Smith v. Warbasse

ROBERT M. BELL, Judge. James Henry Smith, appellant, was struck by a northbound car driven by James Peter Warbasse, appellee, as he attempted to cross the 3200 block of Greenmount Avenue in midblock. He filed a negligence action in the Circuit Court for Baltimore City against appellee seeking damages for the injuries he sustained. After discovery was completed, appellee moved for a summary judgment on the grounds that appellant was contributorily negligent as a matter of law.

Referring extensively to an unreported, per curiam opinion of this Court, the trial judge granted the motion and entered judgment in favor of appellee for costs. Appellant appealed. ⁶²⁷ The two issues presented by appellant involve the propriety of the trial court’s grant of appellee’s motion for summary judgment and the question whether the court’s references to the unreported opinion violated Md. Rule 1092. For the reasons that follow, we will affirm. 1. Contributory negligence connotes a failure to observe ordinary care for one’s own safety. “It 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.” Menish v. Polinger Company, 277 Md. 553, 559 , 356 A.2d 233 (1976).

See Harrison v. Montgomery County Board of Education, 295 Md. 442, 451 , 456 A.2d 894 (1983); Schear v. Motel Management Corp., 61 Md.App. 670, 682 , 487 A.2d 1240 (1985). Its presence or absence is generally a question for the jury. Moodie v. Santoni, 292 Md. 582, 588 , 441 A.2d 323 (1982); Fowler v. Smith, 240 Md. 240, 246 , 213 A.2d 549 (1965); Cohen v. Rubin, 55 Md.App. 83, 90 , 460 A.2d 1046 (1983). While meager evidence will suffice to carry the issue to the jury, Beahm v. Shortall, 279 Md. 321, 341-42 , 368 A.2d 1005 (1977); Curley v. General Valet Service, 270 Md. 248, 264 , 311 A.2d 231 (1973); Fowler v. Smith, 240 Md. at 246-7 , 213 A.2d 549 (1965), a mere scintilla, amounting to no more than surmise, possibility or the conjecture, will not.

Moodie v. Santoni, 292 Md. at 588 , 441 A.2d 323 ; Fowler v. Smith, 240 Md. at 247 , 213 A.2d 549 . When the issue on appeal is the propriety of a ruling on a motion for summary judgment, this Court must determine whether disputed issues of material fact exist; it may not decide those issues or determine their credibility. May Department Stores Company v. Harryman, 65 Md.App. 534, 538 , 501 A.2d 468 (1985), aff'd, 307 Md. 692 , 517 A.2d 71 (1986). In making that determination, we view the evidence, as revealed through the pleadings, depositions, answers to interrogatories, admissions, and affidavits, Md. Rule 2-501(e), and the reasonable inferences deducible therefrom, in the light most favorable to the party against ⁶²⁸ whom the motion is made.

Coffey v. Derby Steel Co., 291 Md. 241, 246 , 434 A.2d 564 (1981); Berkey v. Delia, 287 Md. 302, 304 , 413 A.2d 170 (1980); Honaker v. W.C. & A.N. Miller Development Company, 285 Md. 216, 231 , 401 A.2d 1013 (1979); Harryman, 65 Md.App. at 538 , 501 A.2d 468 . Only if there is no genuine dispute as to any material fact and but one inference may be deducible from those facts will a motion for summary judgment be granted. Appellant’s deposition established the following undisputed facts. On June 9, 1985, after dark, appellant parked his automobile at the eastside curb in the middle of the 3200 block of Greenmount Avenue.

From that location, there was an unobstructed view, south on Greenmount Avenue, for two to three blocks. Before leaving his car, appellant checked for oncoming northbound traffic, looking into his rearview mirror and the driver's side outside mirror. Once outside the car, his back pressed against it, appellant surveyed Greenmount Avenue to the left and to the right before proceeding to cross the street. He proceeded at a “regular stroll, casual walk”, hesitating, but not stopping, when a turning vehicle proceeded south on Greenmount Avenue.

He was struck in the travel portion of the northbound lane by appellee’s car, which also was proceeding northbound. Appellant never saw appellee’s car. Appellee’s deposition and affidavit contributed additional undisputed facts. Appellee was proceeding northbound on Greenmount Avenue at a speed of between 20 and 25 miles per hour, with his lights on and operational.

As he proceeded, appellee was “glancing sideways because of my peripheral vision.” He saw appellant, about 40 feet before impact, “move rapidly from the side of his car to just left of center of my lane, my driving lane____” Appellee did not sound his horn, although he tried to avoid appellant by braking and turning to his right. 1 The affidavit of a witness stated that appellee told the police officer, who investi ⁶²⁹ gated the accident, that he “looked at the Pic N’ Pay Shoe store sign and when I wooked back, there he [appellant] was.” Contending that whether he was contributorily negligent requires resolution of a genuine dispute as to a material fact, appellant asserts that the trial court erred in granting appellee’s summary judgment motion. He reasons: The duty imposed on each of the individuals, the pedestrian and the driver, must be resolved by consideration of the circumstances of each case and cannot be determined based solely on prior precedent or the actions of the pedestrian alone. In fact, the evidence creates a possible inference that the pedestrian took action to protect himself prior to the collision, but that the driver acted in such a manner as to create an inference that his action or inaction was prima facie negligent, then it is for the jury to determine who, or what, was the proximate cause of the plaintiff’s injuries. In short, he argues that summary judgment as to the issue of contributory negligence may not be granted against the pedestrian unless summary judgment on the question of primary negligence is appropriately granted in favor of the driver, since whether a pedestrian is contributorily negligent, as a matter of law, must be determined on the basis of all of the circumstances of the case.

He relies upon Boyd v. Simpler, 222 Md. 126 , 158 A.2d 666 (1960) and Cohen v. Rubin, supra. In United States Fidelity & Guaranty Company v. Royer, 280 Md. 50 , 185 A.2d 341 (1962), the elderly pedestrian was struck, while proceeding diagonally across a roadway, after he had taken four to six steps. The evidence revealed that before leaving the curb, he looked in all directions for oncoming traffic and, “although there was nothing to prevent his seeing the vehicular traffic ..., he saw nothing.” 230 Md. at 53 , 185 A.2d 341 . He was struck by a delivery van making a left turn.

The driver of the van, who had been blinded by the morning sun, did not see the pedestrian before he struck him. Additionally, the record ⁶³⁰ contained no evidence bearing upon the primary negligence of the driver; there was, for example, no evidence as to the speed the van was traveling or the efforts the driver made to slow or stop the van upon being blinded by the sun. In upholding the trial court’s grant of a directed verdict in favor of the driver, the Court of Appeals observed, at the outset, that: “Even if it is assumed without deciding, that there was sufficient evidence of primary negligence to warrant submission of that issue to the jury, it appears that the pedestrian was contributorily negligent as a matter of law.” 230 Md. at 54 , 185 A.2d 341 . While recognizing that a pedestrian is not negligent per se for crossing a street between crosswalks, 2 although in doing so, he or she must use great care to protect him or herself from injury and “it is generally no excuse if he [or she] fails to see or hear approaching traffic,” 230 Md. at 54 , 185 A.2d 341 , the Court observed: The Maryland cases hold that a pedestrian crossing a street between crossings is guilty of contributory negligence as a matter of law if he fails to look for vehicular traffic, or, if having looked, he fails to see an approaching vehicle. * * * * Sic * There are also cases holding that whenever a motor vehicle has a right-of-way, it is negligence as a matter of law for a pedestrian to leave a place of safety for a position of danger without looking for approaching traffic.

See, for example, Billmeyer v. State, Use of Whiteman, 192 Md. 419 , 64 A.2d 755 (1949), where it was held that when a pedestrian walks from a place of safety and keeps on walking across a town street without observing an approaching vehicle, he is guilty of negligence as a matter of law____ (some citations omitted) ⁶³¹ 230 Md. at 55 , 185 A.2d 341 . The Court