Plaintiff Attorney Legal Information CenterBelow is a successful opposition to summary judgment filed by our lawyers in a pedestrian accident case in Baltimore City.
IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND
Tina Wrecker,
– Plaintiff
v
Mandy Smith,
– Defendant
CASE NO.: 05-C-06-9511
Note: Plaintiff won this motion and then prevailed at trial, winning an award against the Safeco-insured defendant that was more than five times the settlement offer.
PLAINTIFF’S RESPONSE TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Tina Wrecker (“Plaintiff”), by and through her attorneys, Laura G. Zois and Miller & Zois, LLC, under Maryland Rule 2-501, and requests that this Honorable Court deny Defendant’s Motion for Summary Judgment as a matter of law. In support, she states as follows:
Introduction
Defendant has filed a motion for summary judgment on the issues of contributory negligence and assumption of the risk. This case arises out of an automobile/pedestrian accident that took place on December 14, 2019. The material facts to the questions of contributory negligence and assumption of the risk are in dispute.
Summary Judgment Standard
Maryland Rule 2-501 indicates that summary judgment is only appropriate in favor of the moving party, if the moving party shows that there is no genuine dispute as to any material fact and the moving party is entitled to judgment as a matter of law.
Defendant has the burden of proof and the Court must construe the facts and reasonable inferences to be drawn in a light most favorable to the non-moving party. Coit v. Napp, 248 Md.App. 44 (2020). Material facts of this case are in dispute and the defendant is not entitled to summary judgment as a matter of law.
Material facts in dispute include whether
- Defendant requested the Plaintiff’s assistance in extricating her vehicle out of the parking spot
- Defendant knew the Plaintiff was behind the van when she attempted to extricate her vehicle; whether or not the conduct of Plaintiff was reasonable under the circumstances
- Plaintiff appreciated there was an existing risk, and whether or not there was an existing risk.
There are facts that are not in dispute. On December 14, 2019, in the 1000 block of South Bouldin Street in Baltimore City. The Plaintiff was assisting Defendant in extricating her van from a parking space. Bouldin Street is a one-way road. Defendant parked her Ford F-150 work van on the left hand side of Bouldin Street in Baltimore City between two parked vehicles.
To assist the Defendant out of the parking space, Plaintiff stood behind Defendant’s vehicle and in front of a parked vehicle. The vehicles were approximately ten feet apart. The Plaintiff both verbally and with hand signals indicated to Defendant to begin backing up her van. Suddenly and without warning, the van quickly jerked backward, striking Plaintiff’s knees and pinning her between the van and the parked vehicle.
Defendant is Not Entitled to Judgment as a Matter of Law
Defendant is attempting to argue that Plaintiff’s assistance to a driver and the mere positioning of herself between the van and a parked vehicle is contributory negligence as a matter of law. However, Defendant fails to cite to a single case that has a factual scenario That supports this contention. Defendant cites to several cases where the Maryland courts have held that plaintiffs are contributorily negligent as a matter of law, however, that is the exception and not the rule.
Get More: Sample Motions | Sample Pleadings | Contributory Negligence | Help for Lawyers
For a plaintiff to be found contributorily negligent as a matter of law, it requires a finding that the negligent act of the plaintiff must be an act in which ordinary minds would not differ in declaring it to be negligent. The language of the court in Yockel v. Gerstatdt, 154 Md. 188 (1927), which is repeatedly quoted by Maryland appellate courts, establishing the threshold in which plaintiffs can be found contributorily negligent and is cited by Defendant in her Motion for Summary Judgment. The Court held that contributory negligence as a matter of law requires a finding that the negligent act of the plaintiff relied upon must be prominent, decisive and one about which ordinary minds would not differ in declaring it to be negligence. Id.
A standard of care to be used in measuring contributory negligence is the conduct of an ordinary person under similar circumstances, and even if the act done turns out to be an error in judgment, this alone does not make the act negligent if an ordinarily prudent person may have made the same error. Faith v. Keefer, 736 A.2d 422 (Md. App. 1999). The courts have been very resistant to take away the issue of contributory negligence from a jury. In fact, in Campbell v. Montgomery County Bd. Of Educ., 73 Md. App. 54 (1987),the Court noted that a case may not be taken from a jury on the ground of contributory negligence unless the evidence demonstrates “some prominent and decisive act which directly contributed to the incident and which was of such character as to leave no room for difference of opinion therein by reasonable minds.”
In the cases cited by the Defendant, there are factual distinctions and a common theme amongst those cases, which is not present in the case before this Court. In Domeski v. Atlantic Refining Co., 202 Md. 562 (1953) the plaintiff was attempting to push a broken-down motorcycle across a highway and did not see the approaching vehicle that ultimately struck him until just before the impact. The Court found that it was well established law that when a pedestrian suddenly steps into the path of an approaching car and either fails to see what is clearly there, or could have easily seen it in time to avoid the accident, he is guilty of contributory negligence as a matter of law. Id. at 567.
Get More: Pedestrian Accident Cases | Pedestrian Jury Instructions in Maryland
In another case cited by the Defendant, Southern Maryland Elec. Co-op v. Blanchard, 239 Md. 482 (1965), the plaintiff was attempting to secure a metal antenna to the top of an antenna pole when he came into contact with an exposed wire that was clearly there for him to see, and he had ample o
pportunity to observe the exposed wire which was in plain sight. The Court in the Southern Maryland case held that there is an underlying duty to look for what is there to be seen and requires individuals to see what is in plain sight.
Yet another case cited by the Defendant, Smith v. Warbasse, 71 Md. App. 625 (1987), is similar to the facts and holdings in the Domeski case and similarly unhelpful to her case. In Smith, a pedestrian was crossing a highway mid-block. The testimony was that the plaintiff pedestrian did not see the defendant’s approaching vehicle until just before the impact. Therefore, again, the Court held that the plaintiff was guilty of contributory negligence as a matter of law for failing to look for vehicular traffic, or having looked and failing to see the approaching vehicle.
In the case of Craig v. Greenbelt Consumer Services, Inc., 244 Md. 95 (1966), plaintiff admitted to seeing slippery sawdust on the floor, conceded that the sawdust was slippery and voluntarily encountered the sawdust anyway as opposed to side stepping the sawdust and walking in a clear path adjacent to the sawdust. The Court found that walking through the slippery sawdust, which plaintiff knew to be slippery, was negligent and that she could not, as a matter of law, recover damages.
It is conceded that it is often difficult to distinguish between assumption of the risk and contributory negligence, although there is a distinction between the two, albeit rather slight. An assumption of the risk defense implies an intentional exposure to a known danger which may or may not be true of contributory negligence. For a plaintiff to be found contributorily negligent, their action or inaction must contribute to the negligent act and their negligence must be a proximate cause of the accident. However, for a person to be found to have assumed the risk of their injury, they must have voluntarily exposed themselves to an existing danger.
In McSlarrow v. Walker, 56 Md. App. 151 (1982) (which is a case contained in the annotations of the Maryland Pattern Jury Instructions for contributory negligence) is the case most factually on point with the case before the Court. In McSlarrow v. Walker, the Plaintiff, Ada E. McSlarrow, was the personal representative of the Estate of Duane C. McSlarrow, who was killed in a traffic accident. On the date of the accident, the decedent plaintiff went to work and was driving a 1976 Dodge Charger in a westerly direction on Greenbelt Road. The evidence revealed that a short distance from the intersection of Greenbelt Road and Cipriano Road he ran out of gas. He attempted to fill up his gas tank while his vehicle was in a travel portion of a busy highway. The defense attempted to argue that he was contributorily negligent as a matter of law for attempting to get a disabled vehicle moving by pouring gasoline into the tank despite the danger of heavy traffic in the area. The Court found that he was not contributorily negligent as a matter of law. But the issue was properly submitted for the jury’s consideration.
- Defendant is not Entitled to Judgment as a Matter of Law on the Issue of Assumption of the Risk
Maryland Pattern Jury Instruction 19:3 indicates that a plaintiff cannot recover damages if he or she has assumed the risk of the injury. A person assumes the risk of an injury if that person knows and understands the risk of an existing danger, or reasonably should have known and understood the risk of an existing danger, and voluntarily chooses to encounter the risk (emphasis added). Typically, the issue of assumption of the risk is for the jury. ADM P’ship v. Martin, 348 Md. 84 (1997), following Schroyer v. McNeil, 323 Md. 275.
Cases cited by the Defendant to support their contention that the Defendant is entitled to judgment as a matter of law on the issue of assumption of the risk are factually distinguishable from the facts of the present case. In Saponari v. CSX Transp., Inc., 126 Md. App. 25 (1999) the plaintiff decedent voluntarily encountered a set of railroad tracks and stepped off of the platform into the path of a commuter train and was struck and killed. The Court in that case indicated that the plaintiff was an adult woman who should have known of the potential danger of stepping onto railroad tracks and exposing herself to the risk of being struck by a train.
In Gibson v. Beaver, 245 Md. 418 (1967) also cited to by the Defendant, the plaintiff brought an action against a fuel oil company and a truck driver when he suffered a heart attack while attempting to pull a hose from the truck to fuel an inlet at his house over snow-covered ground. The court found that the plaintiff voluntarily assumed the risk of his injury for attempting to pull a heavy hose over snow-covered ground and suffering his own heart attack.
Under the factual application in this case, Plaintiff did not expose herself to a known danger. She was merely trying to assist the driver of the van in extricating her vehicle out of a parking space.
There was no existing danger at the time of the accident. The plaintiff has a right to rely on the driver of the van to operate her vehicle safely. There is a duty incumbent upon the driver of the van to operate her vehicle safely and to avoid striking the Plaintiff.
There is also a factual dispute as to whether or not the Plaintiff believed the driver knew she was standing behind her vehicle. Plaintiff had the right to rely on an incumbent duty that the Defendant owed to her in her duty to safely operate her vehicle and to avoid a collision between the van and the Plaintiff as a pedestrian.
Furthermore, at the time that the Plaintiff was standing behind the van there was not an existing danger. The Plaintiff had no idea that the Defendant would accelerate quickly and jerk the van backwards. It was the Plaintiff’s reasonable expectation that the Defendant driver would operate the vehicle in a safely and slowly back the van up in an attempt to extricate herself from the parking space.
- Conclusion
Defendant is not entitled to judgment as a matter of law as there are genuine disputes of material facts and the issues of contributory negligence and assumption of the risk are typically left up to the jury to decide. There is a question as to whether or not the acts of Plaintiff constitute contributory negligence or whether or not she assumed the risk of her injuries, and these are jury issues.
The Defendant would have this Court find that anytime an individual is assisting or directing traffic, that they are acting negligently and are assuming the risk of their injuries. By applying contributory negligence and assumption of the risk to the acts done by the Plaintiff, that would mean that every time a bystander or friend helps another driver into or out of a parking space, a police officer directs traffic, an air traffic controller guides a plane in, or a crossing guard steps out into traffic to allow school children to cross in a crosswalk, they are as a matter of law contributorily negligent and assume the risk of their injuries. The issue of whether or not the Plaintiff acted reasonably under the circumstances is one for the jury and not for the Court.
Respectfully submitted,
Miller & Zois, LLC
La
ura G. Zois
1 South St, #2450
Baltimore, MD 21202
(410) 779-4600
(410) 760-8922 (facsimile)
Attorney for Plaintiff
Request for Hearing
Plaintiff respectfully requests a hearing on the Defendants’ Motion for Summary Judgment.
Laura G. Zois