Seaborne-Worsley v. Mintiens

Victoria Seaborne-Worsley v. Jeffrey Mintiens, No. 26, September Term 2017. Opinion
by McDonald, J.
Torts – Negligence – Imputed Contributory Negligence. Under the doctrine of imputed
negligence, the owner of a motor vehicle may be held liable to a third party for the
negligence of an individual who operates the motor vehicle while the owner is a passenger.
The doctrine of imputed negligence was once also applied to allow a negligent third party
to raise a defense of contributory negligence against an injured owner-passenger who was
personally without fault. The doctrine has been overtaken by changes in the laws
governing automobiles and developments in insurance coverage. To the extent that the
application of the doctrine to support a defense of contributory negligence bore any relation
to the reason for the doctrine, it has become obsolete. Accordingly, that doctrine does not
apply when the owner-passenger seeks compensation for injuries suffered in an accident
in which the owner-passenger was not at fault.
Circuit Court for Baltimore County
Case No. 03-C-16-012948
Argument: December 4, 2017
IN THE COURT OF APPEALS
OF MARYLAND
No. 26
September Term, 2017
VICTORIA SEABORNE-WORSLEY
V.
JEFFREY MINTIENS
_____________________________________
Barbera, C.J.
Greene
Adkins
McDonald
Hotten
Getty,
Battaglia, Lynne A. (Senior
Judge, Specially Assigned),
JJ.
______________________________________
Opinion by McDonald, J.
______________________________________
Filed: April 20, 2018
Under the “controversial doctrine of imputed negligence,” 1 the negligence of one
individual may be imputed to another who was otherwise without fault. In the realm of
automobile torts, the doctrine has been applied to ascribe the negligence of a permissive
driver of a car to the owner of the car if the driver operates the car negligently while the
owner is a passenger. In that context, the doctrine of imputed negligence is based on the
fiction that the owner is able to control the actions of the driver and therefore is responsible
for any misstep of the driver.
In the past, the doctrine functioned to ensure that individuals injured in automobile
accidents would be able to obtain compensation from the party most likely to be financially
responsible – the car’s owner. However, developments in the law and in insurance
coverage make reliance on the fiction of owner control less compelling. Moreover, in
situations where an owner-passenger is injured and innocent of any negligence, application
of the doctrine, in conjunction with a defense of contributory negligence, can have the
perverse effect of foreclosing compensation to an injured party who was not personally at
fault. As a result, courts in many states have abrogated or limited the doctrine of imputed
negligence. This case presents an opportunity for us to do the same.
This case grew out of an accident in a restaurant parking lot when Respondent
Jeffrey Mintiens backed his truck out of a parking space and struck a car in which Petitioner
1
Slutter v. Homer, 244 Md. 131, 140 (1966).
Victoria Worsley (“Ms. Worsley”) 2 was seated. Ms. Worsley’s husband 3 had driven the
couple to the restaurant and left the car and his wife stopped in a travel lane perpendicular
to Mr. Mintiens’ parking space while he retrieved the couple’s take-out order from the
restaurant.
Ms. Worsley filed suit against Mr. Mintiens in the District Court of Maryland sitting
in Baltimore County, alleging that Mr. Mintiens was negligent and seeking various
damages. At trial, Mr. Mintiens raised the defense of contributory negligence. The District
Court concluded that Ms. Worsley’s husband had himself been negligent. It also concluded
that his negligence should be imputed to Ms. Worsley under the imputed negligence
doctrine because, though a passenger, she was the sole owner of the car at the time of the
accident. Accordingly, the District Court entered a judgment in favor of Mr. Mintiens. In
an on-the-record appeal, the Circuit Court for Baltimore County affirmed that decision.
2
Petitioner filed her complaint in this case under the name of “Victoria Worsley”
and identified herself by that name in her testimony at trial. The petition for a writ of
certiorari identifies Petitioner as “Victoria Seaborne-Worsely.” Other filings in the case,
including the briefs in this appeal, have referred to the Petitioner’s last name as “Seaborne-
Worsley,” while some documents in the record identify her last name as “Worsley-
Seaborne,” “Worsley (Seaborne),” or “Shelvon Worsley.” As best we can tell, no
amendment was made in the District Court or Circuit Court pursuant to Maryland Rules 2-
341(c) or 3-341(c)(4) to correct the name of the plaintiff and we are otherwise unable to
determine which spelling is correct or which name the Petitioner prefers. For purposes of
this opinion, we shall defer to the name that Petitioner gave in her testimony in the trial
court and will refer to her as “Ms. Worsley.”
3
As best we can tell from our examination of the proceedings in both the District
Court and Circuit Court, neither the first name nor last name of Ms. Worsley’s husband
appears in the record – in contrast to the surfeit of names that the record contains for his
wife. Accordingly, we shall refer to him simply as “Ms. Worsley’s husband.”
2
We granted Ms. Worsley’s petition for a writ of certiorari to consider whether the
doctrine of imputed negligence applies in these circumstances. For the reasons set forth in
this opinion, we hold that it does not.
I
Background
A. The Accident
The following facts are derived from the testimony at trial before the District Court.
Although some facts are disputed – and we indicate where below – those relevant to the
issue before us are largely uncontested.
On the evening of October 23, 2015, Ms. Worsley and her husband drove to the
Pappas Restaurant in Parkville, Maryland to pick up a take-out dinner. Ms. Worsley’s
husband drove the car – a four-door sedan of which Ms. Worsley was the sole owner 4 –
while she rode in the front passenger’s seat. They arrived at the restaurant sometime shortly
before 6:30 p.m.
At the restaurant, there was a window facing the parking lot where customers could
pick up take-out orders. Adjacent to this window were at least two handicapped parking
spaces. Ms. Worsley’s husband stopped the car perpendicular to the handicapped parking
4
The precise nature of Ms. Worsley’s ownership of the car is not entirely clear in
the record. No evidence of the title or registration of the vehicle was submitted by either
party. However, Ms. Worsley testified in the District Court that it was “my car” and, when
the trial judge asked her counsel during legal argument whether she was the “exclusive
owner,” she herself responded “yes.”
3
spaces, placed it in park, got out of the car, and walked to the carry out window, leaving
Ms. Worsley alone in the car. According to Ms. Worsley, she was supposed to take her
husband’s place in the driver’s seat and park the car while he retrieved their food.
In the meantime, Mr. Mintiens had been at the restaurant since 5 p.m., during which
time he met a friend and drank three beers. Shortly before 6:30 p.m., he obtained a take-
out order for his family’s dinner and set out for the parking lot, where he had parked his
truck opposite the handicapped spaces.
Mr. Mintiens testified that he did not notice any cars parked behind his truck at that
time. According to Mr. Mintiens, in the space of approximately 20 seconds, he walked to
the passenger side of his truck, placed the food in the passenger seat, went back around to
the driver’s side, and got into his truck. Somewhat at odds with Mr. Mintiens’ testimony,
Ms. Worsley testified at trial that she was already sitting alone in her car when, in her
peripheral vision, she saw Mr. Mintiens walk across the parking lot and approach his truck,
which was parked just about two and a half feet from the car in which Ms. Worsley sat.
According to Mr. Mintiens, after he got into the truck, he looked in his rear view
mirror and driver side mirror (but not his passenger side mirror) before backing up. There
appears to be no dispute that what happened next was that Mr. Mintiens backed his truck
into Ms. Worsley’s car.
Ms. Worsley testified that she was about to unbuckle her seat belt to get out and
move her car when she saw the truck backing towards her. She braced herself against the
window with her right hand, also hoping to catch Mr. Mintiens’ attention. This was
4
apparently to no avail. The back of Mr. Mintiens truck hit the back passenger-side door of
Ms. Worsley’s car.
Upon feeling his vehicle collide with something, Mr. Mintiens looked around,
believing he may have hit a pothole. When he saw Ms. Worsley’s car, he pulled forward
and got out of his truck. Mr. Mintiens examined the damage done to Ms. Worsley’s car,
offered to pay for it, made a suggestion how to take the dent out of the side door, and
exchanged information with Ms. Worsley before driving home.
Ms. Worsley testified that, although she went home with her husband after the
accident, she later sought medical treatment for injuries to her neck, back, left arm and
shoulder, and right hand.
B. Legal Proceedings
1. District Court
A little over nine months after the accident, on July 25, 2016, Ms. Worsley filed a
complaint against Mr. Mintiens in the District Court of Maryland sitting in Baltimore
County, alleging negligence and seeking compensation for her injuries. The parties
appeared for trial on November 3, 2016. At trial, both Ms. Worsley and Mr. Mintiens
testified, recounting their respective versions of the accident. The District Court stated that
it would likely find that Mr. Mintiens was negligent and liable, except that the defense of
contributory negligence applied to relieve him of liability.
The District Court explained that Ms. Worsley’s husband failed to exercise ordinary
care when he parked perpendicular to a handicapped space, right behind Mr. Mintiens’
truck, rather than in a parking space in the restaurant lot. The District Court found that this
5
negligence contributed to the accident. Citing Bowser v. Resh, 170 Md. App. 614 (2006),
the District Court relied on the doctrine of imputed negligence to ascribe the negligence of
Ms. Worsley’s husband to the owner of the car – Ms. Worsley. Under that doctrine, an
owner of a vehicle who allows someone else to drive while remaining present as a
passenger may be held liable for any negligence of the driver. Because the negligence of
Ms. Worsley’s husband was therefore imputed to her, Ms. Worsley was deemed to be
contributorily negligent. Accordingly, the court entered judgment in favor of Mr. Mintiens.
Ms. Worsley appealed to the Circuit Court under Maryland Rule 7-113.
2. Appeal to the Circuit Court
After hearing oral argument from the parties, the Circuit Court affirmed the District
Court ruling in an order dated May 5, 2017. The Circuit Court found that there was
substantial evidence in the record to support a finding that both Mr. Mintiens and Ms.
Worsley’s husband were negligent. The Circuit Court agreed that, under the doctrine of
imputed negligence, there was a rebuttable presumption that Ms. Worsley, as sole owner
of her car, had control over her husband’s operation of it and would be vicariously liable
for his negligence. The Circuit Court stated that, because the District Court found no
evidence to rebut the presumption, it properly imputed her husband’s negligence to Ms.
Worsley. As a result, Ms. Worsley’s claim failed under the doctrine of contributory
negligence.
Ms. Worsley petitioned this Court for a writ of certiorari, which we granted.
6
II
Discussion
Ms. Worsley presents two issues for our consideration:
(1) Whether the doctrine of imputed negligence should be applied to hold that
a sole owner-passenger, such as Ms. Worsley, is vicariously liable for the negligence
of a permissive driver such that her claim is barred under the doctrine of contributory
negligence.
(2) In the alternative, whether the imputed negligence of Ms. Worsley’s
husband was the proximate cause of Ms. Worsley’s injuries.
Mr. Mintiens argues that we should not address the second question because Ms.
Worsley failed to preserve that issue in the District Court or Circuit Court. We need not
decide whether Ms. Worsley adequately preserved her second issue as we hold that the
doctrine of imputed negligence does not apply in these circumstances. It was on the basis
of imputed negligence alone that the District Court found Ms. Worsley contributorily
negligent and thus barred her from recovery. If the doctrine of imputed negligence does
not apply to this case, then any negligence of Ms. Worsley’s husband would not be imputed
to Ms. Worsley and her claim would not fail on that basis. Accordingly, we need not reach
the second question.
A. Standard of Review
When an action has been tried by the court without a jury, an appellate court reviews
the case on both the law and the evidence. Maryland Rule 8-131(c). The trial court’s
factual findings are accepted unless clearly erroneous. Id. The appellate court affords no
7
deference to the trial court’s legal conclusions. City of Bowie v. Mie Properties, Inc., 398
Md. 657, 676-77 (2007).
B. Whether the Doctrine of Imputed Negligence Bars Ms. Worsley from Recovery
In this case, the District Court found that Ms. Worsley’s claim was barred by the
defense of contributory negligence. 5 It did so without making any finding as to whether
Ms. Worsley herself was negligent. Instead, the trial court found that her husband was
negligent in his operation of the car and imputed that negligence to Ms. Worsley because
she asserted that she was the sole owner of that car. With her husband’s negligence
imputed to her, Ms. Worsley’s claim failed under the standard of contributory negligence.
Assuming for the sake of argument that Ms. Worsley’s husband was negligent in
how he parked the car, the question is thus whether the doctrine of imputed negligence
applies here to defeat Ms. Worsley’s claim on the basis of contributory negligence. 6 For
the reasons set forth below, we conclude that it does not.
5
Contributory negligence is a potential defense in a negligence action in Maryland.
Coleman v. Soccer Ass’n of Columbia, 432 Md. 679, 685-90 (2013). Under that standard,
subject to certain exceptions and qualifications not pertinent here, when a plaintiff’s failure
to exercise ordinary care is a proximate cause of the plaintiff’s injuries, the plaintiff is
barred from recovery against the defendant. Coleman, 432 Md. at 687. This is true
regardless of whether the defendant’s negligence was also a proximate cause of the
plaintiff’s injuries. Id.
6
Some of the arguments pressed by Mr. Mintiens in his appellate brief appear to
assert that Ms. Worsley herself was negligent. For example, Mr. Mintiens faults Ms.
Worsley for neglecting to instruct her husband where to park, to pick up the take-out order
herself, or, once her husband left the car, to move the car to an appropriate parking space.
However, the question whether Ms. Worsley was personally negligent is not before us and
we express no opinion on that subject.
8
1. The Doctrine of Imputed Negligence
Under the classic formulation of the doctrine of imputed negligence, when the
owner of a vehicle is a passenger in that vehicle and allows another person to drive, any
negligence of the operator of the vehicle may be attributed to the owner. See Merritt v.
Darden, 227 Md. 589, 596-97 (1962). The doctrine is based on the presumption that the
owner, although not at the wheel, is in control of the vehicle, or at least has the right to
exert control. Id.; Slutter v. Homer, 244 Md. 131, 139 (1966). The negligence of the non-
owner driver, therefore, is imputed to the owner. Smith v. Branscome, 251 Md. 582, 595
(1968) (quoting Gray v. Citizens Casualty Co., 286 F.2d 625, 627 (4th Cir. 1960) (“[T]he
failure of the owner, who is present, to exercise his presumed control makes him liable.”);
see also Powers v. State, 178 Md. 23, 28 (1940) (owner-passenger presumed to “tacitly
assent” to the manner in which the owner’s car is driven).
The presumption of owner control that underlies the doctrine of imputed negligence
is rebuttable. The presumption – and therefore the application of the doctrine – can be
defeated by evidence that the owner was unable to exercise control over the vehicle. See
Williams v. Wheeler, 252 Md. 75 (1969). In Williams, the owner-passenger, after spending
a night out at a bar with his stepson, was asleep in the back seat of his car when the
unlicensed stepson retrieved the car keys from the window visor, proceeded to drive them
both home, and was involved in a collision with the plaintiffs’ car while en route. In
deciding whether the owner-passenger could be held liable for the driver-stepson’s
negligence, the Court stated that the presumption underlying the doctrine of imputed
negligence could be rebutted “by a proper showing that the owner-passenger relinquished
9
his right of control or was unable to exercise that right.” 252 Md. at 85. The Court held
that, because the owner-passenger in Wheeler never consented to the stepson taking control
of the vehicle and was unable to exercise his right to control due to his somnolent state, the
presumption was rebutted in that case and the negligence of the driver was not imputed to
the owner-passenger. Id. at 87.
The doctrine of imputed negligence is not based on any negligence of the owner-
passenger. Rather, it is a form of vicarious liability. It is thus distinct from the tort of
negligent entrustment. An owner of a car may be found liable for the tort of negligent
entrustment when the owner permits another to use the car when the owner knows, or
reasonably should know, that the other person is likely to use the car in a manner likely to
cause injury to others. See Kiriakos v. Phillips, 448 Md. 440, 480-82 (2016). The tort of
negligent entrustment is thus based on the negligent action of the car owner – i.e., entrusting
the car to an unreliable driver – and does not depend on whether the owner is present at the
time of the accident. It is a form of direct negligence and is not a theory of vicarious
liability. Neale v. Wright, 322 Md. 8, 14 (1991). By contrast, the doctrine of imputed
negligence is not premised on any negligence of the car owner, but only on the car owner’s
ownership and presence at the time of the accident.7
7
This Court has previously noted that liability for a driver’s negligence has
sometimes also been imposed on an owner-passenger under a theory of agency or
respondeat superior and that, while those theories are distinct from the doctrine of imputed
negligence, there is some lack of clarity in the case law. See, e.g., Slutter v. Homer, 244
Md. 131, 138-40 (1966) (noting that even though in Vacek v. State, Use of Rokos, 155 Md.
400 (1928), the Court’s “language is that of imputation of negligence rather than agency,
the controlling issue in Vacek is whether the relation of master and servant existed”);
10
Under what is sometimes called the “both ways” theory, 8 the doctrine of imputed
negligence has been applied not only to hold an owner-passenger liable to an injured third
party, but also to foreclose a claim by an injured owner-passenger on the ground of
contributory negligence. The logic in a case such as this one is simple. Where the car
owner (Ms. Worsley) is a passenger in that car while a permissive driver (her husband) is
negligent in parking or operating the car, and where there is no showing that she was asleep
or otherwise incapable of exercising control, her husband’s negligence is attributed to her.
If that negligence was a proximate cause of an accident that injured her, the doctrine of
imputed negligence, under the “both ways” theory, deems her to be contributorily negligent
and defeats a negligence claim by her against a third party such as Mr. Mintiens. 9
Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176, 181 (1988) (referring to Powers v. State,
178 Md. 23, 28 (1940) as the “leading Maryland case on imputed negligence,” although
the decision in Powers appeared to rest in part on the fact that there was “no question that
[the driver] was operating the vehicle on behalf of [the owner-passenger],” suggesting an
agency relationship between the driver and the owner). See also Note, Imputed
Contributory Negligence in Automobile Cases, 27 Md. L. Rev. 387, 399-401 (1967)
(describing contending theories for imputing negligence under Maryland case law).
Nonetheless, this Court has since affirmed on several occasions that “an agency
relationship is not necessary to be shown” for imputed negligence to apply, Stroh, 314 Md.
at 180-81, and that agency and imputed negligence are separate doctrines, Slutter, 244 Md.
at 138-39.
8
See C.O. Gregory, Vicarious Responsibility and Contributory Negligence, 41 Yale
L.J. 831 (1932).
9
This was the result in Slutter v. Homer, 244 Md. 131 (1966) (negligence of
daughter-driver imputed to mother-passenger, who was owner of the car, to hold mother
contributorily negligent and bar mother’s claim against driver of other car); and Merritt v.
Darden, 227 Md. 589 (1962) (jury finding of contributory negligence of son-driver
imputed to passenger-mother, who was owner of the car, requiring reversal of judgment in
favor of mother against driver of other car).
11
The reasoning of the “both ways” theory of imputed negligence appears logical in
its symmetry. A logician might conclude the analysis with Q.E.D. 10 or the brutally logical
and fictional Sherlock Holmes might say: “Elementary.” 11 However, as a real-life Holmes
once famously said: “The life of the law has not been logic; it has been experience.” Oliver
Wendell Holmes, Jr., Book Notices, 14 Am. L. Rev. 233, 234 (1880). 12 He elaborated:
The seed of every new growth within [the law’s] sphere has been a felt
necessity. The form of contiguity has been kept up by reasonings purporting
to reduce everything to a logical sequence; but that form is nothing but the
evening dress which the new-comer puts on to make itself presentable
according to conventional requirements. The important phenomenon is …
the justice and reasonableness of a decision ….
Id. Holmes’ insight is that it is the wisdom of the common law that a doctrine developed
by the courts to decide cases may begin as an elegant theoretical construct, but is often
modified and thereby rendered less elegant, or discarded entirely, to accommodate actual
experience or changed conditions. 13
10
The initials stand for “Quod Erat Demonstrandum,” a Latin phrase that means
roughly “that which was to be proved” and that frequently is appended to the end of a
mathematical or logical proof.
11
Arthur Conan Doyle, The Crooked Man in The Memoirs of Sherlock Holmes
(1893).
12
The future Justice Holmes recycled the sentence and the sentiment the following
year in a book comprised of a series of lectures on the common law. Oliver Wendell
Holmes, Jr., The Common Law (1881) at p.1.
13
The context for Holmes’ observations was an otherwise enthusiastic review of a
contracts textbook, in which he tempered his praise for the textbook with the observation
that the textbook author was promoting a vision of contract law that, while logically and
internally consistent, and perhaps even elegant as a theoretical system, could become
detached from human experience.
12
Something like what Holmes described has happened with the doctrine of imputed
negligence in the context of automobile torts. Courts in Maryland and elsewhere have
developed exceptions, clothed them in the logic of the original doctrine, and thereby
circumscribed application of the doctrine to reach a just and reasonable result in a particular
case. 14
2. Modification of the Doctrine of Imputed Negligence
The Original Purpose
At the outset of the automobile era, the application of the doctrine of imputed
negligence to extend liability to the owner of this marvel of modern technology was seen
as necessary for ensuring compensation for an injured innocent party and for spreading
risk. As this Court has explained: “The alarming increase in traffic accidents, together
with the frequent financial irresponsibility of the individual driving the car, has led to a
search for some basis for imposing liability upon the owner of the vehicle, even though he
is free of negligence himself. Bluntly put, it is felt that … the owner is the obvious person
to carry the necessary insurance to cover the risk, and so to distribute any losses among
motorists as a class.” Williams v. Knapp, 248 Md. 506, 508 (1968) (quoting W. Prosser,
The Law of Torts (3d ed. 1964)).
14
More than 50 years ago, after closely reading Maryland case law on the doctrine
of imputed negligence in automobile tort cases, one commentator detected “some degree
of dissatisfaction” in this Court with the application of the doctrine to defeat an innocent
owner’s claim against a third party tortfeasor on the ground of contributory negligence and
foresaw the demise of imputed contributory negligence. Note, Imputed Contributory
Negligence in Automobile Cases, 27 Md. L. Rev. 387, 396, 402-3 (1967).
13
In subsequent years, the doctrine of imputed negligence, created out of a “felt
necessity” for compensating innocent victims of automobile accidents, has lost much of its
reason for being while weaknesses in its theoretical foundation have been exposed. It is
now less compelling for several reasons.
Changes in Statutory Law and Insurance Coverage
As a result of changes in statutory law and insurance coverage, there is now less
need to resort to the doctrine of imputed negligence to spread the risk associated with
automobile accidents and to compensate injured parties. In 1957, the General Assembly
created the Unsatisfied Judgment and Claim Fund (now a part of the Maryland Automobile
Insurance Fund 15) to provide a source of compensation to those injured by uninsured
motorists. Chapter 836, Laws of Maryland 1957. In 1972, the Legislature enacted the
compulsory insurance law, requiring liability insurance as a condition of registering a car
in Maryland. Chapter 73, Laws of Maryland 1972, now codified in Maryland Code,
Transportation Article, §17-101 et seq.; Insurance Article (“IN”), §19-501 et seq. A few
years later, the Legislature amended that law to require such policies to include uninsured
motorist coverage. Chapter 562, Laws of Maryland 1975, now codified in IN §19-509 et
seq. 16 Automobile insurance policies in Maryland now include an “omnibus clause” that
15
See Maryland Code, Insurance Article, §20-601 et seq.
16
For a fuller description of the development of the statutes governing automobile
insurance in Maryland, see Andrew Janquitto, Maryland Motor Vehicle Insurance (3d ed.
2011), Chapter 2.
14
extends coverage beyond the owner of the car to most permissive drivers – a clause that is
likely to provide coverage for any permissive driver transporting the vehicle owner as
passenger. See Andrew Janquitto, Maryland Motor Vehicle Insurance (3d ed. 2011), §7.7.
The Fiction of Owner Control
This Court has recognized that, in modern times, 17 the fiction underlying the
“controversial doctrine of imputed negligence” is divorced from reality. Slutter v. Homer,
244 Md. at 139-40; Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176, 179-80 (1988). In
Slutter, this Court observed that the doctrine “has been criticized as unrealistic and
fictitious. The criticism rests on the practical consideration that, while back-seat driving is
generally an annoyance, and sometimes a danger, it is almost never a physical fact.” 244
Md. at 139 (internal citations omitted).
While an owner-passenger may have the right to control the vehicle when present
as a passenger, the owner’s ability to control the vehicle is quite another thing. Indeed, an
owner-passenger’s attempt to take control of a car, especially while the car is moving, is
both inadvisable and likely ineffective in preventing the driver from driving negligently.
When the Minnesota Supreme Court abandoned the doctrine of imputed negligence (at
least to the extent of imputed contributory negligence), it made the ironic observation that
an owner-passenger’s attempt to wrest control over the operation of a car from a permissive
17
It has been suggested that the presumption of control by an owner-passenger may
have had some relation to reality in the days of the horse and buggy when a passenger
might take over the reins and “actual control was a possibility.” Kalechman v. Drew Auto
Rental, Inc., 308 N.E.2d 886, 889 (N.Y. 1973) (citation and internal quotation marks
omitted).
15
driver would be “the clearest evidence of active negligence” on the part of the owner.
Weber v. Stokely-Van Camp, Inc., 144 N.W.2d 540, 545 (Minn. 1966).
Who is an “Owner”?
As is evident, the fiction of owner control requires identification of the owner-
passenger as “owner” of the vehicle – a designation that may focus the analysis on form
rather than substance. In many families, whether a vehicle is “my car” or “his car” or “her
car” is unrelated to the formal titling or registration of the vehicle. The titling of a car may
have more to do with financing the purchase of the vehicle, apportioning tax liability, estate
planning, or mere happenstance than with the exercise of dominion over the vehicle. Cf.
Green v. Green, 64 Md. App. 122, 144 (1985) (automobile purchased by one spouse during
marriage included in computation of marital property). Moreover, there may be two or
more co-owners on the title. See Maryland Motor Vehicle Administration, Interactive Title
and Registration Manual at p. 31, available at (last visited April 18, 2018).
Circumscribing the Doctrine in Case Law
In Williams v. Knapp, supra, this Court confronted – for the first time – a case in
which the owner-passenger, who was injured in an accident, sought to recover damages
from the permissive driver for injuries suffered as a result of the driver’s negligence. A
strict application of the doctrine of imputed negligence would have imputed the driver’s
negligence to the owner-passenger, providing the driver with a defense of contributory
negligence to the owner’s claim. However, in the absence of an injured third party, the
Court saw “no reason” to indulge the fiction in those circumstances and apply the
16
doctrine’s presumption that the owner exercised control over the driver’s actions. Rather,
it chose to apply “the ordinary rules by which primary negligence and contributory
negligence are determined[.]” 248 Md. at 509. In the Court’s view, the pragmatic rationale
for the doctrine – improving the possibility that an injured third party could recover by
extending liability to the likely insured party (the owner) – disappeared when the owner
was the injured party.
Some years later, the Court further limited the application of the doctrine of imputed
negligence in another case involving an injured owner with facts somewhat similar to the
instant case. In Nationwide Mut. Ins. Co. v. Stroh, 314 Md. 176 (1988), Richard Stroh was
driving a car in which his wife Ellen and their daughter were passengers when their car
collided with another car driven by a third party. 314 Md. at 178. Like Ms. Worsley, Ellen
Stroh filed suit against the third party to recover compensation for her injuries. At trial,
the defendant insurance company 18 asked the trial court to give a jury instruction on
contributory negligence that incorporated the doctrine of imputed negligence – i.e., that if
the jury found Richard Stroh to be contributorily negligent, his negligence should also be
imputed to his wife. The trial court declined to give the requested instruction, the jury
awarded damages in favor of Ellen Stroh, and the insurance company appealed.
18
Because the driver of the other car was uninsured, Ms. Stroh sought to recover
compensation pursuant to the uninsured motorist provision of the Strohs’ own motor
vehicle insurance policy.
17
This Court affirmed the trial court, providing two rationales in its opinion. First, the
Court recited the theoretical basis of the doctrine – “the theory that the owner-passenger
retains his right to control the movements of the vehicle” – and acknowledged the
widespread criticism of that premise. 314 Md. at 179-81. However, the Court declined to
revisit the merits of the imputed negligence doctrine as it was able to carve out an exception
to the doctrine under the doctrine’s own logic. The Strohs were co-owners of their vehicle.
In the Court’s view, that status defeated the theoretical basis of the imputed negligence
doctrine because “Ellen Stroh, as the co-owner-passenger, can with no degree of logic be
said to have had an absolute or superior right to control operation of the automobile” driven
by her co-owner husband. Id. at 182. The Court posited a hypothetical scenario under
which a co-owner-passenger attempted to exercise the right to control vehicle over a co-
owner driver. Id. The Court concluded that, in that hypothetical scenario, the co-owner
driver would have “fair standing to rebuff, and thereby negate the [co-owner] passenger’s
assertion of control.” Id. at 182.
The Court surveyed decisions by courts in several other states that had employed
similar reasoning to reach the same conclusion and found them persuasive. 314 Md. at
182-85. It concluded that there was no justification for imputing any negligence of the co-
owner driver (Richard Stroh) to the co-owner passenger (Ellen Stroh). Id. at 185.
Second, as it had in Knapp, the Court noted that “the primary policy aim
undergirding the doctrine of imputed negligence” was to locate a source for compensating
an innocent victim for another’s negligence. It observed that applying the imputed
negligence doctrine in the case before it to allow the jury to find Ellen Stroh contributorily
18
negligent would have had the opposite result in that it would have denied compensation to
an innocent injured victim. 314 Md. at 185. Significant to the instant case, the Court
recognized that there should be a distinction between cases in which the liability of an
owner-passenger is at issue from cases in which the owner-passenger seeks recovery from
a negligent party. Id. In other words, the Court cast doubt on the viability of the “both
ways” theory of imputed negligence. The Court in Stroh left open the possibility of making
a distinction between an innocent sole owner-passenger and innocent co-owner-passenger
for purposes of imputed contributory negligence, such that an innocent sole owner-
passenger’s claim would be barred by the doctrine, but the Court was careful not to endorse
such a distinction. Id. at 179.
More recently, in a case that was cited by the District Court at trial, the Court of
Special Appeals held that the manner in which a vehicle is titled or registered is not
conclusive on ownership status for purposes of application of the doctrine of imputed
negligence. Bowser v. Resh, 170 Md. App. 614, 631 (2006). In that case, the plaintiff wife
was injured in an automobile accident while a passenger in a van titled in her name alone;
her husband was the driver. The jury found that the husband and the driver of the other
vehicle were both negligent and a judgment was entered in favor of the wife against the
other driver. On appeal, the other driver contended that he was entitled to judgment as a
matter of law based on contributory negligence – i.e., the negligence of the husband
imputed to the wife as owner of the van. The Court of Special Appeals held that the jury
could have found that the spouses were in fact co-owners of the vehicle and, under the
rationale of Stroh, the trial court was not obligated to grant judgment in the other driver’s
19
favor under the imputed negligence doctrine, even if the husband-driver were himself
negligent in his operation of the van.
Thus, in dealing with the doctrine of imputed negligence, Maryland appellate courts
have recognized that its premise – owner control – is entirely fictional in the context of
automobile torts, noted that certain applications of the doctrine lead to results at odds with
its original purpose, and have circumscribed its reach by creating an exception (does not
apply to a co-owner) and enlarging the breadth of that exception (need not be on the title
to be a co-owner).
Limitation and Abrogation of the Doctrine in Other Jurisdictions
Courts in other states limited or abrogated the doctrine based upon similar
criticisms. See Annotation, Fact that Passenger in Negligently Operated Motor Vehicle Is
Owner as Affecting Passenger’s Liability to or Right Against Third Person-Modern Cases,
37 ALR 4th 565. States that have limited or abrogated the doctrine of imputed negligence
entirely include Arizona, Illinois, Kansas, Louisiana, Michigan, Minnesota, Nebraska,
New York, North Dakota, Oregon, Pennsylvania, South Dakota, Tennessee, West Virginia,
and Wyoming. Id. at 570.
Similarly, the authors of the second and third Restatements of Torts have rejected
the “both ways” theory and would not apply the doctrine of imputed negligence to establish
a defense of contributory negligence in an automobile tort case. See Restatement 2d of
Torts, §485, comment a (“The rule stated in this Section rejects, except as indicated by the
20
reference to other Sections, the doctrine of “imputed negligence …”); 19 Restatement 3rd
of Torts §5, comment c (“If a husband is injured in an automobile accident while a
passenger in a car driven by his wife, the effect that the wife’s negligence has on the
husband’s ability to recover from another driver should not depend on whether the wife or
husband owns the family automobile.”).
3. Summary and Application to this Case
In the context of the operation of the modern automobile, the doctrine of imputed
negligence has lost much of its grounding. Although the “both ways” theory that applies
the doctrine to impute contributory negligence to an innocent owner-passenger is a logical
extension of the doctrine, it bears no relation to the original purpose of the doctrine. Thus,
with respect to the application of the doctrine to hold an innocent owner-passenger
contributorily negligent and defeat a claim against a negligent third party, we agree with
the Minnesota Supreme Court that “the time has come to discard this rule which is
defensible only on grounds of its antiquity.” 20 We will no longer indulge a presumption
that an owner-passenger who was injured in an automobile accident had operational control
over a permissive driver of the vehicle and is therefore responsible for any negligence of
the driver.
19
The second Restatement provides for imputation of negligence when there is a
genuine agency relationship between owner and driver. See Restatement 2d of Torts, §491;
Slutter v. Homer, 244 Md. 131, 139-40 (1966).
20
Weber v. Stokely-Van Camp, Inc., 144 N.W.2d 540, 545 (Minn. 1966).
21
This does not mean that an owner-passenger cannot be contributorily negligent.
Rather, we are simply dispensing with the presumption that an injured owner-passenger is
contributorily negligent because the driver is negligent. There may be any number of ways
in which an owner-passenger’s own actions or omissions could be a proximate cause of an
accident, not the least of which could be wresting control of the steering wheel from the
driver.
Because the courts below based their decisions on application of the doctrine of
imputed negligence to hold that Ms. Worsley was contributorily negligent, we must vacate
the judgment in this case. To the extent that this Court’s earlier cases are inconsistent with
this opinion, 21 they are overruled. Our holding extends no further than that. Mr. Mintiens
argues that if we abrogate imputed contributory negligence, we must abrogate the doctrine
of imputed negligence in all instances. However, there is no need to discard the doctrine
in its entirety to decide this case. We decline to do so. There may be occasions when the
doctrine still serves its original purpose of spreading risk and compensating an innocent
injured party. Nor, in an era in which it is anticipated that many motor vehicles will soon
operate autonomously without human drivers, can we anticipate the felt necessities of the
future.
21
See note 9 above.
22
III
Conclusion
For the reasons explained above, we hold that the doctrine of imputed negligence
does not apply to deem an owner-passenger of a motor vehicle contributorily negligent
based on the negligence of a permissive driver of the owner-passenger’s vehicle and bar
the owner-passenger from recovering compensation from a negligent third party.
Our decision is not a rebuke of the lower courts in this case. In carrying out our role
of developing the common law of Maryland, we sometimes find ourselves, as here, in the
position of reversing a lower court that has faithfully applied existing precedent or a logical
extension of existing precedent. See, e.g., Boblitz v. Boblitz, 296 Md. 242 (1983)
(abrogating common law doctrine of interspousal immunity and reversing trial court
decision in automobile tort case based on that doctrine); Pearson v. State, 437 Md. 350(2014) (overruling existing precedent concerning voir dire questions and reversing
judgment where trial court followed existing precedent in formulating voir dire questions);
Roy v. Dackman, 445 Md. 23 (2015) (reversing trial court decision that applied recent
appellate precedent directly on point concerning admissibility of expert testimony in lead
paint case). The District Court and the Circuit Court in this case faithfully applied our
existing precedent. That precedent is obsolete. It is our responsibility to say so.
JUDGMENT OF THE CIRCUIT COURT FOR BALTIMORE
COUNTY VACATED AND CASE REMANDED TO THAT COURT
WITH INSTRUCTIONS TO REMAND THE CASE TO THE
DISTRICT COURT FOR FURTHER PROCEEDINGS CONSISTENT
WITH THIS OPINION. COSTS TO BE PAID BY RESPONDENT.
23