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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1040 SEPTEMBER TERM, 2004

WILLIAM BARRETT v. JAMES NWABA

Davis, Kenney, Meredith, JJ.

Opinion by Kenney, J.

Filed: October 31, 2005 3C020011597

William Barrett appeals the judgment of the Circuit Court for Baltimore County denying his partial motion for judgment on the issue of James Nwaba's primary negligence under the Maryland boulevard rule. Barrett presents one question for our review,

which we have slightly reworded: Did the circuit court err in motion for judgment? denying his

Because we answer that question in the affirmative, we shall reverse the judgment of the circuit court. FACTUAL AND PROCEDURAL HISTORY William Barrett and James Nwaba were involved in a two car collision on January 9, 2002, at approximately 5:40 p.m. Barrett In

was traveling eastbound on Eastern Avenue in Essex, Maryland.

the area of the collision, Eastern Avenue has two eastbound lanes. A median separates the eastbound traffic from the westbound.

Barrett was following a large tractor trailer in the right-hand lane, when both vehicles stopped at a red light at, or before, the intersection of Eastern and Southern Avenues.1 turned When the light

green, Barrett passed the truck in the left-hand lane, and

Officer Bruce Pfeiffer testified that there are two traffic signals on Eastern Avenue approximately one-eighth of one mile before the Crown gas station, from which Nwaba was exiting. The two signals are separated by approximately 100 feet. The signal closest to the gas station is at the intersection of Eastern and Southern Avenues, and the signal immediately to the west is at the intersection of Eastern and Ashby Avenues. At trial, Barrett testified that he stopped on Eastern Avenue at the first of the two traffic signals, "before Southern [Avenue]." Nwaba "believed" that the tractor trailer was stopped at the Southern Avenue signal.

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then merged back into the right-hand lane.

Barrett's vehicle was

struck in the rear passenger door by Nwaba's vehicle as Nwaba attempted to exit a gas station and to turn right onto Eastern Avenue. The collision occurred approximately one-eighth of one

mile from the Southern Avenue intersection. As a result of the accident, Barrett incurred various

expenses, including substantial medical bills.

On September 4,

2002, Barrett filed a complaint in the District Court of Maryland for Baltimore County, alleging that Nwaba had negligently caused the accident. He sought $25,000 in damages. The case was removed

to the Circuit Court for Baltimore County, where a jury trial commenced on March 4, 2004. At trial, Barrett testified that he passed the truck and traveled four to five car lengths ahead of it before merging back into the right-hand lane. According to Barrett, his entire vehicle had re-entered the right-hand lane and he had driven another three or four car lengths before being struck in the rear passenger's door. Following the collision, Barrett's vehicle ended up in the Barrett

left lane of Eastern Avenue and struck the center median.

recalled that the collision was "pretty hard," and that he was "knocked unconscious." He sustained injuries to his jaw, neck, and back. Following the accident, Barrett experienced headaches and

"popping" of his jaw, which he had not experienced before.

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On cross-examination, Barrett said that, although he intended on exiting Eastern Avenue onto North Point Boulevard, which was only two to three blocks from the traffic signal, he passed the truck because he "was not going to wait. just sitting there. He [the truck driver] was

When he started taking off, you could see he The

had such a heavy load, I just proceeded to go around him."

truck had only traveled two to three car lengths from the traffic signal before he was able to pass it and re-enter the right-hand lane. Barrett did not see Nwaba's vehicle before the accident. Nwaba testified regarding the scene of the accident with the aid of a diagram.2 He explained that there were two driveways

leading into the gas station, an entrance near Southern Avenue, and an exit farther east near Fairview Avenue. He "guessed" that there was a traffic signal at the intersection of Southern and Eastern Avenues and believed that the tractor trailer was stopped there. According to Nwaba, he was attempting to exit onto Eastern Avenue from the driveway near Fairview Avenue. Before exiting, he looked

to his left and saw only the tractor trailer in the right-hand lane.3 He then looked to his right and again to his left, and,

believing that it was safe to exit, he proceeded to pull out of the

This diagram was not marked for identification and was not offered for admission into evidence. The diagram used by Nwaba, or a copy thereof, is not included in the record. Nwaba indicated the location of the tractor trailer in his diagram of the accident scene by "draw[ing] . . . a big rectangle." -33

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gas station into the right-hand lane.

As he exited at "snail's

speed," Nwaba heard a "bump." At the time of collision, only onehalf of Nwaba's vehicle had entered onto Eastern Avenue. Nwaba

never saw Barrett's vehicle or, aside from the tractor-trailer, any other eastbound vehicles on Eastern Avenue. During cross-

examination, Nwaba acknowledged that Eastern Avenue was illuminated by artificial light from the gas station so that he could see oncoming traffic. Following the collision, Nwaba's vehicle came

to a stop across Eastern Avenue on the curb near Fairview Avenue. The final witness to testify was Officer Bruce Pfeiffer. He

arrived at the scene shortly after the collision, and found the two vehicles close to the median strip in the left-hand lane. He

explained that directly before the gas station there are two traffic signals on Eastern Avenue, which were separated by

approximately 100 feet.

The signal immediately before the gas

station was located at Southern Avenue and further west, there is a signal at Ashby Avenue. accident occurred According to Officer Pfeiffer, the one-eighth of one mile from

approximately

Southern Avenue.

From the "debris scatter," Officer Pfeiffer

determined that the "area of impact" was "nine foot ten inches north of the south curb of Eastern [Avenue]," and that the righthand lane "at that particular location is nineteen f[ee]t eight inches wide." There were no skid marks at the scene of the

accident. Following the collision, Officer Pfeiffer testified that

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Barrett's vehicle traveled eighty-seven feet before coming to a stop at the center median. When Officer Pfeiffer interviewed Barrett at the hospital, Barrett reported that he was proceeding east on Eastern Avenue when he stopped at the traffic light at the intersection of Southern and Eastern Avenues. When the signal permitted, Barrett continued east when a car reportedly pulled from the gas station and struck his vehicle in the passenger side. Although Officer Pfeiffer made a

diagram from his accident investigation, the diagram, marked for identification as Defendant's Exhibit 11, was not admitted into evidence. Officer Pfeiffer did not testify as an expert and gave

no opinion as to the cause of the accident. At the close of all evidence, Barrett moved for partial judgment on the issue of Nwaba's primary negligence pursuant to Maryland Rule 2-519.4 He argued that the undisputed evidence

established that he was in the right-hand lane for three to four car lengths at the time Nwaba pulled onto Eastern Avenue and struck his vehicle. Maryland Code Therefore, the Maryland boulevard rule, codified at (1977, 2002 Repl. Vol.),

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