Miller & Zois, LLC

IN THE CIRCUIT COURT FOR BALTIMORE CITY, MARYLAND 

                                                                        *

MELISSA I. MCMILLEN, et al.,                    *

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                        Plaintiffs,                                   *

                                                                        *          CASE NO. 24-C-03-001314

            v.                                                         *

                                                                        *

JEROME T. McCANN,                                  *

                                                                        *

                        Defendant.                                *

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PLAINTIFF’S MOTION FOR PARTIAL SUMMARY JUDGMENT

     Plaintiffs, Melissa I. McMillen and Benjamin McMillen, by and through their undersigned
counsel, requests that this Court grant their Motion for Partial Summary Judgment, finding that
Plaintiffs are fault-free as a matter of law, no unnamed entities are at fault, and Defendant is
accordingly liable as a matter of law in this personal injury case involving an auto accident in
Baltimore, Maryland.

I.  FACTUAL BACKGROUND

On or about March 11, 2003, the Plaintiff, U.S. Army Captain Melissa McMillen (“Captain McMillen”), was driving her car, accompanied by her husband, Plaintiff Benjamin McMillen (“Mr. McMillen”), on Pratt Street in Baltimore City.  As the Plaintiffs’ vehicle was stopped at a stop light on Pratt Street, the Defendant, following behind the Plaintiffs and operating his vehicle in a negligent and careless manner, rear ended the Plaintiffs without warning, causing a collision with Plaintiffs causing personal injuries from the accident to Captain McMillen.

In his Answer, Defendant filed a general denial.  Defendant admitted in his interrogatory responses that he “made contact with the rear of Plaintiffs’ vehicle.”   See Exhibit A, Defendant’s Answers to Interrogatory No. 5.  When further asked whether Plaintiff or any other party acted in such a manner to cause or contribute to the occurrence, Defendant stated that “Plaintiff Melissa McMillen may have caused or contributed to the occurrence by stopping short in the roadway” (emphasis added).  See Exhibit A, Defendant’s Answers to Interrogatory No. 11.  No further information was provided although the interrogatory asks for a “concise statement of the facts upon which you rely.”[1]

II.  LEGAL AUTHORITY

A.        Summary Judgment Standard

Summary judgment is appropriate only where “there is no genuine dispute as to any material fact and that the party in whose favor judgment is entered is entitled to judgment as a matter of law.”  Maryland Rule 2-501(e).  This Court of Appeals discussed the summary judgment procedure in Hartford Ins. Co. v. Manor Inn, 335 Md. 135,  642 A.2d 219 (1994), explaining the “purpose of the summary judgment procedure is to decide whether there is an issue of fact sufficiently material to be tried, not to try the case or to resolve factual disputes.”  Gross v. Sussex, Inc., 332 Md. 247, 255, 630 A.2d 1156, 1160 (1993).   See Foy v. Prudential Insurance Company of America, et al., 316 Md. 418, 422, 559 A.2d 371, 373 (1989); Coffey v. Derby Steel Company, 291 Md. 241, 247, 434 A.2d 564, 568 (1981).  Thus, the review of the grant of summary judgment involves the determination whether a dispute of material fact exists, Gross, 332 Md. at 255, 630 A.2d at 1160. 

Pursuant to Maryland Rule 2-501(e), when the motion and response show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law, the trial court shall enter summary judgment for the moving party.  Gross, 332 Md. at 255, 630 A.2d at 1160. The determination of whether a genuine dispute of material fact exists and, if not, what the ruling of law should be, requires the reviewing court to resolve all inferences to be drawn from the pleadings, admissions, and affidavits, etc., against the moving party.  Id. at 256, 630 A.2d at 1160. 

B.     Defendant Has Not Overcome the Rebuttable Presumption that this Rear-end Accident Was Caused by His Negligence

In this case, it is undisputed that Plaintiff was stopped behind stopped traffic on the freeway and that thereafter defendant crashed into her. No other entity was involved in causing this accident. Defendant should be found liable as a matter of law for all damages proximately flowing from his negligence.

An evidentiary presumption of negligence arises where a motor vehicle is struck from behind by another vehicle. Andrade v. Housein, 147 Md. App. 617, 623 (2001).  Defendant cannot rebut this presumption by suggesting without foundation that Captain McMillen may have stopped short in the roadway.

III. CONCLUSION

For the reasons set forth above, this Court should enter an order granting Plaintiffs' Motion for Partial Summary Judgment, because Plaintiffs were fault-free and Defendant is liable for causing this car accident and all damages proximately flowing from the accident.

 

                                                                                    MILLER & ZOIS, LLC

 

                                                                                    ___________________________

                                                                                    Ronald V. Miller, Jr.
                                                                                    Empire Towers, Suite 615
                                                                                    7310 Ritchie Highway
                                                                                    Glen Burnie, Maryland 21061
                                                                                    (410)553-6000
                                                                                    (410)760-8922 (fax)

 

                                                            Certificate of Service

            I hereby certify that a copy of the foregoing Motion for Partial Summary Judgment, were sent by U.S. mail, postage prepaid, this 29^th  day of December, 2003, to:

 

            James P. Smith, Esquire
            Jones & Smith, LLC
            401 N. Calvert Street
            Baltimore, Maryland  21201
            Counsel for Defendant McCann

 

                                                                                                                                                                                                                                        Ronald V. Miller, Jr.