Ristaino v. Flannery

BISHOP, Judge. Plaintiffs below, Mary Louise Ristaino, Carmen A. Fowler and Mary Fowler 1 appeal from a jury verdict entered in the Circuit Court for Anne Arundel County (Goudy, J.) in favor of the appellee, Linda Ann Flannery. 2 Appellants present the Court with three issues: I. Where the cause of an accident was admittedly appellee’s vehicle being on the wrong side of the center line of the road, did the trial court commit reversible error by instructing the jury that “the mere happening of an accident creates no presumption of negligence” when the jury was also instructed that appellee’s crossing of the center line raises a presumption that appellee was negligent?

II

Was there sufficient evidence to justify the trial court’s instruction to the jury that “when a driver of a motor vehicle is faced with a sudden emergency, which was not created by that driver’s own negligent conduct, the driver must exercise reasonable care of a person in the circumstances”? ⁶⁶⁵ III. Did the trial court err in denying appellant’s motion for judgment and motion for judgment not withstanding the verdict? For the reasons below we affirm the rulings of the circuit court. FACTS On the afternoon of December 4, 1981, Antonio J. Ristaino, accompanied by his wife, Mary Louise Ristaino, his daughter, Teresa Marie Ristaino, and his granddaughter, Carmen A. Fowler, was driving easterly on State Route 450.

Approximately one-quarter mile east of the intersection of State Route 450 and Rutland Road, as their car rounded an approximately 90 degree curve, it was struck, head on, by a vehicle operated by Linda Ann Flannery. The general speed limit on that route is 50 miles per hour with a posted safe speed of 30 miles per hour at the curve. The parties stipulated at trial that the accident was caused when the Flannery vehicle crossed the double yellow line into the Ristainos’ lane. No evidence was offered by Ms. Flannery as to any negligence on the part of Antonio Ristaino.

The only evidence on liability produced by appellee was her own testimony. She testified that it was drizzling but not freezing, that she was traveling at a safe speed, somewhere under 40 miles per hour, and that as she approached the apex of the curve on the inside lane, for some unexplained reason, her vehicle skidded over the center line into the Ristainos’ lane and struck the appellants’ car. Ms. Flannery testified that she tried to steer away from the Ristaino vehicle but her vehicle would not respond. The appellants advise us that at the close of the evidence, while in the judge’s chambers and off the record, they made a motion for judgment, which was denied.

The judge then instructed the jury, inter alia, that: You are instructed that the mere happening of an accident complained of creates no presumption of negligence on the part of the Defendant____ Rather, the ⁶⁶⁶ burden is on the Plaintiff to prove by a fair preponderance of affirmative evidence satisfactory to you that the Defendant was negligent in the operation of her vehicle ____ A driver who violates the rule of the road and I’ll give you the rules in a minute, 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 situation in traffic, he was justified in driving in the center or ... upon the left half ... of the roadway____ You’re further instructed that when a driver of a motor vehicle is ... faced with a sudden and real emergency which was not created by that driver’s own negligent conduct, the driver must exercise reasonable care for his safety and for the safety of others. The reasonableness of the driver’s action must be measured by the. standard of the acts of other drivers of ordinary skill and judgment faced with the same situation. The driver is not to be held to the same coolness or accuracy of judgment which is required of a person who had had an ample opportunity fully to exercise judgment____ The appellants noted an exception to each of these instructions, which exceptions were denied. The circuit court also denied appellants’ post trial motions for judgments notwithstanding the verdicts and for a new trial.

I. “Mere Happening” Instruction Appellants claim that the trial court committed reversible error when it gave the “mere happening of an accident” instruction. They argue that it was “ambiguous, misleading or confusing to the jurors” to instruct them that, on the one hand, Ms. Flannery was presumed to be negli ⁶⁶⁷ gent but at the same time to tell them that the mere happening of an accident creates no presumption of negligence. We do not agree. We look first at the individual instructions and then at the combined effect of both within the context of all of the applicable instructions and the facts of the case.

(a.) The Individual Instructions A presumption of negligence created by the basic fact that a driver was on the wrong side of the road is called a “true evidentiary presumption.” 3 See McClain, Maryland Evidence, § 301.le (1987). Its effect is to shift the burden of production as to the presumed fact (negligence of the driver who crossed the center line) to the opposing party. See, Gilbert v. State, 36 Md.App. 196, 203 , 373 A.2d 311 (1977). Once the burden of production has shifted, one of four possible scenarios should occur: If the defendant does not offer any evidence to rebut the presumption then the court should instruct the jury that if they find the basic facts which give rise to the presumption then they must find the presumed fact.

Grier v. Rosenberg, 213 Md. 248, 254 , 131 A.2d 737 (1957). Alternatively, If there is countervailing evidence that is so slight as to be insufficient to be considered by the jury in rebuttal of the presumption, the court [again] should grant an instruction giving full benefit of the presumption. On the other hand, the countervailing evidence may be so conclusive that it shifts the burden or duty of going forward with the evidence back to the plaintiff, in which event the defendant would be entitled to a directed verdict, if the plaintiff does not produce evidence in reply, unless there ⁶⁶⁸ is already evidence in the case tending to contradict the defendant’s evidence. (In the immediate preceding scenario the jurors would not receive any instruction regarding the presumption.

McClain, Maryland Evidence, § 301.2(c) at 202). And finally: [TJhere may be times when the evidence may fall between the two categories mentioned above, in which event the issue ... should be submitted to the jury. Bratton v. Smith, 256 Md. 695, 703 , 261 A.2d 777 (1970) (citing Grier v. Rosenberg, 213 Md. at 254 , 131 A.2d 737 ). In this last scenario there has been wide disagreement as to the proper form of jury instructions.

Under the Thayer/Wigmore 4 position the “bubble” of the presumption is burst by the offering of rebuttal evidence and the presumption disappears, removing the need for any instruction. McCormick on Evidence § 345(A) (2nd ed. 1972). The Court of Appeals has rejected this view and instead has adopted the McCormick position that: [I]t is a more natural practice, ... to mention the presumption, so that the jury may appreciate the legal recognition of a slant of policy or probability as the reason for placing on the party this particular burden”. (Italics supplied.) Grier v. Rosenberg, 213 Md. at 254 , 131 A.2d 737 (citing McCormick on Evidence pp. 667-672 (1954 Ed.)).

In so doing, the Court has clearly chosen the more difficult path for the trial judges. As McCormick himself admits: [T]he manner in which the jury is to be informed has been a matter of considerable dispute and confusion. The baffling nature of the presumption as a tool for the art of thinking bewilders one who searches for a form of phrasing with which to present the notion to a jury. Most of the forms have been predictably bewildering. ⁶⁶⁹ McCormick, supra, at 825.

McCormick identifies two preferable methods for instructing the jury so as to minimize the confusion. He suggests that either: [T]he judge instruct the jury that the presumption is to stand accepted, unless they find that the facts upon which the presumed inference rests are met by evidence of equal weight, or in other words, unless the contrary evidence leaves their minds in equipoise, in which event they should decide against the party having the burden of persuasion upon the issue. It is hard to phrase such an instruction without conveying the impression that the presumption itself is “evidence” which must be “met” or “balanced.” The overriding objection, however, is the impression of futility that it conveys. It prescribes a difficult metaphysical task for the jury, and, in actual use, may mystify rather than help the average juror.

McCormick, supra, at 825. Or, alternatively, for the judge [SJimply to mention the basic facts of the presumption and to point out the general probability of the circumstantial inference as one of the factors to be considered by the jury. By this technique, however, a true presumption would be converted into nothing more than a permissible inference. Id 5 The judge’s instruction to the jury in the case sub judice is a proper example of McCormick’s first alternative instruction to be used in cases where the evidence to counter the presumed fact (that the defendant was negligent) does not absolutely confirm or destroy the presumption and the validity of the presumption is thereby left to the jury.

In light of Ms. Flannery’s rebuttal evidence that she was going ⁶⁷⁰ a safe speed and could not explain why her car skidded on the wet road, the court properly presented the issue of the presumption to the jury with an instruction that: A driver who violates the rule of the road and I’ll give you the rule in a minute, is prima facie [presumed 6 ] 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 situation in traffic, he was justified in driving in the center or ... upon the left half of the ... roadway. The proper effect of this instruction on the jury should have been that if they found that the defendant violated the rules of the road, then they were to presume the defendant's negligence; however, if they believed the defendant’s explanation, and that explanation was sufficient to overcome the presumption, then they would ignore the presumption. The jurors would not be free at that point to presume at their option; the presumption would have simply been inapplicable to the case and the jury would proceed to consider the case as if there had never been a presumption. The court’s “mere happening of an accident” instruction is also a proper instruction in the case sub judice because it follows as a logical consequence the presumption instruction.

If the jury determined that the defendant’s evidence was sufficient to overcome the presumption they would still be free to find the defendant negligent, if the plaintiff’s case was sufficient, without the presumption, to satisfy the burden of persuasion. For example, the jurors could have found that although Ms. Flannery was not negligent in allowing her car to cross the center line, she was negligent ⁶⁷¹ in failing to take appropriate remedial actions to return the vehicle to the right side of the roadway before the impact occurred. As the trial judge properly anticipated, they might also have concluded that because the appellants, by stipulation of the parties, were not negligent then, by the process of elimination, Ms. Flannery must have been the negligent party. The trial judge remedied this difficulty by giving the appropriate guiding instruction that the mere happening of an accident did not in itself give