IN THE COURT OF SPECIAL APPEALS
SEPTEMBER TERM, 1999
GARY BURDETTE ET AL.
ROCKVILLE CRANE RENTAL INC. ET AL.
Alpert, Paul E. (Ret’d,
Opinion by Kenney, J.
Filed: February 4, 2000
Gary Burdette and Leslie Burdette appeal from a jury verdict
in favor of appellees, John Johnson and Rockville Crane Rental,
Gary Burdette, individually and as the father and next friend
of Leslie Burdette, filed a wrongful death and survival action
against appellees as a result of the May 1, 1996, death of
Constance Burdette, who was Gary Burdette’s
wife and Leslie Burdette’s mother, was fatally injured when her
automobile collided with a vehicle owned by Rockville Crane Rental,
Inc., and operated by Mr. Johnson.
After a trial in the Circuit Court for Montgomery County, the
Judgment was entered in favor of both appellees.1
Mrs. Burdette’s usual route to work was to travel along Emory
Lane and then turn left onto Muncaster Mill Road.
Emory Lane ended
at Muncaster Mill Road, forming a “T” intersection.
were two-lane, with one lane in each direction, but both roads had
“right-turn only” lanes at the intersection.
Emory Lane had a stop
sign at the intersection; Muncaster Mill Road had no traffic signal
or sign there.
The speed limit on Muncaster Mill Road was 40 miles
It is noted that the verdict sheet did not address expressly the liability of the corporation.
In opening argument, counsel for Mr. Johnson indicated that “he has a crane business. His
company is called Rockville Crane Rental, which at the time this accident occurred he was on the
job as part of his company.” The finding by the jury that Mrs. Burdette was contributorily
negligent, however, precluded a judgment against either defendant.
-2On the morning of May 1, 1996, Mrs. Burdette stopped at the
stop sign on Emory Lane, with one car stopped in front of her and
one behind her.
After the car in front turned onto Muncaster Mill
Road, Mrs. Burdette moved her white BMW coupe forward past the stop
sign and then paused again.
Because Muncaster Mill Road had high
ground on both sides of it, drivers stopped at the stop sign on
Emory Lane could not see as far down Muncaster Mill Road as they
could if they advanced past the stop sign.
Mrs. Burdette moved
forward and paused at the point, approximately 17 feet past the
stop sign, at which the pavement of Emory Lane actually intersected
with the pavement of Muncaster Mill Road.
markings or signs where she paused.2
There were no traffic
John Capasso, the driver
behind Mrs. Burdette on Emory Lane, testified that while waiting
behind her he could not see down Muncaster Mill Road to the left,
i.e., south, because of the raised ground along the side of the
While Mrs. Burdette’s BMW was at the end of Emory Lane, a van
driven by Roger Davis was next to her car, in the “right-turn only”
lane on Emory Lane.
Traffic on Muncaster Mill Road was heavy, and
Mrs. Burdette waited in that position for approximately 20 seconds.
Intending to go right (north), Mr. Davis remained stationary
because he could see a truck approaching from the south.
Since this accident, a white line has been painted across the road at that point.
-3Mrs. Burdette, however, proceeded forward and began to turn
left (south) onto Muncaster Mill Road.
Mr. Davis testified that as
Mrs. Burdette proceeded forward, her head was turned toward her
right, looking past the front of his van.
Kathy Smith was driving south on Muncaster Mill Road.
approached Emory Lane, she could see Mr. Davis’s van.
saw a white BMW come out from behind the van “kind of quick” and
start to turn left.
Ms. Smith braked, because she was concerned
that the BMW would turn in front of her and then slow down.
Smith also looked farther to her left to see if another car would
follow the BMW from Emory Lane.
Mr. Johnson was driving north on Muncaster Mill Road in the
Ford pickup truck that Mr. Davis had seen approaching.
testified that the last time he checked his speedometer, at the top
of the slight rise down which he was proceeding toward Emory Lane,
it read 35 miles per hour.
Mr. Johnson was behind another car,
which drove past Emory Lane.
When Mr. Johnson first noticed the
BMW, it was already moving “right into [his] lane.”
that he was approximately 100 to 150 feet from the BMW when it
started to pull out.
He initially steered his truck slightly to
the left and then braked hard.
The brakes locked, and the truck
skidded 84-90 feet in a straight line before hitting the driver’s
-4door of the BMW.3
The collision occurred primarily in the same
lane in which Mr. Johnson had been traveling, but overlapped the
edge of the lane toward the center of the road.
Just prior to the
collision, as his skidding truck approached the BMW, Mr. Johnson
could see Mrs. Burdette looking to her right, away from him.
injuries that Mrs. Burdette suffered in the accident proved fatal.
The Trial and Verdict
After four days of trial, the jury returned its verdict,
answering “Yes” to each of the following questions: (1) “Was [the]
defendant, John P. Johnson, negligent?”; (2) “Was the negligence of
Defendant Johnson a cause of the plaintiffs’ injuries?”; (3) “Was
Constance Burdette negligent?”; and (4) “Was the negligence of
Constance Burdette a cause of her injuries?”
The court therefore
entered judgment for appellees.
Appellants present four questions for our review:
Did the trial court commit reversible
error in refusing to permit plaintiffs’
experts to testify as to their opinions
concerning the cause of the collision...?
Did the trial court commit reversible
error in denying appellants’ motion to
strike a juror for cause...?
Did the trial court commit reversible
Only the rear brakes on the truck were anti-lock brakes; the front brakes locked up, but
the rear did not lock completely. The range of measurement for the skid marks referred to the
beginning of the skid marks (90 feet) and the point where all four tires began leaving skid marks
-5error in failing to instruct the jury of
the Boulevard Rule’s limitations?
Did the trial court commit reversible
error in failing to instruct the jury as
to the doctrine of Last Clear Chance?
Discerning no error, we shall affirm.
After opening statements, the trial court heard testimony
from John Capasso, the driver behind Mrs. Burdette.
recess that followed, Juror 11-A asked to speak with the judge.
The following exchange then occurred:
JUROR 11-A: My mother, in September of 1997,
living in Prescott, Arizona, pulled out in
front of a very busy street and was hit
broadside. She survived. She is doing fine.
She has no memory of why she did it. She is
the most cautious person in the world.
just has an eerie similarity, what I am
She had very clear vision.
She was smacked broadside. She clearly was at
fault, and I am finding it hard to sort of - I
am finding myself feeling very awkward
listening to this because I have the clear
understanding my mother was at fault.
definitely could see. She made a mistake. I
feel like I may be somewhat biased.
As soon as the circumstances arose I had
a strong feeling that my mother was at fault
in this case, and I think that is what my
family has concluded. She pulled out. That
is what the people said. It is a very busy
street. It is a huge intersection. It is a
She did it every day.
She is 76
years old. She is bright, alert.
She just pulled right out in front of the
guy, and she is the most cautious person in
the world. I just feel like it is hard for me
-6to shake the sense that that is a very
possible thing to do, to make that mistake,
because my mother did it.
THE COURT: Do you feel that your mother’s
experience ... would affect your capacity to
objectively evaluate this matter?
JUROR 11-A: I will do my best to objectively
evaluate it. The reason I am bringing it to
you is because it sounds too familiar.
THE COURT: I appreciate that.
JUROR 11-A: Before this happened the thought
that my mother, who was so cautious about
traffic, and every time we would go to visit
them in Prescott she would say, “You make sure
you look left, this is a dangerous highway.”
The fact that she would pull out in front of
these people just astonishes me, and it still
astonishes me that she would have made that
mistake. She clearly made a mistake. It has
an impact on me.
It makes it seem very
believable to me that somebody who is a good
driver, who is a cautious driver, would
completely - and so I am bringing that to your
I will try to put everything aside and I
will be happy to be a juror, but I wanted to
let you know.
THE COURT: Well, we appreciate your bringing
Why don’t we do this, you come
back tomorrow and you will participate unless
I deem otherwise.
informed both parties that it would speak further with the juror at
the close of all the evidence, so as to assess whether the juror
still felt he could be impartial and base his decision on the law.
The first conference with Juror 11A was the last trial event on the
-7first day of trial.
Appellant’s counsel did not move to strike
Juror 11A on that day, but did so at a “preliminary matters” bench
conference on the next day, before the resumption of testimony.
Near the end of the trial, after the jury had been instructed and
closing arguments had been given, the court had another conference
with the parties and Juror 11A.
The court asked the juror if he
felt “that the experience of a family member would affect your
capacity to decide this case fairly and impartially based solely on
the evidence and the applicable law,” or if he felt “that it would
have such an impact that you couldn’t do it?”
The juror responded:
“I feel like I would be fair.”
“beliefs or biases” against drivers who “make turns from stop signs
and get in collisions?”
The juror answered:
I think what I said on Monday is what I
still believe, which is that even careful
people can make mistakes.
That was my
conclusion from my experience that I had with
I found my mother to be a very
careful and cautious driver.
This accident happened 2,000 miles from
my purview, and I did not get out to Arizona
to talk with them about it. She has no memory
of the accident herself at all. It eradicated
- she has no experience - memory at all of
even being there.
So, there is nothing to be gained from
talking to her. But in my own experience, my
mother how she - this turn, always, and I
would have my - the lesson that I took from it
was the one I said Monday, which is that even
careful people can sometimes make mistakes.
I think that I have listened dutifully
and carefully to the case, and can make the
-8decision based on the merits of the case.
Appellants contend that the trial court, by denying their
request to excuse Juror 11A, “generated reversible error on three
following his disclosure; (b) the Juror’s bias should have been
fully probed by the Trial Court; and (c) allowing the Juror to
remain effectively denied the Appellants the full exercise of their
peremptory challenge privilege.”
On appeal, we will reverse a trial court’s ruling on the
Adams v. Owens-Illinois, Inc., 119 Md. App. 395, 402,
705 A.2d 58 (1998).
We defer to the trial judge’s unique
opportunity to observe the demeanor and
suitability of potential jurors. ... Under
Maryland law, a juror must be discharged for
impartial. ... [A] juror may be struck for
cause only ‘where he or she displays a
predisposition against innocence or guilt
because of bias extrinsic to the evidence to
be presented.’ Although the cases cited are
criminal, the same logic applies to civil
cases; the linchpin in either is lack of bias
and a resolve to be fair and impartial.
Id. at 402-403 (emphasis added; citing, inter alia, Gorman v.
State, 67 Md. App. 398, 409, 507 A.2d 1160 (1986); McCree v. State,
33 Md. App. 82, 98, 363 A.2d 647 (1976)).
Appellants argue that Juror 11A’s knowledge of his mother’s
-9accident gave him an “obvious bias” against appellants, and that he
should have been stricken for cause.
Appellants mention that many
other potential jurors who responded positively to the court’s voir
dire questions about automobile accidents were stricken for cause.
Although Juror 11A did not respond affirmatively during voir dire,
The judge asked the jury pool if they or their
immediate family members had been involved in litigation stemming
from automobile accidents.
During his conversations with the court
during trial, Juror 11A never mentioned any litigation stemming
from his mother’s accident.
It seems reasonable that, as the juror
said, it was the testimony of the first witness that made the juror
realize the similarities between Mrs. Burdette’s accident and his
came forward immediately thereafter.
Appellants cite Wyatt v. Johnson, 103 Md. App. 250, 653 A.2d
496 (1995), for the premise that “[w]hen there is evidence of bias,
the court may excuse a prospective juror even if that juror
purports to be able to render a fair verdict.”
In this case, the
inference that he was biased against any party; rather, as he
reiterated several times, his mother’s experience taught him that
“even careful people can make mistakes.”
This is not a statement
that provides direct evidence of bias or prejudice.
Wyatt also indicates that a trial court may excuse a juror
-10even if the juror purports to be able to render a fair and
The trial court is not required to excuse such
disregard the juror’s promises of impartiality and dismiss the
juror from the jury.
In deciding to retain the juror, the trial
court had the benefit of first-hand observation.
The court was
faced with a decision based largely on the credibility to be given
to the juror’s statements, and we will not say that the court
abused its discretion in the choice that it made.
See Smith v.
Pearre, 96 Md. App. 376, 392, 625 A.2d 349, cert. denied, 332 Md.
454, 632 A.2d 151 (1993) (holding that trial court did not err in
denying motion for new trial, despite failure by one juror to
reveal during voir dire that he had a personal philosophy opposed
to “people suing people”).
Appellants also contend that the trial court erred by not
fully probing Juror 11A’s potential bias.
Appellants cite Wilson
v. Morris, 317 Md. 284, 302, 563 A.2d 392 (1989), in which the
Court of Appeals held that a trial court had an affirmative
obligation to inquire again as to whether a juror could render a
fair and impartial verdict after the juror, following opening
statements and a trip by the jury to the scene of the accident,
stated that “these cases are costing too much money.”
of the trial court to conduct additional voir dire as to that
-11juror’s fairness and impartiality was reversible error.
Here, the trial court twice questioned the juror about the
juror’s ability to render a fair and impartial verdict.
answered, “I will do my best to objectively evaluate it;” “I will
try to put everything aside and I will be happy to be a juror, but
I wanted to let you know;” and “I feel like I would be fair.”
Appellants’ counsel also questioned the juror, who answered,
“I think that I have listened dutifully and carefully to the case,
and can make the decision based on the merits of the case.”
Appellants could have questioned the juror more extensively, but
questions or topics that the court should have discussed with the
We believe that the questioning that occurred was sufficient.
The trial court had the opportunity to observe the juror and assess
The juror’s responses permitted the trial court
to determine that the juror would be able to participate in
deliberations fairly and impartially.
Appellants’ third argument is that the trial court’s decision
to keep the juror on the jury “effectively denied the appellants
the full exercise of their peremptory challenge privilege.”
-12accident, appellants’ counsel stated that, if the juror had made
peremptory challenge to remove that juror.
In jury trials,
a reasonable peremptory challenge right plays
a vital role because it permits a party to
eliminate a prospective juror with personal
traits or predilections that, although not
challengeable for cause, will, in the opinion
of the litigant, impel that individual to
decide the case on a basis other than the
King v. State Roads Commission, 284 Md. 368, 370, 396 A.2d 267
There is no showing in this case, as there was in King, of any
deviation from the applicable rule as to peremptory challenges
during the initial jury selection process.
Litigants do not have
the right to peremptory challenges sufficient to remove every
potential or actual juror whom they do not desire to have on the
Appellants present no support for their contention that
litigants who do not get “new” peremptory challenges during trial
are somehow deprived of their rights.
Indeed, such a position
would seem contrary to the recognition that neither the federal nor
King, 284 Md. at 370.
This case concerns the retention or removal of a juror from a
sitting jury during trial.
Acknowledging that a trial judge’s
determination regarding the removal of a seated juror will not be
-13reversed unless “‘arbitrary and abusive,’” we discern no such
State v. Cook, 338 Md. 598, 612, 659 A.2d 1313 (1995)
(quoting James v. State, 14 Md. App. 689, 699, 288 A.2d 644
(1972)); see also Smith v. Pearre, supra.
Appellants argue that the trial court erred by refusing to
allow appellants’ expert witnesses to give their opinions of the
Montgomery County Police Officer Charles Simpson and from Harry
Kriemelmeyer, Jr., who were both accepted as experts in the field
of collision reconstruction.
Officer Simpson and Mr. Kriemelmeyer
determinations about the accident: (1) the posted speed limit on
Muncaster Mill Road, on which Mr. Johnson was traveling, was 40
miles per hour; (2) Mr. Johnson’s Ford truck was traveling at
approximately 64 miles per hour when Mrs. Burdette’s BMW began
moving forward; (3) the BMW began moving forward when the vehicles
were about 333 feet apart; (4) Mr. Johnson probably first perceived
the BMW when the truck was approximately 235-242 feet from the
eventual point of impact; (5) Mr. Johnson, if he had a normal
reaction time, spent the next 1.6 seconds, while the truck traveled
150 feet, processing the information that he had to react to avoid
the BMW; (6) Mr. Johnson braked after that short period, leaving
skid marks that began 90 feet from the point of impact and
-14continued, in a straight line, to the point of impact; and (7) the
truck was traveling at a minimum speed of 46 miles per hour when it
collided with the BMW.4
Appellants’ counsel then asked Officer Simpson: “Do you have
an opinion that you can state to a reasonable degree of certainty,
based on your education, your experience, and your investigation of
Appellees’ counsel objected, and the following bench conference
objection goes to -
THE COURT: The form of the question, the cause
of the impact that is a factual determination
by the jury. It is the way that the question
is phrased ... more than anything else.
[Appellants’ counsel]: I know it may go to the
ultimate issue THE COURT: No, it is the ultimate issue.
[Appellants’ counsel]: I think an expert is
allowed to express his opinion, even if it
subsumes within it, the ultimate issue, and it
is evidence for the jury to consider.
[Appellees’ counsel]: This goes beyond the
facts, as well. I mean, it also is a legal
issue as well. Your Honor will tell the jury,
find the facts and apply the law, if there is
one cause it is a combination of those issues,
and that is within the province of the jury.
All of these estimates comported closely with the estimates made by David Warshaw,
appellees’ expert reconstructionist. The experts also estimated that, before the collision, the
BMW traveled approximately 57-65 feet in approximately 3.4-3.7 seconds. The speed of the
BMW immediately before the collision was 26 miles per hour.
-15[Appellants’ counsel]: Well, they are not
bound - the jury is not bound to what he says,
and Your Honor is going to instruct them on
that, but he is and has been qualified as an
expert. The experts are allowed to give their
opinions and draw conclusions, and his
function is to decide who was at fault in this
THE COURT: His opinions are based on the
location and speed of the vehicle.
causation is something a little bit more than
that, Mr. Stein. And I think that it would be
an invasion of the province of the jury for
him to come to a factual conclusion as to what
caused this accident.
He can render an opinion as to whether or
not the impact would have occurred if the
speed had been greater.
That is different,
that is a matter of computation.
brings into play a substantially greater
number of factors, such as who was and who was
not paying attention, and those kinds of
The ultimate issue being within the
cognizance of an expert has very narrow
applications. In (inaudible) cases, yes, and
that kind of thing, but with respect to
situations such as this, causation is solely
within the province of the jury.
The trial court also sustained objections to appellants’
proposal to ask Mr. Kriemelmeyer his “opinion with a reasonable
degree of certainty in accident reconstruction as to whether or not
it was reasonable or not for Mrs. Burdette to pull out,” and his
opinion “within a reasonable degree of certainty as an accident
reconstructionist as to what caused this collision and who was the
cause of the collision.”5
The court similarly forbade Mr. Warshaw, appellees’ expert, from testifying as to his
opinions on the subject of “causation.”
-16Mr. Kriemelmeyer did testify, however, that if Mr. Johnson had
perceived the BMW as soon as it began moving, when Mr. Johnson was
still approximately 333 feet from the BMW, there would have been no
Mr. Kriemelmeyer also testified that there would have
been no collision if Mr. Johnson had been driving at 55 miles per
hour, just 9 miles less than his actual speed, and still 15 miles
per hour above the speed limit.
Maryland Rule 5-702 provides:
Expert testimony may be admitted, in the
form of an opinion or otherwise, if the court
determines that the testimony will assist the
trier of fact to understand the evidence or to
determine a fact in issue.
In making that
determination, the court shall determine (1)
whether the witness is qualified as an expert
by knowledge, skill, experience, training, or
education, (2) the appropriateness of the
expert testimony on the particular subject,
and (3) whether a sufficient factual basis
exists to support the expert testimony.
Maryland Rule 5-704(a) provides, in pertinent part, that
“[t]estimony in the form of an opinion or inference otherwise
admissible is not objectionable merely because it embraces an
ultimate issue to be decided by the trier of fact.”
State, 350 Md. 633, 654, 714 A.2d 864 (1998).
See Sippio v.
An expert’s opinion
is admissible if it is relevant and will aid the trier of fact.
Cider Barrel Mobile Home Court v. Eader, 287 Md. 571, 584, 414 A.2d
“[T]he admissibility of expert testimony is a matter largely
within the discretion of the trial court and its action will seldom
-17constitute a ground for reversal.”
Myers v. Celotex Corp., 88 Md.
App. 442, 460, 594 A.2d 1248 (1991), cert. denied, 325 Md. 249, 600
A.2d 418 (1992) (citations omitted).
Appellants have the burden of
showing that the trial court abused its discretion.
Mattingly, 92 Md. App. 248, 607 A.2d 575 (1992).
The questions posed to appellants’ experts asked the experts
to make a legal conclusion, not a factual one.
contributed to the accident.
It was apparent
The experts testified at length about
these circumstances, including the excessive speed of Mr. Johnson’s
truck, Mr. Johnson’s possible failure to immediately detect the
movement of the BMW, and Mr. Johnson’s failure to avoid the BMW.
The experts testified that if Mr. Johnson had been driving at
any speed equal to or less than 55 miles per hour, the accident
would not have happened.
If appellants sought to have the experts
identify Mr. Johnson’s negligent driving as the “cause” of the
They had already testified that the accident would not
have happened without the speed, and the accident could still have
been avoided if Mrs. Burdette had not pulled out in front of the
Also, Mr. Kriemelmeyer testified that Mrs. Burdette could
Although there was extensive testimony about the factual components
of the accident, there was little disagreement among the experts
-18concerning the crucial details of the accident.
The jury was well-
equipped to assess the facts and assign legal responsibility.
trial court did not abuse its discretion.
We recently have delineated Maryland’s “Boulevard Law”:
Under Maryland law, traffic rights-of-way
are well established and certain roads or
highways are favored. A motor vehicle on a
favored road has the right-of-way against a
vehicle on an intersecting unfavored road.
The driver on the unfavored road must stop
before entering the favored road and yield to
the driver proceeding on that road, provided
that the favored driver is operating his
vehicle lawfully. Although he may not ignore
obvious danger, the favored driver may assume
that the unfavored driver will stop and yield
When a motorist reaches a stop sign at
the intersection of his road and another, and
the street across which he wishes to proceed
does not also have a stop sign, that motorist
is traveling on an unfavored road and crossing
a favored road.
Maryland law clearly
articulates his obligations toward drivers on
the favored road:
[I]f the driver of a vehicle approaches a
through highway, the driver shall:
(1) Stop at the entrance to the
through highway; and
(2) Yield the right-of-way to any
other vehicle approaching on the
Maryland Code (1977, 1999 Repl. Vol.), § 21403(b) of the Transportation Article.
This rule has long been known as the
Brendel v. Ellis, 129 Md. App. 309, 313,
742 A.2d 1 (1999)
(emphasis added; citation and footnote omitted).
-19The trial court denied appellants’ request that Mr. Johnson be
found negligent as a matter of law.
The court instead gave the
jury Maryland Pattern Jury Instruction (“MPJI”) 18:2, without
In pertinent part, the court instructed the jury:
Now, under Maryland [sic], certain roads
or highways are given the status of favored
highway. A motor vehicle on a favored highway
is the favored vehicle, and the motor vehicle
on the unfavored highway is the unfavored
The driver of an unfavored motor vehicle
must stop before entering upon a highway and
yield the right of way to the favored motor
vehicle, provided the favored driver is
The favored driver may
assume that the unfavored driver will stop and
yield the right of way. [Emphasis added.]
Appellants requested that the court modify the Boulevard Rule
instruction “to tell the jury that they need to make the decision
whether the boulevard law applies in terms of favored or unfavored,
telling them that if they find that the driver on the thoroughfare
was proceeding unlawfully, then neither driver carries any titles.”
This request was denied.
instructions, the trial court prevented the jury from finding that,
even though Mr. Johnson was on the favored highway, he had lost his
precedence over Mrs. Burdette’s vehicle because he was
When reviewing a trial court’s decision regarding a requested
jury instruction, we examine “whether the requested instruction was
-20a correct exposition of the law, whether that law was applicable in
light of the evidence before the jury, and finally whether the
substance of the requested instruction was fairly covered by the
instruction actually given.”
E.G. Rock, Inc. v. Danly, 98 Md. App.
411, 421, 633 A.2d 485 (1993) (quoting Wegad v. Howard Street
Jewelers, Inc., 326 Md. 409, 414, 605 A.2d 123 (1992)).
The instructions given were sufficient explications of the
The trial court instructed the jury that the unfavored driver
This sufficiently implies that the Boulevard
Rule may not apply if the driver on the favored road is proceeding
In addition, the trial court gave the following
A violation of a statute which is a cause
of the plaintiff’s injuries or damages is
evidence of negligence. I am going to read
certain sections of the Transportation Article
to you in connection with this matter.
Transportation Article, § -801(a)
reads as follows: ‘A person may not drive a
vehicle on highway at a speed that, with
regard to the actual and potential dangers
reasonable and prudent under the conditions.’
That was subsection (a).
Subsection (b) of the same article reads
as follows: ‘At all times, the driver of a
vehicle on a highway shall control the speed
of the vehicle as necessary to avoid colliding
with any person or any vehicle or other
conveyance that, in compliance with the legal
requirements and the duty of all persons to
use due care, is on or entering the highway.’
during their closing argument to the jury.7
Indeed, the jury found that Mr. Johnson had been negligent in
the operation of his vehicle.
This indicates that the jury was
aware that Mr. Johnson’s position on the favored road did not
Appellant sought an instruction that reads as follows:
You have heard that Constance Burdette was obligated to
stop and yield the right-of-way to oncoming traffic, which has been
characterized as the ‘Boulevard Rule.’ However, the term ‘rightof-way’ means the right of one vehicle to proceed in a lawful
manner on a highway in preference to another vehicle. Therefore,
the ‘Boulevard Rule’ does not apply if the ‘favored driver’ is
proceeding in an unlawful manner. Examples of driving in an
‘unlawful manner’ include speeding, and/or failing to pay full time
and attention to one’s driving, failure to control speed, and/or
failure to drive in the correct lane.
If you find that the Defendant was driving in an unlawful
manner, then he is not entitled to any benefit over an unfavored
driver that might be afforded by the ‘Boulevard Rule.’ [Emphasis in
Although it may not be inappropriate to instruct the jury that it may consider speed, failure
to control speed, and failure to pay full time and attention to one’s driving in determining whether
the favored driver was proceeding in an unlawful manner, it would only be appropriate if there is a
sufficient showing that the unlawful conduct was a proximate cause of the accident. Unlawful
conduct alone does not render the Boulevard Rule inapplicable. Dean v. Redmiles, 280 Md. 137,
374 A.2d 329 (1977); Mallard v. Earl, 106 Md. App. 449, 665 A.2d 287 (1995). In this case,
the jury found Mr. Johnson negligent.
Appellants’ counsel stated during closing argument:
64 miles an hour in a 40-mile-per-hour zone is plenty fast, outrageously fast ... As
he [Mr. Johnson] is driving down Muncaster Mill Road, the law says that he has the right
of way as long as he is proceeding lawfully. ... It does not give him the entitlement ... just
to willy-nilly speed down that road. ... Now, once he is proceeding unlawfully - unlawfully
- and I suggest to you that the evidence is clear that he is proceeding unlawfully. ...
So, when he is not proceeding lawfully....
-22immunize him from being found negligent.
We find no error.
Appellants also requested that the trial court give the jury
MPJI 19:14, regarding last clear chance.
That instruction reads:
negligent may nevertheless recover if the
plaintiff is in a situation of helpless peril
and thereafter the defendant had a fresh
opportunity of which defendant was aware to
avoid injury to the plaintiff and failed to do
so. [Emphasis added.]
The trial court declined to give this instruction, and appellants
now argue that this constituted reversible error.
A court must give a jury instruction requested by a party if
(1) the proposed instruction is supported by the facts of the case
and (2) the theory of the case is not otherwise adequately covered
by other instructions.
A.2d 287 (1995).
Mallard v. Earl, 106 Md. App. 449, 469, 665
In this case, the facts do not support the
issuance of a last clear chance instruction.
The doctrine of last clear chance originated in Davies v.
Mann, 10 Mees. & W. 548, 152 Eng. Reprint. 588, 19 Eng. Rul. Cas.
190 (1942) (see Ritter v. Portera, 59 Md. App. 65, 70, 474 A.2d
556, cert. denied, 300 Md. 795, 481 A.2d 239 (1984)).
concerned a collision between a carriage and a donkey; the latter
had been left by its owner in such a position as to block traffic
on the road.
The court found for the plaintiff, the owner of the
donkey, because even though the animal had obstructed traffic “the
-23defendant [carriage driver] was bound to go along the road at such
a pace as would be likely to prevent mischief.”
Davies, 152 Eng.
The theory behind the doctrine is that “if the
defendant has the last clear opportunity to avoid the harm, the
plaintiff’s negligence is not a ‘proximate cause’ of the result.”
W.Prosser, Law of Torts (4th ed. 1971) § 66.
Maryland adopted the last clear chance doctrine in Northern
Central Railway Co. v. State, use of Adeline Price, 29 Md. 420, 96
Am. Dec. 545 (1868).
There the Court of Appeals stated:
The mere negligence or want of ordinary
caution on the part of the deceased ... would
not disentitle the plaintiff to recover [on
behalf of the deceased], unless it were such
that, but for such negligence or want of
ordinary caution, the misfortune would not
have happened; nor, if the defendant might, by
the exercise of care on its part, have avoided
carelessness of the deceased.
29 Md. at 436 (citing Davies, 10 M. & W. 545).
The Court has also explained that
though the plaintiff may have been guilty of
negligence, and that negligence may, in fact,
have remotely contributed to the production of
the accident, yet, if the defendant could ...
by the exercise of reasonable care and
diligence, in view of the circumstances of the
plaintiff’s negligence, being the more remote
cause, will not excuse the defendant.
Kean v. B. & O. Railroad Co., 61 Md. 154, 166-167 (1884).
Court subsequently stated, in State, use of Kolish v. Wash., B. &
A. Elec. R. Co., 149 Md. 443, 457, 131 A. 822 (1926), that
-24[k]nowledge ... on the part of the person
causing the injury, superior to that of the
injured person, is the ultimate basis of the
doctrine, and it follows that time is an
defendant discovered the plaintiff’s peril in
time, by the exercise of ordinary care, to
have avoided the accident.
In sum, then, the doctrine of last clear chance permits a
negligent defendant if each of the following elements is satisfied:
contributorily negligent; and (iii) the plaintiff makes “a showing
of something new or sequential, which affords the defendant a fresh
opportunity (of which he fails to avail himself) to avert the
consequences of his original negligence.”
Liscombe v. Potomac
Edison Co., 303 Md. 619, 638, 495 A.2d 838 (1985) (citations
For the doctrine to apply, the acts of the respective
Fairchild, 14 Md. App. 612, 618-619, 287 A.2d 778 (1972), cert.
denied, 278 Md. 722 (1976); Oddis v. Greene, 11 Md. App. 153, 157,
273 A.2d 232 (1971).
Appellants argue that a last clear chance instruction was
warranted by the possibility that the jury could find that Mr.
constituted a failure to avert the consequences of his “original
-25allegedly squandered a “fresh opportunity” that was sequential to
his first negligent act.
The testimony at trial, however, indicated that Mr. Johnson’s
The testimony of the eyewitnesses and the experts
indicated that Mr. Johnson was driving north on Muncaster Mill
Road, at a high rate of speed, when Mrs. Burdette pulled out in
front of him.
Mrs. Burdette was allegedly looking to her right,
away from Mr. Johnson.
Mr. Johnson’s speed was excessive, and he
may have been inattentive.
Her inattentiveness, however, put her
in his path.
There was no sequence of events that afforded Mr. Johnson a
“fresh opportunity” to avoid the accident.
According to the
experts, Mr. Johnson was driving 64 miles per hour, or 93.8 feet
per second, when he first saw the BMW.
All three experts estimated
that it would probably take him 1.5 or 1.6 seconds to react.
he did react, he turned the truck slightly to the left, and then
slammed on his brakes.
concerned a collision that occurred when the plaintiff, whose
vehicle was parked on the west side of a north-south road, pulled
out onto the road, heading south, and then attempted to turn left
into his driveway.
The rear right side of his vehicle was struck
by the defendant’s vehicle, which had been traveling north at a
-26speed approaching 70 miles per hour.
The speed limit was 30 miles
The road south of the accident was visible for a quarter
of a mile, but the plaintiff testified he never saw the defendant.
The defendant testified that the plaintiff made the turn when they
were only two car lengths apart.
The defendant tried to slow down
as soon as he saw the other vehicle turning.
Based on those facts,
the trial court issued a last clear chance instruction.
The Court of Appeals reversed, holding that there was no
factual basis to invoke the doctrine of last clear chance.
doctrine only applies in a case where both parties are negligent
but there is a sequential act of negligence on the part of one
Id. at 151.
The defendant’s negligent act of driving 70
miles per hour was concurrent with the plaintiff’s negligent act of
turning in front of the defendant.
After the plaintiff began
turning, “[t]here is no evidence that the [defendant] failed to
‘utilize with reasonable care and competence his then existing
The evidence showed that the defendant “did the best he
could to slow down when he realized that the other car was pulling
across in front of him.
There is no evidence that, under the
conditions then existing, he had an opportunity to avoid the
Id. at 151-52.
In the present case, Mr. Johnson’s negligent speeding and
After she pulled out in front of him,
and he first realized that a collision was possible, there is no
evidence of a fresh opportunity to avoid the collision.
Appellants emphasize that there may have been a brief period
after the BMW started rolling forward, but before Mr. Johnson
perceived that the BMW was coming into his path.
testified that, assuming Mr. Johnson had a normal response time of
1.6 seconds from perceiving the BMW as a threat to taking physical
action, he was 242 feet from the BMW when he perceived the car as
a threat (1.6 seconds later, he was 84-90 feet from the BMW when he
Mr. Kriemelmeyer, however, estimated that the truck was
333 feet from the BMW when the latter began moving.
approximately 91 feet, from 333 to 242 feet from the collision
site, before Mr. Johnson perceived the BMW.
Those 91 feet would have only taken the truck 0.9 seconds,8
however, and during that brief period the BMW was moving only
slightly, as it started from rest and began forward.
testified that he was focused on the road ahead of him, and did not
see the BMW until he perceived that it was coming into his path.
Appellants contend that, had Mr. Johnson been more attentive
In their brief, appellants assert that Mr. Kriemelmeyer described this period as being 1.6
seconds. It appears that they have confused the 1.6 seconds of estimated reaction time with the
0.9 seconds during which, according to Mr. Kriemelmeyer’s hypothesis, the BMW was moving
but Mr. Johnson did not perceive it.
-28while driving, he would have seen Mrs. Burdette at the beginning of
this 0.9 second period, thus moving his reaction time forward and
giving him more space in which to brake.
This may or may not be
Mr. Johnson’s testimony indicates that he did not perceive
the BMW as a threat until he saw it coming into his lane.
the BMW’s initial movement forward might have been seen even by an
attentive driver as simply the movement of a vehicle edging forward
in preparation for an entry to the road.
Moreover, for the doctrine of last clear chance to apply, the
defendant must be aware that he has a fresh opportunity to avoid
Both before, during, and after the 0.9 second period,
Mr. Johnson was driving at approximately 64 miles per hour.
perceived that it was a threat.
In any event, we do not believe it
is proper to view the 0.9 second crossover period as an event
separate from the events constituting the collision.
In Ritter v. Portera, 59 Md. App. 65, a teenage driver stopped
alongside three teenage girls, one of whom was his sister and one
of whom was the plaintiff, and asked them if they wanted a ride.
In response, the three girls started to climb onto the hood of the
car; the driver’s house was just two houses away, and the girls
assumed that was his destination.
As the girls climbed onto the
car, the driver “gunned” the engine, accelerating rapidly and
-29dragging the plaintiff for 25 feet.
Although we agreed with the
trial court that the plaintiff had been contributorily negligent by
climbing onto the car, we reversed the trial court’s decision to
enter judgment in favor of the driver.
We held that the driver had
the last clear chance, after the girls had started to climb onto
the car, to refuse to move the car until the girls climbed off.
Id., 59 Md. App. at 72.
Mr. Johnson did not have the same opportunity for reflection.
Whereas the car in Ritter was stationary when the driver made the
decision to proceed forward rapidly, Mr. Johnson was already
traveling at approximately 64 miles per hour when the emergency
The jury clearly found Mr. Johnson negligent, but the
PAID BY APPELLANTS.
COSTS TO BE