CHAPTER FOURTEEN ACCIDENTS ON PRIVATE OR SPECIAL ROADS

• Jurisdiction: Maryland

CHAPTER FOURTEEN ACCIDENTS ON PRIVATE OR SPECIAL ROADS

Levi S. Zaslow, Esq.Smithey Law Group LLC

ABOUT THE AUTHOR

LEVI S. ZASLOW received his law degree from the University of Baltimore School of Law in 2008. After graduating he worked as the Judicial Law Clerk to The Honorable Althea M. Handy of the Circuit Court for Baltimore City. Following the clerkship he joined the civil litigation group at Joseph, Greenwald & Laake, P.A. He is currently a partner at Smithey Law Group LLC located in Annapolis, Maryland.

In addition to his legal practice, he has co-authored two lawsources and a legal treatise: Pennsylvania Municipal Lawsource (15th ed. 2018 et seq); Pennsylvania Real Estate Lawsource (7th ed. 2018 et seq); and Pennsylvania Real Estate Tax Sales & Municipal Claims (3d ed. 2018, 4th ed. 2020). He currently serves as the Chair of the Communications and News Journal Committee of the Bar Association of Baltimore City and as a Board Member on the Civilian Review Board of Baltimore City.

The author expresses gratitude to the authors of the prior iteration of this chapter, which served as the basis for this current version: H. Barritt Peterson, Jr., Esq. and Amy E. Payne, Esq.

I. INTRODUCTION

In general, the "rules of the road" do not apply on private roads. Therefore, the practitioner must determine whether the road is a private road and whether it is subject to any exceptions under the Transportation Article of the Maryland Annotated Code. In turn, in order to determine the liability of an owner or occupier of a private road, one needs to look to general negligence principles and/or the laws of premises liability.

This chapter will provide a basic overview the rights and duties of operators of motor vehicles on private roads and parking lots. In addition, the corresponding rights and duties of the owner or occupier of a private road are reviewed.

II. RULES OF THE ROAD

Pursuant to Title 21 of the Maryland Transportation Article, the "Rules of the Road" are only applicable to the operation of vehicles on "Highways" unless otherwise provided for by statute:

(a) The provisions of this title relating to the driving of vehicles refer only to the driving of vehicles on highways, except:

(1) As provided in subsection (b) of this section; and
(2) Where a different or additional place specifically is provided for.¹

A "highway" is defined by statute as follows:

"Highway" means:
(1) The entire width between the boundary lines of any way or thoroughfare of which any part is used by the public for vehicular travel, whether or not the way or thoroughfare has been dedicated to the public and accepted by any proper authority; and
(2) For purposes of the application of State laws, the entire width between the boundary lines of any way or thoroughfare used for purposes of vehicular travel on any property owned, leased, or controlled by the United States government and located in the State.²

Therefore, because private roads, driveways, and parking lots do not fall within the definition of highway, they are not typically governed by the rules of the road as set forth in Maryland Transportation Article, Title 21.³

III. RIGHTS AND DUTIES OF DRIVERS ON PRIVATE ROADS AND PARKING LOTS

In order to determine whether the rules of the road apply, the practitioner must look to the definitions of what constitutes a private road. There are exceptions found in the Transportation Statute for private property used by the public in general as well as an exception for TRANSP. § 21-901.⁴

A. Private Roads and Driveways

A "private road or driveway"⁵ is defined as any way or place that:

(1) Is privately owned; and
(2) Is used for vehicular travel by its owner and by those having express or implied permission from the owner, but not by other persons.

B. Applicability of the Rules of the Road to Private Property

The "rules of the road" are also applicable in certain instances to private roads as proscribed by statute. According to TRANSP. § 21-101.1(b), the exception for private property used by the general public is as follows:

(b) (1) A person may not drive a motor vehicle in violation of any provision of this title on any private property that is used by the public in general, or, in Calvert County, on any private road located within a residential subdivision or community.

(2) A person may not drive a motor vehicle in violation of any provision of this title on any property that is owned by or under the control of this State or any of its political subdivisions, county boards of education, or community colleges and that is open to vehicular traffic and used by the public in general.
(3) Any person who violates any provision of this subsection is in violation of the law to the same extent and is subject to the same penalty as if the motor vehicle were driven on a highway.

Therefore, the rules of the road seem to only apply to a highway, private property used by the public in general or, if a statutory provision expressly applies, to private property. Courts have stated that even though the rules of the road do not apply in certain circumstances, then a duty of ordinary care is owed by the operators of motor vehicles.⁶ In Atran v. Furness, a collision took place in the Westview Shopping Center parking lot. The Court of Appeals held that the care owed by appellant "would be the care of an ordinary prudent person driving under similar circumstances and at the time this accident took place."⁷ This general rule was also stated by the Court of Special Appeals in Levin v. Arrabal, in which the rules of the road were not found to be applicable to a shopping center, and the rule is that of ordinary care.⁸

C. Private Property Used by the Public in General

TRANSPORTATION § 21-101.1(b) provides that "[a] person may not drive a motor vehicle in violation of any provision of this title on any property used by the public in general. . . ."⁹ Based on a series of three Court of Special Appeals opinions from 1977 to 1992, the test for whether a roadway was "used by the public in general" focused on the "right" of the public to use the roadway. However, in 2008, the Court of Appeals rejected this standard in favor of a plain reading analysis that focuses on whether the public "in fact" uses or travels on the roadway.

In the first case discussing what constituted "private property used by the public in general," the Court of Special Appeals in Walmsley v. State looked to whether an individual operating a motor vehicle in the parking lot of a private business could be convicted of driving with a cancelled, suspended, or revoked license.¹⁰ The Court of Special Appeals stated that the test to be applied is "the right of the public to travel on the road or driving on a parking lot, and not the actual exercise of that right."¹¹ The court further stated that, "driveways and parking lots are not 'public' in the sense of the use by all vehicular traffic as a matter of right."¹² The Walmsley court held "that operating a motor vehicle on a private parking lot, road, or driveway while a license is canceled, suspended, refused, or revoked is not proscribed by the present Maryland motor vehicle code."¹³ As such, the court found Walmsley's conviction for driving on a suspended, revoked, or refused operator's license was wrong.¹⁴ In the case at hand, the court concluded that the driveway and parking lot were subject to "almost limitless regulation by the owners" and the owners had the right to exclude members of the general public.¹⁵

Applying this standard in a companion case in 1977, the Court of Special Appeals in Akins v. State further stated that:

a parking area and its roadways within a shopping center are considered to be private because the right to use them by the public is not a general right, but is limited to those persons who have implied permission to do business with the owner, and that the owner retains the right to exclude anyone at any time.¹⁶

The Akins court determined that the parking lot and exit areas were for the convenience of customers and the owners had a right to control the traffic in that area.¹⁷

In the final case in the series, Locklear v. State,¹⁸the Court of Special Appeals determined that the Transportation Article contained an exception to liability for driving on private property not used by the public in general. The appellants in Locklear were found driving on a dirt mound located on private property.¹⁹ In Locklear, the state conceded that dirt mounds might have been forbidden to the general public. The defendant, therefore, could not be convicted of driving on a highway while his license was suspended or revoked.²⁰

In 2008, in United States v. Ambrose, the Court of Appeals for the first time considered TRANSP. §§ 11-127 and 21-101.1(b)(1)'s requirement that a highway or private property be "used by the public in general."²¹ In Ambrose, pursuant to the Maryland Transportation Article, the defendant was convicted of driving on a suspended license at Fort Detrick, "a research laboratory-oriented military installation under the control of the United States Army."²² Upon certified questions of law from the U.S. District Court for the District of Maryland, the court considered whether "the terms 'used by the public' contained in the definition of 'highway' in TRANSP. § 11-127 and in the private roads provision of TRANSP. § 21-101.1(b)(1) require the unrestricted right of the public to the use of the highway or private property, as opposed to the fact of use of a highway or private property by the public?"²³

The Court of Appeals discussed Walmsley, Akins, and Locklear, noting that those cases turned on the "right" of the public to use a particular roadway.²⁴ After noting that the statutory language for driving on a refused, suspended, or revoked license had changed, the court nevertheless proceeded to consider the plain meaning of the phrase "used by the public." The court determined that the plain language of the statute turned on...