Woolridge v. Abrishami

233 Md.App. 278

163 A.3d 850

Judith WOOLRIDGE

v.Lauren ABRISHAMI, et al.

No. 744, Sept. Term, 2016

Court of Special Appeals of Maryland.

July 6, 2017

Argued by: Howard W. Simcox, Jr. (Sussman & Simcox, Chartered on the brief) all of Gaithersburg, MD, for Appellant.

Argued by: Micheal A. DeSantis (Hartel, DeSantis & Howie, LLP on the brief) all of Hanover, MD, for Appellee.

Panel: Woodward, C.J., Deborah S. Eyler, Graeff, JJ.

Graeff, J.

This appeal arises from an automobile accident that occurred on May 23, 2014. On that date, 18–year-old Lauren Abrishami ("Lauren"), appellee, who was operating a motor vehicle owned by her mother, Brigitte Abrishami ("Ms. Abrishami"), also an appellee, struck pedestrian Judith Woolridge, appellant, as Ms. Woolridge attempted to cross the street. Ms. Woolridge filed suit in the Circuit Court for Montgomery County alleging negligence against Lauren and negligent entrustment against Ms. Abrishami.¹ The court ultimately granted Ms. Abrishami's motion for summary judgment and proceeded with a jury trial regarding the negligence claim against Lauren. At the conclusion of trial, the jury found that Lauren was negligent, but it also found that Ms. Woolridge was contributorily negligent, thereby precluding recovery.

On appeal, Ms. Woolridge raises four questions for our review, which we have rephrased, as follows:

1. Did the circuit court err in allowing Lauren to raise the defense of contributory negligence at trial?

2. Was the evidence sufficient to submit the issue of Ms. Woolridge's contributory negligence to the jury?

3. Did the circuit court err in denying Ms. Woolridge's request for a special jury instruction on a pedestrian's right of way in crossing at an intersection?

4. Did the circuit court err in granting summary judgment in favor of Ms. Abrishami on the issue of negligent entrustment?

For the reasons set forth below, we shall affirm the judgment of the circuit court.

FACTUAL AND PROCEDURAL BACKGROUND

On May 5, 2015, Ms. Woolridge filed a three-count Complaint. In Count I, Ms. Woolridge alleged that, as she was "crossing the street in a crosswalk at Main Street and Market Street East ... in Gaithersburg, Maryland," Lauren negligently made a left turn and struck her, causing injuries. Count III alleged that Ms. Abrishami negligently entrusted Lauren with her vehicle.² In their Answer, Lauren and Ms. Abrishami asserted several affirmative defenses, including that "Plaintiff was contributorily negligent."

On July 29, 2015, the court issued an "Order for Mandatory Settlement Conference/Pretrial Hearing." It scheduled a pretrial settlement conference and a pretrial hearing on February 18, 2016, and directed the parties to prepare a written joint pretrial statement, which "shall contain," among other things, "a concise statement of all claims and defenses which that party is submitting for trial."³ The order further directed the parties to identify each pattern jury instruction that the parties intended to offer at trial, with an indication of those agreed upon and those not agreed upon.

The Joint Pretrial Statement filed with the court on February 18, 2016, provided, in relevant part, as follows:

1. Nature of the Case : The instant action arises out of a pedestrian-motor vehicle accident that occurred on May 23, 2014. The Plaintiff is making a claim for personal injuries and damages related to the incident. The Plaintiff contends Defendant Lauren Abrishami was negligent in the operation of her vehicle.

2. Claims and/or Defenses

A) Plaintiff : The Plaintiff claims Defendant, Lauren Abrishami, was negligent in the operation of her vehicle, thereby causing the accident and Plaintiff's injuries, including a tibial plateau fracture that required surgical intervention. The Plaintiff has continuing difficulties walking and kneeling, and any activity requiring use of her left leg, with daily pain. The injury to her leg is permanent. The Plaintiff's medical[ ] bills total $56,232.51 to date, and lost income of approximately $2,719.54.

B) Defendant : The Defendant denies the nature and extent of Plaintiff's injuries and permanency.

* * *

4. Disputed Issues : Except as set forth above, all issues of liability and damages are in dispute.

Lauren did not include a proposed jury instruction on contributory negligence in the pretrial statement. She did state, however, that she would propose "[a]dditional instructions to be submitted at trial to conform to the evidence," and she reserved the right to "request additional jury instructions based upon the evidence at trial."⁴

During discovery, Ms. Woolridge asked about Lauren's claim of contributory negligence. Specifically, Plaintiff's Interrogatory Number 8 asked:

State the manner in which you say the accident complained of happened, giving the various speeds, positions, directions and locations of all vehicles involved in the said accident during their approach to, at the time of, and immediately following the happening, and in so doing, describe how the Party propounding these Interrogatories, or any person or party, or its agent(s) or employee(s) was negligent or caused or contributed to the happening of the occurrence. Include in your answer:

a. How fast were you traveling 200 feet before the accident? 100 feet before the accident? 50 feet before the accident?

b. At the time you first observed the Plaintiff, identify the Plaintiff's location, the location of your car from the Plaintiff, and your speed.

c. Set forth your route and movements, for the last three blocks leading up to the accident, including in your answer any stops, turns, lane changes and the like which occurred during that time.

The record reflects that Lauren initially provided to opposing counsel an unsigned response, stating: "I stopped at the stop sign and began to make a left from Main Street onto Market Street. As I made the turn, I was distracted, talking to my cousin and did not see the Plaintiff right away, as soon as I did, I slammed on my brakes but it was too late and I hit the Plaintiff."

On May 23, 2016, the day of trial, Lauren provided signed answers, containing the following amended response: "See the Defendant's discovery deposition dated October 5, 2015, at page 40."⁵ This portion of Lauren's deposition provided:

Q. Can you tell me in your best recollection how did the incident occur?

A. I was—I turned to make the left and I didn't see her and Taylor saw her at the last second. She said "Slow down," and I slammed on my brakes from 10 miles per hour to about 1 mile per hour, and then I tapped her, and then she fell.

Q. Okay. So I'm going to back you up to the stop sign. Did you come to a complete stop at the stop sign?

A. Yes, before the white line.

Q. And how long would you say you stopped for?

A. Three seconds.

Q. Were there any other cars as you stopped there for that three seconds? Do you remember seeing any other cars around?

A. No.

Q. But you stopped for three seconds. Did you see any people around?

A. No.

During her October 5, 2015, deposition, however, Lauren also was asked whether she was aware of anything Ms. Woolridge "could have done to avoid being hit." Lauren responded: "I wasn't aware of like where she was situated and if she looked both ways. I'm not sure." She did note, however, that as she slowed the vehicle, Ms. Woolridge "just like stood there. She didn't move."

During the time that discovery was proceeding, Ms. Abrishami filed a motion for summary judgment on the claims against her. Counsel for Ms. Abrishami argued that, although Lauren had been driving for only a year, there was not enough evidence to submit to the jury the claim that Ms. Abrishami was negligent in entrusting Lauren to operate the vehicle. Counsel asserted that, although Lauren had one prior "very minor incident," where Lauren hit a curb after her dog climbed on her while she was driving, Ms. Abrishami took corrective action and advised Lauren not to drive with the dog in the car. Thus, counsel stated, Ms. Abrishami had no reason to believe that Lauren would be involved in an accident, and based on Lauren's "completely clear" driving record, an accident was not foreseeable.

Counsel for Ms. Woolridge responded that, in a negligent entrustment claim, three factors must be considered: "youth, inexperience or otherwise," and it is a "fact-based determination[ ]" for the jury. Counsel argued that Lauren, a teenage driver, had been driving less than a year, did not drive the vehicle regularly, and previously had been in an accident while distracted. The accident involving Ms. Woolridge was "another distracted driving scenario as you had with the dogs," and Ms. Abrishami "should have implemented some additional driver training, restrictions, something on this girl, on balance."

Counsel for Ms. Abrishami argued that, contrary to Ms. Woolridge's focus on Lauren's youth and inexperience, the question was whether Lauren had dangerous propensities and Ms. Abrishami knew of those propensities and should have foreseen harm.

During her deposition, Lauren testified that the prior accident occurred in May 2015. She got her driver's license in her senior year of high school, after taking a driver's education class. She took the bus to school, however, and in May 2014, she drove "[f]or errands mostly," and she "rarely left the house." Lauren had not received any traffic tickets prior to the accident involving Ms. Woolridge.

In granting summary judgment on the negligent entrustment claim, the court stated as follows:

Regarding the issue of negligent entrustment, so I would say that generally these cases come down to a dispute of material fact where the jury would have to decide whether or not there's evidence that the mother knew of these dangerous propensities of the daughter driving.

In this case, the evidence that has been presented to me that would be presented to the jury is that the driver had previously been involved in an incident where while driving a car a dog jumped in her lap and that caused her to, as a result of that, sh

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