Kasal v. Mowrer ( 1998 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
RICHARD ANTHONY KASAL,
Plaintiff-Appellant,
v.
No. 97-2413
SCOTT ALAN MOWRER; HERRS MOTOR
EXPRESS, INCORPORATED,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
William M. Nickerson, District Judge.
(CA-96-1798-WMN)
Submitted: April 28, 1998
Decided: May 18, 1998
Before NIEMEYER, HAMILTON, and LUTTIG, Circuit Judges.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
Elizabeth Colette, Baltimore, Maryland, for Appellant. Stephen E.
Marshall, GOODELL, DEVRIES, LEECH & GRAY, L.L.P., Balti-
more, Maryland, for Appellees.
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Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
OPINION
PER CURIAM:
Appellant Richard Anthony Kasal (Kasal) appeals the district
court's order granting summary judgment to the Appellees, Herrs
Motor Express (Herrs) and Scott Mowrer (Mowrer). Kasal seeks dam-
ages for injuries suffered when he was struck by a truck driven by
Mowrer and owned by Herrs. Kasal claims that the district court erred
by finding him contributorily negligent as a matter of law; thus, not
submitting this case to a jury. Finding no reversible error, we affirm
the district court's order.
On July 19, 1994, Kasal was seriously injured when he was struck
by Mowrer who was driving a Herrs truck. The accident occurred as
Kasal, who was then sixty-seven years old and afflicted with degener-
ative osteoarthritis, was crossing Harford Road in Baltimore City. On
the day of the accident, Kasal parked his automobile next to the east
curb facing north on Harford Road, near the intersection of Harford
Road and Hamilton Avenue. Upon exiting his vehicle, rather than
proceed to the crosswalk at the intersection of Harford and Hamilton,
Kasal began walking directly across Harford Road toward the west
curb.
First, Kasal walked between a van and another vehicle that were
waiting for the stoplight in the traffic lane immediately adjacent to the
parking lane. He then entered the next traffic lane by walking into the
small space created in front of the tractor trailer driven by Mowrer
and behind a police car. While Kasal was in front of Mowrer's truck,
the stoplight turned green and Mowrer moved forward striking Kasal.
The facts developed during discovery established that Kasal started
to cross the road against the "Don't Walk" signal at Harford and
Hamilton. Relying on Schweitzer v. Brewer, 1 Mowrer and Herrs
moved for summary judgment contending that Kasal was contribu-
torily negligent as a matter of law. Kasal opposed the motion for sum-
mary judgment arguing that contributory negligence is a jury
question. Finding itself obliged to follow Maryland law,2 the district
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1 374 A.2d 347 (Md. 1977).
2 See Erie R.R. v. Tompkins, 304 U.S. 64 (1938).
2
court found Kasal was contributorily negligent as a matter of law and
granted summary judgment to Mowrer and Herrs.3 Kasal appeals.
After reviewing the parties' briefs and the joint appendix, we find
Kasal's arguments about the age of Schweitzer v. Brewer and crossing
the street outside the crosswalk unpersuasive. The Court of Appeals
of Maryland held in Schweitzer v. Brewer, which Kasal presented no
authority for disputing its validity, that a pedestrian's conduct in
crossing a street against a "Don't Walk" signal in violation of MD.
CODE ANN., TRANSPORTATION § 21-203 (1992 & Supp. 1997) is mea-
sured, for contributory negligence purposes, not by the usual standard
of reasonableness, but by the standard set forth in the statute itself.4
There is no question that Kasal's conduct in crossing outside a cross-
walk and against a "Don't Walk" signal was the proximate cause of
his injuries and contributory negligence as a matter of law. Conse-
quently, there was no issue of material fact for a jury; thus, Mowrer
and Herrs were entitled to summary judgment.5
Accordingly, we affirm the district court's order granting summary
judgment to Mowrer and Herrs. We dispense with oral argument
because the facts and legal contentions are adequately presented in the
materials before the court and argument would not aid the decisional
process.
AFFIRMED
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3 See Parker v. Davis, 900 F. Supp. 788, 794 (D. Md. 1995);
Schweitzer, 374 A.2d at 351; Dix v. Spampinato, 358 A.2d 237, 238-39
(Md. 1976).
4 The provision of the statute at issue in Schweitzer was the require-
ment, now codified at MD. CODE ANN., TRANSPORTATION § 21-203(e) (1992
& Supp. 1997), that a pedestrian who has partially completed crossing
a street on a "Walk" signal must "proceed without delay to a sidewalk
or safety island" if the "Don't Walk" signal is shown. It seems clear that
the principles set forth in Schweitzer apply, a fortiori, to the statutory
prohibition in § 21-203(c) upon a pedestrian's crossing the street against
a "Don't Walk" signal.
5 See FED. R. C IV. P. 56(c).
3