Opinion
Civ. No. AMD 97-1042.
July 30, 1999.
MEMORANDUM
Plaintiffs Kevin James Miller and his daughter, Jill Christina Miller, filed this wrongful death/survival action on or about February 4, 1997, in the Circuit Court for Howard County, Maryland. Defendant Ryder Truck Rental, Inc. timely removed the case to this Court. Jurisdiction is based on diversity of citizenship pursuant to 28 U.S.C. § 1332. In addition to Ryder, the defendants were American Road Lines, Inc., New-Tranz, Inc. and Gregg Baranowsky.
The claims arise out of a head-on collision on Interstate 70 between a Honda automobile operated by plaintiffs' decedent, Robin Denise Miller (and in which plaintiff Jill Miller was a passenger) and a tractor truck ( sans trailer) operated by defendant Baranowsky. The accident resulted when Robin Miller's vehicle, which had been involved in a sideswipe type collision with another eastbound vehicle on I-70, crossed the grassy median strip separating the eastbound and westbound travel lanes of the interstate, and came to rest facing eastbound in the far left lane of westbound traffic, whereupon Baranowsky's truck struck it, killing Robin Miller and injuring her daughter.
Third-party claims were filed, as were motions to amend the pleadings, including motions for leave to file amended complaints. Motions for summary judgment were filed by third-party defendant Harry Friedel, Sr. and by all defendants and I denied those motions. The motion for summary judgment filed by defendants argued that under the Maryland "boulevard rule," Baranowsky was the "favored driver" and, as a matter of law, liability could not be imposed upon him (or upon the other defendants, whose liability is derivative of Baranowsky's liability).
The Fourth Circuit summed up Maryland's "boulevard rule" in White v. Rogers, 1998 WL 77915, at *2-*3 (4th Cir. February 25, 1998), as follows:
Maryland's boulevard rule provides as follows:
The driver of a vehicle about to enter or cross a highway from a private road or driveway or from any other place that is not a highway shall stop . . . [and] shall yield the right-of-way to any other vehicle approaching on the highway.
Md. Code Ann., Transp. § 21-404(a), (b) (1992). The rule purports to "expedite the flow of traffic" on highways by dividing the world into "favored" and "unfavored" drivers and roads, such that "[t]he duty of an unfavored driver to stop and yield the right-of-way is mandatory, positive, and inflexible." Dean v. Redmiles, 280 Md. 137, 147 (1977). The favored driver may depend upon the unfavored driver's obligation to obey the law, although he "may not proceed in complete disregard of obvious danger." Dean, 280 Md. at 148. Moreover, the unfavored driver's duty to yield the right-of-way to the favored driver extends beyond the immediate area of the intersection such that "the fact that an accident occurs outside the intersection does not bar the applicability of the boulevard rule if the collision is the result of a violation" of the rule. Quinn [ Freight Lines, Inc. v. Woods, 266 Md. 381 (1972)], 266 Md. at 386-87; see Simco Sales Serv. of Maryland, Inc. v. Schweigman, 237 Md. 180, 186 (1964); Grue v. Collins, 237 Md. 150, 157 (1964).
In denying the defendants' motion for summary judgment, I relied chiefly on the deposition testimony of plaintiffs' accident reconstruction expert, Wendell R. Cover. Cover testified, in essence, that notwithstanding Baranowsky's "favored driver" status, he had time and opportunity to avoid the collision with Robin Miller's vehicle. Thus, drawing all reasonable inferences from the evidence of record favorably to the plaintiffs, I regarded the defendants' "boulevard rule" argument as presenting a jury question rather than a ground for decision of the case as a matter of law.
Cover testified as follows, in pertinent part:
A: I'm not really sure if I understand your question, but the one and a half seconds under all the scenarios that could have been created and the information that I reviewed, one and a half seconds would be a normal perception response time for this situation.
Q: And then at the end of that one and a half seconds I take it in your opinion it's [sic] time for the truck driver to react.
A: Yes.
Q: Do you have an opinion as to what that reaction should have been?
A: One and a half seconds.
Q: No, no. After that one and a half seconds, you're testifying that it was time for the truck driver to take action. Is that right?
A: Yes.
Q: What action do you believe the truck driver should have taken?
A: Some type of slowing, braking.
Cover Dep. at 133-34.
The case was set for trial. As the pre-trial conference approached, defendants made clear for the first time that they intended to challenge many aspects of the plaintiffs' proposed expert opinion evidence (via timely-filed motions in limine) under Fed.R.E. 702 as interpreted in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), and Kumho Tire Co. v. Carmichael, 119 S.Ct. 1167 (1999). Recognizing that the assertion of a Daubert challenge was permissible under the extant scheduling orders in the case, I scheduled a plenary hearing on the motions in limine for April 30, 1999. During and at the conclusion of the April 30, 1999, hearing, I rendered certain rulings on the record. Those rulings limited in significant ways the testimony the plaintiffs' experts would be permitted to offer at trial. I also invited the defendants to renew their motion for summary judgment.
Defendants have now done so and the issues have been fully briefed by the parties.
In the proposed pre-trial order submitted by the parties, the plaintiffs set forth the statement of facts in support of their claims as follows:
Plaintiffs intend to prove that Plaintiffs' decedent, Robin Denise Miller, was operating her red 1990 Honda Accord eastbound on I-70 near Clarksville on July 25, 1994 when a blue 1988 Honda Civic operated by David Harry Friedel, Jr. clipped her car while attempting a pass from the right side and sent both cars spinning out of control. The Friedel vehicle was occupied by passenger Rosemary Kim Manley and Mrs. Miller's vehicle was occupied by her twelve (12) year old daughter, Jill Christina Miller. The road was soaked due to a driving rain. The afternoon rush hour had already begun.
The Robin Denise Miller vehicle went spinning out of control, rotating as it entered the grass median, crossed the mud-slicked median and came to a momentary rest in the fast lane of 1-70 westbound. The Friedel vehicle similarly spun out of control into the median and also came to a momentary rest in the westbound lanes, at a point approximately 30 feet east of the Miller vehicle.
At that same time a bobtail tractor operated by defendant Gregg NMN Baranowsky was traveling westbound. Mr. Baranowsky first noticed the red Honda Accord seemingly in distress as it penetrated the grass median about 200 to 250 yards away from him. He states in his deposition that at some point after noticing Miller he released the throttle which had the effect of slowing down his tractor and engaged his right turn signal. The blue Civic managed to back out of harms [sic] way immediately in front of the Baranowsky tractor but, tragically, the red Accord took the full brunt of the Baranowsky tractor, killing Robin Denise Miller and injuring Jill Christina Miller.
The Plaintiffs intend to prove that Mr. Baranowsky did not reach for his brakes, sound his horn or attempt to steer away until he was right on top of the Miller vehicle. The very short skid marks and the thrust of the impact occurring in the fast lane, as borne out by photographs at the scene, will be used to prove Plaintiffs' position. Plaintiffs further intend to show by way of accident reconstruction that the defendant tractor driver was exceeding the posted limit, driving aggressively and otherwise driving inappropriately under the circumstances.
Accepting this statement of facts for purposes of the pending motion for summary judgment, I am persuaded that summary judgment must be granted in favor of the defendants. Although the defendants have couched their motion in the nomenclature of the "boulevard rule," the case really turns on the issue of whether Baranowsky owed a duty to plaintiffs' decedent to avoid colliding with her vehicle before her vehicle had actually entered his lane of travel. In other words, plaintiffs' entire case — and most assuredly their accident reconstructionist's expert opinion — depends entirely on the notion that Baranowsky was required by the exercise of the duty of reasonable care imposed upon him by Maryland law to take "evasive action" as soon as he observed the two Honda vehicles enter the grass median. This contention — whether cast as an application of the "boulevard rule" or, as I prefer to cast it, as an issue of when in the course of the few seconds between the original collision between the Hondas and the collision between Miller and Baranowsky the latter had a duty to take "evasive action" — is simply untenable under Maryland law. Cf. Valentine v. On Target, Inc., 353 Md. 544, 549, 727 A.2d 947, 949 (1999) ("Generally, whether there is adequate proof of the required elements needed to succeed in a negligence action is a question of fact to be determined by the fact finder; but, the existence of a legal duty is a question of law to be decided by the court.") (emphasis added); Rosenblatt v. Exxon, 335 Md. 58, 76, 642 A.2d 180, 189 (1994) (same).
It seems anomalous, at best, to conceive of a driver who totally lacks control over her vehicle as a result of an antecedent collision as "violating" the "boulevard rule" (or any rule). The fact is, assuming arguendo that Mrs. Miller was not at fault in any measure for the collision in the eastbound lanes which propelled her vehicle into the westbound lane occupied by Baranowsky, a proper analysis would conclude that Baranowsky's inability to avoid her vehicle was not a proximate cause of her death and Jill's injuries. Defendants make this argument (and I accept it as manifestly correct) as an alternative basis for summary judgment. See generally, for a discussion of proximate cause under Maryland law, Yonce v. SmithKline Beecham Clinical Laboratories, Inc., 111 Md. App. 124, 136-37, 680 A.2d 569, cert. denied, 344 Md. 118, 685 A.2d 452 (1996); and see Wankel v. A B Contractors, Inc., ___ Md. App. ___, 1999 WL 447109, *14-*24 (Md.App. July 1, 1999); McQuay v. Schertle, 126 Md. App. 556, 730 A.2d 714, 727 (1999) ("As the Court of Appeals has explained, whether a cause is `legally cognizable' [as a proximate cause] is essentially a question of `fairness and social policy.'") (citation omitted).
Plaintiffs' contention that as a commercial truck driver Baranowsky should be held to a higher standard of care is not supported by Maryland law. See Lemons v. Maryland Chicken Processors, Inc., 223 Md. 362, 367, 164 A.2d 703, 706 (1960).
As a matter of law, Baranowsky's legal duty to avoid harm to others in his use of the highway did not impose upon him the duty to anticipate that, as soon as he recognized that the Friedel and Miller vehicles had begun to leave the eastbound lanes of I-70 onto the grassy median, the Miller vehicle would traverse the entire median strip and come to rest in his lane of travel, rather than that the scenario would play out as any one of the following alternatives: that the Miller vehicle would (1) come to rest in the median; (2) come to rest in his lane of travel but immediately leave his lane of travel (as did the Friedel vehicle); or (3) traverse his lane of travel entirely without coming to rest wholly or partially within his lane of travel. Accordingly, as a matter of law, by the time (less than two seconds before the collision) the law imposed upon Baranowsky a duty to take "evasive action" to avoid colliding with the Miller vehicle which had come to rest in his lane of travel, it was too late for him to avoid the collision.
This is shown graphically by the "point of impact" diagram attached to this Memorandum, which the parties all agree is an accurate representation of the manner in which the Baranowsky and Miller vehicles came into contact, and by the undisputed testimony of a driver of a westbound vehicle who was alongside Baranowsky throughout the relevant period of time. Baranowsky (as common sense would suggest, if only to avoid harm to himself) took evasive action (slowing and changing lanes) so as to avoid the collision, but he was not able to avoid the Miller vehicle. The law did not require that he do more than that. Specifically, the duty imposed upon him did not require that he exercise a prescience beyond the ken of human beings to predict (at the moment the two Hondas entered the median strip) exactly what the Miller vehicle was going to do and to take appropriate (and successful) action, on pain of having a jury, with the benefit of 20/20 hindsight and aided by speculative "expert" opinion evidence, conclude that he culpably guessed wrong.
Thus, I reject plaintiffs' argument that a jury question is presented as to "when Baranowsky should have `foreseen' that the Miller vehicle would enter his lane." Pls.' Resp. To Defs.' Supp. Mot. Summ. Judg. at 6. The issue of foreseeability presented here is not a jury question but a question of law encompassed by the issue of whether the law imposed a duty upon Baranowsky to "guess right" about the course Mrs. Miller's vehicle would take. Cf. Coates v. Southern Maryland Elec. Co-op, Inc., 1999 WL 390968, at *14 (Md. Jun 16, 1999) ("As we pointed out, foreseeability is not the only test in determining the existence of a duty."). See also id. at *13 ("The fact that these kinds of deviations occur with some frequency and are therefore generally to be anticipated does not mean that a collision with any particular [utility] pole is foreseeable, and, in judging liability, that is the requisite consideration. Liability must be based on the negligent placement or maintenance of the pole that was struck, not in the placement or maintenance of other poles that were not struck. Most poles, we expect, exist for years, or even decades, without incident. Most roads, we expect, are relatively safe, and most people are able to navigate them throughout their driving careers without running into a pole. . . . We conclude from this that, while off-road collisions may be generally foreseeable, a collision with any particular pole is not legally foreseeable merely by virtue of its proximity to the traveled portion of a road.").
Moreover, neither Baranowsky's speed nor his manner of driving before the two Honda vehicles collided in the eastbound lanes of I-70 was a proximate cause of the collision between the Miller vehicle and Baranowsky's truck in the westbound lane. See note 3; cf. McQuay v. Schertle, 126 Md. App. 556, 730 A.2d 714, 726 (1999) ("In Rosenthal v. Mueller, 124 Md. App. 170, 720 A.2d 1264, Judge Moylan explained that when a plaintiff's violation of a `Rules of the Road' statute is merely coincidental, having only the effect of placing him `at the wrong place at the wrong time,' it is `non-contributory' as a matter of law. Id. at 181, 720 A.2d 1264."); Wilbur v. Suter, 126 Md. App. 518, 730 A.2d 693, 698 (1999) ("Where the evidence of violation of a statute does not rise above speculation as to proximate cause, the issue should not be submitted to the jury.").
For the reasons set forth, I have concluded that defendants are entitled to judgment as a matter of law. A separate order shall be entered herewith.
ORDER
In accordance with the foregoing Memorandum, and for the reasons stated on the record on April 30, 1999, it is this 30th day of July, 1999, by the United States District Court for the District of Maryland, ORDERED
(1) That the defendants' motion in limine as to the testimony of witness Janice Harris is GRANTED; and it is further ORDERED
(2) That the defendants' motion is limine as to Wendell Cover is GRANTED IN PART AS SET FORTH ON THE RECORD; and it is further ORDERED
(3) That the defendants' motions in limine as to Dr. Aleksander S. Popel and Mr. Terry Morgan are DENIED WITHOUT PREJUDICE PENDING FURTHER HEARING IF THIS ORDER IS REVERSED ON APPEAL; and it is further ORDERED
(4) That upon the stipulation of the parties, the case is DISMISSED WITH PREJUDICE AS TO DEFENDANT RYDER TRUCK RENTAL, INC.; and it is further ORDERED
(5) That Motion for Summary Judgment BE, and it hereby IS, GRANTED; and it is further ORDERED
(6) That JUDGMENT BE and it hereby IS ENTERED IN FAVOR OF THE DEFENDANTS and THIRD PARTY DEFENDANTS; and it is further ORDERED
(7) That the Clerk of the Court shall CLOSE THIS CASE and TRANSMIT a copy of this Order and the foregoing Memorandum to the attorneys of record.