal lights governing left turns from Route 29 into Briggs Chaney Road are mounted on poles in the median strip that separates the northbound from the southbound lanes of Route 29.

The accident was investigated by Maryland State Trooper Frederick Hartley. Appellee Leslie explained to Hartley that he was proceeding northbound on Route 29, came upon the intersection and proceeded through because he observed no traffic signal of any kind controlling northbound traffic on Route 29. He was unfamiliar with the area and thus unaware that there was a controlled intersection. He did not see Neel’s car until he was almost upon it.

An eyewitness, Wade Matthews, who was driving northbound on Route 29 behind the Leslie vehicle, confirmed Leslie’s state ²⁰⁷ ment that no traffic signal was lit to control the northbound through traffic on Route 29. Trooper Hartley subsequently contacted Montgomery County’s Traffic Signal Unit with respect to the apparent failure of the signal light. He arranged to meet with Robert Gerhart, a signal technician, at the intersection on September 23. Gerhart arrived first.

After viewing the signal lamps themselves from all directions, Gerhart opened the cabinet that houses the electronic components which control the signal lamps. After visually inspecting the components and checking for loose wires or connections, Gerhart attached test lamps with alligator clips to certain components in the cabinet. By then Trooper Hartley had arrived on the scene. Gerhart and Hartley continued to observe the traffic signal lights for several minutes before a malfunction occurred.

A southbound car on Route 29 received a green arrow signal permitting it to turn left onto Briggs Chaney Road, with the signal lamp facing northbound traffic turning to red. After about ten seconds, however, the red light faded out, leaving no signal for northbound traffic for one complete cycle. The test lamps installed by Mr. Gerhart indicated that the failure was in a component known as an MM3, which controls the lights when the presence of a vehicle in the left turn lane triggers a change in the traffic signals to permit a left turn (minor movement) across the northbound lanes of Route 29. Having a spare part in his van, Gerhart replaced the MM3, sealed the defective one with tape along its seam, put a tag on it to indicate that it may have been the cause of an accident and took it to the Traffic Signal Unit’s shop for safekeeping and eventual testing.

Trooper Hartley was appellant’s first witness. He described his investigation at the scene on September 19 and his meeting with technician Gerhart four days later and testified that Gerhart told him on the 23rd that the malfunc ²⁰⁸ tions of the light on the 19th and the 23rd were both caused by the faulty MM3. Wade Matthews testified that he was travelling north on Route 29 about three or four car lengths behind Leslie’s vehicle. Matthews noticed several cars stopped in the left turn lane and a red signal light mounted on a pole to the left of the left turn lane.

He then noticed headlights coming from the left on Briggs Chaney Road. The impact occurred “a split second” after he saw the headlights. Matthews also testified that no signal light was lit for the northbound Route 29 traffic and that it was necessary for him to “lock up his brakes” in order to avoid colliding with the two vehicles already in the intersection. Leslie testified that he was driving northbound on Route 29 at about 50 miles per hour.

He saw no traffic light ahead of him, but when he was about 50 to 75 feet from the intersection he saw a red light (presumably the left turn signal) to his left. Immediately thereafter, he saw headlights coming from the left, and then the crash occurred. Leslie testified that he never applied his brakes. He stated that he was not familiar with the area and was unaware that he was approaching an intersection until he was prac-' tically in it.

On cross-examination, Leslie conceded that he had never seen an intersection where there were traffic signals controlling only left turns without controlling through traffic. Testimony was also received from several Montgomery County Traffic Signal Unit employees. Henry Knupple, Traffic Signal Unit supervisor, explained the county’s system for keeping records of problems and service calls for each intersection. The log for the Briggs Chaney Road and Route 29 intersection was admitted into evidence.

That log showed that the county had received a call from a Traffic Signal Unit employee, Michael Carr, on September 10, 1980, ²⁰⁹ reporting an “intermittent red” signal on Route 29. 1 An intermittent red was defined by Knupple as a serious and infrequent problem with a traffic signal, whereby the red signal malfunctions at unpredictable times. In response to Carr’s telephone call, technician Albert Ganz was dispatched to check out the intersection. Ganz watched the signals for about twenty minutes without observing any malfunction. He then checked the cabinet housing the electronic components controlling the traffic light.

Ganz testified that he examined some of the contacts and then put a test lamp on the output of one of the components, called the SR4, a main load switch, the output from which operates the red light. This test indicated that the SR4 and every other component through which current flows to reach the SR4 was working correctly. On cross-examination, he admitted, in effect, that the test lamp told him nothing that was not apparent from merely observing that the red light itself was working. In order for the red light to work, current must reach it; all of the components through which that current flows must perforce be functioning at the time if current is reaching the light.

Finding nothing specifically wrong with the components in the cabinet, Ganz decided to replace the SR4 as a “preventative maintenance measure” and not to alleviate the problem. Indeed, since he saw no problem, he said, he was not convinced that one existed. Ganz did aver, however, that he believed the SR4 component would be the most likely cause of an intermittent red. Technician Gerhart, who checked the intersection signals on September 23, also testified as a witness for appellant.

Gerhart stated that he met Trooper Hartley at the intersec ²¹⁰ tion. While observing the signals, Gerhart noticed that the light controlling Route 29 northbound traffic turned red and then disappeared after about 10 seconds. The test lamps Gerhart had placed on the components indicated that an MM3, or minor movement controller component, was the cause of the intermittent red. He resisted all attempts to extract from him an opinion that the MM3 had been the cause of the intermittent red reported on September 10 or the intermittent red which was allegedly a cause of the collision on September 19, and he denied telling Trooper Hartley that the faulty MM3 he replaced on September 23 was the cause of the malfunction in the signal light on September 19.

Gerhart stated that the SR4 would be the most likely cause of an intermitent red with the MM3 being the next most likely cause. He also testified that an intermittent red was a very unusual occurrence. Appellant’s expert witness, Dr. Peter Parsonson, a specialist in traffic engineering, opined that because an intermittent red is a dangerous condition, the proper procedure for alleviating an intermittent red when the cause is unknown is to replace or “swap out” every component that could possibly be causing the problem. Parsonson believed, therefore, that Ganz acted improperly in failing to swap out the MM3 as well as the SR4.

(That opinion was at variance with one earlier stated by Henry Knupple, who claimed that Ganz acted properly in replacing the SR4 and that it would have been wrong for Ganz to have replaced the MM3 that was apparently functioning properly with a spare one from his van because “MM3’s are notorious for not wanting to work.”) Parsonson also opined that Ganz’s failure to swap out the MM3 on September 10 was a proximate cause of the intermittent red on September 19. At the close of appellant’s case, all of the appellees moved for a directed verdict. The trial judge granted all three motions but explicated his reasoning only as to Montgomery County. The judge believed that as to Montgomery County the case was controlled by the rule in Langville v. Glen Burnie Lines, 233 Md. 181 , 195 A.2d 717 (1963), and Stras ²¹¹ burger v. Vogel, 103 Md. 85 , 63 A. 202 (1906), from which he derived the following: The well established rule of evidence is that the burden mentioned above [burden of prooQ is not met by proof adduced by the plaintiffs to the effect that defendant’s negligence may have caused the injury or even that it probably did cause them if it also appears from the plaintiff’s own evidence that the injuries may have resulted from some other cause for which the defendant is not responsible.

EXPERT OPINION TESTIMONY OF DR. PARSONSON The first issue raised by the cross-appeal concerns Dr. Parsonson’s ability to render an opinion as to the cause of the signal malfunctions on September 10, September 19 and September 23. Specifically, Montgomery County contends that because Parsonson admitted he was not able to take apart or repair an MM3 and had to rely on technician Richard Brown to inspect the device he should not have been permitted to give the opinion that the MM3 was the cause of the dysfunctions. We disagree.

The general rule with respect to the admission of expert testimony was stated in Wilson v. State, 181 Md. 1, 6 , 26 A.2d 770 (1942). To qualify as an expert, a witness should have such special knowledge of the subject about which he is to testify thát he can give the jury assistance and guidance in solving a problem for which their equipment of average knowledge is inadequate. It is sufficient if the court is satisfied that the expert has in some way gained such experience in the matter as to entitle his evidence to credit. In the case sub judice, Dr. Parsonson testified that he had a Ph.D. in civil engineering with a specialty in traffic engineering, including signalization and highway design and construction.

He taught courses at Georgia Tech in traffic signals, coordinated systems, and had been qualified as an ²¹² expert in traffic signalization in several judicial proceedings. Parsonson did state, however, that he did not perform hands-on repair of signal components; rather, he left such work to an electronic technician. He explained that he had some knowledge of the circuitry involved in the components such as the SR4 and MM3 but that he would be unable to repair a broken component. Based upon those facts, we find no error in the trial judge’s decision to permit Parsonson to give an opinion as to the cause of the intermittent traffic light failures on the days in question.

Parsonson’s specialized knowledge and expertise in the field of traffic control signals were sufficient to justify a conclusion that he qualified as an expert in that area. Wilson, supra. As the Court of Appeals noted in Radman v. Harold, 279 Md. 167, 171 , 367 A.2d 472 (1977), “[W]e perceive no reason why a person who has acquired sufficient knowledge in an area should be disqualified as [an expert] ... merely because he has never personally performed a particular procedure.” (emphasis in original) We believe Radman fully disposes of cross-appellant’s assertion that Dr. Parsonson should not have been permitted to express an opinion on the dysfunctioning MM3 merely because he was unable to take apart or repair the component. PARSONSON’S OPINION AS TO CAUSATION Having concluded, supra, that Dr. Parsonson was competent to offer an opinion on causation, we turn to Montgomery County’s argument that Miller “failed to establish a sufficient factual basis for such an opinion.” This contention is utterly without merit.

Before Dr. Parsonson testified, evidence had already been adduced that three incidents of intermittent failures of the red traffic signal controlling northbound traffic on Route 29 at the intersection of Briggs Chaney Road had been noted ²¹³ in less than two weeks. Several witnesses had testified that such failures are rare occurrences, and one witness had stated that “MM3’s are notorious for not wanting to work.” The investigating officer, Trooper Hartley, had testified that technician Gerhart told him on September 23 that the traffic light malfunction on September 19 was caused by the same defective MM3 Gerhart replaced on the 23rd (although Gerhart later denied having made such a statement to Hartley). Technician Gerhart had testified that the intermittent red he observed on September 23 was definitely caused by a faulty MM3. All of that evidence supported the opinion of Dr. Parson-son that technician Ganz had negligently failed to use proper procedure to correct the cause of the intermittent red by failing to swap out all components that could possibly have caused the malfunction.

The testimony of the other witnesses, coupled with Parsonson’s opinion that Ganz was negligent, constituted a sufficient factual basis for his secondary opinion that Ganz’s negligence on the 10th was the