Ristaino v. Flannery

RODOWSKY, Judge. This automobile collision, personal injury case was tried before a jury and resulted in a defendant’s verdict. We granted certiorari to consider the following question: “Is it reversible error to instruct the jury that the mere happening of the accident creates no presumption of negligence on the part of the defendant where the manner in which the accident happened does indeed create a rebuttable presumption of negligence?” As explained below, our forthright answer is, “It all depends.” In the case before us the giving of the instruction constituted reversible error. Petitioners, Mary Louise Ristaino (Mrs. Ristaino), Carmen A. Fowler, a minor (Carmen), and Mary Fowler, Carmen’s mother and natural guardian, were plaintiffs in the trial court (collectively, Plaintiffs).

On December 4, 1981, Mrs. Ristaino and Carmen were passengers in an automobile being driven by Antonio J. Ristaino (Mr. Ristaino) when a collision occurred between that vehicle and an automobile driven by the respondent, a defendant in the trial court, Linda Ann Flannery (Flannery or Defendant). 1 The collision occurred at about 2:54 p.m. The weather conditions ⁴⁵⁵ were overcast skies, with drizzling, but no freezing. Flannery was proceeding westbound, and the Ristaino vehicle was eastbound on Maryland Route 450 which has only one lane for each direction of traffic. At a point approximately two-tenths of a mile west of the South River Bridge the road curves to the right for westbound traffic.

The posted speed limit for the curve was thirty m.p.h. Flannery failed to negotiate this curve, came over the center line and struck the Ristaino vehicle. It was then standing on the shoulder of the eastbound lane of the highway where Mr. Ristaino had driven and then stopped in an effort to avoid the collision with the Flannery car which had come across the center line approximately one hundred feet before the impact. Flannery testified that she had been traveling forty m.p.h. at the bridge, that she took her foot off the accelerator because of the upcoming curve and that her speed had decreased to what she thought was a safe speed as she entered the curve.

She said she crossed the center line because her car went into a skid and that she tried to pull out of the skid by steering away from the Ristaino car. One of the passengers in the Ristaino car, Teresa Ristaino, estimated the speed of the Flannery vehicle to have been forty-five m.p.h. Among its instructions the court charged the jury that “the mere happening of an accident complained of creates no presumption of negligence on the part of the [defendant,” that “skidding of and in itself is not alone by itself evidence of negligence,” and that “[a] driver who violates the rule of the road ... is prima facie guilty of negligence where the violation directly and proximately causes a collision____” The court also instructed that there was no evidence of contributory negligence. Plaintiffs excepted to the mere happening charge as “inappropriate” in a case where “the vehicle crossed the center line and there is ... prima facie evidence of negligence on the part of the Defendant and where the burden of going forward with the evidence shifts to the Defendant____” ⁴⁵⁶ The jury’s verdict was in favor of Defendant and judgment was entered accordingly.

Plaintiffs appealed to the Court of Special Appeals which affirmed on an analysis involving the nature of true evidentiary presumptions and the weighing of costs and benefits. Ristaino v. Flannery, 76 Md.App. 662 , 547 A.2d 1115 (1988). We-then granted Plaintiffs’ petition for certiorari which raises only the question set forth in the introductory paragraph of this opinion. Plaintiffs submit that proof that an accident was caused by a motorist’s crossing the center line of a highway gives rise to a “presumption” of negligence and that, by also instructing that there was no presumption of negligence arising from the mere happening of the accident, the trial court mislead and confused the jury to the prejudice of Plaintiffs’ case.

Defendant argues that the presumption is only prima facie and rebuttable and that it allows for proof and a finding that the accident is not due to the negligence of the party sued. Consequently, to avoid having the jury believe that, because there was an accident someone must be held responsible, Defendant asserts the mere happening instruction was appropriate here. We can decide the issue presented in this case without becoming embroiled in applying the law applicable to presumptions as such, “the slipperiest member of the family of legal terms, except its first cousin, ‘burden of proof’.” E. Cleary, McCormick on Evidence § 342, at 965 (3d ed. 1984) (McCormick). To support their contention that the rule of the road violation gives rise to a presumption, Plaintiffs cite Cocco v. Lissau, 202 Md. 196 , 95 A.2d 857 (1953).

There, speaking of the statute requiring a motor vehicle to be driven on the right half of the roadway, we said: “A driver who violates this ‘rule of the road’ is prima facie guilty of negligence where the violation directly and proximately causes a collision and injury to another traveler on the road, and the burden is then cast upon the driver to overcome the presumption of negligence by showing that under the circumstances, such as the condition of the road or an emergency in the traffic, he was ⁴⁵⁷ justified in driving in the center or upon the left half of the road. We emphasize, however, that a violation of this rule does not constitute negligence except when it is the direct and proximate cause of the injury.” Id. at 199 , 95 A.2d at 858 . See also Virginia Freight Lines v. Montgomery, 256 Md. 221, 225-26 , 260 A.2d 59, 61 (1969). In addition to sometimes meaning a true evidentiary presumption, “prima facie” is commonly used to describe the production, by the proponent of the existence of a fact, of evidence sufficient to support a finding of the existence of the fact.

See McCormick § 342, note 4; Thomsen, Presumptions and Burden of Proof in Res Ipsa Loquitur Cases in Maryland, 3 Md.L.Rev. 285, 289 (1939) (Thomsen). And “presumption” is sometimes “used as a synonym for ‘inference,’ an act of reasoning.” Thomsen at 288. These ambiguities appear in the authority first cited in Coceo in support of the proposition quoted above, Kelly v. Huber Baking Co., 145 Md. 321 , 125 A. 782 (1924). Kelly involved a motor vehicle collision on a two-lane roadway.

Each operator testified that the other’s vehicle had overhung the center line. This Court held that it was error to instruct that the jury must find for the defendant if it found that the defendant was to the right of the center line at the moment of the collision. Judge Offutt, writing for the Court, said: “While it has been generally held that a violation of such a statute may create a prima facie presumption of negligence, it has never been held in this State to be negligence per se.” Id. at 334 , 125 A. at 787 . Then, quoting Huddy on Automobiles, Ch. 297, the Court explained: “ ‘The distinction between mere “evidence of negligence” and “negligence per se ” is very marked, in that in the former there must be an adjudication as to whether or not the violation constitutes negligence, whereas in the latter negligence necessarily follows the proof of the violation. * * * The rule is different in some jurisdictions where the regulation involved relates to the so- ⁴⁵⁸ called “law of the road.” Driving on the wrong side of the road is not so clearly a wrongful act as driving at a prohibited speed, for the circumstances may be such as to excuse a violation of the law of the road.

Hence the violation is generally said to be prima facie negligence, and the violator of the rule is given an opportunity to rebut the inference of negligence arising against him.’ ” Id. at 335-36 , 125 A. at 788 . If violation of the rule of the road requiring a motor vehicle ordinarily to be driven to the right of the center line creates a true evidentiary presumption of negligence, its foundation as a presumption lies in probability. See McLain, Maryland Evidence § 301.3, at 221 (1987). That same foundation will also give rise to an inference of negligence.

In the case sub judice it does not make a particle of difference whether, from the evidence that Flannery crossed the center line, Plaintiffs’ proof of Flannery’s negligence arose as an inference or by operation of a presumption. The distinction between a true evidentiary presumption and an inference, when used to prove primary negligence, is important as to the defendant’s risk of a directed verdict for the plaintiff. See McCormick § 342, at 965. The risk arises if the defendant fails to meet the burden of going forward with evidence “Insufficient to be considered by the jury in rebuttal of the presumption____” Grier v. Rosenberg, 213 Md. 248, 255 , 131 A.2d 737, 740 (1957).

Here, Flannery came forward with evidence and Plaintiffs do not contend they were erroneously denied a directed verdict on liability. The presumption-inference distinction may also bear importantly on instructions. See Grier (plaintiff entitled to an instruction properly explaining the presumption of agency from vehicle ownership). In the instant matter, the trial court instructed that there was a presumption of negligence from a violation of a rule of the road, and Plaintiffs took no exception to that aspect of the charge. ⁴⁵⁹ A true evidentiary presumption might also place the ultimate burden of persuasion concerning the subject of the presumption on the party against whom the presumption operates.

Compare McCormick § 344(B), at 979 (“Many writers came to the view that the better rule for all presumptions would provide that anything worthy of the name ‘presumption’ has the effect of fixing the burden of persuasion on the party contesting the existence of the presumed fact.” (footnote omitted)) with Thomsen at 298 (interpreting Maryland cases through 1939 in which a rebuttable presumption was based on probability so as to put on the defendant a burden to go forward with the evidence, but not a burden of persuasion). Here no exception has been taken to the trial court’s assignment of the burden of persuasion on the issue of primary negligence. Consequently, the question presented requires only that we decide whether the trial court erred, and, if so, whether prejudicially, in the way it combined the mere happening instruction with the prima facie negligence instruction. I As an abstract proposition, the position taken by Defendant in this case is correct.

The mere happening of an accident, even with resulting harm, e.g., that the plaintiff slipped and fell on the land occupier’s premises, or that two motor vehicles collided, considered in a factual vacuum devoid of the surrounding facts and circumstances, does not involve any proof of negligence. Jurors, however, are not generally given to conceptualizing about accidents in the abstract. When the trial judge instructs, jurors rightfully assume that the judge is talking about the case before them and is stating the law to be applied by the jurors, unless the instruction properly explains otherwise. The problem of inconsistent instructions was well described in a California case where the plaintiff’s evidence, if believed, would have been sufficient to support a finding of primary negligence under California’s version of res ipsa loquitur and where the trial judge also gave a ⁴⁶⁰ mere happening instruction.

In Shaw v. Pacific Greyhound Lines, 50 Cal.2d 153, 156 , 323 P.2d 391, 392-93 (1958), the court said: “Although it is proper in many cases to give an instruction that the mere happening of an accident does not support an inference of negligence, a problem arises where, as here, there is evidence warranting the application of the doctrine of res ipsa loquitur. It is apparent that an instruction like the one quoted above contains an idea which might be understood by a layman to be inconsistent with the