Sample Amicus Appellete Brief: Boulevard Rule
Below is a sample appellate brief filed in the Maryland Court of Appeals. This is an amicus brief one of our lawyers wrote for the Maryland Trial Lawyers Association that addresses Maryland's much discussed Boulevard Rule.
- Motion for summary judgment on Boulevard Rule
IN THE COURT OF APPEALS OF MARYLAND
JOHN GRADY, et al.,
DARIN DONNELL BROWN
On Writ of Certiorari to the Court of Special Appeals
BRIEF AMICUS CURIAE OF THE MARYLAND ASSOCIATION FOR JUSTICE
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
Attorney for The Maryland Association for Justice
TABLE OF CONTENTS
STATEMENT OF THE CASE
STATEMENT OF FACTS
I. The Boulevard Rule Applies To This Case.
II. The Application of the Boulevard Rule Mandates That Grady Was Entitled To Judgment As A Matter Of Law.
III. The Public Policy Underlying the Boulevard Rule Mandates that the Lower Court Be Reversed.
TABLE OF AUTHORITIES
Brendel v. Ellis, 129 Md.App. 309, 315, 742 A.2d 1, 8-9 (1999)........................................ 4
Cornias v. Bradley, 254 Md. 479, 496, 255 A.2d 431, 439 (1969)............................... 3, 6
Creaser v. Owens, 267 Md. 238, 243, 297 A.2d 235, 238 (1972)............................. 8, 9,11
Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977)........................................................ 7
Dunnill v. Bloomberg, 228 Md. 230, 234, 179 A.2d 371, 374 (1962)............................... 6
Grady v. Brown, 180 Md. App. 367, 373, 951 A.2d 105, 109 (2008)................................. 1
Greenfeld v. Hook, 177 Md. 116, 132, 8 A.2d 888, 897 (1939).......................................... 7
Mallard v. Earl, 106 Md.App. 449, 457, 665 A.2d 287, 291 (1995).................................. 5
McDonald v. Wolfe, 226 Md. 198, 203, 172 A.2d 481, 484 (1961).................................... 6
Meldrum v. Kellam Dist. Co., 211 Md. 504, 510, 128 A.2d 400, 403 (1957)................... 6
Panitz v. Webb, 149 Md. 75, 82, 130 A.2d 913, 915 (1925)................................................ 6
Rabinovitz v. Kilner, 206 Md. 455, 462, 112 A.2d 483, 487 (1955).................................. 6
Wlodkowski v. Yerkaitis, 190 Md. 128, 132, 57 A.2d 792, 794 (1948).............................. 7
Md. Transportation Code Ann. §21-101(b)............................................................................. 2
Md. Transportation Code Ann. § 11-151(a)............................................................................. 2
Md. Transportation Code Ann. § 21-101(b)............................................................................ 2
Md. Transportation Code Ann. § 21-101(t)............................................................................. 2
Md. Transportation Code Ann. § 21-705(c)............................................................................ 2
The Maryland Association for Justice (“the MAJ”) submits this Brief Amicus Curiae. For the reasons set forth below, it is the position of the MAJ that the decision of the Court of Special Appeals in this case should be reversed.STATEMENT OF THE CASE
The MAJ hereby adopts the Statement of the Case in the Brief of the Petitioner.QUESTIONS PRESENTED
1. Did the trial court err in submitting the question of Brown’s negligence to the jury?STATEMENT OF FACTS
The MAJ hereby adopts the Statement of Facts in the Brief of the Petitioner.ARGUMENT
- The Boulevard Rule Applies To This Case.
The Court of Special Appeals of Maryland found that Brown “was in the ‘roadway’ (i.e. Falkirk Road) when the collision occurred.” Grady v. Brown, 180 Md. App. 367, 373, 951 A.2d 105, 109 (2008), The lower court also found that Brown was required to “yield the right-of-way to any other vehicle approaching on the roadway.” Id. at 374, 951 A.2d at 110. The question then became whether, viewing the facts in the light most favorable to Brown, “did Brown yield the right of way to the motorcycle driven by Grady.” Id.
The lower appellate court considered the interplay of four statutes in reaching its conclusion. Brown was traveling in an “alley” as it is defined in Md. Transportation Code Ann. § 21-101(b). He was required to yield the right of way to traffic approaching on Falkirk Road pursuant to Md. Transportation Code Ann. § 21-705(c):
(c) Yielding right-of-way to other approaching vehicles- The driver of a vehicle emerging from an alley, driveway, or building shall on entering the roadway, yield the right-of-way to any other vehicle approaching on the roadway.
“’Roadway’ means that part of a highway that is improved, designed, or ordinarily used for vehicular travel, other than the shoulder.” Md. Transportation Code Ann. § 11-151(a). The term “right-of-way” is also defined by statute: “[r]ight-of-way means the right of one vehicle or pedestrian to proceed in a lawful manner on a highway in preference to another vehicle or pedestrian.” Md. Transportation Code Ann. § 21-101(t). The combined effect of these statutes is that one emerging from an alley onto a roadway must give preference to another vehicle approaching on that roadway.
The Court of Special Appeals of Maryland held that the Boulevard Rule applied, stating that “Grady had a right to assume that Brown, the unfavored driver, would stop and yield the right of way to him.” Grady, at 376, 951 A.2d at 110. Moreover, this Court has observed that “[r]egardless of the nature of the favored highway… it is considered a ‘boulevard’ under the Boulevard Rule.” Cornias v. Bradley, 254 Md. 479, 496, 255 A.2d 431, 439 (1969). Under any analysis, Falkirk Road was a favored roadway, the alley was an unfavored roadway, and Brown had a duty to yield, therefore the Boulevard Rule applied.
- The Application of the Boulevard Rule Mandates That Grady Was Entitled To Judgment As A Matter Of Law.
The Court of Special Appeals of Maryland has concisely summarized the Boulevard Rule as follows:
Under Maryland law, traffic rights of way are well-established and certain roads or highways are favored. A motor vehicle on a favored road has the right-of-way against a vehicle on an intersecting unfavored road. The driver on the unfavored road must stop before entering the favored road and yield to the driver proceeding on that road, provided that the favored driver is operating his vehicle lawfully. Although he may not ignore obvious danger, the favored driver may assume that the unfavored driver will stop and yield the right-of-way.” Brendel v. Ellis, 129 Md.App. 309, 315, 742 A.2d 1, 8-9 (1999).
The lower appellate court found that the trial court was correct in denying Grady’s Motion for Judgment and Motion for New Trial because “according to Brown’s version of the events, at no point did Brown block or otherwise intrude into the path that the favored driver had been following prior to the point that Brown’s vehicle came to a stop.” Grady, at 376, 951 A.2d at 111. The lower appellate court specifically stated that its decision was based upon “the unusual facts of this case”. Id. The lower court observed that: “[t]his makes this case unlike any of the many Boulevard Rule cases that have been decided against the unfavored driver by appellate courts of this state.” Id.
The lower court’s analysis of whether Brown generated a jury issue as to whether he yielded the right of way is factually and legally incorrect. There is no unusual factual or legal issue presented in this case. This case is not different in any meaningful way from any other case governed by the Boulevard Rule.
What are the legally operative facts essential to a correct analysis of this case under the Boulevard Rule as it presently exists? First, Grady was lawfully proceeding on Falkirk Road, the favored roadway. Second, Brown was proceeding on an unfavored roadway. Third, Brown’s own testimony concedes that there was a collision between the two vehicles. Finally, Brown admits that he had entered Falkirk Road and was out on the favored road at the time of the collision.
Brown’s entire argument is that he went no farther into the boulevard than it was safe to do so because he was in a position where he believed he was unlikely to interfere with traffic proceeding on the boulevard, and therefore he was not negligent. This is contrary to the application and intent of the Boulevard Rule. Rather than allowing Grady to exercise his priority to use the favored roadway, Brown instead left the alley and entered Falkirk Road. As soon as he did that, he ran afoul of the Boulevard Rule. He was then negligent as a matter of law, whether he intruded upon the favored roadway by an inch or by twenty feet. The requirement that Brown yield the right of way does not mean he was entitled to enter the favored roadway, but only to an extent he thought was unlikely to impede traffic. To the contrary, in order to yield the right of way, Brown was required to refrain from entering the favored roadway until Grady passed through the intersection.
The appellate courts of this state have had occasion to consider what it means to yield the right of way in a variety of contexts. Prior to 1970, the phrase “right-of-way” was defined statutorily as “the privilege of the immediate use of the highway.” Mallard v. Earl, 106 Md.App. 449, 457, 665 A.2d 287, 291 (1995). Since the Transportation Code was revised in 1971, the term has been defined as “the right of one vehicle or pedestrian to proceed in a lawful manner on a highway in preference to another vehicle or pedestrian.” Id. The only practical effect of the change is that “the rule no longer affords absolute protection to the favored driver who is driving in an unlawful manner.” Id. These decisions make it clear that the primary consideration in yielding right of way is to give the favored driver primacy of use of the entirety of the favored roadway.
“Right of way” is “to be construed as requiring all of the unfavored vehicle to permit the immediate use of the highway…” Meldrum v. Kellam Dist. Co., 211 Md. 504, 510, 128 A.2d 400, 403 (1957). “The ‘right of way’… must mean the right to proceed.” Panitz v. Webb, 149 Md. 75, 82, 130 A.2d 913, 915 (1925). An unfavored driver must give the favored driver “the precedence to which he is entitled….” Rabinovitz v. Kilner, 206 Md. 455, 462, 112 A.2d 483, 487 (1955). “[T]he duty of the unfavored driver to yield the right of way extends to traffic on the whole of the favored roadway…” Dunnill v. Bloomberg, 228 Md. 230, 234, 179 A.2d 371, 374 (1962). “[T]he unfavored driver entering a boulevard must yield the right-of-way to all traffic he finds in the intersection during the entire time he is there.” Cornias v. Bradley, 254 Md. 479, 496, 255 A.2d 431, 439 (1969). The obligation to yield the right of way extends through the favored driver’s “passage past the intersection.” McDonald v. Wolfe, 226 Md. 198, 203, 172 A.2d 481, 484 (1961) Yielding the right of way to favored traffic means “permitting it to proceed without interruption, and this duty persists throughout his passage across the favored way.” Greenfeld v. Hook, 177 Md. 116, 132, 8 A.2d 888, 897 (1939) Statutes governing vehicles’ right of way are intended “to direct the order of precedence as between motor vehicles that are traveling on intersecting roads or streets in such a manner that they would collide if neither vehicle yielded the right of way.” Wlodkowski v. Yerkaitis, 190 Md. 128, 132, 57 A.2d 792, 794 (1948). The only way Brown could have generated a jury issue as to his negligence would have been if there were a factual dispute about whether he encroached upon the favored roadway. Since it is undisputed that he did so, he was negligent as a matter of law.
As this Court stated in Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977)(internal citations omitted):
The duty of an unfavored driver to stop and yield the right-of-way is mandatory, positive, and inflexible. Accordingly, an unfavored driver violates this requirement at his own risk.
Id.at 148, 374 A.2d at 335-36. This Court further observed that “[i]t follows that an unfavored driver as a defendant in an action brought by a favored driver is liable, being guilty of negligence as a matter of law, in the absence of a showing of contributory negligence on the part of the plaintiff. Id. Moreover, “[a] favored driver may assume that others will obey the law and he need not anticipate their violation of the law.” Id. “When the operator of a vehicle enters the favored highway in disregard of these explicit and mandatory rules and collides with another vehicle approaching thereon, the collision must be at least partially attributed to his negligence.” Creaser v. Owens, 267 Md. 238, 243, 297 A.2d 235, 238 (1972). This Court further observed:
In order to make crystal clear our holding here, we emphasize that if an unfavored driver is involved in an accident with a favored vehicle under circumstance where the boulevard law is applicable then in a suit based on that collision the unfavored driver is deemed to be negligent as a matter of law.
Id. This can easily be distilled down to the facts of this case- Brown entered the favored roadway without first allowing the traffic on that roadway to pass, and a collision ensued. Brown was an unfavored driver who was in an accident with a favored vehicle, under circumstances where the Boulevard Rule applied. He was consequently negligent as a matter of law.
- The Public Policy Underlying the Boulevard Rule Mandates that the Lower Court Be Reversed.
This Court has summarized the public policy upon which the Boulevard Rule rests:
The obvious and essential purpose of such rules is to accelerate the flow of traffic over through highways by permitting travelers thereon to proceed within lawful speed limits without interruption. That purpose would be completely frustrated if such travelers were required to slow down at every intersecting highway, and the vast sums which have been spent in their construction in an effort to accommodate the great volume of automobile traffic which is so indispensable a part of modern life, would be largely wasted. On the other hand the safety of the travelling public demands that the rules defining the relative rights of travelers on through highways and on highways intersecting them be clear, unmistakable and definite. If the duty of stopping and of yielding right of way, is positive and inflexible, the inhibited traveler may know that he violates it at his risk, while the traveler on the favored highway may know that he may safely exercise the privilege of uninterrupted travel thereon which the statute gives. If, however, the relative rights of travelers on the two types of highway are held to depend upon nice calculations of speed, time and distance the rule would encourage recklessness and the privilege of uninterrupted travel would mean little more than the privilege of having a jury guess in the event of a collision whose guess was wrong.
Creaser v. Owens, 267 Md. 238, 243, 297 A.2d 235, 238 (1972). These policy considerations are easily applied to this case. The absence of the Boulevard Rule would create a situation where Grady would be forced to guess as to whether it was safe to proceed. He would be forced to slow or stop his vehicle to determine whether or to what extent Brown had encroached upon the roadway. On the other hand, application of the Boulevard Rule makes the rights of the parties “clear, unmistakable and definite.” Id. Grady could proceed uninterrupted through the intersection because Brown would be required to yield the right of way by refraining from entering the favored roadway until Grady had passed, and Brown could then proceed safely. Brown would know that if he encroached upon the favored roadway, he did so at his peril, and if an accident resulted he would be liable. That is the correct result in this case.
To hold otherwise would sound the death knell for the Boulevard Rule. Every unfavored driver would have as his defense that he entered the favored roadway, but not to a degree that was unsafe. “If the meaning and application of the ‘boulevard rule’ is to be changed it must be done by the Legislature and not by judicial fiat.” Id. at 250, 297 A.2d at 241. The holding of the lower appellate court had the effect of changing the meaning and application of the Boulevard Rule and must therefore be reversed.
The decision of the Court of Special Appeals should be reversed. The trial court committed reversible error in denying Grady’s Motion for Judgment and Motion for New Trial. There is no question that the Boulevard Rule applies to this case. There is no novel factual or legal issue before the Court. Brown was merely an unfavored driver who failed to yield the right of way to Grady, the favored driver, when he entered the favored roadway without regard to Grady’s preference to proceed on the entirety of that roadway. A collision then ensued. Brown was therefore negligent as a matter of law under the Boulevard Rule as it has been interpreted by this Court.
Allowing the Court of Special Appeals of Maryland’s decision to stand would be contrary to the public policy of this state. The Boulevard Rule is intended to promote the free flow of traffic over favored roadways, and to provide a “clear, unmistakable and definite” rule governing the rights of drivers at intersecting roadways. Creaser, at 243, 297 A.2d at 238. Failing to apply the Boulevard Rule in this case will lead to exactly what the rule seeks to prevent- drivers who are in a state of confusion as to their rights and obligations while using the roadways, increased collisions in areas that would otherwise be governed by the rule, and a burden on judicial resources caused by juries deliberating on issues which would otherwise be resolved as a matter of law. Allowing the lower appellate court’s decision to stand creates an opportunity for every defendant driver to make the argument that he did not enter the favored roadway enough to be negligent. The relevant public policy considerations contraindicate such a result.
This Court should continue to apply the Boulevard Rule as it traditionally has, until such time as the General Assembly sees fit to change its “meaning and application.” Creaser, at 250, 297 A.2d at 241. Accordingly, the MAJ respectfully requests that the decision of the Court of Special Appeals of Maryland be reversed, and that judgment be entered for Petitioner in the amount of $50,000.00 pursuant to the stipulated verdict agreement between the parties.
Miller & Zois, LLC
1 South St, #2450
Baltimore, MD 21202
Attorney for The Maryland Association for Justice (formerly Maryland Trial Lawyers Association)
On October 29, 2008 the membership of the Maryland Trial Lawyers Association ("the MTLA") formally voted to change its name to the Maryland Association for Justice ("the MAJ").
The Boulevard Rule in Maryland is that a driver approaching a through highway (the "unfavored driver") must "stop at the entrance to the through highway" and "yield the right-of-way to any other vehicle approaching on the through highway." These obligations extend during the entire time the driver is either crossing the road or merging in with traffic.
To get the Boulevard Rule lingo down, the vehicle (it can even be a skateboard) on the through (or "favored") highway is called the "favored vehicle," and vehicle on the intersecting (or "unfavored") highway is called the "unfavored vehicle." Generally, the "other driver was driving so fast" defense does not bar the application of the Boulevard Rule.
The Boulevard Rule was originally created by the Maryland courts but it was later codified into law in the Maryland Transportation Code Ann., §21-403(b).
An amicus brief is an appellate brief filed by someone that is not a party to the litigation but has an interest in its outcome. In Maryland, Under Rule 8-511, you can file an amicus brief if the parties or the court support that person or group's filing of an amicus brief.
Unless special permission is granted by the court (unlikely), the lawyers who draft an amicus brief are not permitted to participate in oral arguments.