Ward v. Damico , 80 F. App'x 877 ( 2003 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
THOMAS L. WARD, 
Plaintiff-Appellant,
v.  No. 02-2225
KIM ANN DAMICO,
Defendant-Appellee.

THOMAS L. WARD, 
Plaintiff-Appellee,
v.  No. 02-2239
KIM ANN DAMICO,
Defendant-Appellant.

Appeals from the United States District Court
for the District of Maryland, at Greenbelt.
Charles B. Day, Magistrate Judge.
(CA-01-362-PJM)
Argued: October 30, 2003
Decided: November 19, 2003
Before WIDENER, MOTZ, and DUNCAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
COUNSEL
ARGUED: Julia Arfaa Lodowski, SALSBURY, CLEMENTS, BEK-
MAN, MARDER & ADKINS, L.L.C., Baltimore, Maryland, for
2 WARD v. DAMICO
Appellant. James Andrew Sullivan, SULLIVAN, TALBOTT &
BATT, Rockville, Maryland, for Appellee. ON BRIEF: Stuart M.
Salsbury, SALSBURY, CLEMENTS, BEKMAN, MARDER &
ADKINS, L.L.C., Baltimore, Maryland, for Appellant.
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
In this diversity case, Thomas L. Ward sued Kim Ann Damico for
injuries resulting when their respective vehicles collided at the inter-
section of Bradley Boulevard and Barrett Lane in Montgomery
County, Maryland. At trial, the jury found that both Ward and
Damico had acted in a negligent manner, proximately causing the
accident. Accordingly, the court entered judgment in favor of
Damico. We affirm.
I.
A stop sign controls Barrett Lane, a residential street, which inter-
sects Bradley Boulevard from the east. At this intersection, Bradley
Boulevard is a two-lane highway, with one lane traveling in either
direction separated by a double yellow line.
On November 6, 1999, as Thomas Ward drove his motorcycle in
a northwesterly direction on Bradley Boulevard, Kim Damico, driving
her car on Barrett Lane, attempted to make a left turn onto Bradley
Boulevard. Damico had left Barrett Lane and proceeded into the inter-
section when the accident ensued. Ward’s motorcycle collided with
Damico’s vehicle near the center of Bradley Boulevard, throwing
Ward and his passenger off the motorcycle and into the bushes on the
side of the road. James M. Greenan witnessed the accident.
WARD v. DAMICO 3
Ward timely filed this action seeking to recover from Damico for
injuries suffered in the accident. Prior to trial, the parties filed a pre-
trial order in which they contested the applicability of Maryland’s
boulevard rule. Under the boulevard rule, a "favored" driver is enti-
tled to a statutory preference rendering the "unfavored" driver who
fails to yield the right-of-way negligent as a matter of law unless the
favored driver was proceeding unlawfully and that unlawful behavior
was a proximate cause of the accident. Poteet v. Sateur, 766 A.2d
150, 167-68 (Md. App. 2001); Mallard v. Earl, 665 A.2d 287, 291
(Md. App. 1995). In this case, the favored driver, the person traveling
on the through street, here Bradley Boulevard, is Ward; the unfavored
driver, the person traveling on an intersecting cross street, here Barrett
Lane, is Damico. Brendel v. Ellis, 742 A.2d 1, 4 (Md. App. 1999).
The magistrate judge declined to apply Maryland’s boulevard rule
to find Damico negligent as a matter of law. Thus, the case went to
trial both on the issue of Damico’s primary negligence and on Ward’s
contributory negligence.
II.
At trial, four witnesses testified regarding the accident — Ward,
Damico, Greenan, and Glen F. Reuschling.
Ward testified that he was driving approximately 30 miles per hour
down Bradley Boulevard when Damico’s vehicle pulled out "right in
front of [him]." The collision was "almost instantaneous," and despite
Ward’s attempts to swerve around Damico’s vehicle, he could not
avoid the accident. Ward did not recall passing any vehicles on Brad-
ley Boulevard and stated that there were no vehicles between him and
Damico in the moments before the accident.
According to Damico, she pulled up to the stop sign on Barrett
Lane, but was unable to see clearly, so she continued to the edge of
the road where she looked left, looked right, and looked left again
before proceeding into the intersection. She did not see Ward’s
motorcycle until "a millimeter of a second" before impact, when he
was coming at her "like a bullet."
4 WARD v. DAMICO
Greenan related that, immediately prior to the accident, he was pro-
ceeding on Bradley Boulevard in the same direction as Ward. Soon
after crossing Goldsboro Road, the intersection before Barrett Lane,
Greenan noticed Damico’s vehicle pulling out of Barrett Lane
attempting to make a left turn onto Bradley Boulevard. At that time,
there were no cars between him and Damico, and Greenan slowed
down to let Damico through. As he did so, he heard Ward’s motorcy-
cle and saw Ward pass him on the left, over the double yellow line
and at a high rate of speed — approximately 50 to 60 miles per hour
in an area with either a 30 or 35 mile per hour speed limit. The colli-
sion occurred only "seconds" or "milliseconds" after Ward returned
to his proper lane of travel. Greenan testified that he had no difficulty
slowing down to let Damico through, nor did he have any difficulty
stopping and pulling over after the accident occurred.
Reuschling, an accident reconstruction expert retained by Ward,
opined that Ward would have been unable to avoid the collision even
if he had been traveling at a lawful rate of speed. He explained that
motorcycles have less braking capacity than a car, and that a motorcy-
clist has a slower perception time than the driver of a car. Finally, he
concluded that based on the physical evidence, it would have been
impossible for Ward to have completed the pass at the location and
in the manner described by Greenan.
After hearing all of this evidence during the course of a three-day
trial, the jury returned a verdict finding both parties negligent and a
proximate cause of the accident. The court then entered judgment in
favor of Damico. Ward filed a motion for a new trial arguing there
was no evidence that any of Ward’s actions were sufficient to consti-
tute a proximate cause of the accident. The court denied the motion,
and this appeal followed. Damico cross-appealed, contending that the
magistrate judge erred in excluding the testimony of two witnesses
that observed Ward’s vehicle prior to the accident, but did not witness
the collision.
III.
After carefully considering the record, the briefs, and the applica-
ble law, and having had the benefit of oral argument from the parties,
we conclude that the district court properly denied Ward’s motion for
WARD v. DAMICO 5
a new trial because there was sufficient evidence from which the jury
could conclude that Ward acted negligently and that his negligence
was a proximate cause of the accident. Although the magistrate judge
erred in failing to give the standard boulevard rule jury instructions,
this error was harmless, as Ward acknowledged at oral argument,
because the jury ultimately found Damico negligent. There was ample
evidence from which the jury could conclude that Ward had exceeded
the speed limit and illegally passed Greenan over a double yellow
line. The jury was also entitled to conclude that the combination of
these two unlawful acts constituted a proximate cause of the accident.
Accordingly, we affirm, without need to address the merits of Dami-
co’s cross-appeal.
AFFIRMED