Rustin v. Smith

HOLLANDER, Judge. A jury in the Circuit Court for Baltimore City found appellants Gary Rustin and Yellow Van Services, Inc., 1 negligent in connection with the operation of a motor vehicle and awarded Violet Smith, appellee, over $57,000 in damages. Rustin and Yellow Van Services, Inc. have appealed, contesting the circuit court’s refusal to instruct the jury as to “acts in emergencies.” We hold that the trial court correctly concluded that the evidence did not support the instruction. Our holding is premised on Rustin’s failure to present any evidence that he took any action in response to the emergency.

Accordingly, for the reasons we explain below, we shall affirm. On December 4, 1992, at about 11:15 p.m., Smith was driving her car east on West Cold Spring Lane, in Baltimore City; Rustin was driving a van westbound. West Cold Spring Lane is, at that point, a five-lane undivided road (three lanes westbound, two lanes eastbound). The road slopes downward from west to east, has a posted speed limit of 35 miles per hour, and is illuminated by street lights.

At the time of the collision, rain was pouring down heavily, and water was sluicing over the roadway toward Rustin. At a curve in the road, Rustin lost control of his van, spun into the eastbound lane, and struck Smith. The collision was witnessed by a motorist who was travelling east behind Smith. Smith filed suit for her personal injuries.

In Rustin’s interrogatory answers, he indicated that he lost control because he was hydroplaning. At no point during discovery did Rustin mention that the condition of the pavement contributed to the occurrence. At trial, the eyewitness to the collision related that Rustin was driving in excess of the posted speed limit up the incline, and that Rustin did not slow in anticipation of the curve. Rustin claimed, however, that while he did not look at his ⁶⁷⁹ speedometer, he knew he was driving between 25 and 30 miles per hour simply because, at some unspecified point, he “saw the sign with the speed limit on it.” Rustin further averred that he lost control when he hit a pothole, but was not sure whether the loss of control was caused by the pothole or by the slickness of the road.

He allowed that he could have been hydroplaning, and that the hydroplaning could have been the cause of his loss of control. The police officer who arrived at the accident scene did not indicate in his report that the road had potholes. Rustin did not indicate what efforts he took to minimize the obvious risks presented by the weather-related hazards. Apart from his statement that he “tried to regain control,” he also did not specify what action, if any, he took to avoid a collision once he lost control of the van, or even what steps he could have taken.

To the contrary, Rustin testified that the car “practically took over on its own.” At the close of the case, appellants requested a jury instruction as to “acts in emergencies,” consistent with MPJI 18:3 (1993). MPJI 18:3 provides as follows: When the driver of a motor vehicle is faced with a sudden and real emergency, which was not created by the driver’s own conduct, the driver must exercise reasonable care for his own safety and for the safety of others. The reasonableness of the driver’s actions 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 has an ample opportunity fully to exercise personal judgment.

The court refused to give such an instruction on the grounds that the evidence did not support it. As a general proposition, when reviewing a trial judge’s refusal to give a requested instruction, we must determine whether the instruction was a correct exposition of the law, whether that law was applicable in light of the evidence before the jury, and whether the substance of the requested ⁶⁸⁰ instruction was fairly covered by other instructions actually given. E.G. Rock, Inc. v. Danly, 98 Md.App. 411, 420-21 , 633 A.2d 485 (1993). An instruction not supported by the evidence in the case amounts to an improper abstraction, and should not be given.

Moats v. Ashburn, 60. Md.App. 487, 493, 483 A.2d 791 (1984). There is no dispute that the “acts in emergencies” instruction, as requested, was a correct exposition of the law and was not entirely covered by any other instruction. We note, however, that the court instructed the jury that the nature and condition of the highway must be considered in determining what is a reasonable speed, and that skidding alone is not evidence of negligence.

The only issue, then, is whether the evidence supported the emergency instruction. We conclude that it did not. As indicated by MPJI 18:3, a driver faced with an emergency, not created by his own conduct, is not held to the same standard of care as a person having the opportunity to engage in cool deliberation prior to acting. In the appropriate case, the issue for the jury is whether a party, under the circumstances of the emergency, acted as a reasonably prudent person, in view of the emergency.

Ristaino v. Flannery, 76 Md.App. 662, 674 , 547 A.2d 1115 (1988), vac. on other grounds, 317 Md. 452 , 564 A.2d 790 (1989) (citing Baker v. Shettle, 194 Md. 666, 72 A.2d 30 (1950)); Miller v. Reilly, 21 Md.App. 465, 472, 319 A.2d 553 , cert. denied, 272 Md. 746 (1974) (citing Armstrong v. Johnson Motor Lines, 12 Md.App. 492 , 280 A.2d 24 (1971)). For the “acts in emergencies” instruction to be applicable, however, the emergency cannot arise from the defendant’s own conduct, and there must be some conduct or action on the part of the defendant in response to the emergency. With respect to whether the emergency was of Rustin’s own making, we acknowledge the conflicting