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In Car Accident Case, Court Properly Instructed Jury on Contributory Negligence

Malik v. Tommy’s Auto Serv., Inc.,
No: 2204 (Md. Ct. Spec. App. 2011)

by Lindsey N. Lanzendorfer, Summer Associate
Semmes, Bowen & Semmes (

In this car accident case, Appellant, Sajid A. Malik, was driving northbound on Washington Boulevard. At the accident site, Washington Boulevard has two northbound lanes, two southbound lanes, and one center lane for turns in either direction. As Malik approached the intersection, he merged into the center turning lane with the intention of making a left turn. He claimed he had come to a complete stop and that he was waiting for traffic in the southbound lanes to clear, when he saw Appellee Charles Payne, emerge from a parking lot directly across from the intersection. Malik alleged that vehicles in the southbound lane cleared the way for Payne to go and as Payne was entering the road, he struck Malik. Payne was driving a tow truck for Tommy’s Auto Service, Inc.

Payne claimed he first emerged from a parking lot directly across from the intersection on the northbound side of Washington Boulevard. He then intended to turn left, and after being waved on by cars in the northbound lanes, he stopped. He alleged that he looked to his left and right twice. Observing that there were no vehicles in either of the southbound lanes or the center turning lane, he proceeded forward. But, when he did, he struck the front passenger side of Malik’s SUV, totaling the vehicle. Payne alleged Malik’s vehicle was in motion because Malik was making a left turn during the accident.

Post-accident, Malik was diagnosed with a herniated disc. Malik brought a negligence claim against Payne and Tommy’s Auto Services, Inc. under the doctrine of respondeat superior. The jury found Malik contributorily negligence and entered judgment in favor of Payne and Tommy’s Auto Services, Inc.

In Malik’s appeal, he first challenged the trial court’s refusal to read a jury instruction that a driver is presumed to have seen what he would have seen had he properly exercised his faculty of vision. The Maryland Court of Special Appeals explained that an additional jury instruction is not necessary if the substance of the requested instruction was fairly covered by an instruction actually given. In this case, the trial court instructed the jury that a driver is negligent if he or she does not use reasonable care, that is, the caution, attention, or skill of a reasonable person in similar circumstances. The Court of Special Appeals found that this fairly covered Payne’s requested instruction relating to a driver’s paying attention to visible hazards. Additionally, even if the trial court’s denial of Malik’s requested instruction was in error, the intermediate appellate court found the error was harmless.

Next, Malik alleged that the trial court erred in denying his Motion for Judgment on the issue of liability because Payne was negligent under the Boulevard Rule. To the same end, Malik contended that the jury should not have been instructed on contributory negligence. The Court of Special Appeals explained, however, that the boulevard rule is not absolute. Under the boulevard rule, a driver approaching a highway from a smaller road must stop and yield the right of way to all traffic already in or which may enter the intersection during the entire time the driver encroaches upon the right of way. But, if it can be shown that the favored driver on the highway could have avoided the accident if he had been operating lawfully and with due care, then the contributory negligence of the favored driver should also be an issue for the jury. This sums up the last clear chance rule.

Here, the Court found that evidence existed for the jury to find Malik could have avoided the accident. For instance, Payne testified that he looked twice to his left and to his right and that, when he did so, there were no vehicles in the center lane. Malik testified on cross-examination, however, that he saw Payne emerge from the parking lot and proceed through the northbound lanes.

Payne also stated that, when he struck appellant’s SUV, appellant had already proceeded to make his left turn, that is, appellant was not stationary in the center lane at the time of the accident as he claimed. There were photographs supporting Payne’s contention: they showed scrapes on the middle portion of Malik’s SUV, suggesting that the SUV was moving toward the truck when the two collided. Thus, the Court found that the evidence at trial was legally sufficient to support a finding that Malik was contributorily negligent, and therefore the trial court properly denied his Motion for Judgment on the issue of liability and properly instructed the jury on contributory negligence.