Court of Special Appeals Affirms Circuit Court's Decision to Allow a Contributory Negligence Jury Instruction

In Malik v. Tommy’s Auto Serv., Inc., No: 2204 (Md. Ct. Spec. App. 2011), the Court of Special Appeals addressed the issue of a jury instruction as it related to contributory negligence.  In this case, the Plaintiff, Sajid A. Malik, was involved in a motor vehicle accident with Charles Payne, a tow truck driver employed by Tommy’s Auto Services.  The accident occurred at the intersection of Washington Boulevard and Cemetery Lane in Prince George’s County, Maryland. 

Malik, traveling northbound on Washington Boulevard, approached the intersection and merged into the center turning lane with the intention of making a left hand turn.  Upon entering the center lane, Malik testified that he came to a complete stop while waiting for the southbound traffic to clear.  Meanwhile, Payne exited from a parking lot across from Cemetery Lane on the northbound side of Washington Boulevard.  Malik testified that he saw Payne exit the parking lot and watched as traffic in the northbound lanes stopped to let Payne cross into the center turn lane.  Payne’s intention was to turn left and travel south on Washington Boulevard.  The parties’ stories differ as to what happened next, but as Payne proceeded forward he struck the front passenger side of Malik’s vehicle.

As a result of the accident, Malik experienced increasing amounts pain and was ultimately diagnosed with a herniated disk.  Malik then brought a negligence action against Payne and the tow truck company, Tommy’s Auto Services.  At the close of evidence, the Plaintiff moved for judgment, relying on the Boulevard Rule.  The motion was denied and the case was sent to the jury.  The jury found Malik contributorily negligent and judgment was entered in favor of Payne and the tow truck company.

            The first issue on appeal was the trial court’s refusal to read a jury instruction requested by the Plaintiff.  Malik requested that the court instruct the jury that a driver “is conclusively presumed to have seen such surrounding circumstances as he would have seen had he properly exercised his faculty of vision.”  In upholding the trial court’s decision the Court of Special Appeals explained that a request need not be granted if the matter is fairly covered by instructions actually given.  Here, the Court of Special Appeals concluded that the instruction actually given - 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 - fairly covered Malik’s requested instruction. Furthermore, even if the denial of Malik’s instruction was error, the error was harmless.

           

The Plaintiff also argued that the trial court erred in denying his motion for judgment on the issue of liability.  Mailk claimed that Payne was negligent under the Boulevard Rule and, further, that the jury should not have been instructed on contributory negligence because there was no evidence to support such a finding.  The Boulevard Rule provides that the driver of a vehicle approaching a highway from a smaller road or entrance must stop and yield the right of way to all vehicles in the highway.  However, as the Court of Special Appeals explained, the rule is not absolute.  If it can be shown that the favored driver “could have avoided the accident if he had been operating lawfully and with due care, then the negligence of the favored driver should be an issue for the jury.”

           

In upholding the trial court’s decision, the Court of Special Appeals found that there was evidence sufficient to support a finding that Mailk was contributorily negligent.  First, Payne testified that after he entered the center turning lane and before turning, he looked twice to his left and right and did not see any other vehicles in the center lane.  Further, Payne testified that when he hit Malik’s vehicle, Malik had already proceeded to make his left turn, rebuking Malik’s claim that he was stationary at the time of the accident.  There was evidentiary support for Payne’s account of what happened in the photographs of both vehicles that were introduced at trial.  The damage to the vehicles as demonstrated by the photos, suggested that Malik was moving toward Payne when the two collided.  In addition, Malik testified that he saw Payne exit the parking lot and drive across the northbound lanes.  All of this evidence tended to suggest that Malik could have avoided the accident.

            Ultimately, the Court of Special Appeals found that the evidence was legally sufficient to support a finding that Malik was contributorily negligent and, as a result, the trial court did not err in denying Malik’s motion for judgment on the issue of liability.  Further, the trial court was proper in instructing the jury on contributory negligence.

Article contributed by James Buck