Seaborne-Worsley v. Mintiens

McDonald, J. Under the "controversial doctrine of imputed negligence," 1 the negligence of one individual may be imputed to another who was otherwise without fault. In the realm of automobile torts, the doctrine has been applied to ascribe the negligence of a permissive driver of a car to the owner of the car if the driver operates the car negligently while the owner is a passenger. In that context, the doctrine of imputed negligence is based on the fiction that the owner is able to control the actions of the driver and therefore is responsible for any misstep of the driver. In the past, the doctrine functioned to ensure that individuals injured in automobile accidents would be able to obtain compensation from the party most likely to be financially responsible-the car's owner.

However, developments in the law and in insurance coverage make reliance on the fiction of owner control less compelling. Moreover, in situations where an owner-passenger is injured and innocent of any negligence, application of the doctrine, in conjunction with a defense of contributory negligence, can have the perverse effect of foreclosing compensation to an injured party who was not personally at fault. As a result, courts in many states have abrogated or limited the doctrine of imputed negligence. This case presents an opportunity for us to do the same.

This case grew out of an accident in a restaurant parking lot when Respondent Jeffrey Mintiens backed his truck out of a parking space and struck a car in which Petitioner Victoria Worsley ("Ms. Worsley") 2 was seated. Ms. Worsley's husband 3 had driven the couple to the restaurant and left the car and his wife stopped in a travel lane perpendicular to Mr. Mintiens' parking space while he retrieved the couple's take-out order from the restaurant. Ms. Worsley filed suit against Mr. Mintiens in the District Court of Maryland sitting in Baltimore County, alleging that Mr. Mintiens was negligent and seeking various damages. At trial, Mr. Mintiens raised the defense of contributory negligence.

The District Court concluded that Ms. Worsley's husband had himself been negligent. It also concluded that his negligence should be imputed to Ms. Worsley under the imputed negligence doctrine because, though a passenger, she was the sole owner of the car at the time of the accident. Accordingly, the District Court entered a judgment in favor of Mr. Mintiens. In an on-the-record appeal, the Circuit Court for Baltimore County affirmed that decision.

We granted Ms. Worsley's petition for a writ of certiorari to consider whether the doctrine of imputed negligence applies in these circumstances. For the reasons set forth in this opinion, we hold that it does not. I Background A. The Accident The following facts are derived from the testimony at trial before the District Court. Although some facts are disputed-and we indicate where below-those relevant to the issue before us are largely uncontested.

On the evening of October 23, 2015, Ms. Worsley and her husband drove to the Pappas Restaurant in Parkville, Maryland to pick up a take-out dinner. Ms. Worsley's husband drove the car-a four-door sedan of which Ms. Worsley was the sole owner 4 -while she rode in the front passenger's seat. They arrived at the restaurant sometime shortly before 6:30 p.m. At the restaurant, there was a window facing the parking lot where customers could pick up take-out orders.

Adjacent to this window were at least two handicapped parking spaces. Ms. Worsley's husband stopped the car perpendicular to the handicapped parking spaces, placed it in park, got out of the car, and walked to the carry out window, leaving Ms. Worsley alone in the car. According to Ms. Worsley, she was supposed to take her husband's place in the driver's seat and park the car while he retrieved their food. In the meantime, Mr. Mintiens had been at the restaurant since 5 p.m., during which time he met a friend and drank three beers.

Shortly before 6:30 p.m., he obtained a take-out order for his family's dinner and set out for the parking lot, where he had parked his truck opposite the handicapped spaces. Mr. Mintiens testified that he did not notice any cars parked behind his truck at that time. According to Mr. Mintiens, in the space of approximately 20 seconds, he walked to the passenger side of his truck, placed the food in the passenger seat, went back around to the driver's side, and got into his truck. Somewhat at odds with Mr. Mintiens' testimony, Ms. Worsley testified at trial that she was already sitting alone in her car when, in her peripheral vision, she saw Mr. Mintiens walk across the parking lot and approach his truck, which was parked just about two and a half feet from the car in which Ms. Worsley sat.

According to Mr. Mintiens, after he got into the truck, he looked in his rear view mirror and driver side mirror (but not his passenger side mirror) before backing up. There appears to be no dispute that what happened next was that Mr. Mintiens backed his truck into Ms. Worsley's car. Ms. Worsley testified that she was about to unbuckle her seat belt to get out and move her car when she saw the truck backing towards her. She braced herself against the window with her right hand, also hoping to catch Mr. Mintiens' attention.

This was apparently to no avail. The back of Mr. Mintiens truck hit the back passenger-side door of Ms. Worsley's car. Upon feeling his vehicle collide with something, Mr. Mintiens looked around, believing he may have hit a pothole. When he saw Ms. Worsley's car, he pulled forward and got out of his truck.

Mr. Mintiens examined the damage done to Ms. Worsley's car, offered to pay for it, made a suggestion how to take the dent out of the side door, and exchanged information with Ms. Worsley before driving home. Ms. Worsley testified that, although she went home with her husband after the accident, she later sought medical treatment for injuries to her neck, back, left arm and shoulder, and right hand. B. Legal Proceedings 1. District Court A little over nine months after the accident, on July 25, 2016, Ms. Worsley filed a complaint against Mr. Mintiens in the District Court of Maryland sitting in Baltimore County, alleging negligence and seeking compensation for her injuries.

The parties appeared for trial on November 3, 2016. At trial, both Ms. Worsley and Mr. Mintiens testified, recounting their respective versions of the accident. The District Court stated that it would likely find that Mr. Mintiens was negligent and liable, except that the defense of contributory negligence applied to relieve him of liability. The District Court explained that Ms. Worsley's husband failed to exercise ordinary care when he parked perpendicular to a handicapped space, right behind Mr. Mintiens' truck, rather than in a parking space in the restaurant lot.

The District Court found that this negligence contributed to the accident. Citing Bowser v. Resh , 170 Md. App. 614 , 907 A.2d 910 (2006), the District Court relied on the doctrine of imputed negligence to ascribe the negligence of Ms. Worsley's husband to the owner of the car-Ms. Worsley. Under that doctrine, an owner of a vehicle who allows someone else to drive while remaining present as a passenger may be held liable for any negligence of the driver. Because the negligence of Ms. Worsley's husband was therefore imputed to her, Ms. Worsley was deemed to be contributorily negligent.

Accordingly, the court entered judgment in favor of Mr. Mintiens. Ms. Worsley appealed to the Circuit Court under Maryland Rule 7-113. 2. Appeal to the Circuit Court After hearing oral argument from the parties, the Circuit Court affirmed the District Court ruling in an order dated May 5, 2017. The Circuit Court found that there was substantial evidence in the record to support a finding that both Mr. Mintiens and Ms. Worsley's husband were negligent.

The Circuit Court agreed that, under the doctrine of imputed negligence, there was a rebuttable presumption that Ms. Worsley, as sole owner of her car, had control over her husband's operation of it and would be vicariously liable for his negligence. The Circuit Court stated that, because the District Court found no evidence to rebut the presumption, it properly imputed her husband's negligence to Ms. Worsley. As a result, Ms. Worsley's claim failed under the doctrine of contributory negligence. Ms. Worsley petitioned this Court for a writ of certiorari , which we granted.

II Discussion Ms. Worsley presents two issues for our consideration: (1) Whether the doctrine of imputed negligence should be applied to hold that a sole owner-passenger, such as Ms. Worsley, is vicariously liable for the negligence of a permissive driver such that her claim is barred under the doctrine of contributory negligence. (2) In the alternative, whether the imputed negligence of Ms. Worsley's husband was the proximate cause of Ms. Worsley's injuries. Mr. Mintiens argues that we should not address the second question because Ms. Worsley failed to preserve that issue in the District Court or Circuit Court. We need not decide whether Ms. Worsley adequately preserved her second issue as we hold that the doctrine of imputed negligence does not apply in these circumstances.

It was on the basis of imputed negligence alone that the District Court found Ms. Worsley contributorily negligent and thus barred her from recovery. If the doctrine of imputed negligence does not apply to this case, then any negligence of Ms. Worsley's husband would not be imputed to Ms. Worsley and her claim would not fail on that basis. Accordingly, we need not reach the second question. A. Standard of Review When an action has been tried by the court without a jury, an appellate court reviews the case on both the law and the evidence.

Maryland Rule 8-131(c). The trial court's factual findings are accepted unless clearly erroneous. Id. The appellate court affords no deference to the trial court's legal conclusions.

City of Bowie v. Mie Properties, Inc. , 398 Md. 657 , 676-77, 922 A.2d 509 (2007). B. Whether the Doctrine of Imputed Negligence Bars Ms. Worsley from Recovery In this case, the District Court found that Ms. Worsley's claim was barred by the defense of contributory negligence. 5 It did so without making any finding as to whether Ms. Worsley herself was negligent. Instead, the trial court found that her husband was negligent in his operation of the car and imputed that negligence to Ms. Worsley because she asserted that she was the sole owner of that car. With her husband's negligence imputed to her, Ms. Worsley's claim failed under the standard of contributory negligence.

Assuming for the sake of argument that Ms. Worsley's husband was negligent in how he parked the car, the question is thus whether the doctrine of imputed negligence applies here to defeat Ms. Worsley's claim on the basis of contributory negligence. 6 For the reasons set forth below, we conclude that it does not. 1. The Doctrine of Imputed Negligence Under the classic formulation of the doctrine of imputed negligence, when the owner of a vehicle is a passenger in that vehicle and allows another person to drive, any negligence of the operator of the vehicle may be attributed to the owner. See Merritt v. Darden , 227 Md. 589 , 596-97, 176 A.2d 205 (1962). The doctrine is based on the presumption that the owner, although not at the wheel, is in control of the vehicle, or at least has the right to exert control.

Id. ; Slutter v. Homer , 244 Md. 131 , 139, 223 A.2d 141 (1966). The negligence of the non-owner driver, therefore, is imputed to the owner. Smith v. Branscome , 251 Md. 582 , 595, 248 A.2d 455 (1968) (quoting Gray v. Citizens Casualty Co. , 286 F.2d 625 , 627 (4th Cir. 1960) ("[T]he failure of the owner, who is present, to exercise his presumed control makes him liable."); see also Powers v. State , 178 Md. 23 , 28, 11 A.2d 909 (1940) (owner-passenger presumed to "tacitly assent" to the manner in which the owner's car is driven). The presumption of owner control that underlies the doctrine of imputed negligence is rebuttable.

The presumption-and therefore the application of the doctrine-can be defeated by evidence that the owner was unable to exercise control over the vehicle. See Williams v. Wheeler , 252 Md. 75 , 249 A.2d 104 (1969). In Williams , the owner-passenger, after spending a night out at a bar with his stepson, was asleep in the back seat of his car when the unlicensed stepson retrieved the car keys from the window visor, proceeded to drive them both home, and was involved in a collision with the plaintiffs' car while en route. In deciding whether the owner-passenger could be held liable for the driver-stepson's negligence, the Court stated that the presumption underlying the doctrine of imputed negligence could be rebutted "by a proper showing that the owner-passenger relinquished his right of control or was unable to exercise that right." 252 Md. at 85 , 249 A.2d 104 .

The Court held that, because the owner-passenger in Wheeler never consented to the stepson taking control of the vehicle and was unable to exercise his right to control due to his somnolent state, the presumption was rebutted in that case and the negligence of the driver was not imputed to the owner-passenger. Id. at 87 , 249 A.2d 104 . The doctrine of imputed negligence is not based on any negligence of the owner-passenger. Rather, it is a form of vicarious liability.

It is thus distinct from the tort of negligent entrustment. An owner of a car may be found liable for the tort of negligent entrustment when the owner permits another to use the car when the owner knows, or reasonably should know, that the other person is likely to use the car in a manner likely to cause injury to others. See Kiriakos v. Phillips , 448 Md. 440 , 480-82, 139 A.3d 1006 (2016). The tort of negligent entrustment is thus based on the negligent action of the car owner- i.e. , entrusting the car to an unreliable driver-and does not depend on whether the owner is present at the time of the accident.

It is a form of direct negligence and is not a theory of vicarious liability. Neale v. Wright , 322 Md. 8 , 14, 585 A.2d 196 (1991). By contrast, the doctrine of imputed negligence is not premised on any negligence of the car owner, but only on the car owner's ownership and presence at the time of the accident. 7 Under what is sometimes called the "both ways" theory, 8 the doctrine of imputed negligence has been applied not only to hold an owner-passenger liable to an injured third party, but also to foreclose a claim by an injured owner-passenger on the ground of contributory negligence. The logic in a case such as this one is simple.

Where the car owner (Ms. Worsley) is a passenger in that car while a permissive driver (her husband) is negligent in parking or operating the car, and where there is no showing that she was asleep or otherwise incapable of exercising control, her husband's negligence is attributed to her. If that negligence was a proximate cause of an accident that injured her, the doctrine of imputed negligence, under the "both ways" theory, deems her to be contributorily negligent and defeats a negligence claim by her against a third party such as Mr. Mintiens. 9 The reasoning of the "both ways" theory of imputed negligence appears logical in its symmetry. A logician might conclude the analysis with Q.E.D. 10 or the brutally logical and fictional Sherlock Holmes might say: "Elementary." 11 However, as a real-life Holmes once famously said: "The life of the law has not been logic; it has been experience." Oliver Wendell Holmes, Jr., Book Notices , 14 Am. L. Rev. 233, 234 (1880). 12 He elaborated: The seed of every new growth within [the law's] sphere has been a felt necessity.

The form of contiguity has been kept up by reasonings purporting to reduce everything to a logical sequence; but that form is nothing but the evening dress which the new-comer puts on to make itself presentable according to conventional requirements. The important phenomenon is ... the justice and reasonableness of a decision .... Id. Holmes' insight is that it is the wisdom of the common law that a doctrine developed by the courts to decide cases may begin as an elegant theoretical construct, but is often modified and thereby rendered less elegant, or discarded entirely, to accommodate actual experience or changed conditions. 13 Something like what Holmes described has happened with the doctrine of imputed negligence in the context of automobile torts.

Courts in Maryland and elsewhere have developed exceptions, clothed them in the logic of the original doctrine, and thereby circumscribed application of the doctrine to reach a just and reasonable result in a particular case. 14 2. Modification of the Doctrine of Imputed Negligence The Original Purpose At the outset of the automobile era, the application of the doctrine of imputed negligence to extend liability to the owner of this marvel of modern technology was seen as necessary for ensuring compensation for an injured innocent party and for spreading risk. As this Court has explained: "The alarming increase in traffic accidents, together with the frequent financial irresponsibility of the individual driving the car, has led to a search for some basis for imposing liability upon the owner of the vehicle, even though he is free of negligence himself. Bluntly put, it is felt that ... the owner is the obvious person to carry the necessary insurance to cover the risk, and so to distribute any losses among motorists as a class." Williams v. Knapp , 248 Md. 506 , 508, 237 A.2d 450 (1968) (quoting W. Prosser, The Law of Torts (3d ed. 1964) ).

In subsequent years, the doctrine of imputed negligence, created out of a "felt necessity" for compensating innocent victims of automobile accidents, has lost much of its reason for being while weaknesses in its theoretical foundation have been exposed. It is now less compelling for several reasons. Changes in Statutory Law and Insurance Coverage As a result of changes in statutory law and insurance coverage, there is now less need to resort to the doctrine of imputed negligence to spread the risk associated with automobile accidents and to compensate injured parties. In 1957, the General Assembly created the Unsatisfied Judgment and Claim Fund (now a part of the Maryland Automobile Insurance Fund 15 ) to provide a source of compensation to those injured by uninsured motorists.

Chapter 836, Laws of Maryland 1957. In 1972, the Legislature enacted the compulsory insurance law, requiring liability insurance as a condition of registering a car in Maryland. Chapter 73, Laws of Maryland 1972, now codified in Maryland Code, Transportation Article, § 17-101 et seq. ; Insurance Article ("IN"), § 19-501 et seq. A few years later, the Legislature amended that law to require such policies to include uninsured motorist coverage.

Chapter 562, Laws of Maryland 1975, now codified in IN § 19-509 et seq. 16 Automobile insurance policies in Maryland now include an "omnibus clause" that extends coverage beyond the owner of the car to most permissive drivers-a clause that is likely to provide coverage for any permissive driver transporting the vehicle owner as passenger. See Andrew Janquitto, Maryland Motor Vehicle Insurance (3d ed. 2011), § 7.7. The Fiction of Owner Control This Court has recognized that, in modern times, 17 the fiction underlying the "controversial doctrine of imputed negligence" is divorced from reality. Slutter v. Homer , 244 Md. at 139 -40 , 223 A.2d 141 ; Nationwide Mut.

Ins. Co. v. Stroh , 314 Md. 176 , 179-80, 550 A.2d 373 (1988). In Slutter , this Court observed that the doctrine "has been criticized as unrealistic and fictitious. The criticism rests on the practical consideration that, while back-seat driving is generally an annoyance, and sometimes a danger, it is almost never a physical fact." 244 Md. at 139 , 223 A.2d 141 (internal citations omitted).

While an owner-passenger may have the right to control the vehicle when present as a passenger, the owner's ability to control the vehicle is quite another thing. Indeed, an owner-passenger's attempt to take control of a car, especially while the car is moving, is both inadvisable and likely ineffective in preventing the driver from driving negligently. When the Minnesota Supreme Court abandoned the doctrine of imputed negligence (at least to the extent of imputed contributory negligence), it made the ironic observation that an owner-passenger's attempt to wrest