Saponari v. CSX Transportation, Inc.

DAVIS, Judge. Marsha E. Saponari, wife of appellant, George P. Saponari, was killed on August 9, 1994 when she was struck by a CSXT freight train while attempting to cross the railroad tracks at a commuter station in Laurel, Maryland. Appellant, individually and as personal representative of the estate of his deceased wife, brought suit on April 16, 1996 against appellee, CSX Transportation, Inc. (CSXT), in the Circuit Court for Prince George’s County. Appellant claimed negligence by appellee, alleging wrongful death individually and pursuing a survivor’s claim on behalf of the estate.

Appellee denied negligence and raised the affirmative defenses of contributory negligence and assumption of the risk. Following discovery, appellee made a motion for summary judgment which was denied by the court (Sothoron, J.) on October 16,1997. 1 A jury trial began on March 16, 1998, and appellee made motions for judgment on the issues of contributory negligence and assumption of the risk at the close of appellant’s evidence and at the conclusion of all the evidence. Both of the motions were denied. The court instructed the jury on the issues of negligence, contributory negligence, and, despite objection by appellant’s counsel, assumption of the risk.

On March 19, 1998, the jury returned its verdict and answered special ²⁹ interrogatories submitted to it by the court as follows: appel-lee was negligent, the decedent was not negligent, and the decedent assumed the risk of her death. Consequently, the court entered judgment for appellee on April 8, 1998. 2 Appellant timely filed an appeal on April 9, 1998 and presents for our review one question that we restate as follows: I. Did the trial court err by submitting the issue of assumption of the risk to the jury? Appellee filed a cross-appeal on April 15, 1998 and presents the following question that we restate and restructure as follows: II. Did the trial court err by denying appellee’s motion for summary judgment and subsequent motions for judgment because the decedent was contributorily negligent and assumed the risk of her death as a matter of law?

We answer appellant’s question in the negative and appellee’s question in the affirmative. Therefore, we vacate the court’s judgment and remand the case for entry of a judgment in favor of appellee. FACTS On the morning of August 9, 1994, at approximately 8:30 a.m., appellant drove his wife to a commuter train station located in Laurel, Maryland, so that she could take a Maryland Rail Commuter (MARC) train to her job in Washington, D.C. Before addressing the accident at issue, it is helpful to describe the setting of the Laurel Train Station. The station building and a commuter parking lot are adjacent to the southbound tracks while a passenger shelter for inclement weather is on the northbound side of the tracks.

Because of a steep hill behind the shelter, the road accessing the northbound side is well below the level of the tracks. The road accessing the southbound side, however, leads into the commuter parking lot and is level with the railroad tracks. ³⁰ Therefore, a person wishing to reach the station or southbound tracks from the northbound side must either walk up a flight of steps next to the shelter and use a wooden walkway to cross the two sets of active railroad tracks or proceed through a tunnel beneath the tracks that leads directly to the southbound side. If a person chooses to use the stairs adjacent to the shelter on the northbound side, at the top of the staircase there is a six-foot platform before a two-foot yellow warning zone that abuts the northbound track. An individual must look to the left upon reaching the platform to ascertain whether’a train is coming from the southbound direction.

The shelter, however, obstructs a person’s view of the northbound track for the first three feet of the platform. Within the next three feet before the yellow warning zone, a person is able to see 640 feet up the northbound track. Appellant’s wife regularly commuted to her job from this station, usually driving herself and parking in the commuter lot. On the day in question, however, appellant dropped off his wife and she exited the car on the northbound side below the tracks.

Because she needed to go to the southbound tracks for her commute to Washington, D.C., the decedent had to cross the tracks. Instead of walking through the tunnel to reach the southbound side, the decedent chose to proceed up the stairs adjacent to the shelter and cross the railroad tracks via the wooden walkway. After arriving at the top of the stairs, the decedent’s next few steps are a matter of dispute between the parties. Tragically, however, the undisputed result was that, when the decedent stepped onto the walkway and began crossing the northbound tracks, appellee’s freight train struck and killed her.

We shall set forth the facts that may be ascertained from testimony at trial and the parties’ briefs regarding the decedent’s path prior to her untimely death. Immediately before appellant’s wife began to ascend the stairs that morning, John Gianetti, a local politician, handed her a campaign brochure. At the top of the steps, testimony ³¹ reflects that the decedent may have “paused for a second,” but never broke stride before crossing the yellow warning zone and walking onto the northbound tracks. Furthermore, although it is apparent that the decedent made a “slight nod to the left,” it is unclear whether she ever looked to ascertain whether a train was approaching from the southern direction.

Unfortunately, a freight train traveling at fifty-two miles per hour 3 was only approximately sixty feet away when the decedent stepped onto the northbound track. Evidence demonstrates that the train failed to sound the horn signaling its approach prior to reaching the station; however, the horn was sounded when the decedent began to cross the track, although it is disputed whether the sound actually was heard before or after the train struck the decedent. With less than a second to react once she reached the northbound track, appellant’s wife was struck by the freight train and killed. Appellant subsequently brought suit, individually, for wrongful death and on behalf of the estate based on a surviv- or’s suit, on April 16, 1996 in the Circuit Court for Prince George’s County.

DISCUSSION I Appellant first contends that the trial court erred by submitting the assumption of the risk issue to the jury. Assumption of the risk is “an intentional and voluntary exposure to a known danger and, therefore, consent on the part of the plaintiff to relieve the defendant of an obligation of conduct toward him and to take his chances from harm from a particular risk.” Baltimore Gas and Elec. Co. v. Flippo, 348 Md. 680, 705 , 705 A.2d 1144 (1998) (quoting Rogers v. Frush, 257 Md. 233, 243 , 262 A.2d 549 (1970)). If proven, assumption of the risk is a complete bar to recovery because it serves a's ' “a previous abandonment of the right to complain if an acci ³² dent occurs.” ADM Partnership v. Martin, 348 Md. 84, 91 , 702 A.2d 730 (1997) (quoting Warner v. Markoe, 171 Md. 351, 360 , 189 A. 260 (1937)). 4 The elements of assumption of the risk are well settled in Maryland, and the defendant must prove that the plaintiff “(1) had knowledge of the risk of the danger; (2) appreciated that risk; and (3) voluntarily confronted the risk of danger.” Flippo, 348 Md. at 706 , 705 A.2d 1144 (quoting ADM Partnership, 348 Md. at 91 , 702 A.2d 730 ).

In the determination of these elements, “an objective standard must be applied and a plaintiff will not be heard to say that he did not comprehend a risk which must have been obvious to him.” ADM Partnership, 348 Md. at 91 , 702 A.2d 730 (quoting Gibson v. Beaver, 245 Md. 418, 421 , 226 A.2d 273 (1967)). Although the question of whether the plaintiff assumed the risk is normally for the jury, if it is clear that an individual of normal intelligence, in the plaintiffs position, must have understood the danger, then the issue is for the court. See id. at 91-92 , 702 A.2d 730 ; Schroyer v. McNeal, 323 Md. 275, 283-84 , 592 A.2d 1119 (1991). Because the plaintiff needs only to be aware of the risk and then voluntarily undertake it, the defendant is not required to prove that the plaintiff was negligent.

See Schroyer, 323 Md. at 282-83 , 592 A.2d 1119 . Applying these principles, we turn now to appellant’s contention that the trial court erred by submitting the issue of assumption of the risk to the jury. 5 ³³ Appellant argues that knowledge of the danger, the first element of the assumption of risk defense, requires more than the knowledge of a general danger in crossing railroad tracks. Instead, appellant submits that appellee was required to prove that the decedent had actual knowledge of the danger posed by the particular train that struck her, not by a train in general. As support for this argument, appellant relies on Rogers v. Frush, supra, wherein the Court of Appeals concluded that the plaintiff, who was injured by an automobile while riding a motorcycle without a helmet, did not assume the risk of injury.

The Court reasoned that, even if the plaintiff had knowledge of and appreciated the risk, riding without a helmet did not relieve the defendant of her obligation to operate the automobile in a prudent manner. See Rogers, 257 Md. at 244 , 262 A.2d 549 . Appellant further relies on Flippo, supra, in which a ten-year-old child was injured while climbing a tree when he came in contact with a utility company’s electric wire. In Flippo , the jury returned a verdict against the utility company, and the Court of Appeals held that the company was not prejudiced by the trial court’s refusal to submit the issue of assumption of the risk to the jury.

See Flippo, 348 Md. at 707 , 705 A.2d 1144 . The Court opined: In order to succeed on a defense based on its theory of assumption of risk, [defendant] would bear a somewhat ³⁴ heavier burden of proof: that [the plaintiff] actually knew of the potential danger of overhead electric wires and actually knew of the presence of this particular wire when he voluntarily subjected himself to a risk of contact with the wire by climbing the tree. Id. (quoting Baltimore Gas and Elec.

Co. v. Flippo, 112 Md.App. 75, 96 , 684 A.2d 456 (1996)). Appellant asserts that appellee was unable to prove at trial that the decedent had knowledge of the particular train that struck her and, therefore, the court should not have submitted the issue of assumption of risk to the jury. We disagree. As noted, an objective, rather than subjective, standard is used to determine whether a person had knowledge of the risk.

See ADM Partnership, 348 Md. at 91 , 702 A.2d 730 . Crossing railroad tracks at a commuter station is an action that a person of adult age and normal intelligence should recognize as dangerous. In addition, the decedent was a regular commuter at the station and knew of the proximity of the steps to the tracks and of the shelter’s obstruction of the northbound track until a few feet before the yellow warning zone. Flippo is distinguishable from the instant case because a ten-year-old child climbing a tree cannot be said to have the same awareness of encountering a power line that an adult crossing railroad tracks at a commuter station should have of an approaching train.

Therefore, while the child was required to have knowledge of the particular power line, an objective standard leads to the conclusion that a jury reasonably could have found that the decedent in the instant case had knowledge of the danger of being struck by a train crossing at that location. Appellant’s reliance on Rogers also is misplaced because the accident in Rogers would have occurred regardless of whether the plaintiff was wearing a helmet. Consequently, the plaintiff did not relieve the defendant of the obligation to act carefully. Our conclusion finds support in the following holding of the Court of Appeals regarding the right of recovery in similar situations: ³⁵ These [allegations] substitute, as the test of recovery, actual knowledge that no train or engine was approaching, for the due care and caution required by the law in endeavoring to ascertain this fact.

The right of recovery does not depend upon the accuracy of the plaintiffs information as to the approach of the train, but upon the measure of care and caution exercised to obtain accurate information, under all the circumstances of the case. Baltimore & Ohio R.R. Co. v. Stumpf, 97 Md. 78, 97 , 54 A. 978 (1903). The decedent in the present case had knowledge of and appreciation for the danger; 6 thus, the next question becomes whether she voluntarily exposed herself to the risk of being struck by a train. Appellant contends that appellee failed to demonstrate that the decedent, by intentionally crossing the tracks despite her knowledge of the danger, voluntarily consented to the risk.

Regarding voluntary consent, the Court of Appeals has held that, in order for a plaintiff to assume voluntarily a risk of danger, there must exist “the willingness of the plaintiff to take an informed chance,” Schroyer, 323 Md. at 283 , 592 A.2d at 1123 ; there can be no restriction on the plaintiffs freedom of choice either by the existing circumstances or by coercion emanating from the defendant. ADM Partnership, 348 Md. at 92 , 702 A.2d 730 . When a plaintiff is confronted with “a choice of evils,” such a restriction destroys the ability to choose freely. See id. at 93 , 702 A.2d 730 (citation omitted).

In the case sub judice, however, the decedent was not confronted with coercion or a restriction of choice. The decedent could have avoided the danger by taking the under ³⁶ pass to reach the southbound side of the tracks instead of actually crossing the tracks themselves. Furthermore, the decedent was aware both of the top of the steps’ proximity to the tracks and of the obstruction caused by the shelter until the last half of the platform before the yellow warning zone. As a regular commuter familiar with the station, the decedent knew her options and decided to “take an informed chance” that she could cross the tracks without being injured by a train.

Our conclusion that the decedent voluntarily exposed herself to the risk is supported by Rountree v. Lemer Dev. Co., 52 Md.App. 281 , 447 A.2d 902 (1982), in which we opined that, “where there is a reasonably safe alternative open, the plaintiffs choice of the dangerous way is a free one, and may amount to both contributory negligence and assumption of risk.” Rountree, 52 Md.App. at 286 , 447 A.2d 902 (quoting Prosser, Law of Torts at 451-52 (4th ed.1971)). Consequently, we conclude that the court did not err in submitting the assumption of risk issue to the jury. Indeed, as discussed below, we hold that the decedent assumed the risk as a matter of law.

II Appellee contends on cross-appeal that the trial court erred by denying its motion for summary judgment and subsequent motions for judgment because the decedent was contributorily negligent and assumed the risk of her death as a matter of law. 7 Before addressing the merits of appellee’s contention, we summarize the appropriate standard of review. Regarding summary judgment, a trial court shall enter judgment in favor of the moving party if there is no genuine issue of material ³⁷ fact and the moving party is entitled to judgment as a matter of law. Baltimore Gas and Elec. Co. v. Lane, 338 Md. 34, 42-43 , 656 A.2d 307 (1995).

Therefore, the standard of appellate review is whether the trial court was legally correct. See id. at 43 , 656 A.2d 307 . When reviewing a trial court’s decision on a motion for judgment, an appellate court determines whether there was sufficient evidence to create a jury question. See Martin v. ADM Partnership, 106 Md.App. 652, 657 , 666 A.2d 876 (1995), rev’d on other grounds, 348 Md. 84 , 702 A.2d 730 (1997).

It is apparent that the trial court correctly denied appellant’s motion for summary judgment because there were genuine issues of material fact and, thus, we shall confine our discussion to whether there was sufficient evidence for the court to deny the motions for judgment at the close of the evidence. A Appellee first argues that the decedent was contributorily negligent as a matter of law by allegedly failing to stop, look, and listen before crossing the railroad tracks. Contributory negligence “is the doing of something that a person of ordinary prudence would not do, or the failure to do something that a person of ordinary prudence would do, under the circumstances.” Flippo, 348 Md. at 703 , 705 A.2d 1144 (quoting Campfield v. Crowther, 252 Md. 88, 93 , 249 A.2d 168 (1969)). Generally, the issue of contributory negligence is for the jury as long as “there is a conflict of evidence as to material facts relied on to establish contributory negligence, or more than one inference may be reasonably drawn therefrom.” Id.

(quoting Reiser v. Abramson, 264 Md. 372, 377-78 , 286 A.2d 91 (1972)). Moreover, “[i]n order to establish contributory negligence as a matter of law, ‘the evidence must show some prominent and decisive act which directly contributed to the accident and which was of such a character as to leave no room for difference of opinion thereon by reasonable minds.’ ” Id. (quoting Reiser, 264 Md. at 378 , 286 A.2d 91 ). We also must “give due consideration not only to all inferences of fact tending to support the opposite view, but also to the ³⁸ important presumption that [the decedent] exercised ordinary care for [her] own safety.” Pachmayr v. Baltimore & Ohio R.R. Co., 157 Md. 256 , 262, 145 A. 611 (1929) (citations omitted).

Appellee relies upon Glick v. Cumberland & Westenport Elec. Ry. Co., 124 Md. 308 , 92 A. 778 (1914), as support for its proposition that the decedent was negligent as a matter of law. In Glick , the Court of Appeals held that “a railroad track is a signal of danger, and that one attempting to cross it must, in order to avoid the imputation of negligence, first look and listen, and, if the view be obstructed, stop, look, and listen for an approaching car....” Id. at 312 , 92 A. 778 .

Failure at least to look and listen before crossing railroad tracks is negligence per se. See id. at 313 , 92 A. 778 . Furthermore, “if the crossing is one of more than ordinary danger, and the view of the tracks is obstructed at or near the place of crossing, it is the duty of the traveler to stop, look, and listen before he attempts to cross,.... ” Director General of Railroads v. Hurst, 135 Md. 496, 506 , 109 A. 321 (1920). In the instant case, therefore, the decedent, in addition to looking and listening, also was required to stop before crossing because of the weather shelter that obstructed her view of the northbound track until the last few feet of platform before the track itself.

This rule, however, may be mitigated when customary warnings are given by a railroad. See Patapsco & Back Rivers R.R. Co. v. Bowers, 213 Md. 78 , 129 A.2d 802 (1957); Pachmayr v. Baltimore & Ohio R.R. Co., supra; Baltimore & Ohio R.R. Co. v. Windsor, 146 Md. 429 , 126 A. 119 (1924); Director General of Railroads v. Hurst, supra; Baltimore & Ohio R.R. Co. v. Stumpf, supra. The consideration