Woolridge v. Abrishami

Graeff, J. This appeal arises from an automobile accident that occurred on May 23, 2014. On that date, 18-year-old Lauren ²⁸³ Abrishami (“Lauren”), appellee, who was operating a motor vehicle owned by her mother, Brigitte Abrishami (“Ms. Abrishami”), also an appellee, struck pedestrian Judith Wool-ridge, appellant, as Ms. Woolridge attempted to cross the street, Ms. Woolridge filed suit in the Circuit Court for Montgomery County alleging negligence against Lauren and negligent entrustment against Ms. Abrishami. 1 The court ultimately granted Ms. Abrishami’s motion for summary judgment and proceeded with a jury trial regarding the negligence claim against Lauren. At the conclusion of trial, the jury found that Lauren was negligent, but it also found that Ms. Wool-ridge was contributorily negligent, thereby precluding recovery. On appeal, Ms. Woolridge raises four questions for our review, which we have rephrased, as follows: 1.

Did the circuit court err in allowing Lauren to raise the defense of contributory negligence at trial? 2. Was the evidence sufficient to submit the issue of Ms. Woolridge’s contributory negligence to the jury? 3. Did the circuit court err in denying Ms. Woolridge’s request for a special jury instruction on a pedestrian’s right of way in crossing at an intersection? 4. Did the circuit court err in granting summary judgment in favor of Ms. Abrishami on the issue of negligent entrustment?

For the reasons set forth below, we shall affirm the judgment of the circuit court. FACTUAL AND PROCEDURAL BACKGROUND On May 5, 2015, Ms. Woolridge filed a three-count Complaint. In Count I, Ms. Woolridge alleged that, as she was “crossing the street in a crosswalk at Main Street and Market Street East ... in Gaithersburg, Maryland,” Lauren negli ²⁸⁴ gently made a left turn and struck her, causing injuries. Count III alleged that Ms. Abrishami negligently entrusted Lauren with her vehicle. 2 In their Answer, Lauren and Ms. Abrishami asserted several affirmative defenses, including that “Plaintiff was contributorily negligent.” On July 29, 2015, the court issued an “Order for Mandatory Settlement Conference/Pretrial Hearing.” It scheduled a pretrial settlement conference and a pretrial hearing on February 18, 2016, and directed the parties to prepare a written joint pretrial statement, which “shall contain,” among other things, “a concise statement of all claims and defenses which that party is submitting for trial.” 3 The order further directed the parties to identify each pattern jury instruction that the parties intended to offer at trial, with an indication of those agreed upon and those not agreed upon.

The Joint Pretrial Statement filed with the court on February 18, 2016, provided, in relevant part, as follows: 1. Nature of the Case: The instant action arises out of a pedestrian-motor vehicle accident that occurred on May 28, 2014. The Plaintiff is making a claim for personal injuries and damages related to the incident. The Plaintiff contends Defendant Lauren Abrishami was negligent in the operation of her vehicle. 2.

Claims and/or Defenses A) Plaintiff: The Plaintiff claims Defendant, Lauren Abrishami, was negligent in the operation of her vehicle, thereby causing the accident and Plaintiffs injuries, including a tibial plateau fracture that required surgical intervention. The Plaintiff has continuing difficulties walking and kneeling, and any activity requiring use of her left leg, with ²⁸⁵ daily pain. The injury to her leg is permanent. The Plaintiffs medical[ ] bills total $56,232.51 to date, and lost income of approximately $2,719.54.

B) Defendant: The Defendant denies the nature and extent of Plaintiffs injuries and permanency. [[Image here]] 4. Disputed Issues: Except as set forth above, all issues of liability and damages are in dispute. Lauren did not include a proposed jury instruction on contributory negligence in the pretrial statement. She did state, however, that she would propose “[ajdditional instructions to be submitted at trial to conform to the evidence,” and she reserved the right to “request additional jury instructions based upon the evidence at trial.” 4 During discovery, Ms. Woolridge asked about Lauren’s claim of contributory negligence.

Specifically, Plaintiffs Interrogatory Number 8 asked: State the manner in which you say the accident complained of happened, giving the various speeds, positions, directions and locations of all vehicles involved in the said accident during their approach to, at the time of, and immediately following the happening, and in so doing, describe how the Party propounding these Interrogatories, or any person or party, or its agent(s) or employee(s) was negligent or caused or contributed to the happening of the occurrence. Include in your answer: a. How fast were you traveling 200 feet before the accident? 100 feet before the accident? 50 feet before the accident? b. At the time you first observed the Plaintiff, identify the Plaintiffs location, the location of your car from the Plaintiff, and your speed. c.

Set forth your route and movements, for the last three blocks leading up to the accident, including in your answer ²⁸⁶ any stops, turns, lane changes and the like which occurred during that time. The record reflects that Lauren initially provided to opposing counsel an unsigned response, stating: “I stopped at the stop sign and began to make a left from Main Street onto Market Street. As I made the turn, I was distracted, talking to my cousin and did not see the Plaintiff right away, as soon as I did, I slammed on my brakes but it was too late and I hit the Plaintiff.” On May 23, 2016, the day of trial, Lauren provided signed answers, containing the following amended response: “See the Defendant’s discovery deposition dated October 5, 2015, at page 40.” 5 This portion of Lauren’s deposition provided: Q. Can you tell me in your best recollection how did the incident occur? A. I was—I turned to make the left and I didn’t see her and Taylor saw her at the last second.

She said “Slow down,” and I slammed on my brakes from 10 miles per hour to about 1 mile per hour, and then I tapped her, and then she fell. Q. Okay. So I’m going to back you up to the stop sign. Did you come to a complete stop at the stop sign?

A. Yes, before the white line. Q. And how long would you say you stopped for? A. Three seconds. Q. Were there any other cars as you stopped there for that three seconds?

Do you remember seeing any other cars around? A. No. Q. But you stopped for three seconds. Did you see any people around? A. No. ²⁸⁷ During her October 5, 2015, deposition, however, Lauren also was asked whether she was aware of anything Ms. Woolridge “could have done to avoid being hit.” Lauren responded: “I wasn’t aware of like where she was situated and if she looked both ways.

I’m not sure.” She did note, however, that as she slowed the vehicle, Ms. Woolridge “just like stood there. She didn’t move.” During the time that discovery was proceeding, Ms. Abrish-ami filed a motion for summary judgment on the claims against her. Counsel for Ms. Abrishami argued that, although Lauren had been driving for only a year, there was not enough evidence to submit to the jury the claim that Ms. Abrishami was negligent in entrusting Lauren to operate the vehicle. Counsel asserted that, although Lauren had one prior “very minor incident,” where Lauren hit a curb after her dog climbed on her while she was driving, Ms. Abrishami took corrective action and advised Lauren not to drive with the dog in the car.

Thus, counsel stated, Ms. Abrishami had no reason to believe that Lauren would be involved in an accident, and based on Lauren’s “completely clear” driving record, an accident was not foreseeable. Counsel for Ms. Woolridge responded that, in a negligent entrustment claim, three factors must be considered: “youth, inexperience or otherwise,” and it is a “fact-based determination[ ]” for the jury. Counsel argued that Lauren, a teenage driver, had been driving less than a year, did not drive the vehicle regularly, and previously had been in an accident while distracted. The accident involving Ms. Woolridge was “another distracted driving scenario as you had with the dogs,” and Ms. Abrishami “should have implemented some additional driver training, restrictions, something on this girl, on balance.” Counsel for Ms. Abrishami argued that, contrary to Ms. Woolridge’s focus on Lauren’s youth and inexperience, the question was whether Lauren had dangerous propensities and Ms. Abrishami knew of those propensities and should have foreseen harm. ²⁸⁸ During her deposition, Lauren testified that the prior accident occurred in May 2015.

She got her driver’s license in her senior year of high school, after taking a driver’s education class. She took the bus to school, however, and in May 2014, she drove “[f]or errands mostly,” and she “rarely left the house.” Lauren had not received any traffic tickets prior to the accident involving Ms. Woolridge. In granting summary judgment on the negligent entrustment claim, the court stated as follows: Regarding the issue of negligent entrustment, so I would say that generally these cases come down to a dispute of material fact where the jury would have to decide whether or not there’s evidence that the mother knew of these dangerous propensities of the daughter driving. In this case, the evidence that has been presented to me that would be presented to the jury is that the driver had previously been involved in an incident where while driving a car a dog jumped in her lap and that caused her to, as a result of that, she swerved or she drove the car in a manner that resulted in a scratch on the side of, the passenger side of the car.

No evidence that the car was damaged in any other way, no evidence that there was a requirement that the car be repaired and the evidence is that when the mother found out about the, how the accident happened, that the dog jumped in the lap, that she told the daughter you can’t drive with the dog in the, in the car anymore. The facts of this case are the dog was not in the car. I understand a cousin was in the car. So the other evidence is that she’s 18, she had her license for a year, that she had not been driving the car in the five months prior to the accident.

The other evidence is that she has no moving violations, she has no traffic record of any kind, she was on a provisional license and that she took a driver class before she got her license. In looking at that, I, I don’t think that there’s any evidence whatsoever that shows that the mother knew or should have known that there [were] any dangerous propen ²⁸⁹ sities of the daughter’s driving because there’s no evidence of any dangerous propensities of driving. So, therefore, I’ll grant the motion for summary judgment as to Count 3. On May 23, 2016, a two-day trial began.

During opening statements, counsel for Lauren stated that the jury would hear His Honor instruct you on the law, that there are reciprocal duties of who is supposed to do what and when and you simply cannot step off a curb because you’re in a crosswalk in front of a moving vehicle. That’s the law that you’ll hear when that comes. So you will have to determine who is at fault, why did they do what they did? Again, there’s no question that my client hit the plaintiff in the crosswalk but, again, the analysis doesn’t stop there.

Counsel continued that in order to award compensation as a result of injuries, first you must find that the defendant was at fault and that the plaintiff did nothing to contribute to this accident. Once you find that the defendant was solely at fault and the plaintiff did nothing to contribute to this accident, then you can award damages because she was injured. That is not at issue in this case. [6] Officer Greg Knott, a member of the Montgomery County Police Department, then testified that he “was dispatched to a vehicle accident involving a pedestrian.” He described the intersection of Main Street and Market Street East as having three stop signs and marked crosswalks. When Officer Knott arrived shortly after 7:00 p.m., it was still daylight.

The weather was sunny. Ms. Woolridge was in the crosswalk on Market Street East, and Lauren’s vehicle was stopped in a ²⁹⁰ position turning left from Main Street onto Market Street East. Lauren’s vehicle was “almost straight ... if you were to draw a 90-degree line down the roadway and across the crosswalk, it was, for the most part 90 headed towards Market Street East.” He continued: “The wheels were turned just slightly to the left as would depict any vehicle making a left turn onto that roadway. She was in the process of making the turn, so she was 98 percent through the process of turning onto that roadway.” Ms. Woolridge was in the roadway about “halfway across the crosswalk.” Officer Knott interviewed Lauren, who told him that she was going to the movies with her friend, and as she made the left turn onto Market Street East, she was having a conversation with her friend and “got distracted.” Ms. Woolridge, who was 67 years old at the time of trial, testified that she lives in an apartment in Kentlands Manor.

Her son lives several blocks away from her apartment. On the day of the accident, at approximately 7:00 p.m., Ms. Woolridge began to walk to her son’s house to prepare dinner for his birthday. When she got to the intersection of East Market Street and Main Street, before stepping off the curb, she stopped and looked “[l]ong enough to see that there was nothing coming.” She did not see any cars approaching the crosswalk from any direction, did not hear any sounds, and did not “recall seeing a car anywhere in that intersection,” so she proceeded into the crosswalk at an “average speed, gait.” The next thing she remembered was a “hard, hard, fast hit and [she] hit the ground.” She could not recall how many steps she had taken after stepping off the curb and was unable to say how far into the crosswalk she was when she was hit. After she was hit, Ms. Woolridge was “completely stunned” and in “[v]ery severe pain in [her] head and [her] leg.” Ms. Woolridge was taken to the emergency room by ambulance.

Lauren testified that, at the time of the accident, she was 18 years old and had been driving for approximately one year. On the day of the accident, she and her cousin/friend, Taylor, were going to the Kentlands movie theater to see a movie. When they arrived, they saw that the movie they intended to ²⁹¹ see was not playing at that theater. After determining that the movie was playing at another theater, they started driving there.

As Lauren drove, she and Taylor were talking. When she approached Market Street East from Main Street, she stopped at the stop sign for three seconds, looked for cars and pedestrians, and then started to turn. She agreed that there was nothing obstructing her view from the crosswalk, and she stated that she did not see Ms. Woolridge “until the last moment.” As Lauren turned left, her attention was ahead of her, but “the moment before the accident occurred,” she “did glance over to” Taylor “as she was talking, but it was only for a moment.” As she glanced over to Taylor, Taylor said “watch out,” and Lauren slammed on her brakes. After realizing that she had struck someone, Lauren stopped her car immediately and did not move it again until the police arrived.

A photograph, marked as Plaintiffs Exhibit No. 3, indicates that Lauren’s vehicle was in the middle of the street and mostly through the crosswalk. Lauren surmised that, for her to have hit Ms. Woolridge in the middle of the crosswalk, Ms. Wool-ridge was approximately 15 feet from the curb. After Lauren hit Ms. Woolridge, she jumped out of her car and saw Ms. Woolridge “lying there,” but her immediate reaction was “that everything was fine because [she] went from about five to 10 miles per hour to about 1 mile per hour and [she] thought the impact felt ... very minor.” Lauren asked Ms. Woolridge if she was alright, but Ms. Woolridge responded that she was not. A man on the side of the road called 911.

On cross-examination, Lauren agreed that she had almost completed the left turn onto East Market Street, and her vehicle was “almost straight onto East Market Street when the accident” occurred. She stated that the entire time she was turning, but for glancing over at Taylor prior to the moment of impact, she was looking forward. When Taylor said “stop,” Lauren turned and saw Ms. Woolridge immediately before striking her. Ms. Woolridge was positioned “a little to ²⁹² the right near the front” on the right-hand side of Lauren’s vehicle.

At the end of the first day of trial, the court briefly discussed the issue of the affirmative defense of contributory negligence, stating: Now the, Rule 2-323 talks about the failure of a defendant to include an affirmative defense in its original answer, quite properly amended answer bars the defendant from relying on the defense to obtain a judgment. That’s the Gooch v. Miller [Maryland] Mechanical [Systems, Inc., 81 Md.App. 376 , 567 A.2d 954 , cert. denied, 319 Md. 484 , 573 A.2d 807 (1990) ]. I didn’t see anything in the annotations that once pled that it’s lost if certain things aren’t done, but you have a case you’re going to give my, my law clerk? So you’ll give her the cite or the—either one after we recess.

The next day, counsel for Ms. Woolridge argued, citing Mitchell v. Montgomery, 88 Md.App. 542 , 596 A.2d 93 (1991), that Lauren had not given adequate notice of the contributory negligence defense because she did not state facts in her answers to interrogatories, or in her deposition, that supported that defense. The court denied the motion, stating that “my ruling is going to be once it’s put in the, in the answer, it’s preserved unless it’s affirmatively withdrawn or abandoned or some way[ ] communicated that they no longer wish to proceed. And I do think that puts the plaintiff on notice.” 7 Counsel then argued that, even if the defense was preserved, there was insufficient evidence of Ms. Woolridge’s negligence to allow the issue of contributory negligence to go to the jury. The court responded by asking counsel for Lauren to address the claim of contributory negligence, stating that the evidence, in the light most favorable to both sides, to your case is that she was walking her normal gait, nobody has refuted that, ²⁹³ she was in a crosswalk, it was light or 7 o’clock on a Mayday and your client’s testimony is that I, I turned to talk to my friend and my friend told me, look out.

What, what was the evidence that the plaintiff did something wrong? Counsel for Lauren responded that “there’s case law that indicates that if a person looks, but does not see what is present to be seen, that alone gives rise to an inference of negligence.” Counsel noted that the police officer testified that the accident occurred when Lauren “was 98 percent through her turn,” and “the plaintiff was half, her body was found when he got there halfway through the crosswalk. That means that the defendant was established in the intersection, ready to be seen by a plaintiff who was coming off of the sidewalk.” Counsel argued that the car was “almost 90 degrees ... going straight according to the police officer,” and “the duties are reciprocal as far as seeing what there is to be seen, as far as the position of the car, as far as how far she got, as far as where she came from.” The court ruled as follows: I think the bottom line here is neither one saw the other one. Neither one is violating a rule of the road per se based on the evidence.

You have a car making [ ] an illegal left-hand turn. By her testimony she stops at the stop sign and the plaintiff is legally in a crosswalk crossing. They both have to give way to the other if seen and see what’s there to be seen. It’s, but it’s not crystal clear.

I mean normally in a case you have somebody seeing the other one and I just think, I think it’s a jury issue. I think, and I don’t weigh the strength [o]f the arguments, it’s, whether or not the defense has generated evidence to get that instruction. So I’ll deny the request to remove the contributory negligent argument and instruction. So I’ll grant, I’ll give the contributory negligent instruction and, obviously, let the attorneys argue it and the jury decide.

The court then instructed the jury. During closing argument, counsel for Ms. Woolridge stated that, with respect to liability, what he “thought were clear facts at the start of the trial are ²⁹⁴ hotly disputed by the defendant.” Despite having admitted “her own fault,” Lauren was now focused on proving that Ms. Woolridge was contributorily negligent, “in an effort to get out from under what seemed to be very clear facts of her own negligence in causing the accident.” Counsel stated that there was “no evidence that she darted out, she did anything unsafe,” but Lauren was arguing that, because Ms. Woolridge did not see Lauren’s car coming, she could be held negligent as well. Counsel for Lauren responded that Ms. Woolridge did not meet her burden of proof because she failed to prove “why this accident happened” or “how this accident happened.” Accordingly, she failed to prove, “by a preponderance of the evidence the first question,” i.e., that Lauren “was negligent and contributed or caused this accident.” Counsel stated that plaintiffs testimony essentially was “I stopped and looked and I don’t know what happened.” And although the police officer testified that Lauren was 98 percent through her turn, Ms. Woolridge “never saw the vehicle,” despite “that you would think that a person who is walking, who has got their eyes open in daylight would see what there is to be seen.” Counsel argued that, because there was no evidence what actually happened, Ms. Woolridge had not met her burden of proof that Lauren was negligent. With respect to contributory negligence, counsel stated that all that we know is, for a fact, that she failed to see what was there.

The car there coming at her, about 10 miles an hour from a dead stop. Why? She doesn’t tell you why. If you’re not satisfied why, how can you find that she used ordinary, reasonable care for her own safety?

The jury ultimately found Lauren negligent and Ms. Wool-ridge contributorily negligent. This appeal followed. DISCUSSION J-H Ms. Woolridge contends that the circuit court erred m allowing Lauren to raise the defense of contributory negli ²⁹⁵ gence at trial. She acknowledges that Lauren raised this defense in her answer, but she asserts that, because Lauren failed to specify any negligent conduct by Ms. Woolridge in discovery, or “even mention contributory negligence in the Joint Pretrial Statement,” the court should have precluded this defense at trial.

Lauren contends that the circuit court did not err in ruling that she could raise the affirmative defense of contributory negligence at trial. Initially, she argues that she raised the defense in her answer, she never waived the defense, and there is no rule or case law that supports the argument that she was required to preserve the defense “at each stage of litigation after the defense was properly raised in the answer and not subsequently waived. Moreover, she asserts that Ms. Woolridge “was not subject to unfair surprise” because she had the opportunity to conduct discovery, raise any challenges to discovery prior to trial, and “seek clarification of [ ] defenses raised in the Answer.” Finally, Lauren suggests that she did preserve the defense during discovery and the pretrial statement. She notes that, during her deposition, when asked if there was anything that she was “aware of as we sit here today that [Ms. Woolridge] could have done to avoid being hit,” her response was that she was not aware where Ms. Woolridge “was situated and if she looked both ways.” Lauren asserts that this response “clearly indicates that depending on facts that were solely within the knowledge of Plaintiff and were not known by Defendant, there may be an issue as to whether Plaintiff contributed to the occurrence.” With respect to the Joint Pretrial Statement, Lauren asserts that she clearly indicated that, other than the facts to which she stipulated, “liability and damages are in dispute,” and she would submit further jury instructions at trial “to conform to the evidence.” As the parties acknowledge, Lauren raised contributory negligence as an affirmative defense in her Answer.

See Md. Rule 2-323(a) (“Every defense of law or fact to a claim for relief in a complaint ... shall be asserted in an answer.”); ²⁹⁶ Md. Rule 2-323(g) (contributory negligence is an affirmative defense that must be pled in an answer). The failure to include an affirmative defense in a defendant’s answer or amended answer “bars the defendant from relying on the defense to obtain judgment in its favor.” Gooch, 81 Md; App. at 385, 567 A.2d 954 . In Scott v. Jenkins, 345 Md. 21 , 690 A.2d 1000 (1997), the Court of Appeals observed that pleading serves four important purposes: (1) [it] provides notice to the parties as to the nature of the claim or defense; (2) [it] states the facts upon which the claim or defense allegedly exists; (3) [it] defines the boundaries of litigation; and (4) provides for the speedy resolution of frivolous claims and defenses. 345 Md. at 27-28 , 690 A.2d 1000 . “Of these four, notice is paramount.” Id. at 28 , 690 A.2d 1000 . Here, on the basis of her affirmative defense, Lauren provided Ms. Woolridge with notice that she intended to assert the defense of contributory negligence at trial.

Ms. Woolridge contends, however, that Lauren’s subsequent failure to explicitly assert this defense in discovery or in the joint pretrial statement resulted in Lauren waiving this defense. We are not persuaded. Ms. Woolridge directs us to no authority that directly supports the proposition that a party raising the defense of contributory negligence must affirmatively renew it throughout the litigation. Nor have we found any authority that supports Ms. Woolridge’s broad assertion that an affirmative defense raised in an answer is, in every case, automatically waived by the failure to reassert it in discovery or the pretrial statement.

To be sure, there may be situations where an affirmative defense raised in an answer subsequently will be waived. As the trial court noted, a party could affirmatively withdraw ²⁹⁷ or abandon such a defense. Or a party’s conduct could communicate the intent to abandon the defense. For example, there is authority in other jurisdictions that a defense that goes to the threshold issue of the court’s jurisdiction can be waived after being raised in an answer when subsequent actions show an intent to submit to the court’s jurisdiction.

See, e.g., Cont’l Bank, N.A. v. Meyer, 10 F.3d 1293, 1297 (7th Cir. 1993) (personal jurisdiction defense lost where defendants “fully participated in litigation of the merits for over two-and-a-half years without actively contesting personal jurisdiction,” stating that the “court could properly conclude that the defendants’ delay in urging this threshold issue manifests an intent to submit to the court’s jurisdiction”). 8 Here, there was no affirmative waiver of the defense of contributory negligence. Indeed, as Lauren argues, her discovery responses and pretrial statement were sufficiently vague that arguably they left the issue open. They did not, however, make clear the basis for any contributory negligence defense. The issue, then, is whether counsel’s conduct in failing to specifically assert the defense in discovery and the Joint Pretrial Statement constitutes a waiver of the defense by conduct.

We hold that a party who has asserted an affirmative defense in an answer does not, in every case, as a matter of law, waive that defense by the failure to reassert it in discovery or a pretrial statement. In reaching this conclusion, we note that there is nothing in Maryland Rule 2-504.2, which provides for the court to order a pretrial conference and a written pretrial statement, that indicates that a failure to include in a pretrial statement information regarding the affirmative defense of contributory negligence would result in a waiver of that issue. Rather, the rule states that various matters, including defenses, “may” be considered at a pretrial ²⁹⁸ conference. Md. Rule 2-504.2(b).

See also Maryland Rules Commentary Rule 2-504.2, 487 (4th ed. LexisNexis Matthew Bender) (“[PJretrial conference is