Nationwide Mutual Insurance v. Anderson

DAVIS, Judge. On June 10, 2002, appellee Gail Anderson 1 filed a Complaint as personal representative of her deceased daughter’s estate against Renardo and Sean Clyburn and appellant Nationwide Mutual Insurance Company (Nationwide) 2 in the Circuit Court for Prince George’s County. A settlement was reached between appellant and Renardo and Sean Clyburn; the Clyburns were subsequently dismissed from the action on October 10, 2002. The matter proceeded to trial on July 8, 2003 and, on July 9, 2003, the jury returned a verdict in favor of appellee and awarded appellee $155,000 in damages.

On appellant’s motion, and with appellee’s consent, the award was reduced to $80,000. On July 11, 2003, appellant filed a Motion for Judgment Notwithstanding Verdict, which was denied by the trial judge (Clarke, J.). Appellant timely filed an appeal on October 29, 2003. Appellant presents one question for our review, which we re-phrase as follows: Did the trial court err in denying appellant’s Motion for Judgment Notwithstanding Verdict? ³⁵¹ We answer the question in the affirmative and, accordingly, reverse the judgment of the circuit court.

FACTUAL BACKGROUND At the time of the events at issue, appellee, a police officer for the District of Columbia Police Department, lived with her four children in Landover, Prince George’s County, Maryland. At approximately 6:30 p.m. on March 25, 2000, appellee’s sixteen-year-old daughter, Shereka Jones, asked appellee for permission to go skating with her friend, Tamarah Willing-ham, who was also sixteen years old. After getting appellee’s approval, Jones left the house. While appellee was under the impression that Jones was going to walk over to Willingham’s house, Jones, instead, got into a white Cadillac Eldorado (Cadillac) driven by an individual who referred to himself as Sean Clyburn.

It was later determined that the individual driving the Cadillac was actually Sean’s brother, Renardo Clyburn, 3 who was twenty-nine years old at the time. Clyburn, Jones, and another passenger named Louis then picked up Willingham at her house in Landover. Willingham testified that she had never met or seen Jones with Clyburn prior to that day. While the initial plan was for Jones and Willingham to go roller-skating, instead the group proceeded to a movie theater in Tyson’s Corner, Virginia.

On the way to Virginia, Clyburn stopped at a liquor store in Washington, D.C. and bought two cans of beer. According to Willingham’s testimony, Jones drank both cans of beer. The group arrived in Tyson’s Corner, watched a movie, and then, proceeded back to Maryland. After dropping off Louis at his home, Clyburn, Jones, and Willingham drove to Willingham’s house.

Their respite at Willingham’s house was brief and, from there, the three drove to Jimmy’s, a liquor store in Landover. According to Willingham’s testimony, Clyburn purchased “some brown liquor” and some alcoholic “fruit coolers” for Willing- ³⁵² ham and Jones. All three occupants of the vehicle began drinking in the parking lot of the liquor store. According to Willingham’s testimony, not only did she and Jones drink the “fruit coolers,” but she witnessed Jones and Clyburn drinking the “brown liquor,” as well.

As the vehicle was still parked in the lot outside of the liquor store, Jones asked Clyburn if she could drive the Cadillac and Clyburn obliged. The undisputed evidence in the record shows that, at the time of the alleged events, Jones did not have her license and had not otherwise received any driver training prior to that point. Nonetheless, Jones drove the Cadillac, with Clyburn in the passenger seat and Willingham in the rear seat, from the liquor store into Washington D.C. From there, Jones drove the group to an apartment complex in Temple Hills, where Clyburn’s attempt to locate a friend who lived in the complex was unsuccessful. After Clyburn returned to the vehicle, Willingham requested to be driven home.

As Jones drove the Cadillac out of the parking lot of the apartment complex, she struck a parked car. Willingham testified that Clyburn instructed Jones “to keep going.” Upon arriving at Willingham’s house in Landover, Jones and Willingham exited the vehicle. Willingham testified that she expected Jones to stay the night at her house. Clyburn, however, asked Jones to “come with him.” Jones got back into the Cadillac with Clyburn and left Willingham at her house.

At trial, Darrell Bumbray testified that, in the early morning hours of March 26, 2000, he, his friend, Ryan Ifill, and another passenger were driving back from a club in Washington D.C. in Ifill’s Nissan Stanza (Nissan). According to his testimony, they were traveling southbound on Branch Avenue and stopped at an intersection in front of a mall in Marlow Heights. Next to the Nissan was another vehicle and behind that vehicle was the Cadillac being driven by Jones. The group in the Nissan made visual contact with Jones as the cars were still stopped at the stoplight.

Bumbray testified that, when the stoplight turned green, ³⁵³ [t]he Aeura and [our Nissan], we both had took off and we are just driving and we got by the Chevrolet dealership down the street from where the light was and I saw a car coming up real fast in the rearview mirror and when [Jones] was beside us [she] put the middle finger [sic], it was with the left hand, and was driving with the right hand and she couldn’t control [the Cadillac] going around the bend and the rear of the [Cadillac] smacked the front of us and we both started sliding to the side. The Nissan slid sideways into a culvert on the shoulder of Branch Avenue. None of the passengers in the Nissan was injured. According to Bumbray’s testimony, after the Nissan came to a stop, he, Ifill, and the other passenger exited the vehicle and approached the Cadillac, which had come to a stop farther down on Branch Avenue.

Bumbray stated that the Cadillac had flipped over and was resting on its roof. Clyburn emerged from the vehicle out of the driver’s side door from the passenger side. According to Bumbray, once he was out of the Cadillac, Clyburn exclaimed, “ ‘That bitch can’t drive.’ ” Bumbray and his companions initially noticed that Jones was no longer in the vehicle. They found her in a ditch just a few feet in front of the Cadillac, not moving and bleeding profusely.

Jones was later pronounced dead at the scene. The Reeonstruction/Report of Investigation (Report) completed by Corporal Teresa Watson of the Prince George’s County Police Department, which was admitted into evidence at trial, postulated that, at approximately 2:42 a.m. on the night in question, the Cadillac, driven by Jones, crossed over from the right lane to the left lane, where the Nissan was driving. The Cadillac struck the right front fender of the Nissan, which caused the Nissan to slide sideways and into a culvert off of the shoulder of Branch Avenue. After the initial collision, the Cadillac, the Report suggests, “began to rotate counter clockwise and onto its side. [The Cadillac] slid on its side along the roadway edge for approximately 200 feet and came to rest on its roof.

The driver of [the Cadillac] was thrown from the vehicle just prior to the vehicle’s rest.” At trial, Officer Watson concluded that, at the time of the acci ³⁵⁴ dent, Jones was sixteen years of age, did not possess a driver’s license, had a blood/alcohol content of .17, and was not using a seat belt. After taking measurements of the skid marks, the grade of the roadway, and the level of friction of the asphalt on Branch Avenue, she calculated that, at a minimum, the Nissan was traveling seventy-three miles-per-hour and the Cadillac was traveling eighty-seven miles-per-hour. The uncontroverted evidence in the record indicates that the maximum speed limit on that portion of Branch Avenue was fifty miles-per-hour. At the conclusion of all of the evidence at trial, appellant’s counsel orally made a motion for judgment, upon which the trial judge reserved ruling.

Appellant’s trial counsel additionally objected to the trial judge instructing the jury on, inter alia, the doctrine of last clear chance. The trial judge overruled the objection and, subsequently, instructed the jury on the doctrine. The jury returned a special verdict in appellee’s favor, finding that Clyburn was negligent, Jones was contributorily negligent, and that Clyburn had the last clear chance to avoid the accident. The appellant filed a Motion for Judgment Notwithstanding Verdict (Motion).

On October 20, 2003, appellant’s Motion was denied. This appeal followed. LEGAL ANALYSIS Appellant’s sole assignment of error on this appeal, as set forth in its brief, is: Plaintiff never presented evidence of Clyburn’s consequential negligence, instead arguing again and again his primary negligence. There must be two acts of negligence, interrupted by the plaintiffs negligence, in order for the [last clear chance] doctrine to apply.

A review of the uncontested facts in the motor vehicle accident report and trial transcript indicate Jones was negligent. Moreover, her negligence was the final negligent act and concurrent with her death. ³⁵⁵ For Jones to recover under the doctrine of last clear chance, she needed to demonstrate that her negligence had ceased and that Clyburn had an opportunity to avoid his original negligence and Jones’ contributory negligence. No such evidence was presented by Jones. Adverting to the facts that Clyburn had provided the sixteen-year-old driver with the keys to the car, permitted her to proceed to drive the vehicle, and was in the passenger seat within reach of the ignition and steering column, appellee argues that “[t]he last clear chance to avoid this accident presented itself to defendant Clyburn when an intoxicated and un-licensed sixteen year old Shereka Jones exited his vehicle, intending to spend the night with her girlfriend.

Unfortunately, Mr. Clyburn failed to avail himself of this opportunity and called Ms. Jones back to his vehicle and put her behind the wheel, sealing her tragic fate. That act, in and of itself, was enough to warrant giving the requested jury instruction on last clear chance, and to support a jury finding in favor of appellee.” In count one of the complaint, specifically paragraph 24, citing Jones’s inexperience and intoxicated condition, appellee alleged negligent entrustment. 4 The sum total of appellant’s argument is that the trial judge erroneously instructed the jury on the doctrine of last clear chance because it is undisputed that Jones’s contributory negligence occurred concurrently with Clyburn’s primary negligence. Clyburn, appellee avers, had a fresh opportunity to prevent the injury to Jones from the time Jones re-entered the Cadillac after Willingham departed to the moment the accident occurred on Branch Avenue. I Maryland Rule 2-532(a) provides that, “[i]n a jury trial, a party may move for judgment notwithstanding the verdict ³⁵⁶ only if that party made a motion for judgment at the close of all the evidence and only on the grounds advanced in support of the earlier motion.” In the event that a trial court “reserves ruling on a motion for judgment made at the close of all the evidence, that motion becomes a motion for judgment notwithstanding the verdict if the verdict is against the moving party....” Md. Rule 2-582(b).

In essence, a motion for judgment notwithstanding verdict (JNOV) “tests the legal sufficiency of the evidence.” Impala Platinum Ltd. v. Impala Sales (U.S.A.), Inc., 288 Md. 296, 326 , 389 A.2d 887 (1978). Our goal when reviewing the trial judge’s denial of appellant’s Motion is to “determine whether the record contains legally relevant and competent evidence, however slight, from which a jury rationally could have found in appellee’s favor.” Southern Management Corp. v. Taha, 137 Md.App. 697, 714 , 769 A.2d 962 (2001), rev’d on other grounds, 367 Md. 564 , 790 A.2d 11 (2002). We are required to view the evidence in a light most favorable to the prevailing party and “ ‘assume the truth of all evidence and inferences as may naturally and legitimately be deduced therefrom....’” Houston v. Safeway Stores, Inc., 346 Md. 503, 521 , 697 A.2d 851 (1997)(quoting Smith v. Bernfeld, 226 Md. 400, 405 , 174 A.2d 53 (1961)). The denial of a motion for JNOV is in error, however, “[i]f the evidence ... does not rise above speculation, hypothesis, and conjecture, and does not lead to the jury’s conclusion with reasonable certainty....” Jacobs v. Flynn, 131 Md.App. 342, 353 , 749 A.2d 174 (2000).

Additionally, we may reverse the trial court’s judgment if the denial of appellant’s Motion was “legally flawed.” Taha, 137 Md.App. at 714 , 769 A.2d 962 . II The doctrine of last clear chance has been applied in this State for over 130 years and has remained relatively unchanged during that time. See Ritter v. Portera, 59 Md.App. 65, 70 , 474 A.2d 556 (1984)(discussing The N. Cent. Ry.

Co. v. Maryland, ex rel. Adeline Price, 29 Md. 420 (1868)). Essentially, the last clear chance doctrine is a plaintiffs defense to a defendant’s allegation that the plaintiff was contributorily ³⁵⁷ negligent. See State, ex rel.

Kolish v. Wash., Baltimore & Annapolis Elec. R.R. Co., 149 Md. 443