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Plaintiff’s Observations of Defendant Drinking Alcohol Were Sufficient to Establish That She Assumed the Risk of a Car Accident by Riding in a Vehicle Driven by Defendant

Kerry Evans v. Joshua Shores, et al.
(September 8, 2016) Court of Special Appeals of Maryland

by Matthew J. McCloskey, Associate
Semmes, Bowen & Semmes (www.semmes.com)

Available at: http://www.courts.state.md.us/appellate/unreportedopinions/2016/0506s15.pdf

In a recent unreported opinion, the Court of Special Appeals of Maryland held that there was sufficient evidence in the record to support a jury’s finding that the Plaintiff assumed the risk of her injuries after she voluntarily rode as a passenger in a car with the Defendant, whom she admitted appeared to be intoxicated.

On November 10, 2013, Plaintiff and Defendant agreed to mutually attend several social events. Defendant agreed to drive Plaintiff. Plaintiff admitted that she knew Defendant had previously been convicted of driving under the influence. Nevertheless, the two parties went to a bar in Whaleysville, Maryland, where Plaintiff observed Defendant drink approximately four (4) beers and one (1) shot of whisky. Plaintiff and Defendant then left the bar and went to a liquor store, where they purchased eighteen (18) beers. Plaintiff and Defendant each consumed one (1) beer while in Defendant’s car as they proceeded to a party at a mutual acquaintance’s home. At the party, Plaintiff personally observed Defendant drink four (4) or five (5) beers, and Defendant believed that he had up to ten (10) total drinks at the event. Eventually, Plaintiff informed Defendant that she was ready to leave, and the parties proceeded to Defendant’s car. Plaintiff stated that Defendant seemed to be “fine,” but once they were in the car Defendant repeatedly failed to back out of the driveway. Plaintiff stated that she believed this was because Defendant was impaired by alcohol. Defendant finally managed to back out of the driveway, and proceeded to accelerate quickly away from the house. A short time later, Defendant crashed the car into a ditch along the side of the road, causing injuries to Plaintiff.

Toxicology tests later showed that Defendant had a blood alcohol content level of 0.15%. Defendant was arrested, pled guilty to driving under the influence, and served a jail sentence. At trial, over Plaintiff’s objection, the Court permitted Defendant to testify as to the length of his sentence.

Defendant asserted that Plaintiff assumed the risk of her damages by getting into a vehicle driven by an individual she knew to be intoxicated. Defendant produced expert testimony to describe the physiological effects of having a 0.15% blood alcohol content. Pertinently, on re-direct after Plaintiff cross-examined the expert, Defendant’s counsel read into the record the following statement from a report prepared by the expert: “[Defendant] was markedly intoxicated and it is likely his intoxication was noticeable.” Ultimately, the jury agreed with Defendant that Plaintiff assumed the risk of her damages, and Plaintiff was therefore barred from recovering damages from Defendant. Plaintiff appealed.

Judge Lawrence F. Rodowsky, writing for the Court, affirmed. The Court initially noted the long history of assumption of the risk cases in Maryland involving passengers in vehicles who knew or should have known that the driver was intoxicated. Here, as in many of those cases, Plaintiff was in close proximity to Defendant throughout the evening of the accident, personally observed him drink close to ten (10) alcoholic beverages, and had specific knowledge that Defendant was drinking for the entire evening. Furthermore, once Plaintiff had gotten into the car with Defendant, she observed him struggle to back out of a driveway, which she attributed to his level of intoxication. Under these circumstances, there was sufficient evidence for the jury to conclude that Plaintiff voluntarily encountered a known risk in allowing Defendant to drive her on the evening of the accident.

The Court further concluded that the Circuit Court did not err in permitting Defendant to testify as to the length of his jail sentence. Notably, Plaintiff did not object to the evidence that Defendant was convicted of a crime. The Court of Special Appeals found that the completion of the record for the jury with evidence of the consequences of that crime was not an abuse of discretion, and in any event was hardly prejudicial to Plaintiff’s case.

Finally, the Court found no error in permitting Defendant’s counsel to read into the record the statement from Defendant’s expert’s report. In this regard, the Court noted that the statement was proper rehabilitation evidence after the expert had been impeached with a prior inconsistent statement. Furthermore, the statement was cumulative with Plaintiff’s own testimony that Defendant appeared to her to be drunk when she got into the car with him. Thus, even if the statement was erroneously admitted, any such error was harmless. Accordingly, the Court affirmed the decision of the Circuit Court.


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