IN THE COURT OF SPECIAL APPEALS OF MARYLAND SEPTEMBER TERM, 2006 NO IGAL SASANFAR APPELLANT, JAMES HENRY ROSBER, SR. APPELLEE APPEAL FROM THE

Transcription

1 IN THE COURT OF SPECIAL APPEALS OF MARYLAND SEPTEMBER TERM, 2006 NO IGAL SASANFAR APPELLANT, V. JAMES HENRY ROSBER, SR. APPELLEE APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE COUNTY (LAWRENCE J. DANIELS, JUDGE) APPELLEE S BRIEF HAROLD L. BURGIN Stoner, Preston & Boswell, Chartered 28 W. Allegheny Avenue, Suite 500 Towson, Maryland Attorney for Defendant/Appellee James Henry Rosber, Sr.

2 TABLE OF CONTENTS PAGE Questions Presented Did the trial court err in submitting the issue of contributory negligence to the jury? 2. Did the trial court err in not giving requested jury instructions regarding MD. Transp. Code Section (g)(1) and Teufel v. O Dell 3. Did the trial court err in refusing to permit the testimony of Dennis F. Augustiniyak? Statement of Facts Argument The Trial Court Properly Submitted the Issue of Contributory Negligence to the Jury. 2. The Trial Court Did Not Err in Refusing to Give the Plaintiff s Requested Jury Instructions on Md. Transp. Codes Section (g)(1) and Teufel v. O Dell. 3. The Trial Court Did Not Err in Refusing to Permit the Testimony of Dennis F. Augustiniyak. Conclusion Font and Type Statement Appendix Filing and Mailing Certificate

3 TABLE OF CITATIONS TABLE OF CASES Page Brehm v. Lorenz, 206 Md. App. 500, 112 A.2d 475 (1955). 11 Campbell v. Baltimore Gas & Electric Company, 95 Md. App. 86, 619 A.2d 213 (1993) , 8 Diffendal v. Kash & Karry Service Corporation, 74 Md. App. 170,536 A.2d 1175 (1988) Dorsey v. Nold, 362 Md. App. 241, 765 A.2d 79 (2001).. 14 Helman v. Mendelson, 138 Md. App. 29, 769 A.2d 1025 (2001) Naughton v. Bankier, 114 Md. App. 641, 691 A.2d 712 (1997) , 13, 14, 15 Shelton et. al. v. Kirson, et. al., 119 Md. App. 325, 705 A.2d 25 (1998) Stewart v. Hechinger Stores Company, 118 Md. App. 354, 702 A.2d 946 (1997) Teufel v. O Dell, 123 Md. App. 51, 716 A.2d 1067 (1998) 9,.. 11 TABLE OF STATUTES Md. Transp. Code Section (g)(1) TABLE OF MARYLAND RULES Md. Rule 2-504(b)(1)(B) Md. Rule 2-519(b)

4 IN THE COURT OF SPECIAL APPEALS OF MARYLAND SEPTEMBER TERM, 2006 NO IGAL SASANFAR APPELLANT, V. JAMES HENRY ROSBER, SR. APPELLEE APPEAL FROM THE CIRCUIT COURT FOR BALTIMORE COUNTY (LAWRENCE J. DANIELS, JUDGE) APPELLEE S BRIEF QUESTIONS PRESENTED 1. Did the trial court err in submitting the issue of contributory negligence to the jury? 2. Did the trial court err in not giving requested jury

5 instructions regarding MD. Transp. Code Section (g)(1)and Teufel v. O Dell? 3. Did the trial court abuse its discretion in refusing to permit the testimony of Dennis F. Augustiniyak? STATEMENT OF FACTS The Occurrence The occurrence forming the basis of this litigation is an automobile accident that took place on January 23, 2003 at the intersection of Reisterstown Road and Old Court Road (E123). Igal Sasanfar ( Sasanfar ) and Afshin Haghighi ( Haghighi ) were students at the Ner Israel Rabbincal College on Mount Wilson Lane. At the time of the accident, Sasanfar was driving his vehicle with Haghighi as a passenger (E64). Sasanfar was taking Haghighi to a Radio Shack located on Reisterstown Road approximately one-half mile past Old Court Road so that Haghighi could activate his cell phone (E78). Coming from the Rabbincal College, they made a right turn onto Reisterstown Road from Mount Wilson Lane and intended to continue on Reisterstown Road until reaching the Radio Shack (E80). It is undisputed that the intersection of Reisterstown and Old Court Roads is governed by automatic traffic signals. Sasanfar testified on direct examination that there are no curves on Reisterstown Road as it approaches Old Court, and that there is a small hill, but once you crest the hill there 2

6 is nothing to block your vision (E80). On cross-examination Sasanfar reiterated that the road was straight (E89) and also had portions of his deposition testimony read back to him, at which time he had indicated that Reisterstown Road was flat (E92). The defendant, James Henry Rosber, Sr., testified that Reisterstown Road was straight and flat as it approached Old Court Road (E125). Sasanfar testified that he never noticed the color of the traffic signal until he was ten feet from the intersection and was traveling at a speed of between thirty and thirty five miles per hour (E81). He further indicated that when he first saw the traffic signal, it was red (E82) and (E83). On cross examination, Sasanfar testified that when he first looked up the light was red, he was traveling thirty five miles per hour and was seven to eight feet from the intersection, a distance that he categorized as approximately one car length (E93) and (E94). He then maintains that while traveling at thirty five miles per hour at a distance of seven to eight feet from the intersection, he was able to come to a gradual stop and was hit from behind four seconds later (E66). Finally, Sasanfar testified that he brought his vehicle to a stop prior to entering the intersection (E83). The defendant, James Henry Rosber, Sr. ( Rosber ) testified that at the time of the accident he was driving his 1992 Buick and was coming from his home, going to his sister s house (E124). He indicated that Reisterstown Road was straight and flat, and there had been a hill that was four to five blocks prior to the intersection of Reisterstown and Old 3

7 Court Roads (E125 and E126). Rosber testified that as he got to the intersection, he was a car length behind Sasanfar, who slammed on his brakes. Rosber attempted to go to the right, but was unable to avoid striking the rear of the Sasanfar vehicle (E127 and E128). Of particular significance is Rosber s testimony that when the light turned orange, he was already at the intersection and Sasanfar was a car length into the intersection (E128). Rosber testified he was surprised that Sasanfar slammed on his brakes, because the Sasanfar vehicle had already entered the intersection (E129). Accordingly, it was Rosber s testimony that when the light turned orange, he was at the intersection and Sasanfar had already entered the intersection, when Sasanfar slammed on his brakes. The Court issued a directed verdict on the issue of Rosber s primary negligence and sent the issue of contributory negligence to the jury. In sending the issue of contributory negligence to the jury, the Court said :... I heard very clearly, he didn t see what color the light was until I looked up about a car length away from it. Then I looked up and saw it was red and I hit my brake. Certainly, whatever it is that he did, if the jury accepts that evidence, they could find that he was contributorily negligent. That if he had been watching the light well in advance of approaching the intersection, he could have put his brakes on before then instead of putting them on abruptly, which he would have had to do within one car length of the intersection to keep from entering it, and the fact that it might not 4

8 have happened.... (E148 and E149). Expert Witness Designation On November 8, 2004, the court entered a scheduling order pursuant to which the plaintiff was to provide expert reports or make Md. Rule 2-402(a)(1) disclosures by March 15, 2005 and the defendant was to make those disclosures by April 14, 2005 (E172). The appellee served upon the appellant Response to Interrogatories on or about February 28, 2005 (Apx. 17). The answer to interrogatory number 13 designated Accident Reconstructionist, Wendell Cover as an expert witness and provided a copy of Mr. Cover s report (Apx-11). The plaintiff/appellant did not designate any other expert witnesses. Trial was scheduled for August 11, On that date, a jury was selected in front of the Honorable Ruth Jakubowski. Judge Jakubowski granted a motion by the defendant made pursuant to Md. Rule to prohibit the plaintiff from testifying about an alleged offer by the defendant to compromise the claim. When the plaintiff testified in violation of the ruling, Judge Jakubowski declared a mistrial (E4). On November 1, 2005, seven and a half months after the deadline established in the scheduling order for the plaintiff to designate experts, seven months after the defendant designated Mr. Cover and two and a half months after the scheduled trial date, the plaintiff filed Plaintiff s Amended Expert Designation. (E175 and E176). This designation merely 5

9 indicated that Dennis F. Augustiniyak would testify... in rebuttal of any aspect of the testimony provided by Wendall Cover and will base his testimony upon his knowledge and skill as well as review of photographs and such other materials as used by Mr. Cover and such other materials as he shall consider relevant. (E176). The designation did not provide a report from Mr. Augustiniyak or set forth the substance of any opinion he might express. On or about November 4, 2005, the plaintiff filed a Motion for Modification of Scheduling Order, in which he sought to name Mr. Augustiniyak as a rebuttal expert, for the purpose of rebutting... conclusions and opinions reached by the accident reconstruction expert engaged by Defendant, Mr. Cover (E177). On January 26, 2006, this motion was denied by the court (E187). Having failed to gain the admission of Mr. Augustiniyak s testimony by having the scheduling order amended, the plaintiff sought the same end by a different means, namely, filing a motion entitled Reinstatement of Motion in Limine to Admit Rebuttal Testimony of Dennis F. Augustiniyak with Supplement. When arguing this motion on the morning of trial, counsel specifically indicated that Mr. Augustiniyak would be called strictly... to rebut their defense expert (E5). When during the course of argument, counsel for the defendant indicated he was not calling an expert (E9), counsel for the plaintiff conceded that under those circumstances there would be... a lot less to rebut. (E11). The court denied the Motion in Limine and thereby 6

10 precluded any testimony from Mr. Augustiniyak. ARGUMENT 1. THE TRIAL COURT PROPERLY SUBMITTED THE ISSUE OF CONTRIBUTORY NEGLIGENCE TO THE JURY. The Appellant contends the trial court erred in not granting his Motion for Judgment and submitting the issue of contributory negligence to the jury. Pursuant to Md. Rule 2-519(b) when considering a Motion for Judgment, the court must consider... all evidence and inferences in the light most favorable to the party against whom the motion is made. Accordingly, in deciding the motion, the trial court was obligated to consider the evidence and inferences therefrom in the light most favorable to the non-moving party, Rosber. Similarly, the Appellate Court... must likewise assume the truth of all credible evidence and all inferences of fact reasonably deducible from it... in the light most favorable to Rosber, the non-moving party in the trial court. Campbell v. Baltimore Gas and Electric Company 95 Md. App. 86, 619 A.2d 213 (1993). If there exists any evidence however slight then the ruling of the trial court must be affirmed. Id. In the present case, the evidence of contributory negligence on the part of Sasanfar was not slight, but was substantial. While traveling on a road that both parties agree was straight and flat, with no impediments to a driver s vision, the Appellant testified that he did not even take notice of the color of the traffic signal until he was only ten feet from the intersection and traveling at a speed of 7

11 thirty to thirty five miles per hour (E81). He further concedes that notwithstanding a clear line of sight, he never even saw the light turn from green to yellow or from yellow to red. Rather, when he first took notice of the light, it was already red and he was only ten feet from the intersection (E82)(E83). Sasanfar later categorized his distance from the intersection when he noticed the light was red as being one car length (E93 and E94). Sasanfar s testimony alone, provides competent evidence of contributory negligence to warrant submission of that issue to the jury, particularly in view of the fact that contributory negligence is an issue for the jury in all cases except those where reasonable minds cannot differ. Diffendal v. Kash and Karry Service Corporation 74 Md. App. 170, 536 A.2d 1175(1988), Stewart v. Hechinger Stores Company 118 Md. App. 354, 702 A.2d 946 (1997)and Campbell v. Baltimore Gas and Electric Company 95 Md. App A.2d 213 (1993). However, the testimony of Sasanfar is far from the only evidence of contributory negligence. Rosber testified that when the light turned yellow he was already at the intersection and Sasanfar had entered the intersection (E128). He further indicated that Sasanfar slammed on his brakes after entering the intersection which he said was... very surprising to me because he was through the light. (E129) The testimony of both parties provides significant evidence of contributory evidence. A jury could certainly conclude that Sasanfar s failure to observe the traffic signal change, or to observe the signal at all until he was only 8

12 seven feet from the intersection and traveling at a speed of 35 miles per hour was negligence. Similarly, a jury could conclude from Rosber s testimony, that Sasanfar s act of slamming on the brakes after entering the intersection was negligent. Certainly, there is relevant and competent evidence, about which reasonable minds could differ, which required submission of the issue of contributory negligence to the jury. Appellant s brief actually underscores the extent to which contributory negligence is an issue for the trier of fact. Sasanfar admits in his brief that as he approached the intersection... he had the duty to be prepared to stop Appellant s Brief at 15. The brief goes on to say that Sasanfar could not be negligent... by stopping when there was a yellow light and he had just started his entry into the intersection. Appellant s Brief at 16. Appellant concedes that he had a duty to be prepared to stop when there was a yellow light. However, Appellant concedes that he never even saw the light when it was yellow, a fact pointed out by the trial judge, who said that had Sasanfar been watching the light... well in advance of approaching the intersection, he could have put his brakes on before then, instead of putting them on abruptly.... (E149). Appellant s reliance upon Teufel v. O Dell, 123 Md. App. 51, 716 A.2d 1067 (1998) is misplaced. The facts of Teufel are not even remotely similar to the facts of the present case. In Teufel, both vehicles came to a complete stop at the intersection. The lead vehicle began to make a right turn on 9

13 red. The trailing vehicle also began to move forward, also intending to turn right. The driver of the trailing vehicle took his eye off the road, looking to his left. It was while the trailing vehicle was not looking, that the driver of the lead vehicle came to a stop and was struck in the rear. Any contributory negligence on the part of the lead driver (for example, stopping suddenly, failure to give appropriate warnings, etc.) could not have been a proximate cause of the accident, since the trailing driver was... looking elsewhere and could not have seen the warning. Id. In addition, the lead driver in Teufel did not apply his brakes on a yellow light after entering the intersection as testified to by Rosber in the present case, nor did the lead driver in Teufel, fail to see the light turn red until he was seven feet from the intersection as Sasanfar admitted in the present case. The court in Teufel said that for the plaintiff to have been contributorily negligent, he would have to have undertaken some act that a reasonable person in his situation would not have undertaken. Id. It is a question of fact that can only be resolved by the jury, whether the actions of Sasanfar are consistent with what a reasonable person in his shoes would have done. 2. THE TRIAL COURT DID NOT ERR IN REFUSING TO GIVE THE PLAINTIFF S REQUESTED JURY INSTRUCTIONS ON MD. TRANSP. CODE SECTION (g)(1) AND TEUFEL V. O DELL. Appellant claims the trial court erred in not giving two 10

14 of his requested jury instructions. However, whether any particular instruction is warranted based on the evidence at trial it is within sound discretion of the trial court Naughton v. Bankier 114 Md. App. 641, 691 A.2d 712 (1997). Appellant first contends that the trial court was required to instruct the jury consistent with Brehm v. Lorenz 206 Md. App. 500, 112 A.2d 475 (1955) and Teufel v. O Dell 123 Md. App. 51, 716 A.2d 1067 (1998) that it is the duty of the rear driver to keep a safe distance between the vehicles, and to keep his machine well in hand, so as to avoid doing injury to the machine ahead, so long as the driver is proceeding in accordance with his rights. (E163(A)). There is no error in failing to give this specific instruction requested by the appellant, since the instructions that were given by the trial court fairly covered the applicable law. The court specifically instructed the jury regarding the duties incumbent upon both drivers (E154). Accordingly, the instructions given were a fair explanation of the law and this specific instruction requested by the appellant was not required. In addition, the instruction requested by the appellant speaks exclusively to the duty of the rear driver, in this case the appellee, Rosber. Since the court granted the appellant s Motion for Judgment, the issue of Rosber s primary negligence was not before the jury and instructions in that regard would not only be unnecessary, but would tend to confuse the jury. Appellant next contends that the trial court erred in refusing to instruct the jury consistent with Md. Transp. Code 11

15 Section (g)(1). As set forth above with respect to the prior requested instruction, the instructions that were given by the trial court represent a fair reading of the law based upon the evidence presented at the time of trial. In addition, appellant correctly pointed out in the footnote contained on page 27 of his brief, that any driver would know that a yellow signal is followed by a red signal, which would make an instruction on this point unnecessary, and certainly a failure to give such an instruction would not warrant a new trial. Finally, appellant maintains an instruction regarding section (g)(1) was necessary to help the jury determine... the reasonableness of the actions of the appellant in stopping if he had a yellow light.... Appellant s brief at 27. This argument is totally without merit since by his own admission, the appellant never saw the light when it was yellow, but only saw the light after it had turned red. The appellee testified that the appellant slammed on his brakes after entering the intersection. Accordingly, the appellant never saw the light when it was yellow and the appellee testified that the appellant slammed on his brakes after entering the intersection when the light was already red. Under either scenario the requested instruction would not be appropriate or necessary, and would probably serve only to confuse the jury. 12

16 3. THE TRIAL COURT DID NOT ERR IN REFUSING TO PERMIT THE TESTIMONY OF DENNIS F. AUGUSTINIYAK. The Appellant contends the trial court erred in not permitting the rebuttal testimony of its expert witness, Dennis F. Augustiniyak. The ruling of the trial court regarding the testimony of Mr. Augustiniyak should not be disturbed, absent a showing of an abuse of discretion. Helman v. Mendelson 138 Md. App. 29, 769 A.2d 1025 (2001), Shelton et. al. v. Kirson, et. al. 119 Md. App. 325, 705 A.2d 25 (1998), Naughton v. Bankier 114 Md. App. 641, 691 A.2d 712 (1997). The appellant designated Mr. Augustiniyak as an expert witness seven and a half months after the deadline established in the scheduling order, seven months after the appellee s timely designation of Mr. Cover as an expert and two and a half months after the scheduled trial date. In fact, had Judge Jakubowski not granted a mistrial, that was necessitated by the plaintiff providing testimony in violation of the court s ruling on a Motion in Limine, the case would have been concluded long before Mr. Augustiniyak had been designated as an expert witness. In Naughton v. Bankier 114 Md. App. 641, 691 A.2d 712 (1997) the Court of Special Appeals held that the trial court had abused its discretion in permitting the testimony of an expert witness, named long after the deadline set forth in the scheduling order, saying that not only had good cause for the delay not been shown, but that the record was... devoid of any reason why an expert should be named belatedly over one year after the disclosure period and be 13

17 permitted to testify. Naughton v. Bankier 114 Md. App. 641, 691 A.2d 712 at 718 (1997). As in Bankier, the appellant in the present case has not only failed to show good cause, but has shown no reason at all why his expert witness was designated in such a belated fashion. The Bankier court said that if scheduling orders are to be permitted to be treated in such a casual fashion, why bother with them? Id. This query is equally applicable to the present case. Appellant appears to argue that the scheduling order is totally inapplicable to his designation of a rebuttal expert. Applying this theory, the appellant would be subjected to no deadline for the naming of a rebuttal expert and could name such an expert at any time. This is a totally illogical theory that flies in the face of the stated purpose of requiring a scheduling order, mainly to promote the efficiency of the litigation process. Dorsey v. Nold 362 Md. App. 241, 765 A.2d 79 (2001). Md. Rule 2-504(b)(1)(B) requires a scheduling order to contain dates by which... each party shall identify each person whom the party expects to call as an expert witness at trial.... The rule does not differentiate between expert and rebuttal witnesses and merely mandates that each party designate each expert witness consistent with a scheduling order. Not only did the appellant not designate each person he intended to call as an expert witness, he has provided this court with no reason why such a designation could not have been made either in strict compliance with the scheduling order or shortly after the deadlines set forth therein. For the trial court to 14

18 permit appellant to deviate so drastically from the scheduling order without some showing of cause, would be... on its face, prejudicial and fundamentally unfair... to the appellee. Naughton v. Bankier 114 Md. App. 641, 691 A.2d 712, 718. The trial court acted prudently and within its discretion in refusing to permit Mr. Augustiniyak to testify. CONCLUSION The trial court did not err in submitting the issue of contributory negligence to the jury or in refusing to give the instructions requested by the Appellant. Accordingly, the Appellee requests that this court affirm the decision of the trial court. 15

19 FONT AND TYPE STATEMENT Courier, 13 point. Respectfully submitted, Harold L. Burgin Stoner, Preston & Boswell, Chartered 28 W. Allegheny Avenue, Suite 500 Towson, Maryland Attorney for Appellee James Henry Rosber, Sr. 16

20 APPENDIX Pursuant to the provisions of Md. Rule 8-501(e) the following pages, which comprise the Appendix to the Appellee s brief consist of documents which the Appellee believes to be relevant, but which were inadvertently overlooked by the parties when discussing the contents of the record extract. 17

21 FILING AND MAILING CERTIFICATE I HEREBY CERTIFY that on this day of September, 2007, fifteen (15) copies of Appellee s Brief were hand delivered to the Clerk s Office of the Court of Special Appeals of Maryland and two (2) copies of the Appellee s Brief were mailed postage prepaid to the following: Samuel Sperling, Esquire The Sperling Law Office, P.C Reisterstown Road Commercentre West, Suite 212 Baltimore, Maryland Harold L. Burgin, Esquire Stoner, Preston & Boswell, Chartered 28 W. Allegheny Avenue, Suite 500 Towson, Maryland Attorney for Appellee James Henry Rosber, Sr. 18