Baltimore City - Passing on the right is illegal even when passing a left turning car
I don't know whether to laugh or cry on this, as this case has nothing to do with bikes but just automobiles. The crazy bit is the cars involved had their own lane, can you imagine giving tickets to everyone that passed on the right a car turning left? The crux of the argument rests on the statutes phrase "only if it is safe to do so." Which seems to be interpreted if there was a crash afterwards then it wasn't safe then was it? This thinking seems to come into play with Baltimore City bike crashes as well, which is why I am sharing this. This bit from the brief seems like something I would have written:
"Under the Court’s interpretation, the question of “safe” is determined with the benefit of hindsight. If the statute is applied in this sense, it would also be in violation of the statute to enter the intersection when a piano was falling from the sky, or when a sink hole was about to emerge in the roadway, or any other number of causes not within the control of the Appellant that would render it “unsafe.” But the common law and statutes that govern a driver’s duties and obligations on the roadway are not premised on the outcomes. Rather, they are viewed from the lens of what a reasonable ordinary prudent driver would do under like circumstances."
Thanks Miller and Zois for sharing your brief. .
I'll note I had trouble opening the brief linked in this article so I am including what I was able to recover from the file.
<a href="http://www.millerandzois.com/NSJI_21-304.html">http://www.millerandzois.com/NSJI_21-304.html</a>;
APPELLANT’S APPEAL OF THE DECISION OF THE DISTRICT COURT
Appellant, Angelynna Ballistreri, pursuant to Maryland Rule 7-113(d)(1) and files this appeal of the District Court decision from January 25, 2005, and in support thereof states as follows:I.
ISSUE PRESENTED
1.Under §21-304 of the Maryland Transportation Article, can a driver pass on the right if she reasonably believes it is safe to do so?
2.Can a Plaintiff be contributorily negligent if the district court determines that the contributory negligence is not the proximate cause of the accident?
II. PROCEDURAL HISTORY
Appellant, Angelynna Ballistreri, filed suit against the Appellees Dennis Demars and Gourmet Kitchens, Inc, for $25,000 in the District Court of Maryland for Baltimore County as a result of injuries and damages arising out of an automobile accident which took place on October 3, 2002.
The case was heard before the Honorable Edward P. Murphy on January 25, 2005. After hearing all the evidence, the Court found negligence on behalf of the Defendants and found that the Plaintiff was contributorily negligent. The Plaintiff filed a timely notice of appeal and the appeal is before this Court.III.
FACTS
On October 3, 2002 the Appellant was operating her vehicle northbound on Bel Air Road at or near its intersection with Maple Road. There are two lanes in each direction on Bel Air Road and a traffic signal at the intersection of Bel Air Road and Maple Road. Just before the accident, the Defendant had been traveling southbound on Bel Air Road. As he approached the intersection of Bel Air Road and Maple Road, he attempted to take a left hand-turn from Bel Air Road onto Maple Road. Both drivers had a green ball controlling traffic in their respective directions. Prior to the intersection, Appellant changed lanes from the left-thru lane to the right thru lane because there was a stopped vehicle in the left hand through lane waiting to take a left hand turn at the intersection. As she entered the intersection, she struck the Defendants vehicle, who was in the process of making a left hand turn.IV.
ARGUMENT
A.
Under §21-304 of the Maryland Transportation Article, a driver can pass on the right if the finder of fact believes that the driver reasonably believed that it was safe to pass on the right
The Court in rendering its decision, based its finding on a very narrow issue. The Court found that §21-304 of the Maryland Transportation Article was applicable and that the Appellant violated the code and was therefore contributorily negligent. Section 21-304 of the Maryland Transportation Article states, in pertinent part:
(a) In general.- Subject to the requirements of subsection (b) of this section, the
driver of a vehicle may overtake and pass to the right of another vehicle only:
(1) if the overtaken vehicle is making or about to make a left turn:(2) On a highway with unobstructed pavement not occupied by parked vehicles and wide enough for two or more lines of vehicles moving lawfully in the same direction as the overtaking vehicle; or(3) On any one-way roadway, if the roadway is free from obstruction and wide enough for two or more lines of moving vehicles.(b) Safe conditions required. - The driver of a vehicle may not overtake and pass another vehicle to the right only if it is safe to do so.
Under the Court’s interpretation, the question of “safe” is determined with the benefit of hindsight. If the statute is applied in this sense, it would also be in violation of the statute to enter the intersection when a piano was falling from the sky, or when a sink hole was about to emerge in the roadway, or any other number of causes not within the control of the Appellant that would render it “unsafe.”
But the common law and statutes that govern a driver’s duties and obligations on the roadway are not premised on the outcomes. Rather, they are viewed from the lens of what a reasonable ordinary prudent driver would do under like circumstances. In this case, the Court mistakenly viewed the Appellant’s lane change as a single event, when in fact, there were two separate and distinct occurrences. Appellant did, in fact, make a lane change when it was safe to do is. This is evidenced by the fact that the accident did not occur when she made the lane change. Rather, the lane change occurred safely and the accident happened later, when Appellee failed to yield the right of way as he was required to do. Therefore, the lane change is irrelevant to the issue of fault for the subject accident. Nonetheless, the Court focused its findings on the lane change rather than the accident and stated: But in the Court’s view and you may be a hundred percent right and some Court may tell me I’m wrong. I think she can make that maneuver if it can be made with safety and I also don’t think that the Plaintiff has to be and I don’t think the Plaintiff is the proximate cause of this accident......Based on my application of this statute to the facts in this case I find that the Plaintiff had a right to pass in the right but given the facts and circumstances of this case which include the Defendant’s making a left hand turn I, think that even thought the Defendant was negligent that’s the reason that the statue says it can only be made with safety.... It is in Maryland that based on the facts of this case and based of my, my application of that statute I find that the Plaintiff to some tiny degree contributed to the happening of this accident, And for that reason I find in favor of the Defendant. I would welcome you to take an appeal and see if I’m wrong.See Trial Transcript p. 98-100, attached as Exhibit A (emphasis added).
The Court agrees that it was reasonable for the Plaintiff to change lanes, see Exhibit A p. 98, but that in hindsight, the intervening act of the Defendant’s negligence made a reasonably safe decision unsafe under the meaning of §21-304. But negligence by its very definition requires a driver to be reasonable under the circumstances and does not impose absolute liability. Accordingly, this Court should find as a matter of law that Plaintiff was not negligently in violation of §21-304 because the Court did not find that she unreasonably changed lanes.
B.The Plaintiff cannot be found contributorily negligent because the District Court found as a matter of law that her alleged violation of the statute was not a proximate cause of the accident
Contributory negligence is an affirmative defense and the burden of proving the plaintiff’s contributory negligence rests upon the defendant. Contributory negligence, if present, defeats recovery because it is a proximate cause of the accident; otherwise the negligence is not contributory. Batten v. Michel, 15 Md. App. 646, 652 (1972). In order for the Plaintiff to be found contributorily negligent, Plaintiff’s actions must be a proximate cause of the accident. Id.
Where the issue of negligence depends upon establishing a violation of the law, the party carrying the burden on that issue “must establish both the violation and its proximate cause relationship to the injury...” Austin v. Buettner, 211 Md 61, 70 (1956); Schwartz v. Hathaway, 82 Md. App. 87 (1990).
In Rosenthal v. Mueller, 124 Md. App. 170 (1998), the Court of Special Appeals analyzed the application of §21-304 and contributory negligence. The Plaintiff, Marilyn Rosenthal, was driving on a two lane road way approaching an intersection. As she approached the intersection, she noticed a vehicle stopped waiting to take a left hand turn. As she passed the stopped vehicle on the right, she was struck from behind by the Defendant. In that case, the allegation was that the Appellant was passing the vehicle on the right and went off the roadway and onto the shoulder in violation of section 21-304. However, the Court noted that even when a plaintiff’s negligence is established, an independent issue still remains with respect to causation.
The Court in Rosenthal, further opined that: It is unnecessary, however, to decide whether the appellant violated §21-304(c). Even assuming, purely for the sake of argument, that such was the case, the appellant’s decision to pass to the right of the truck did not contribute to the accident in this case. The appellee has failed to put forth any evidence that the appellant’s act of passing on the right, be it negligent or non-negligent, was in any way a proximate cause of the accident. Id at 180-81.
The rationale for the holding in Rosenthal, is similar to the issue before this Court. In both Rosenthal and in the present case the Plaintiff’s actions were not the proximate cause of the accident. This District Court found that the Appellant’s alleged negligence was not the proximate cause of the accident. The trial judge specifically found that “...I don’t think the Plaintiff is the proximate cause of this accident....” Because Maryland law requires the contributory negligence to be a proximate cause of the accident, this Court should overturn the trial court’s finding that Plaintiff was contributorily negligent.
WHEREFORE, the Appellant, respectfully requests that this Court reverse the findings of the lower court and remand the case back to the District Court of Maryland on the issue of damages only.
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