IN THE COURT OF SPECIAL APPEALS OF MARYLAND September Term, 2004 ANGELINA SOMMERMAN, v. Appellant, DEBORAH SCHUBERT TITLEMAN, et al., Appellees No. 2020 Appeal from the Circuit Court for Baltimore County (Vicki Ballou-Watts, Judge) REPLY BRIEF FOR APPELLANT TO BRIEF OF APPELLEE DEBORAH TITLEMAN JOHN F. FRANKE C. WILLIAM MICHAELS Levi, Franke & Hall Law Offices 2904 East Joppa Road 1579 Dellsway Road Baltimore, Maryland 21234 Baltimore, Maryland 21286 (410) 665-2100 (410) 321-5770 Attorneys for Appellant 1
TABLE OF CONTENTS Statement of the Case... 1 Issues Presented... 1 Statement of the Facts... 2 Argument... 4 Appellee Deborah Titleman Was Not Entitled to Summary Judgment and the Circuit Court Was Clearly Erroneous in Granting Summary Judgment... 4 Conclusion... 11 Certification as to Rule 8-112... 11 Certificate of Service... 12 2
TABLE OF AUTHORITIES MARYLAND CASES Court of Appeals Absolon v. Dollahite, 376 Md. 547, 831 A.2d 6 (2003)...6 Bagwell v. Peninsula Regional Medical, 106 Md.App. 470, 665 A.2d 297 (1995)...5 Campfield v. Crowther, 252 Md. 88, 249 A.2d 168 (1969)...5 Goodwich v. Sinai Hosp. of Baltimore, 343 Md. 185, 680 A.2d 1067 (1996)...4 Gross v. Sussex, Inc., 332 Md. 247, 630 A.2d 1156 (1993)...5 Impala Platinum, Ltd. v. Impala Sales, Inc., 283 Md. 296, 389 A.2d 887 (1978)...5 Mondawmin Corporation v. Kres, 258 Md. 307, 266 A.2d 8 (1970)...5 Nizer v. Phelps, 252 Md. 185, 249 A.2d 112 (1969)...8 Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967)...5 Reid v. Pegg, 256 Md. 289, 260 A.2d 38 (1969)...8 Sanner v. Guard, 236 Md. 271, 203 A.2d 885 (1964)...5 Sheets v. Brethren Mutual, 342 Md. 634, 679 A.2d 540 (1996)...4 Southern Maryland Electric Co-operative v. Blanchard, 239 Md. 481, 212 A.2d 301 (1965)...5 Sullivan v. Sullivan, 231 Md. 580, 191 A.2d 564 (1963)...8 Tie Bar, Inc. v. Shartzer, 249 Md. 711, 241 A.2d 582 (1968)...5 ii
Van v. McPartland, 242 Md. 543, 219 A.2d 815 (1966)...8 Wolfe v. Lamar & Wallace, Inc., 261 Md. 174, 274 A.2d 121 (1971)...5 Court of Special Appeals Cheney v. Bell National Life Insurance Company, 70 Md. App. 163, 520 A.2d 402 (1987)...4 Cohen v. Rubin, 55 Md. App. 83, 460 A.2d 1046 (1983)...8 Fearnow v. Chesapeake Telephone, 104 Md.App. 1, 655 A.2d 1, 25 (1995), aff'd in part, rev'd in part, 342 Md. 363, 676 A.2d 65 (1996)....5 Fireman's Fund Ins. Co. v. Rairigh, 59 Md. Alp. 305, 475 A.2d 509 (1984)...5 STATUTES AND RULES Md. Transportation Code Ann., 21-503(a)...6 iii
IN THE COURT OF SPECIAL APPEALS OF MARYLAND September Term, 2004 ANGELINA SOMMERMAN, v. Appellant, DEBORAH SCHUBERT TITLEMAN, et al., Appellees No. 2020 Appeal from the Circuit Court for Baltimore County (Vicki Ballou-Watts, Judge) REPLY BRIEF FOR APPELLANT iv
STATEMENT OF THE CASE Appellant Angelina Sommerman ("Ms. Sommerman" or "Plaintiff" or "Appellant") here incorporates the description of the procedural background in the Statement of the Case appearing in her initial Brief. Appellee Deborah Titleman ("Ms. Titleman" or "Defendant" or "Appellee") in her Brief, noted no changes or objections to that description. ISSUES PRESENTED Appellant notes the restatement of the issues on appeal in Appellee's Brief, but nevertheless reiterates the issues, regarding all Appellees as described in her initial Brief: 1. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Deborah S. Titleman, the defendant driver, solely on the basis of alleged contributory negligence of Plaintiff pedestrian, who was struck by Defendant's vehicle while crossing a street in a non-crosswalk area, where Defendant driver was talking on her hand-held cell phone at the time the accident and where there was a dispute of fact as to other crucial and relevant circumstances, including whether the Defendant driver was exceeding the speed limit? 2. Was application of the doctrine of contributory negligence negated because the Defendant driver had the "last clear chance" to avoid the accident? 3. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Baltimore County, due to the condition created by a construction area managed by the County at which a sidewalk had been fenced off and closed, making it difficult for pedestrians on that side of the street to reach a marked intersection crosswalk, and thus making it likely that pedestrians would cross a heavily-traveled street without the benefit of a crosswalk to reach the other side of the street, and in that the County did not install a temporary crosswalk to compensate for the fenced-off sidewalk in the construction area although the contractor recommended such a sidewalk be installed, and for failing promptly to repair a street light which had failed some time prior 1
to the accident and which was not functioning on the evening of the accident? 4. To the extent that summary judgment granted to Defendant Baltimore County was based upon a "release" which Plaintiff signed, did the Circuit Court err or abuse its discretion in basing summary judgment on that release? 5. To the extent that summary judgment granted to Defendant Baltimore County was based upon a "release" which Plaintiff signed, was the County barred from asserting this release as an affirmative defense because the defense was not raised in Defendant's original answer to the Complaint? 6. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Gilbane Building Company, in that Defendant Gilbane fenced off the sidewalk of the construction area when construction fencing need not have encompassed the sidewalk, creating a condition contributing to Plaintiff's being unable easily to reach the marked intersection crosswalk to return to her vehicle and making it likely that Plaintiff would cross a heavily-traveled street without the benefit of a marked crosswalk, and to the extent it was responsible for the failed streetlight? 7. Did the Circuit Court err or abuse its discretion in granting summary judgment to Defendant Gilbane Building Company, assuming that fencing off the sidewalk of the construction area was necessary, for failing to require the County install a temporary crosswalk at the construction site area, when the construction company was aware that pedestrians could not easily walk to the marked intersection crosswalk to reach the opposite side of the street and thus would cross the street without the benefit of a marked crosswalk in an area known for heavy and rapidly-moving traffic? STATEMENT OF THE FACTS Appellant offers the following reply on Appellee's comments on the Statement of the Facts in Appellant's Brief: --Ms. Titleman claims that she turned on her headlights (the reference to "Sommerman" clearly is meant to be "Titleman"). That statement is from her own deposition. It was not clear from the deposition testimony of the other witnesses whether the headlights were on at the time of the accident. Ms. Sommerman stated in her 2
deposition that she did not remember much about the accident, including this detail. --Ms. Titleman also claims, again based on her own deposition testimony, that she was not exceeding the posted 30 m.p.h. speed limit at the time of the accident. Again, the Court had authority in considering her summary judgment motion, to consider that testimony in light of the force of the impact upon Ms. Sommerman and her resulting injuries, as well as the testimony of the witnesses, for those witnesses for whom depositions could be arranged. Appellant recognizes that some of these witnesses related comments from other witnesses concerning the speed of Ms. Titleman's vehicle. However, that does not make those comments any less credible. Lay opinion as to the approximate speed of a vehicle is not necessarily inadmissible. --Ms. Titleman's attempt to minimize the force of the impact upon Ms. Sommerman must be taken with a grain of salt. There is no showing that the indication in the medical records--referred to in the statement in Ms. Sommerman's initial Brief--that she was thrown 30 feet when Ms. Titleman's vehicle struck her, is incorrect. The Court had Ms. Sommerman's deposition testimony before it and was made aware of the scope of Ms. Sommerman's injuries. There is no question that based on this alone, discounting even the deposition testimony of the witnesses and other witness comments reflected in that testimony, that Ms. Titleman's vehicle was proceeding rapidly when it struck Ms. Sommerman. --Appellee attempts to emphasize the assessment of her accident reconstructionist 3
that based on the point of impact and the point where Ms. Titleman's vehicle entered the roadway, Ms. Sommerman would have had sufficient time to notice Ms. Titleman's vehicle. While Ms. Titleman seeks to disregard or minimize the effect of witness statements and medical reports, she offers this accident reconstruction as proof that Ms. Sommerman must have seen Ms. Titleman's vehicle as Ms. Sommerman proceeded across the roadway. That reconstruction report, however, is simply an opinion and must be considered along with other evidence before the Court. --Ms. Sommerman does not dispute there was no "obstruction" to her being able to see Ms. Titleman's vehicle, assuming she could see it before the point of impact. ARGUMENT APPELLEE DEBORAH TITLEMAN WAS NOT ENTITLED TO SUMMARY JUDGMENT AND THE CIRCUIT COURT WAS CLEARLY ERRONEOUS IN GRANTING SUMMARY JUDGMENT. Appellee presents her argument for affirming the Circuit Court's summary judgment ruling, while passing over summary judgment standards. Appellant reiterates that summary judgment determines if material facts are in dispute and if the moving party is entitled to judgment as a matter of law. It is not a substitute for trial. Cheney v. Bell National Life Insurance Company, 70 Md. App. 163, 520 A.2d 402 (1987). To survive a motion for summary judgment, the non-moving party need only demonstrate that there is a "genuine dispute of material fact by presenting facts that would be admissible in evidence." Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 4
(1993). A court considering summary judgment does not decide issues of fact or credibility. See also, e.g., Wolfe v. Lamar & Wallace, Inc., 261 Md. 174, 274 A.2d 121 (1971); Impala Platinum, Ltd. v. Impala Sales, Inc., 283 Md. 296, 389 A.2d 887 (1978). Summary judgment is inappropriate where the evidence is susceptible to more than one inference. Fearnow v. Chesapeake Telephone, 104 Md.App. 1, 655 A.2d 1, 25 (1995), aff'd in part, rev'd in part, 342 Md. 363, 676 A.2d 65 (1996). The court must resolve all inferences against defendant and give plaintiff the "benefit of all reasonable doubts in determining whether a genuine issue exists." Id. (quotation marks and citations omitted). The trial court thus is required to view the facts and inferences in a light most favorable to the non-moving party. Fireman's Fund Ins. Co. v. Rairigh, 59 Md. App. 305, 475 A.2d 509 (1984). Appellee does not mention the general rule that ordinarily, the issue of contributory negligence is for the jury. See, e.g., Southern Maryland Electric Cooperative v. Blanchard, 239 Md. 481, 212 A.2d 301 (1965), and Sanner v. Guard, 236 Md. 271, 203 A.2d 885 (1964). Only when reasonable minds cannot differ is a trial court justified in ruling upon contributory negligence as a matter of law. Mondawmin Corporation v. Kres, 258 Md. 307, 266 A.2d 8 (1970); Campfield v. Crowther, 252 Md. 88, 249 A.2d 168 (1969); Tie Bar, Inc. v. Shartzer, 249 Md. 711, 241 A.2d 582 (1968), and Raff v. Acme Markets, Inc., 247 Md. 591, 233 A.2d 786 (1967). Appellee focuses upon Md. Transportation Code Ann., 21-503(a), involving a 5
pedestrian yielding the right of way to vehicles, yet recognizes that violation of a statute is not negligence per se. Absolon v. Dollahite, 376 Md. 547, 831 A.2d 6 (2003). Whether "nothing prevented" Ms. Sommerman from seeing Ms. Titleman's vehicle, given conditions and other factors such as the possible speed of the vehicle, is a core issue of fact which cannot be resolved on summary judgment. Nor is affirmance necessitated through Appellee's laborious efforts to distinguish various cases which are against her contributory negligence contention, and to apply various cases which favor her contention. (Appellee's Brief at 6-8 and various footnotes). It is quite plain that each situation is to be decided on its own facts. The facts here do not require a finding that Ms. Sommerman was contributorily negligent as a matter of law, and thus that summary judgment was properly entered against her in her action to recover against Ms. Titleman. Further, quite contrary to Appellee's contentions, there are either significant facts for consideration, or disputes of material fact, concerning all the circumstances to be properly considered by the trial court in deciding whether summary judgment against Ms. Sommerman in her action against Ms. Titleman, is appropriate. There is no dispute that Ms. Titleman was talking on her cell phone and was looking in her rear view mirror at the time of the accident. There is no dispute that Ms. Titleman was familiar with Kenilworth Drive while Ms. Sommerman was not. There is no dispute that a streetlight in that area of Kenilworth Drive was not functioning. There is no dispute that fencing in 6
the construction area adjacent to the Detention Center made it difficult for Ms. Sommerman to continue to proceed on the north side of Kenilworth Drive to reach the intersection where the crosswalk was located. And there is considerable dispute over the speed of Ms. Titleman's vehicle and whether the vehicle's headlights were on. These considerations bear significantly upon the Circuit Court's error in granting summary judgment to Ms. Titleman. Appellee's arguments over the dispute of fact concerning the speed of her vehicle (Appellee's Brief at 8-9) clearly show a dispute of fact concerning that extremely relevant circumstance. Appellee attempts to minimize this situation and declare the vehicle speed a matter of undisputed material fact sufficient for her argument that summary judgment properly was granted. Her arguments are unavailing. Whether the testimony of the various witnesses established that Ms. Titleman's vehicle was exceeding the 30 m.p.h. speed limit at the time of the accident, and to the extent that any hearsay statement through the statements of these witnesses is admissible, are matters for trial (or most likely, for any motion in limine submitted by Defendants prior to trial). Similarly, the impact and weight and effect of the report from Ms. Titleman's accident reconstructionist, is a matter for the jury. The situation simply does not meet the prevailing standards for summary judgment or for contributory negligence, to permit an appropriate decision in favor of granting Ms. Titleman summary judgment. Ms. Titleman states, in the alternative, that even if she were speeding, this still 7
does not matter, and she still is entitled to summary judgment. Once again, given the entire body of Maryland case law on pedestrian accidents, cases supporting her position are bound to exist (Appellee's Brief at 9-10, noting Reid v. Pegg, 256 Md. 289, 260 A.2d 38 (1969), but see cases cited in Appellant's Brief at 20-23, including, e.g., Van v. McPartland, 242 Md. 543, 219 A.2d 815 (1966); Nizer v. Phelps, 252 Md. 185, 249 A.2d 112 (1969), and Cohen v. Rubin, 55 Md. App. 83, 460 A.2d 1046 (1983)). Each set of circumstances in any given matter, must be decided separately. The speed of Ms. Titleman's vehicle--or more to the point, the speed of any vehicle in a pedestrian accident--certainly is not a "red herring." The only relevant question is how plain is the evidence regarding the speed of the vehicle, whether it was exceeding the posted speed limit, and the extent to which the vehicle's speed contributed to the accident. Here, all of these considerations amount to disputes of fact or to disputed inferences or conclusions, precluding summary judgment. The same can be said about whether Ms. Titleman's vehicle headlights were turned on. Ms. Titleman stated in her deposition that she was using her cell phone, and holding it in her left hand. She was on her cell phone from the moment she exited her office and throughout the time she was in her vehicle, to the point of the impact. If so, there is a dispute whether she could have turned on her headlights by the time of the impact. The discussion in Sullivan v. Sullivan, 231 Md. 580, 191 A.2d 564 (1963), does not require a different assessment of that circumstance, in the present matter. That 8
situation involved the pedestrian not noticing that the headlights were on and thus seeking an inference for summary judgment purposes, that they were not on. Here, other circumstances suggest that the headlights were not on. As noted, Ms. Sommerman does not recall the moments before the accident. Ms. Sommerman quite obviously disagrees with Ms. Titleman's statement that the present situation is "no different" than other situations where pedestrians were found contributorily negligent as a matter of law. These circumstances absolutely demonstrate that the Circuit Court should have denied summary judgment to Ms. Titleman. Appellant will not again recite the circumstances and the disputes of material fact involved, which are fully described in her initial Brief. Appellant respectfully directs this Court to that discussion. Regarding the last clear chance doctrine, again Ms. Titleman confuses citation of authority for the purpose of establishing a particular rule, with results to occur here. Given the standard that each set of circumstances must be considered on its own, there is nothing untoward with noting case decisions that recognize the "last clear chance" doctrine even though the results in those cases were not in favor of the plaintiff. Appellant reiterates that, even assuming primary negligence by Ms. Sommerman in supposedly not yielding the right of way to Ms. Titleman's vehicle, Ms. Titleman also had an equal if not greater opportunity, without any obstructions to her view, to see Ms. Sommerman in the roadway. There is no showing that Ms. Sommerman jumped in front 9
of Ms. Titleman's vehicle, attempted to run across the roadway, or failed to look for cars before crossing (her deposition testimony was that she would have looked before crossing and no other witness to the accident contradicted this). Even if Ms. Sommerman did not keep a careful lookout when crossing, assuming Ms. Titleman noticed Ms. Sommerman at the roadway edge but instead of proceeding with caution, was checking her rear-view mirror, talking on her cell phone, and speeding, Ms. Titleman certainly had or would have had--if she was proceeding with ordinary care--the last clear chance to have avoided any accident. To minimize this situation, Ms. Titleman invents a "concurrent negligence" argument in order to dismiss it. This Court should not be swayed by such "straw man" contentions. If Ms. Titleman was negligent in the manner in which she proceeded down Kenilworth Drive, it was ongoing and continuing negligence that was present after any negligence of Ms. Sommerman in stepping into the roadway or proceeding across the roadway while supposedly not keeping a lookout for or yielding the right of way to Ms. Titleman's vehicle. In such a situation, the last clear chance doctrine would apply. Thus, even if contributory negligence can be charged against Ms. Sommerman, a last clear chance instruction would be appropriate. For this reason as well, summary judgment for Ms. Titleman was not legally correct and was clearly erroneous. In all, given the circumstances, considering the disputed issues of material fact, and in view of the prevailing standards for summary judgment and for contributory 10
negligence, summary judgment for Ms. Titleman was totally improper. The Circuit Court erred in doing so. Its decision must be reversed. CONCLUSION THEREFORE, Appellant ANGELINA SOMMERMAN requests that this Court REVERSE the summary judgments entered by the Circuit Court for Baltimore County. RESPECTFULLY SUBMITTED, C. WILLIAM MICHAELS Law Offices 1579 Dellsway Road Baltimore, Maryland 21286 (410) 321-5770 JOHN F. FRANKE Levi, Franke & Hall 2904 East Joppa Road Baltimore, Maryland 21234 (410) 665-2100 Attorneys for Appellant CERTIFICATION AS TO RULE 8-112 In accordance with Rule 8-112, Appellant here certifies that the typeface utilized for this Brief is an approved typeface, CG Times, that the type size is 13 point, and that this Brief otherwise meets all applicable requirements of the Rule. C. WILLIAM MICHAELS 11
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 7th day of July, 2005, I mailed, postage prepaid, two copies of this Reply Brief of Appellant to: KATHLEEN MCDONALD, ESQ. Kerr McDonald, LLP 31 Light Street, Suite 400 Baltimore, Maryland 21201 Attorney for Appellee Deborah S. Titleman and J. GREGORY DONLIN, ESQ. Law Offices B&O Building, Suite 310 Two North Charles Street Baltimore, Maryland 21201 Attorney for Appellee Gilbane Building Company, Inc. and PAUL MAYHEW, ESQ. Baltimore County Office of Law 400 Washington Avenue, Suite 219 Towson, Maryland 21204 Attorney for Appellee Baltimore County C. WILLIAM MICHAELS 12