Maryland Boulevard Rule Law Survey, DC Trial, No. 4, 2017
SURVEY OF MARYLAND BOULEVARD RULE LAW – by Eric N. Stravitz STATUTES
TRANS. CODE ANN. §§ 21-403, 21-404.DUTY IMPOSED
RIGHTS OF UNFAVORED DRIVER AS PLAINTIFF AND DEFENDANT DISTINGUISHED
- “[A] driver upon approaching a ‘through highway’ from an unfavored road must stop and yield the right of way to all traffic already in or which may enter the intersection during the entire time the unfavored driver encroaches upon the right of way; [and] this duty continues as long as he is in the intersection and until he becomes a part of the flow of favored travelers or successfully traverses the boulevard.” Grady v. Brown, 408 Md. at 194 (quoting Creaser v. Owens, 267 Md. 238, 239-40 (1972)) (alterations in original).
- The Court of Appeals has expressed hope that the "Boulevard Rule" be given an absolute application and that no new judicial exceptions to the rule be implied, Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972); Hensel v. Beckward, 273 Md. 426, 330 A.2d 196 (1974); see also Johnson v. Dortch, 21 Md. App. 605, 342 A.2d 326 (1975). But see Grady v. Brown, 408 Md. 182, 968 A.2d 1084 (2009) (unfavored driver was not negligent as a matter of law where unfavored driver testified that he moved onto favored roadway in order to see around a parked truck but did not enter the flow of traffic); Mayor & City Council of Baltimore v. Stokes, 217 Md. App. 471, 94 A.3d 159 (2014).
- The boulevard law is not applicable to a vehicle making its exit from the boulevard. Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977).
APPLIES TO VEHICLES OTHER THAN AUTOMOBILES
- A driver who enters from an unfavored highway an intersection with a favored boulevard or arterial highway, where there are no traffic controls, must yield the right-of-way to all the traffic he finds there during the entire time he is there. If he does not, and a collision results, he is at fault and cannot recover against the other driver, unless the doctrine of last clear chance enters the case. So far as his rights as a plaintiff are concerned, it makes no difference what the other party does in the first instance. He is negligent because he has not yielded the road. Being negligent himself, his action is barred. However, when he is made a defendant in an action for damages resulting from the collision, he can always show that the other party was also guilty of negligence contributing to the accident, and if he succeeds in this, no verdict can be obtained against him. Shedlock v. Marshall, 186 Md. 218, 46 A.2d 349 (1946); Harper v. Higgs, 225 Md. 24, 169 A.2d 661 (1961); Green ex rel. Carolina Ins. Co. v. Zile, 225 Md. 339, 170 A.2d 753 (1961); Brown v. Ellis, 236 Md. 487, 204 A.2d 526 (1964); Cooper v. Allen, 243 Md. 9, 219 A.2d 920 (1966); Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972).
- If the accident did not occur while one car was entering a favored highway from an unfavored intersecting road, the boulevard rule would not be applicable. Once it has safely entered, rules other than the boulevard rule apply. Kowalewski v. Carter, 11 Md. App. 182, 273 A.2d 212 (1971).
- Whether the collision occurred 15 yards from the intersection or 40 or more yards from the intersection would substantially influence the issue of whether the unfavored driver had successfully entered onto the favored highway and become a part of the flow of traffic. Kowalewski v. Carter, 11 Md. App. 182, 273 A.2d 212 (1971).
- If the unfavored driver is a plaintiff, his suit is defeated unless the doctrine of last clear chance rescues his claim. Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972); Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A.2d 175, cert. denied, 272 Md. 750 (1974); Schwier v. Gray, 277 Md. 631, 357 A.2d 100 (1976).
- Where the undisputed facts show that plaintiff was entering a boulevard highway from an unfavored one controlled by a stop sign; that he did not yield the right-of-way to defendant and a collision resulted; that the accident occurred within the intersection; and no question of last clear chance was raised on appeal, the failure of plaintiff to yield the right-of-way to defendant constituted contributory negligence as a matter of law. Cooper v. Allen, 243 Md. 9, 219 A.2d 920 (1966).
- It is possible to use the doctrine of last clear chance in boulevard cases so as to permit a recovery by an unfavored driver despite his initial negligence in entering the boulevard. Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972).
- If the unfavored driver is a defendant he is liable except in the rare case when the issue of contributory negligence on the part of the favored driver is properly submitted to a jury, i.e., whether he was guilty of negligence that was a proximate cause of the accident. Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972); Schwier v. Gray, 277 Md. 631, 357 A.2d 100 (1976).
- When the "boulevard rule" is applicable the unfavored driver is negligent as a matter of law when sued or contributorily negligent as a matter of law when suing. This does not automatically mean that the unfavored driver will be liable for damages in a case he is defending or unable to recover in a case in which he is the plaintiff, but then, in order to prevail, other factors must be present -- either he must be able to establish that the favored driver was contributorily negligent or his claim must be rescued by the doctrine of last clear chance. Creaser v. Owens, 267 Md. 238, 297 A.2d 235 (1972).
- If suit is brought by the favored driver, the unfavored driver may avoid liability in the rare case in which the unfavored driver can convince the jury that the favored driver's negligence was a proximate cause of the accident. Kopitzki v. Boyd, 277 Md. 491, 355 A.2d 471 (1976).
- Unless the doctrine of last clear chance is involved, an unfavored driver's claim as a plaintiff is defeated by his failure to yield the right-of-way, since he is then guilty of contributory negligence as a matter of law. Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977).
- 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. Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977).
- Unfavored driver cannot avoid liability and create a jury issue of the favored driver's contributory negligence merely by asserting that he did not see the favored driver when attempting to enter the favored highway. Absent legally sufficient evidence that the plaintiff was acting unlawfully or was otherwise contributorily negligent, the unfavored driver must demonstrate that, even through the exercise of due care, the circumstances were such that he could not have seen the favored vehicle, could not have otherwise avoided the collision, or that his or her failure to yield was not the proximate cause of the collision. Barrett v. Nwaba, 165 Md. App. 281, 885 A.2d 392 (2005).
- If the unfavored driver's negligence is a contributing cause of the accident, he cannot recover against the favored driver unless the doctrine of last clear chance applies. Dail v. Tri-City Trucking Co., 39 Md. App. 430, 387 A.2d 293, cert. denied, 283 Md. 741 (1978).
- The favored driver is not entitled to the preference when proceeding in an unlawful manner. Covington v. Gernert, 280 Md. 322, 373 A.2d 624 (1977); Gazvoda v. McCaslin, 36 Md. App. 604, 375 A.2d 570 (1977); cf. Schwier v. Gray, 277 Md. 631, 357 A.2d 100 (1976); see also Mallard v. Earl, 106 Md. App. 449, 665 A.2d 287 (1995).
- Favored drivers may assume the unfavored driver will obey the law, but they cannot ignore an obvious danger, and they are required to use ordinary care for the safety of their passengers and themselves. Dean v. Redmiles, supra.
- A favored driver driving on the wrong side of the road due to road construction necessitating traffic rerouting is not proceeding in an unlawful manner. Dail v. Tri-City Trucking Co., 39 Md. App. 430, 387 A.2d 293 (1978).
- Favored driver's contributory negligence is properly submitted to the jury in a suit against the unfavored driver, see Kopitzki v. Boyd, 277 Md. 491, 35 A.2d 471 (1976).
- If it can be shown that the favored driver could have avoided the accident if he had been operating lawfully and with due care, then the negligence of the favored driver should be an issue for the jury. If there is any evidence, even slight evidence, that may tend to prove negligence, a party is not entitled to judgment and the issue must go to the jury. Mayor of Balt. v. Stokes, 217 Md. App. 471, 94 A.3d 159 (2014).
- Excessive speed of favored driver is not contributory negligence unless it is the proximate cause of the injury. Thompson v. Terry, 245 Md. 230, 226 A.2d 540 (1967); Myers v. Bright, 237 Md. 395, 609 A.2d 1182 (1992).
- The "Boulevard Rule" applies whether or not the favored and unfavored vehicles collide. Dunnill v. Bloomberg, 228 Md. 230, 179 A.2d 371 (1962).
- The rule also applies whether or not the unfavored driver is on an intersecting roadway. Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A.2d 175 (1974).
- Where, even when the evidence was viewed in the light most favorable to the non-movant, it plainly showed that, as he attempted to "inch" past a stop sign, he violated this section and thus breached his duty of care to other drivers and passengers, the defendant was negligent, and the trial court erred in not finding him so. Brendel v. Ellis, 129 Md. App. 309, 742 A.2d 1 (1999).
- An unfavored driver who in entering the intersection observes the law and becomes part of the flow of traffic has the same rights and duties as other drivers on the highway, Creaser v. Owens, supra.
- Driver of a tractor-trailer rig, 55 feet in overall length, who had attained five vehicle lengths after entering a 55-mph highway had not entered the flow of traffic. Thus, Boulevard Rule applied where tractor-trailer was struck in the rear by vehicle traveling on the favored highway. Great Coastal Express Inc. v. Schruefer, 34 Md. App. 706, 369 A.2d 118, cert. denied, 280 Md. 730 (1977).
- The Boulevard Rule is not a defense in a suit by the unfavored driver against construction contractor who changed traffic pattern. Dail v. Tri City Trucking Co., supra.
FAVORED DRIVER SUED BY HIS PASSENGER
- A child's sled is a vehicle when a person is transported upon it upon a highway. Richards v. Goff, 26 Md. App. 344, 338 A.2d 80, cert. denied, 276 Md. 743 (1975). Regarding a minor operating a sled, see Moon v. Weeks, 25 Md. App. 322, 333 A.2d 635 (1975).
- The Boulevard Rule applies in bicycle cases, Richards v. Goff, 26 Md. App. 344, 338 A.2d 80 (1975).
- Boulevard Rule is not limited in its application to motor vehicles; it also applies to bicycles. Oddis v. Greene, 11 Md. App. 153, 273 A.2d 232 (1971).
- A skateboard was a vehicle and its rider had violated the boulevard rule. Woodridge v. Price, 966 A.2d 955, 184 Md. App. 451 (2009).
- Boulevard Rule applies to the driver of a front-end loader entering perpendicularly from the side of a highway. Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A.2d 175, cert. denied, 272 Md. 750 (1974).
UNFAVORED DRIVER SUED BY HIS PASSENGER
- The principles of the Boulevard Rule apply when the favored driver is sued by his passenger. Kopitzki v. Boyd, 277 Md. 491, 355 A.2d 471 (1976).
- Boulevard Rule does not shield a common carrier from liability to its passengers when, even though carrier was the favored driver under the Boulevard Rule, the common carrier breached the higher duty of care it owed to its passengers. Wash. Metro. Area Transit Auth. v. Seymour, 387 Md. 217, 874 A.2d 973 (2005).
POSITIVE EVIDENCE OF FAVORED DRIVER'S INATTENTION REQUIRED
- An unfavored driver is liable to his own passenger in the absence of circumstances barring the claim of the passenger. Dean v. Redmiles, 280 Md. 137, 374 A.2d 329 (1977).
- The driver of an unfavored vehicle who fails to yield the right-of-way while attempting to cross a favored highway may avoid liability to his passenger without showing that the driver of the favored vehicle was negligent, where the driver of the unfavored vehicle is also found not to be negligent. Dennard v. Green, 95 Md. App. 652, 622 A.2d 797 (1993), aff'd, 335 Md. 305, 643 A.2d 422 (1994).
CONTRIBUTORY NEGLIGENCE OF FAVORED DRIVER AS JURY ISSUE
- If the contention is that the favored driver could have avoided the collision but for inattention to his driving and to the peril which immediately confronted him on the roadway, there must be positive evidence of such inattention or lack of due care. Jenkins v. Charles County Bd. of Educ., 21 Md. App. 1, 318 A.2d 250 (1974).
- To support a contention that the insouciance of the favored driver was so extreme as to avoid the rigidity of the Boulevard Rule, there must be positive evidence of such inattention or lack of due care, or a showing that the favored driver otherwise would have been able to avoid the accident. Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A.2d 175, cert. denied, 272 Md. 750 (1974).
DRIVER OF UNFAVORED VEHICLE WAS LIABLE FOR CONTRIBUTORY NEGLIGENCE
- The test to be applied in determining whether there is sufficient evidence to submit the issue of contributory negligence of the favored driver to the jury is: Could reasonable minds differ as to whether the favored driver's conduct—during the sequence of events that led to the collision—was commensurate with the conduct of a reasonably prudent person acting under like or similar circumstances. Schwier v. Gray, 277 Md. 631, 357 A.2d 100 (1976).
- In order to decide the issue of whether there is sufficient evidence to submit the issue of contributory negligence of the favored driver to the jury, the court must consider the evidence and all logical and reasonable inferences deducible therefrom in the light most favorable to the unfavored driver, upon whom rests the burden of proving contributory negligence. Schwier v. Gray, 277 Md. 631, 357 A.2d 100 (1976).
- See also, Malik v. Tommy's Auto Service, Inc., 199 Md.App. 610 (2011)(contributory negligence of favored driver properly submitted to jury).
- But see Schramm v. Foster, 341 F. Supp. 2d 536 (D. Md. 2004)(plaintiff entitled to partial summary judgment on liability because defendant unable to show that speed of plaintiff’s vehicle proximately caused the collision).
RECOVERY NOT BARRED AS AGAINST OTHER DRIVERS
- Driver of unfavored vehicle was liable for contributory negligence as a matter of law when he failed to keep a lookout while proceeding through an intersection and to take evasive action when he saw, or should have seen, the approach of a speeding favored vehicle (whose driver was under the influence of alcohol). Roberts v. Fairchild, 14 Md. App. 612, 287 A.2d 778 (1972).
INTERSECTING STREET NOT CONDITION
- Boulevard Rule does not apply to bar recovery by unfavored driver against party other than favored driver when that party's negligence may have been a proximate cause of the unfavored driver's failure to yield the right-of-way. Dail v. Tri-City Trucking Co., 39 Md. App. 430, 387 A.2d 293, cert. denied, 283 Md. 741 (1978).
- The Court of Appeals has never applied the Boulevard Rule in a suit between an unfavored driver and a party other than a favored driver or passenger and declines to do so. Dail v. Tri-City Trucking Co., 39 Md. App. 430, 387 A.2d 293, cert. denied, 283 Md. 741 (1978).
- Existence of intersecting street is not condition to recovery but rather an indicium of whether the road in question is a "boulevard." Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A.2d 175, cert. denied, 272 Md. 750 (1974).
- There is no exception from the Boulevard Rule indicating impunity for those who enter or cross a boulevard from fields or other curbs where no roadway intersects. Victor A. Pyles Co. v. Rehmann, 21 Md. App. 686, 321 A.2d 175, cert. denied, 272 Md. 750 (1974).
- Boulevard Rule applies to private entrances without requiring the erection of stop signs. Richards v. Goff, 26 Md. App. 344, 338 A.2d 80, cert. denied, 276 Md. 743 (1975).