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Contributory Negligence Defense Not Waived Even If Not Reasserted By Defendant In Discovery Or Pretrial Statement
Available at: http://www.mdcourts.gov/opinions/cosa/2017/0744s16.pdf
After a motor vehicle accident, Plaintiff brought suit in the Circuit Court for Montgomery County against the Defendant for negligence and against the Defendant’s mother for negligent entrustment. The driver Defendant was operating a motor vehicle owned by her mother when she allegedly struck Plaintiff as Plaintiff attempted to cross the street. The Circuit Court granted the parent Defendant’s motion for summary judgment. The driver Defendant and the Plaintiff proceeded to a jury trial on the issue of the driver Defendant’s negligence. At the conclusion of the trial, the jury found that the driver Defendant was negligent, but that the Plaintiff was contributorily negligent, thereby precluding any recovery by the Plaintiff. The Plaintiff appealed and the Court of Special Appeals affirmed the Circuit Court’s judgment.
On appeal, Plaintiff argued that the Circuit Court erred in allowing the driver Defendant to raise the defense of contributory negligence at trial because the Defendant failed to specify any negligent conduct by the Plaintiff in discovery, or mention contributory negligence in the Joint Pretrial Statement. The Defendant argued that in its Answer to the Complaint, it had pleaded that the Plaintiff was contributorily negligent. Although the Defendant did not request a contributory negligence jury instruction when the Pretrial Statement was filed, the Defendant stated that she would propose “[a]dditional instructions to be submitted at trial to conform to the evidence” and reserved the right to “request additional jury instructions based upon the evidence at trial.” Furthermore, the Defendant driver’s deposition testimony and discovery responses left open the issue or inference of contributory negligence by the Plaintiff. The appellate court held that an affirmative defense raised in an answer is not automatically waived by the mere failure to reassert it in discovery or the pretrial statement. The circuit court did not err or abuse its discretion in allowing the Defendant driver to present the defense of contributory negligence.
Plaintiff next argued that the trial judge erred in finding sufficient evidence of her contributory negligence to send this issue to the jury. Plaintiff stated that the evidence indicated that after checking for cars in or at the intersection, she stepping in normal fashion from the curb, entered the pavement within the protection of a painted crosswalk, and was in the center of the roadway when she was “suddenly struck” by the Defendant. Plaintiff claimed that she was not under a duty to continually look for or guard against the possibility of an intruding motorist. The Court stated that there was sufficient evidence to create a reasonable inference that Plaintiff failed to see the Defendant vehicle turning into the intersection directly in front of Plaintiff. The evidence showed that Plaintiff, who had an unobstructed view on a sunny day, stepped off the curb and into the intersection without observing any vehicles approaching. She did not recall seeing the Defendant’s vehicle at any point prior to being struck despite testimony from the testifying officer that Defendant’s vehicle was 98% of the way through the turn before striking the Plaintiff. Under these circumstances, the issue of contributory negligence was an issue of fact for the jury to resolve. Although pedestrian’s have the right of way over on-coming traffic, that right-of-way is not absolute, and in some circumstances, a pedestrian may be found to be contributorily negligent.
Plaintiff also argued that the Circuit Court erred in refusing to give her requested instruction on pedestrian vigilance in a crosswalk. The instruction requested was as follows: “Where a pedestrian has the right of way in a crossing at an intersection, he/she may assume that the operator of a motor vehicle will obey the law and respect his/her right to complete the passage across the intersection.” The Circuit Court stated that it did not want to give an instruction indicating that, once a pedestrian gets in an intersection, “they can basically close their eyes to the world.” The Court of Special Appeals held that the trial court properly instructed the jury, and it did not abuse its discretion in declining to give Plaintiff’s proposed instruction.
Plaintiff’s last contention is that the Circuit Court erred in granting the parent Defendant’s motion for summary judgment on the negligent entrustment claim. The Court held that although the Defendant driver was young, she had only one prior accident which involved a minor incident resulting in a scratch on her vehicle, when the driver Defendant was distracted by her dog in the car. This evidence was not sufficient to show that the parent Defendant knew or had reason to know that the driver Defendant had “dangerous propensities” or that any harm to others was reasonably foreseeable.
Overall, the Court of Special Appeals affirmed the Circuit Court’s judgment on all grounds.
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