Presumption of Negligence in Maryland Motor Vehicle Crashes

The Maryland Court of Special Appeals decided a chain reaction automobile tort case last week in Cooper v. Singleton that leaves me confused about the current state of Maryland law as to how we communicate our presumption of negligence rule to juries in rear-end collisions… and hoping the Maryland high court steps in to clear up the confusion.

This case involved a five car chain reaction car crash in Montgomery County.Four cars had stopped at a red light when a fifth car, driven by the defendant, crashed into the fourth car. The cars hit each other moving forward as you would expect that they would all the way up to the first car. It must have been a pretty hard hit, obviously.

The plaintiff in this case is car #2; the defendant is car #4. The case goes to trial before Judge Terrance McGann in Montgomery County. After a three day trial, the defendant wins.

Wait! What? How do you lose that case?

But I think there was a viable defense to this case. Defendant’s argued sudden incapacity because he suffered a grand mal seizure. The defendant’s treating neurologist testified that he was taking medication to control his seizures and it was reasonably believed that the medication would prevent future seizures. But, unexpectedly, he suffered a seizure that left him incapacitated.

What is needed for sudden incapacity defense in Maryland

The Maryland Pattern Jury Instruction-Civil 18:9 sets forth the what is needed for defendant to make a sudden incapacity defense in Maryland:

A person has the duty to take reasonable actions to be sure that he or she can safely drive a motor vehicle. A failure to do so that results in a motor vehicle accident is evidence of negligence.

However, a person may defend by showing that there was a sudden and unforeseen incapacity that rendered him or her unable to avoid or prevent the accident causing the injury. Unforeseen incapacity is one that a reasonable person would not have any reason to anticipate.

This instruction is most likely what won the case for the defendant. But this issue is not what the case is about.

Presumption of negligence in Maryland

There is one Court of Special Appeals case that gets all of the attention — and love — from plaintiffs’ attorneys in rear end accident cases: Andrade v. Housein. Plaintiff’s counsel in this case sought a jury instruction consistent with the language of this case:

An evidentiary presumption of negligence arises where a motor vehicle is lawfully stopped on a highway awaiting for traffic to clear before an intersecting highway and that vehicle is suddenly struck from behind by another vehicle, resulting in personal injuries and property damage to the driver and the front vehicle. From that presumption, a trier of fact may reasonably infer negligence on the part of the driver of the following vehicle.

The presumption, however, is rebuttable. The procedural consequences, once a prima facie case is established, require that the person against whom the presumption is directed assume the burden of going forward with the evidence, but the burden of persuasion remains with the plaintiff.

This is not a pattern jury instruction. But not all Maryland law is covered in a the pattern instructions. This is certainly a clear statement of the law in Maryland. In denying this instruction, Judge McGann said:

I’m [not] going to expect a jury to understand that theory. This is for lawyers. This is for judges. I’m not going to give that instruction. There’s no way they’re going to understand that … I don’t dispute it’s the law. It’s a question whether I instruct. Instructions are to help the jury.

Judge Moylan’s opinion

Judge Moylan, who graduated from college in 1952, continues to write opinion with a wit and style that entertains me as much as Judge Harrell does. I try to write these posts in a way that entertains a bit but I’m a hack compared to Judge Moylan and I know it. He also writes with the directness of a 21st century blogger which I really appreciate. He even uses exclamation points which is pretty risque for appellate opinions. But I really disagree with the decision to affirm the trial judge in this case by limiting Andrade v. Housein to its ostensibly unique facts. I think he wildly misses the forests for the trees.

First, the Court of Special Appeals refuses to concede that Andrade creates a rebuttable presumption in Maryland that if a stopped vehicle is rear ended, the rear-ending driver is negligent. But even the trial judge agreed with that premise. It comports with what many other states — Florida, Virginia, Rhode Island and New York which I found in a quick Google search — with good reason: you should not have to proof negligence when someone hits you in the rear while your vehicle is stopped. Ask you average Marylander on the street — they assume this is the law.

The Court of Special Appeals says, echoing the trial judge, that the law is for lawyers and judges. What is the point of having a law if the jury cannot apply it? The court slices and dices Andrade to the point where it could only be applied to the exact facts of that case. Courts only do this when the want to distinguish a case. Otherwise, broad principles of law articulated by prior opinions are always given their just due.

The court also argues that Maryland Rule 5-301 and the Maryland Code of Evidence states that a presumption in a civil case does not shift the burden of ultimate persuasion to the party against whom the presumption is directed. I read the court’s long analysis of this questions of burden of proof versus burden of persuasion. I’ll concede I have spend zero time focusing on this issue. I get the impression the parties to the case did not either. But let’s no confuse the issue. Plaintiff’s lawyers are asking the judge to tell the jury what the law is.

Finally, the court’s opinion argues in what can only be described a “dicta squared” that the plaintiff was better off not have the instruction.

The plaintiff suffered no prejudice from Judge McGann’s disinclination to give the requested supplemental instruction based on Andrade v. Housein. Indeed, had Judge McGann given the instruction, it could have been fatal to the plaintiff’s cause. It would have told the jury that the burden of ultimate persuasion, that the plaintiff wanted to be switched to the defendant, “remains with the plaintiff.” Silence on the subject, from the plaintiff’s point of view, was the exact opposite of prejudice. It was a windfall.

We can quickly dispense of the “it was a windfall” argument. Why do I know this? Every single plaintiffs’ attorney trying this case would have asked for the exact same instruction.

What we take from this case

First, I think this case is a loser for the plaintiff no matter what happens. Granted, I don’t know all of the facts so I’m talking a little bit outside of school. But you have the defendant’s treating neurologist standing behind him and saying he never could have expected to have this seizure. If I’m on the jury, I’m going to have to swallow and say this guy is not negligent. I wish there was some way to find the insurance company responsible in a case like this. (I’ll bet $20 bucks it was State Farm.) But there is not.

This case does not kill Andrade v. Housein. I don’t think judges are going to start giving directed verdicts in rear end accident cases where the plaintiff has no idea what happened. What it does is give judges the option of not telling juries what the law in Maryland with respect to this presumption. This is the wrong path and the Maryland Court of Appeals ought to clean it up by making clear and unambiguous law about just how the jury instructions should read.

I can’t stand all of these unnecessary battles with trial judges over areas of law that should be crystal clear. On some level, I care more about someone just giving us a clear law than what the law is. Now the path is all muddy which means it is going to be whatever the judge wants to do and we are going to have to research and write to battle over an issue that should already be written in stone.