Motion in Limine on Whether Speed Contributed to the Car Collision
Below is a motion in limine to prevent the defendant from bringing in evidence of the plaintiff's speeding at trial. Since this motion was drafted, you should also look at Bailey v. Berman, Bailey v. Berman, 177 A.3d (Md. 2018).
IN THE CIRCUIT COURT OF MARYLAND FOR ANNE ARUNDEL COUNTY
STATE FARM INSURANCE COMPANY, et al
Case No.: 02-C-12-161404 MTPlaintiff’s Motion in Limine to Preclude the Introduction of the Speed of the Plaintiff’s vehicle Into Evidence
Plaintiff, Amanda Holihan, by and through her attorneys, files this motion in limine to preclude the introduction of any testimony regarding the speed of the Plaintiff’s vehicle and in support thereof states as follows:Facts
The Plaintiff and the Defendant were involved in a crash on June 22, 2017 at the intersection of Piney Orchard Parkway and Old Waugh Chapel Road in Anne Arundel County. Plaintiff was traveling southbound on Piney Orchard Parkway and the speed limit of the road in the area where the crash took place was 40 miles per hour.
Just prior to the crash, the Defendant was traveling eastbound on Old Waugh Chapel Road. This road is controlled by a stop sign. Plaintiff did not have any traffic control device facing her and she was traveling on the boulevard.
On the evening of the crash, the Defendant was following her friend to a “friend of a friend’s” house. The Defendant did not have directions with her and had to follow her friend’s vehicle to get to her next destination. The Defendant was not familiar with the area where the accident took placeand followed her friend to the stop sign at Old Waugh Chapel Road and stopped behind her vehicle. The Defendant never saw the Plaintiff’s vehicle approaching from her left and entered the intersection. The Defendant pulled away from the stop sign and the crash occurred. The Defendant never saw the Plaintiff’s vehicle before the impact. The impact itself was what caused the Defendant to become aware of the Plaintiff’s vehicle.
The Plaintiff testified at her deposition that she was travelling between 40 and 50 miles per hour before the collision and she first saw the Defendant’s vehicle between 70 and 75 feet away. The Defendants’ contend that the Plaintiff was contributorily negligent for operating her vehicle in excess of the 40 mile per hour speed limit. However, even taking the facts in the light most favorable to the Defendants and assuming she was going 50 miles per hour, that testimony should not be admissible for several reasons.
First, Bright v. Myers is a seminal case directly on point. This case stands for the proposition that exceeding the speed limit does not constitute actionable negligence unless it is a proximate cause of the collision. Mere speculation that the accident might have been caused by the alleged speeding is not enough to send the issue to the jury. Bright v. Myers, 327 Md. 395, 405 (1992). Second, since contributory negligence is an affirmative the defense, the Defendants would have to prove that the alleged speed caused or contributed to the occurrence. Third, the prejudicial effect of any testimony as to speed outweighs any probative value it may have.Argument
As A Matter Of Law, Boulevard Rule Cases Cannot Be Decided Based On “Nice Calculations of Speed, Time, and Distance.”
Defendant Williams’ argument boils down to the assertion that, had the Plaintiff been traveling 40 miles per hour instead of 50 miles per hour, she should have been able to avoid the Defendant’s vehicle, which was 75 feet away from her. Defendant Williams concedes that the Plaintiff is the favored driver on the boulevard in her Response to Plaintiff’s Motion for Summary Judgment. See Court Docket Entry Number 47 also attached hereto as “Exhibit A.”
The “relative rights” of the favored driver and the unfavored driver “are not to be held to depend on nice calculations of speed, time, or distance” as a matter of law in cases governed by the Boulevard Rule. Brown v. Ellis, 236 Md. 487, 495, 204 A.2d 526, 530 (1964); Dean v. Redmiles, 280 Md. 137, 150, 374 A.2d 329, 337 (1977).
When allegations of contributory negligence depend upon the favored driver’s speed, the issue should not even be submitted to the jury unless there is evidence to warrant a conclusion that speed was a proximate cause of the collision. Mallard v. Earl, 335 Md. 305, 315, 643 A.2d 422, 427 (1994). Otherwise, the purpose of the Boulevard Rule (to accelerate the flow of traffic over the through highway) would be thwarted. Brown v. Ellis, 236 Md. 487, 495, 204 A.2d 526, 337 (1977); Dean v. Redmiles, 280 Md. 137, 147, 74 A.2d 329, 335 (1977). To wit, the Court of Appeals asserted:
If…the relative rights of [the favored and unfavored drivers] 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.
Belle Isle Cab Co. v. Pruitt, 187 Md. 174, 179, 49 A.2d 537, 539 (1946).
The Court of Appeals has further held that the “effect of speed, time, or distance” on the favored driver will not relieve the unfavored driver “of the heavy responsibility placed on him by the stringent requirements” of the Boulevard Rule. Grady v. Brown, 408 Md. 182, 195, 968 A.2d 1084, 1091 (2009).
In this case, the only evidence the unfavored driver can offer is that the Plaintiffadmitted in her deposition that she was traveling between 40 and 50 miles per hour on a road with a 40 mile per hour speed limit. There are no other facts the Defendant can point to that would permit an inference that the Plaintiff was negligent or that the Plaintiff’s speed was a proximate cause of the collision. The Defendant’s Mere Assertion of Excess Speed is Not Enough to Allow The Jury to Speculate on the Speed Being a Contributing Factor to the Crash.
The Court of Appeals has repeatedly held that “[t]he obligation to yield the right of way is so imperative that even excessive speed by the favored driver, on a highway designed to speed traffic, will not ordinarily be a contributing factor.” Ness v. Males, 201 Md. 235, 239-40, 93 A.2d 541, 543 (1953); Sun Cab Co. v. Cusick, 209 Md. 354, 359, 121 A.2d 188, 190 (1956); Thompson v. Terry, 245 Md. 480, 487, 226 A.2d 540, 544 (1967). The Court of Appeals has also stated that the favored driver’s excessive speed will not “excuse the [unfavored driver’s] negligence.” Dunhill v. Bloomberg, 228 Md. 230, 235, 179 A.2d 371, 376 (1962).
The Court has explained that even if the favored driver was travelling at an excessive speed, the favored driver can still assume that the unfavored driver will yield the right-of-way to the favored driver. Thompson, at 487, 226 A.2d at 544. Finally, the Court of Appeals has held that the determination of whether the favored driver could stop or swerve to avoid a collision constitutes an “exceedingly nice calculation of speed, time, and distance.” Dunhill, at 236, 179 A.2d at 374.
The burden is on the Defendants to offer something more than the blind assertion that the Plaintiffs speed of doing 50 in a 40 mile per hour zone was a contributing factor to the collision. The Defendants cannot merely make the assertion that the speed was a contributing factor, without some supporting evidence of how moving 10 miles per hour over the speed limit was a contributing factor to the crash.The Evidence is Inadmissible Under Md. Rule 5-403.
Plaintiff contends that evidence relating to the Plaintiff’s speed of travel is neither material nor relevant. Even assuming (without conceding) that the evidence has some degree of relevance, it should nonetheless be barred under a Md. Rule 5-403 analysis. The rule provides that:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
The first step of the analysis is to determine what, if any, probative value the disputed evidence has. Probative value means the degree to which the proffered evidence tends to prove or disprove a fact at issue. Stated otherwise, probative value is “the tendency of evidence to establish the proposition that it is offered to prove.” Murphy, J., Maryland Evidence Handbook §501 (Matthew Bender 2009). Evidence that “has only a slight tendency to prove a fact of significance” has very little probative value. Paul W. Grimm & Matthew G. Hjortsberg, Fundamentals of Trial Evidence: State and Federal §4.2 (MICPEL 1997).
Here, the probative value of the speed the Plaintiff was traveling at the time of the collision is minimal, if it exists at all. The only possible purpose of admitting this evidence can be to attempt to portray Plaintiff as reckless or to make the argument that Plaintiff contributed to the crash. Admitting such evidence, or permitting argument on the issue, runs a substantial risk of unfairly prejudicing the jury against Plaintiff and confusing the issues.
Maryland Courts have consistently held that evidence of speeding does not automatically make a Plaintiff contributorily negligent. In Alston v. Forsythe, the Court of Appeals held that, “Exceeding the speed limit does not constitute actionable negligence unless it is a proximate cause of injury or damage.” Alston, 226 Md. 121, 130, 172 A.2d 474, 477 (1961). The Court in Meyers v. Bright cites the rationale in Alston stating:
Our reasoning in Alston is in harmony with decisions throughout the country. ‘Evidence that a motorist was exceeding a posted speed limit or driving in an excessive rate of speed is not actionable unless such speed is a proximate cause of the accident. To show merely excessive speed is ordinarily not enough to support a verdict based on negligence unless there is some further showing that this excessive speed is a direct and proximate cause of the injury.’
Meyers, 327 Md. 395, 405, 609 A.2d 1182, 1187 (1992).
Defendants have no other evidence, no evidence that further shows that the speed the Plaintiff was traveling was the direct and proximate cause of the collision.
Furthermore, Defendants can only hypothesize as to the speed Plaintiff was traveling. The following exchange took place at Plaintiff’s deposition:
QUESTION: How fast were you going when you observed this first car go in front of you?
ANSWER: Approximately between 40 and 50 miles an hour. I don’t know – I didn’t look down at my speedometer so I don’t know exactly how – what my speed limit was.
See Plaintiff’s Deposition Transcript attached hereto as “Exhibit B.”
Based on Plaintiff’s deposition testimony, Defendants can speculate Plaintiff was traveling anywhere between 40 miles per hour and 50 miles per hour, but Defendants cannot state with any certainty whether Plaintiff’s was traveling at 41 miles per hour or 49 miles per hour. Based on the deposition testimony, it is perfectly plausible Plaintiff was not speeding at all, as the posted speed limit where the crash occurred is 40 miles per hour. It would be both unfair and inaccurate to allow Defendants to postulate how fast the Plaintiff was traveling when all the deposition testimony provides is a rough approximation. As in Myers, a case where the Court of Appeals held that the motorist who may have been speeding at the time of the collision did not contribute to the collision, there is “no hard evidence” that Plaintiff was speeding. Id. at 404, 1186.
Defendants have no other evidence to show that the Plaintiff’s speed contributed to the accident in any way. They cannot prove with any certainty that the Plaintiff’s speed was the proximate cause of the collision. The probative value of such evidence is substantially outweighed by the prejudicial effect, and allowing a jury to hear this evidence will only serve to confuse the issues.
Even If The Court Were To Allow the Jury to Consider “Nice Calculations of Speed, Time, and Distance,” The Calculations Do Not Permit An Inference That Plaintiff Was Contributorily Negligent.
The State of Virginia has adopted by statute a time, speed and distance chart to assist the trier of fact in deciding cases such as this one. Va. Code Ann. §46.2-880 (2003). The statute directs that “[a]ll courts shall take notice of the following tables of speed and of stopping distances for motor vehicles….” Id. Although the Virginia statute is persuasive rather than controlling authority, the math is the same whether it is done in Maryland or Virginia. The Defendants assert that had the Plaintiff been traveling at 40 miles per hour as opposed to 50 miles per hour, she would have had ample time to stop and avoid a car crossing in front of her 75 feet away. The math would suggest otherwise.
A vehicle traveling 40 miles per hour has an average stopping distance of 164 feet. See “Exhibit C,” attached hereto (Va. Code Ann. §46.2-880 (2003)). When the Defendant crossed in front of the Plaintiff 75 feet away, the Plaintiff still would not have been able to avoid the crash. At forty miles per hour, she needs 164 feet to stop her vehicle, which is obviously more than 75 feet. Therefore, Plaintiff’s speed cannot be the proximate cause of the accident, as the accident would still have occurred if she was traveling at the posted speed limit of 40 miles per hour.
This is precisely the reason why courts do not allow juries to enter into speculation as to speed, time, and distance. Even seasoned defense attorneys can incorrectly assume that at 40 miles per hour a vehicle can stop within 75 feet.
Another calculation of these facts would also reveal that the difference in time between a vehicle traveling 40 miles per hour and 50 miles per hour over 75 feet is .26 of a second. A vehicle traveling at 40 miles per hour covers 75 feet in 1.28 seconds. A vehicle traveling 50 miles per hour covers 75 feet in 1.02 seconds. It is safe to say that no one would be able to successfully argue that the Plaintiff’s inability to have an additional .26 seconds was the proximate cause of the crash. Again, these are the precisely the kinds of calculations that Maryland law prohibits. Consequently, the speed of the Plaintiff’s vehicle should not come into evidence at the trial of this matter.
Miller & Zois, LLC
Laura G. Zois
1 South St, #2450
Baltimore, MD 21202
Attorney for the Plaintiff
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