Thorne v. Contee

BISHOP, Judge. A Montgomery County jury awarded appellant Barbara G. Thorne (Thorne) damages in the amount of $500,000, jointly and severally, against appellees Lawrence J. Contee (Contee) and his employer, Alfred H. Smith, Jr. (Smith). The case was tried on Thorne’s two-count Amended Complaint. The first count alleges both negligence and gross negligence against Contee and prays both punitive and compensatory damages.

The first count also alleges liability on the part of Smith for compensatory and punitive damages on the theory of respondeat superior. In the second count Thorne alleges liability for negligent entrustment against ⁴⁸⁴ Smith and requests both punitive and compensatory damages. Prior to trial, Smith filed a Motion for Summary Judgment on both counts alleging that he, individually, was not the employer of appellee, Contee. This motion was denied pre-trial.

At the start of the trial Contee admitted primary negligence and that his negligence caused the accident. Thorne then presented her case against Smith under Counts 1 and 2 and as to both Smith and Contee on the damage issue. At the conclusion of Thorne’s case, the court granted Contee’s and Smith’s motions for judgment on the punitive damages issue in Counts 1 and 2. The court, although asked by Smith to dismiss only the punitive damages aspect of the second count, dismissed that count in its entirety.

At this point Smith admitted an agency relationship with Contee. The trial resumed with the only remaining issue being the liability of Contee and Smith for compensatory damages under Count I. After the jury returned the verdict, the court denied the motions filed by all the parties for a new trial. ISSUES I. Whether, as a matter of law, sufficient evidence of Contee’s gross negligence in the operation of a tractor-trailer was produced to allow the issue of punitive damages to be considered by a jury.

II

Whether employer Smith may be found liable for punitive damages, based on the gross negligence of his employee Contee while the latter was operating Smith’s vehicle.

III

Whether punitive damages may be awarded on a theory of liability when there has been no award of compensatory damages under the same theory of liability, although compensatory damages have been awarded under a different theory for the same incident. ⁴⁸⁵ Finally, in the cross appeal, appellees raise the following issue: IV. Whether the trial court erred in refusing to strike evidence of vehicle defects and Contee’s illness when primary negligence had been admitted, and in refusing to instruct the jury not to consider punitive damages, when the only remaining issue was compensatory damages. FACTS On November 11, 1982, Contee was driving Smith’s 1968 Mack tractor-trailer in the right-hand lane, eastbound on Interstate 495 (the Capitol Beltway). At the same time, and in the same general area of the Beltway, Thorne was driving her Toyota automobile west on the outer loop.

At approximately 12:15 p.m., Contee’s tractor-trailer suddenly veered to the left, crossed six lanes of traffic, including a grass filled median, and struck the front of Thorne’s car, spinning it into the path of another tractor-trailer that also struck the front of Thorne’s Toyota. In its wake, the Contee tractor-trailer left one person dead and several others, including Thorne, injured. An accident reconstruction expert called by the appellant testified that he investigated the accident scene and could find no skid marks or other indication of evasive action by the Contee vehicle. The expert further testified that because the tractor operated by Contee left no tire tracks in the median of the highway, this indicated that the tractor vaulted across the median.

Additionally, the expert stated that the tractor was examined by the Automotive Safety Enforcement Division, of the Maryland State Troopers, for steering and braking defects. Based on the examination results and the accident investigation, the expert concluded that Contee lost control of his faculties, not his vehicle. Isaac Benson, a former driver for Smith, testified that between August of 1981 and June of 1982, he had driven the same tractor that was involved in the accident. At that time the vehicle was operated with bad tires, faulty lights, ⁴⁸⁶ and a steering problem that had been reported approximately 200 times.

Benson further testified that the steering problem would cause the steering wheel to lock and pull the truck to the left. The steering defect was never corrected. Benson testified that he was fired for refusing to drive a defective tractor. Another former driver for Smith testified that repairs were routinely put off until weekends but because the tractors were on the road then the scheduled repairs were rarely made.

A third former tractor-trailer driver for Smith testified that while driving Smith vehicles he received many police citations for defects on the vehicles. He testified further that the defects specified in the tickets were not repaired until the expiration of the time limit specified on the ticket. Contee’s deposition testimony, which was read into evidence, indicated that the vehicle had a steering defect which caused the tractor to pull hard to the left. At one point in his deposition, Contee seemed to relate the steering defect to the accident.

He was asked, “Were you able through the use of your strength to hold the truck within a single lane as you were driving back to the shop?” He responded, “this is when the accident happened.” Contee’s medical records, introduced into evidence, indicated that he had a history of at least a dozen reported seizures in the preceding nine years. Neurologist David Satinski, M.D., examined Contee approximately one month after the accident and testified that Contee admitted to blacking out while driving the tractor on November 11, 1982. Satinski opined that Contee had a seizure disorder and that Contee’s blackout at the time of the accident was a product of that disorder. Additionally, a mechanic who had worked for Smith testified that a month or two before the accident he witnessed Contee having a seizure in the Brandywine shop.

The appellees contended that Contee’s medical records indicate that Contee’s seizures were consistently attributed to a psychiatric problem and not a seizure disorder. Dr. Satinski had diagnosed Contee as having a psychiatric prob ⁴⁸⁷ lem and not a seizure disorder in 1974, “despite the clinical history of seizures.” Additional evidence indicated that Contee had ceased taking medication, was advised in 1977 by a treating physician that he was “o.k. to drive,” and that Contee stated on his employment application that he suffered from no disability that would prevent his driving a tractor. Further testimony indicated that Contee's seizure in the Brandywine shop was reported to Smith as an incident of heat exhaustion, although he admitted that he thought at the time that there was a possibility that Contee had suffered a seizure. The jury returned a verdict for Thorne, against both Contee and Smith, jointly and severally, for $500,000 in compensatory damages.

All parties filed motions for a new trial. The circuit court, without hearing or opinion, denied the motions. Thorne noted a timely appeal. Smith and Contee cross-appealed.

DISCUSSION 1 Thorne first argues that legally sufficient evidence was produced at trial that would have permitted the jury to consider awarding her punitive damages. Smith and Con-tee respond that the evidence of gross negligence must meet the preponderance of the evidence test, as a matter of law. They contend that Thorne has not demonstrated by a preponderance of the evidence that Contee had engaged in grossly negligent conduct warranting punitive damages. The issue of punitive damages was withdrawn from the consideration of the jury by the court on a Motion for Judgment.

Md.Rule 2 519(b) provides: Rule 2-519. MOTION FOR JUDGMENT (b) Disposition. — When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facte and to rendes’ judgment against the plaintiff or may decline to render ⁴⁸⁸ judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made. (Emphasis added).

The latter part of the rule applies here. All of the evidence and inferences therefrom must be considered in the light most favorable to Thorne — the party against whom the motion was made. Pahanish v. Western Trails, Inc., 69 Md.App. 342 , 517 A.2d 1122 (1986). The determination whether appellant met her burden of proof is a matter entrusted solely to the jury.

Although the trial judge, in ruling on a motion for judgment, must assess the sufficiency of the evidence to generate a jury question, once he or she has done so, it is up to the jury to determine the ultimate question, whether the burden of proof has been met. In making its determination, the jury assesses and evaluates the weight to be assigned to the evidence presented to it and decides its effect. Neither the trial court nor this Court is permitted to substitute its evaluation of that evidence for that of the jury. (Citations omitted).

Thodos v. Bland, 75 Md.App. 700, 713-14 , 542 A.2d 1307 (1988). A. Before we decide whether there was sufficient evidence to meet the standard, we must decide whether the operation of the automobile by a person with a known seizure disorder constitutes wanton or reckless conduct. This specific issue has not been decided in Maryland; however, this State has decided issues involving punitive damages in motor vehicle negligence cases. In order to award punitive damages, the conduct alleged must be recognized as sufficiently outrageous or extraordinary to warrant issuance of such award. ⁴⁸⁹ In Smith v. Gray Concrete Pipe Co. Inc., 267 Md. 149 , 297 A.2d 721 (1972) the Court first articulated the standard required for the award of punitive damages in motor vehicle cases, i.e., a wanton or reckless disregard for human life in the operation of a motor vehicle, with the known dangers and risks attendant to such conduct.

Id. at 168 , 297 A.2d 721 . The standard was based, in part, on the Maryland crime of manslaughter by motor vehicle (Annotated Code, Art. 27, § 388) which requires proof of gross negligence: And if, as a test, it has been regarded as adequately stringent to serve as a basis for possible imprisonment, then, surely, there appears to be no valid reason for deeming it too liberal for imposing civil sanctions. Id. at 168, 297 A.2d 721 . The Smith Court was not presented with a set of facts to which the new standard could be applied. 1 In the first application of the standard to a set of facts, the Court held that “one may infer a reckless or wanton disregard for human life from the combined acts of voluntarily drinking until intoxicated and then operating such a potentially dangerous instrumentality as an automobile.” Nast v. Lockett, et al., 312 Md. 343, 362-63 , 539 A.2d 1113 (1988).

In Nast , one of the defendants was driving an automobile while intoxicated and the other defendant was driving while under the influence of alcohol. The circuit court decided as a matter of law that the defendants’ conduct, even considering their drinking, did not amount to such a wanton or reckless disregard for human life that would permit submission of the matter of punitive damages to the jury. The Court reversed in part holding that a finding by the jury that one defendant was driving while intoxicated would be sufficient for the jury to conclude that he was grossly negligent. Id. at 366 , 539 A.2d 1113 .

On ⁴⁹⁰ the other hand, the Court held that the other defendant’s degree of impairment, not having reached the level of intoxication, would not be sufficient to elevate her negligence to gross negligence. Id. Although the Maryland courts have never ruled that operating a motor vehicle while suffering from a seizure disorder constitutes a wanton and reckless disregard for human life, in Moore v. Presnell, 38 Md.App. 243 , 246 n. 4, 379 A.2d 1246 (1977), this Court made reference to the fact that such a condition, if known by the driver, will subject him to some liability if it later causes an accident. The degree of such liability was not decided.

A few other jurisdictions have had the occasion to decide this issue. In Jackson v. Co-op Cab Company, 102 Ga. App. 688 , 117 S.E.2d 627 (1960) a cab driver, previously advised of his susceptibility to black out while driving, continued to drive. Subsequently, he blacked out while driving.

The court held that these actions posed a jury question on whether the conduct showed such conscious indifference to consequence as to authorize exemplary damages. Id. 117 S.E.2d at 631 . In so ruling, the Georgia court, like the Maryland Court of Appeals, relied, in part, on prior decisions dealing with criminal negligence in the operation of an automobile: “it would be for a jury to say whether the act of one who knew he was subject to occasional sudden attacks of vertigo or like malady, which rendered him wholly unable to steer an automobile or to control its movements, in undertaking to drive such an automobile at a high rate of speed along a public highway, was such a disregard of probable consequences as amounted, under the circumstances in proof, to criminal negligence as to one who was injured by the defendant’s inability to steer his machine.” If such operation of a motor vehicle poses a jury question as to criminal negligence, it undoubtedly does the same on the issue of whether the conduct shows such conscious ⁴⁹¹ indifference to consequence as to authorize exemplary damages in a civil action. Id.

The New York Court of Appeals held that the conduct required to predicate a conviction was more severe than mere negligent conduct: [Tjhis conduct arises when the actor has knowledge of the highly dangerous nature of his actions or knowledge of such facts as under the circumstances would disclose to a reasonable man the dangerous character of his action, and despite this knowledge he so acts. That he does not view his conduct as dangerous is of no consequence; his lack of realization of the danger involved may arise from his abnormally reckless temperament or from unexpectedly favorable results of previous conduct of the same sort. People v. Eckert, 2 N.Y.2d 126 , 157 N.Y.S.2d 551, 556 , 138 N.E.2d 794, 799 (1956). The court went on to conclude that: The evidence shows that the defendant had prior knowledge that he was subject to epileptic seizures which would strike without notice and leave him incapable of operating and controlling an automobile for a period which might extend from seconds to approximately a minute. i}S Sfc !*. * * * The evidence also shows that despite this prior knowledge of the dire risk to which his operation of an automobile would expose himself and others, he nevertheless operated an automobile; that he had a seizure while operating the automobile and that he lost control of it and consequently caused the death of another.

This conduct did not have its origin in a lack of awareness; it was not ordinary carelessness or thoughtlessness. It went beyond the bounds of lack of skill and foresight and betokens a disregard by the accused and an indifference to the rights of others. If proved beyond a reasonable doubt, it would constitute driving a vehicle “in a reckless ⁴⁹² or culpably negligent manner” in violation of section 1053-a of the Penal Law. Id. 157 N.Y.S.2d at 557 , 138 N.E.2d at 800 .

In Williams v. Frohock, 114 So.2d 221 (Fla.Dist.Ct.App. 1959), the court was presented with the sole issue of whether the trial judge erred by withdrawing punitive damages from the jury’s consideration in an automobile tort case. Quoting from Bridges v. Speer, 79 So.2d 679, 681 (Fla.1955), the court stated “that where one has notice or knowledge of the existence of a physical impairment which may come on suddenly and destroy his power to control an automobile, it is negligence to an extreme degree for such person to operate such vehicle.” The trial judge’s decision, however, was affirmed by the court which held: Ordinarily the fact that a person has one or more sick fainting spells over a period of years could well be considered enough to put such party on notice that it could and might happen again, at any time, such as while driving an automobile. However, in the present case, as to the earlier “spells” the defendant had suffered, he had separate excuses or reasons which he assigned for them, and because of which he may not have felt any danger or probability of recurrence. Moreover, the fact that his doctor did not recognize and diagnose the condition as one furnishing a propensity to its repetition, tended to make the defendant unaware of any such danger. 114 So.2d at 222-23 .

Thorne contends that in the situation where a person has reason to know that he suffers from an illness that can cause a seizure to occur without aura, 2 and then undertakes to operate a motor vehicle, it involves an even more aggravated indifference to life than existed in Nast . We agree. Unlike the intoxicated driver in Nast , who had diminished ⁴⁹³ control and reflexes, a driver who has become unconscious during a seizure has no control and no reflexes. An intoxicated driver has his judgment impaired by the effects of alcohol when making the decision to drive.

A person suffering from a seizure disorder makes a deliberate, clearheaded decision to drive, knowing that he could, as in the past, pass out at any time without warning. 3 For these reasons, we hold that the operation of the tractor-trailer by Contee, who suffered from a known seizure disorder, may be so extraordinary and outrageous as to constitute wanton or reckless conduct, sufficient to predicate an award of punitive damages. 4 B. We must now determine whether Thorne met her burden of production on the issue. In order for the issue of punitive damages to go to the jury, Thorne must have produced sufficient evidence of Contee’s wanton or reckless conduct to meet the preponderance of the evidence test. When we look at this evidence, in the light most favorable to Thorne, we find medical records of Contee from as far back as 1974 which indicate that Contee was treated or examined for his seizures in at least six hospitals, over the course of eight years. In most of his interviews with physicians, Contee reported having a history of seizures.

He had been prescribed medication to control the seizures but was no longer taking the medication at the time of the accident. Dr. Antonio Stazio, who examined Contee in 1974 noted the importance of continued use of medication: Diagnosis of seizure disorder, observed by Dr. Ovacik when a seizure occurred in his office. One cannot argue ⁴⁹⁴ with the element of history ... [t]he patient should be on a regular medication, and a prescription of Dilantin 100 mg. tid should be started at once. The patient, however, seems to be unwilling to take this medication, although persuasion should be exercised in convincing him of the importance of taking this medication.

Over the eight-year period, the records indicate at least 15 incidences of seizures were reported prior to the accident. One such incident preceded the accident by only a little over two months. Contee’s seizures were diagnosed as being the result of a psychological disorder. Knowing all of this, Contee reported to his employer that there were no medical reasons why he could not operate a tractor-trailer.

In April of 1981, while he was then employed by Smith, Contee was taken to a hospital because he was involved in an automobile accident. The treating physician noted that “Pt. stated, T blacked out three times this morning and fell down, and then I blacked out while driving, causing this.’ ” Later, Contee stated that on the day preceding the accident he was having difficulty steering the tractor because of mechanical problems with the tractor and that the problem was becoming worse. On the day of the accident Contee operated the same loaded tractor-trailer on a public highway. Less than one month after the accident Contee admitted to a neurologist that on the day of the accident he “unexpectedly and suddenly lost consciousness.” Contee later stated in his deposition that he believed he had a seizure while driving on the day of the accident.

A police expert in the field of accident reconstruction testified that in his opinion the accident was caused by Contee’s loss of control over his faculties. All of this evidence, taken in the light most favorable to Thorne, exceeds the burden imposed by a motion for judgment. There was sufficient evidence to indicate a wanton or reckless disregard for human life such that a reasonable jury could find Contee liable for punitive damages. The jury could have concluded that Contee knew of his susceptibility to have seizures while driving and yet, after withhold- ⁴⁹⁵ tag that taformatioa from Ms employment application, obtained a job driving heavy traetor-trailers on public highway®.

Similar evidence has been found to eonstitute wanton m reckless conduct In other jurisdictions. See Jackson & Co-op Cab Co,, supra; People v, Eckert, supra. Likewise, the jury eould find the fact that Coatee resisted taking his medication iadieates Ms disorder was controllable by medida® but without it he should not have been driving at all. Furthermore, th© jury eould find Coatee’s conduct was made even more outrageous by continuing to drive a tractor, with poor steering, that required all his faculties to be operating at an optimum level That the alleged defective steering caused the tractor to pull to the left eould be considered as a factor which, coupled with Contee’s blackout, contributed directly to the movement of the tractor over the median strip and Into the opposing