Recent Motor Tort Decisions From
Maryland’s Appellate Courts by Eric Schloss
Eric N. Schloss (Gordon, Feinblatt, Rothman, Hoffberger & Hollander, LLC Baltimore). Mr. Schloss is a partner in Gordon, Feinblatt’s, Personal Injury Practice Group. He received his J.D. degree from the University of Baltimore School of Law in 1994 and his undergradu-
ate degree from the University of Maryland at College Park. Mr. Schloss is admitted to practice law in the State of Maryland, Virginia and the District of Columbia. He is a member of MTLA’s President’s Club as a Contributor as well as a member of the MTLA Legislative Committee, Education & Programs Committee, and is the Vice-Chair of the Bicycle Helmet Project. Prior to joining Gordon Feinblatt, Mr. Schloss practiced at Saiontz, Kirk & Miles where he concentrated in personal injury litigation and workers’ compensation cases.
The following is a survey of recent appellate cases that are important for any attorney handling motor tort cases in Maryland. Absolon v. Dollahite (Court of Appeals,
No. 7, September Term, 2002, Filed Au- gust 27, 2003, Opinion by Eldridge), reversed the Court of Special Appeals and remanded the case to the Circuit Court for Montgomery County for further pro- ceedings. As she walked across Rockville Pike, Absolon was struck by a motor ve- hicle operated by Dollahite. Absolon began crossing the street in a marked crosswalk after a “walking person” ap- peared on the pedestrian signal. The pedestrian signal turned to a flashing “red hand” as she reached the median. Absolon
then checked for oncoming traffic and continued to cross the street. Dollahite filed a motion for summary judgment claiming that under Transpor- tation Article § 21-203, Absolon was contributorily negligent for stepping off the median and continuing to cross Rockville Pike. The statute states that if a pedestrian has partly completed cross- ing on a “walking person” signal, the pedestrian shall proceed without delay to a sidewalk or safety island while the flash- ing “hand” signal is showing. On the day of trial, the circuit court granted Dollahite’s motion and found Absolon contributorily negligent per se. The Court of Appeals held that the al- leged violation of § 21-203 of the
Transportation Article was only evidence of contributory negligence and that the case should have been submitted to the jury. The court also stated that a statu- tory violation is not negligence per se, unless the statute so states. Allstate v. Kim (Court of Appeals, No.
76, September Term, 2002, Filed July 31, 2003, Opinion by Wilner), affirmed the judgment of the Circuit Court for Mont- gomery County. On July 13, 2001, Nathan Kim, a minor, was a passenger in a vehicle operated by his mother. Ms. Kim had pulled to the side of the road to re- turn her son to his car seat. After Ms. Kim had opened the driver’s side door, the car began to move forward because the vehicle gear lever was not in the “Park” position. Her son then fell out of the car and was injured. Earlier that year, the General Assem- bly passed a law that eliminated parent-child immunity in a motor tort action up to the minimum amount of li- ability insurance coverage as required in Transportation Article § 17-103(b) (i.e. $20,000/$40,000). This new law applies “to any case for wrongful death, personal injury, or property damage arising out of the operation of a motor vehicle filed on or after October 1, 2001.” After the statute took effect, Mr. Kim made a claim on behalf of his son against his wife, Ms. Kim, who was insured by Allstate. Allstate filed a declaratory judg- ment action in the Circuit Court for Montgomery County to determine if it was liable for coverage. Allstate contended that: (i) the statute violated provisions of the Maryland Constitution and the United States Constitution (including the Equal Protection Clause of the Fourteenth Amendment); (ii) the statute did not ap- ply to causes of actions that arose before October 1, 2001; and (iii) retroactively applying the law would impair the obli- gation of contracts. The Court of Appeals held that the leg- islature did intend for the statute to apply
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