CHAPTER NINE ACCIDENTS INVOLVING PEDESTRIANS AND ANIMALS
| Jurisdiction | Maryland |
MATTHEW J. FOCHT received his B.A. degree from Loyola College in Maryland (now Loyola University Maryland) in 1995. He attended Catholic University of America, Columbus School of Law, graduating in 2001. Mr. Focht is a trial attorney at Malloy Law Offices, LLC, where he practices personal injury law. He is a member of the Montgomery Inn of Court and the Maryland Association for Justice.
I. INTRODUCTION
This chapter addresses accidents in which only one of the involved parties is driving an automobile. The first part of this chapter discusses accidents between pedestrians and automobiles. The term "pedestrian" is defined and the rights and duties of pedestrians and motorists in specific situations are discussed. The second part of this chapter reviews the law as it pertains generally to animals in the roadway and accidents involving animals.
As a general proposition, it should be noted that
[i]n Maryland, we have adopted the general rule that every automobile driver must exercise toward other travelers upon the highways that degree of care which a person of ordinary prudence would exercise under similar circumstances. It is universally recognized that negligence and reasonable care are relative terms and their application depends upon the situation of the parties and the degree of care and vigilance which circumstances reasonably impose.1
"Because of the nature of the instrumentality which he controls, and the difference in the consequences incident to a breach of that duty by a motorist and a pedestrian respectively, ordinary care requires a motorist to exercise a higher degree of diligence and caution to avoid a collision with a pedestrian than it would require of a pedestrian, under similar circumstances, to avoid collision with an automobile."2 The various permutations of this duty are discussed in detail in the sections below.
II. PEDESTRIANS
A. Historical Points
Before 1970, Maryland statute provided that within towns and cities, motorists had the right-of-way between intersections, and pedestrians had the right-of-way at cross-walks.3 Both the motorist and pedestrian, regardless of who had the right-of-way, had a duty to use reasonable care to avoid injury, but the greater share of responsibility for exercising reasonable care was conferred upon whomever lacked the right-of-way. At that time, however, there was no statute governing the use of streets by pedestrians outside towns and cities, and the common law doctrine of reciprocal rights applied. Thus, the rights of a motorist and a pedestrian on a public roadway were mutual, reciprocal, and equal; each had to accommodate their movements to the other and anticipate the presence of the other.4 In 1970, the Maryland Legislature revised the existing code and substantially changed the law relating to the use of the roadway by pedestrians. Importantly, the "urban-rural" distinction was abolished, and the current statute confers rights and duties upon pedestrians and motorists regardless of whether the roadway is in or outside of a town or city.
B. Definition of Pedestrian
A pedestrian is broadly defined in the Motor Vehicle Code as "an individual afoot."5 Maryland case law is in accord.6 Pedestrians include police officers, maintenance workers, and perhaps others, whose work requires their presence on a highway.7 A motorcycle rider who dismounts and pushes the motorcycle on a public highway has been held to be a pedestrian.8 Likewise, a person pushing a disabled vehicle on a public highway is a pedestrian.9 A child on a sled on a street, however, is not a pedestrian.10
It should be noted that the definition of a pedestrian under the motor vehicle laws does not correspond with the definition of a pedestrian within the meaning of Art. 48A, § 539 of the MARYLAND CODE, which provides Personal Injury Protection (PIP) benefits to pedestrians. The term "pedestrian" in Art. 48A, § 539 has been subject to a liberal and broader interpretation, assumedly to promote the policy of compensating victims of motor vehicle accidents without regard to fault. Thus, the term "pedestrian" under Art. 48A, § 539 has been construed to include all persons not occupying, entering, or alighting from a vehicle without regard to whether they were travelling on foot, standing in a stationary position, sitting or within a structure.11
C. Bicyclists
The motor vehicle laws as to the rules of road apply to bicyclists.12 There are, in addition to the general rules of the road, specific statutory provisions pertaining to the operation of bicycles and other play vehicles.13 A person operating a bicycle on a roadway is required to stay as near to the right side of the roadway as practicable and safe, except when making a left hand turn, when operating on a one way street, or when passing another vehicle.14 The failure to comply with this provision was held in Longie v. Exline,15 a case involving an accident between an automobile and a bicyclist, to bar the bicyclist's claim as a matter of law. Additionally, a person may not ride a bike on any expressway or on any roadway where the posted speed limit exceeds 50 miles an hour.16 A person may walk a bicycle on the right side of a highway if there is no sidewalk.17
An individual pushing a bicycle will be considered a pedestrian and subject to the duties imposed thereon.18
D. Special Status of Workers on the Roadway
Workers on a roadway are considered pedestrians.19 These workers, however, enjoy a special status in that the degree of care which they are expected to meet is less than that required or expected of a normal pedestrian. In Maryland, it is generally recognized that workers on the highway cannot, because of the nature of their duties, be as alert as pedestrians or other travelers.20 Whether workers have exercised the proper standard of care is a factual issue ordinarily left to the jury.21
E. Status of Police Officers
Police officers on the roadway are considered pedestrians.22 The Court of Appeals has stated that "[i]t is not necessary to describe police officers acting pursuant to their duties as having a 'special status.' "23 Like all individuals, they are required to exercise reasonable care under the circumstances. The fact that they are police officers acting pursuant to their duties, however, is a circumstance to be considered.24 Thus, arguably, a police officer will not be charged with the duty to keep as great a lookout for motorists as pedestrians generally must do. Whether a police officer exercised the proper degree of care is a factual issue ordinarily left to the jury.
III. PEDESTRIANS ON ROADWAYS
The rules of the road require that if a sidewalk is provided, a pedestrian may not walk along and on an adjacent roadway.25 Where, however, a sidewalk is not provided, a pedestrian walking along and on a highway may walk only on the left shoulder, if practicable, or on the left side of the roadway as close to the edge as practicable and facing any traffic which might approach from the opposite direction.26 Failure of the pedestrian to walk in said manner, however, does not constitute negligence as a matter of law or relieve a motorist of the duty to look for pedestrians.27 In Whitt, a pedestrian who was walking on the right side edge of the road, such that his back was facing oncoming traffic, was held not to be contributorily negligent as a matter of law in an action brought by him to recover for injuries when struck by an oncoming motorist. The court held that the statute requiring a pedestrian to walk on the left side of the road was designed primarily as protection for the pedestrian but was not designed to vary the obligation of the motorist to the pedestrian according to the side of the highway on which the pedestrian is walking or the direction in which he or she is facing. Thus, the court held that where no sidewalks exist, and a pedestrian is walking along the edge of the roadway, the doctrine of reciprocal rights applies.28 The motorist has at all times a duty to anticipate the presence of pedestrians and to avoid striking them, and a pedestrian has a duty to look for traffic travelling upon the same portion of the highway which they are using.29 In cases involving the doctrine of reciprocal rights, the location of the pedestrian is critical to a determination of liability. For example, in Schwarz v. Hathaway,30 a pedestrian was walking next to or straddling a motorcycle in the shoulder lane of an interstate highway when he was struck by a truck. There was no evidence that the pedestrian was in the travel portion of the roadway and, accordingly, the court held that as a matter of law there was no evidence of contributory negligence by the pedestrian.31 The reciprocal rights doctrine is further discussed in section II.A of this chapter.
IV. PEDESTRIANS CROSSING STREET
A. Generally
There is an abundance of Maryland law, both statutory and case law, dealing with the situation of a pedestrian being injured by an automobile while crossing a street. The key inquiry in such a case is whether the pedestrian was in or outside of a crosswalk. Under Maryland law, motor vehicles have the right of way over pedestrians between crosswalks, and a person who crosses a street between crosswalks is obligated to use the greatest of care to protect himself from injury.32 Conversely, a pedestrian has the right of way over motor vehicles in a crosswalk.33 Thus, whether the place where the pedestrian is struck is a "crosswalk" is extremely important.
B. Definition of a Crosswalk
A crosswalk may be either marked or unmarked. A marked crosswalk, as its name implies, is any part of a roadway that is distinctly indicated for pedestrian crossing by lines and markings.34 An unmarked crosswalk is that part of a roadway that is within the prolongation or connection of the lateral lines of "sidewalks" at any place where two or more...
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