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Rafael Flores v. Ronald Bell, et al. No. 65, September Term, 2006. APPEAL AND ERROR - HARMLESS ERROR: Court of Special Appeals judgment vacating jury verdict reversed. Submission of driveridentification question to the jury, answered in accordance with the parties' stipulation, did not prejudice respondent and in any case, assuming arguendo error, was harmless.

In the Circu it Court for A nne Aru ndel Cou nty Case No. 02-C-03-091859 MT

IN THE COURT OF APPEALS OF MARYLAND No. 65 September Term, 2006

RAFAEL FLORES v. RON ALD BELL , et al.

Bell, C.J. Raker *Wilner Cathell Battaglia Greene Bloom, Theodore G. (R etired, specially assigned), JJ.

Opinio n by Rak er, J.

Filed: March 20, 2007 * Wilner, J. now retired, participated in the hearing and conf erence of this case w hile an active membe r of this Court; after being recalled pursuant to the Constitution, Article IV, Section 3A, he also participated in the decision and adoptio n of this opinio n.

Respon dents Ronald and Melanie Bell filed an action sounding in negligence in the Circuit Court for Anne Arundel Cou nty against petitioner Rafael Flores, alleging that Flores negligently caused injury to Mr. Ronald Bell in an automobile accident on October 4, 2000. The issue before this court concerns a stipulation entered into by the parties before the trial began, and the impact this stipulation had on questions submitted by the trial court for consideration by the jury. At the conclu sion of a se ven-day jury trial in the Circuit Court for Anne Arundel County, the jury returned a verdict in favor of the Bells and awarded $5,329 in damages. The Bells appea led to the Court of Sp ecial Appeals, and, in an u nreported opinion, the court vacated the judgment and remanded the case to the Circuit Court for a new trial. We granted F lores' petition f or writ of certiorari to primarily address the following question:1 "On review of the trial court's decision to reserve ruling on a motion for judgment and submit an issue to the jury, can the Court of Special Appeals vacate a jury's verdict when, if it was error, it was harmless?" Flores v. B ell , 394 Md. 478 , 906 A.2d 942 (2006).

We also granted writ of certiorari to consider the following question: "Can the Court of Specia l Appe als, sua spon te , vacate a jury's verdict as a sanction against defense counsel for making a statement to the Circuit Court that it perceived to constitute a misrepresentation?" In light of our holding, we do not reach this question. We take no position as to whether defense counsel's conduct and statements constituted a misrepresentation, and we leave this issue to be considered in another forum.

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I. Ronald Bell was struck from behind while driving a van near Crofton, Maryland on October 4, 2000. Seventeen days later, on October 21, 2000, Mr. Bell was in a second automob ile accident. The Bells filed a Complaint against Flores for injuries that M r. Bell allegedly sustained in the first accid ent and filed a separate suit against a different party for injuries that M r. Bell claime d occurred in the secon d acciden t. Prior to trial, counsel for both sides orally agreed to stipulate that Flores was liable for the underlying accident. The stipulation was not reduced to writing, nor was it form ally placed on the record. During opening argument, the Bells' counsel informed the jury that the parties have "stipulated that -- and they admitted that it was Mr. Flores' fault." Flores' counsel, in opening argument, also acknowledged the stipulation for liability. Flores' counsel sta ted: "In this case, liab ility has been admitted. Why? B ecause Mr. Flores admits that he made a mistake. . . . For whatever reason, whether Mr. Flore s didn't pay en ough atten tion, took his eyes off the road, thought he had more time to stop than he did, for whatever that reason is, he couldn't stop in time to avoid an impact so an impact occurr ed. No w, he h as adm itted it. He has accepted responsibility for that and he comes before you today not to try to avoid responsibility, but to say that even though he is responsible for causing this impact . . . he is not responsible for this litany of medical expenses that you have just heard." In the Bells' case-in-chief, the investigating police officer at the scene identified Flores as the driver of the vehicle that crashed in to the Bells'. The officer, examined by the Bells' counsel, testified as follows: -2-

"Q. Who did you determine was operating the vehicles? "A. The gentleman sitting in the Defendant's seat . . . He was driving the passenger vehicle. The gentleman sitting next to you was d riving th e white van. ***** "Q. Off icer, testif ying f rom your report, can you tell us who was in which c ar? "A. Mr. R afael Flores was driving a Dodge Caravan, my correction, and Mr. Bell was driving a Ford van that was white in color." At the close of respondents' case and after the jury had been excused from the courtroom, Flores' cou nsel inform ed the trial court that he intended to make a motion. Before couns el articula ted the g round s for his motion , the trial co urt, sua spon te , raised the issue of whether the Bells had proven that Flores was driving the vehicle that hit the Bells' van. The following colloquy occurred: "[THE COURT]: For the record, th e Plaintiff ha s rested his case. I will consider a motion by the Defendant at this time. Let me ask you a question? Has anybody put the Defendant behind the wheel of the car that hit the Plaintiff from behind? "[FL ORE S' CO UNS EL]: N o, You r Hon or. "[THE COUR T]: I didn't think they did. Mr. Miklasz [the Bells' counsel], I don't think there is any evidence that puts that man b ehind th e whe el of the trailing c ar. "[FLORES' COUN SEL]: And it is on that basis, Your Hon or, that we would move for judgment in favor of the Defend ant, Mr. Flores.

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"[THE COUR T]: I have been waiting. ***** "[BELLS' COUNSEL]: Now, the Defendant has admitted liabi lity. They said that they have admitted liability in this case; they stipulated to liability. The question before the Court was for dam ages, an d that is w hat we were h ere for . . . . ***** "[THE COUR T]: Let me just say -- as you know -- Mr. Evans [Flores' Counsel] didn't even begin his motion, and I knew exactly what the motion would be about. And I have gone home from this five-day trial everyday thinking, "I wonder w hen Mr. Miklasz [the Bells' c ounsel] is go ing to put this Defendant behind the wh eel." ***** "[T HE CO UR T]: H ow a bout your adm issio n of liabi lity? "[FLORES' COUNSEL ]: We were careful. We admitted responsibility for the dam ages if the d amages w ere causally proven to have related from this accident. That is a difference between saying that we admitted that he was the driver on that day in the vehicle. He could be a third party resp onsi ble p arty, just like an insurer, or just like any other -- the parent of a minor child, saying that they will be responsible should the jury find that damages w ere causally related to an accident. But there is a distinction between that and saying that Mr. Flores was the operator of the vehicle in question at the time of the accident. Mr. Flores has not taken the stand, and was not called as an ad verse w itness in their cas e." The trial judge reserved ruling on Flores' Motion for Judgment and informed counsel that he would include a question on the verdict sheet asking the jury to determine whether Flores was the d river of the v ehicle that collided w ith the Bells' vehicle. The first question -4-

on the verdict sheet stated as follows: "Do you find that the P laint iffs have pro ven by a preponderance of the evidence that the D efendant, Rafae l Flores, was the operator of the second vehicle involved in the accident of October 4, 2000?" The Bells' counsel objected to includ ing the q uestion on the v erdict sh eet. The jury answered "yes" to the first question (driver-identification), "yes" to the second question (whether Ronald Bell's injuries were proximately caused by Flores' negligence), and aw arded $5 ,329 in damages: $2,149 for past medical expenses; $680 in lost wage s; $2,50 0 in non -econo mic da mage s; and $ 0 for lo ss of co nsortium .

II. It has long been the policy in this State that this Court will not reverse a low er court judgment if the error is harmle ss. Greenbriar v. Brooks, 387 Md. 683, 740, 878 A.2d 528, 563 (2005); Crane v. Dunn , 382 M d. 83, 91 , 854 A .2d 118 0, 1185 (2004 ). The burden is on the complaining party to show prejudice as well as error. 2 Greenbriar, 387 Md. at 740,

Courts may presume prejudice, under certain circumstances, although it is the exception rather than the rule. See, e.g ., Stokes v. State , 379 Md. 618, 638, 843 A.2d 64, 75 (2004) (holding that p resence o f alte rnate jurors d uring jury deliberations created a presumption of prejudice); Jenkins v. S tate , 375 Md. 284, 289, 825 A.2d 1008, 1011 (2003) (presuming prejudice based on improper contact during the trial between a juror and a police witness for the State); Murrell v. Baltimore , 376 Md. 170 , 197, 829 A.2d 5 48, 564 (2003) (violating procedure established in city code may present structural trial error whereby prejudice is presumed); Harris v. H arris , 310 Md. 310, 319-20, 529 A.2d 356, 360-61 (1987) (presuming prejudice where erroneously imposed disqualification deprives a litigant of the right to chosen counsel); King v. State Roads Co mm'n , 284 Md. 368, 372, 396 A.2d 267, 270 (contin ued...) -5-

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878 A.2d at 56 3; Crane , 382 Md. at 91, 854 A.2d at 11 85; Beahm v. Shortall , 279 Md. 321, 330, 368 A.2d 1005, 1011 (19 77). Precise standards f or determin ing prejudic e have no t been established and depend upon the fac ts of eac h indiv idual ca se. Fry v. Carter, 375 Md. 341, 356, 825 A.2d 1042, 1050 (2003); see also State Deposit v. Billman, 321 Md. 3, 17, 580 A.2d 1044, 1051 (1990) (reiterating that appellate court balances the probability of prejudice from the face of the extraneous matter with the circumstances of the particular case). Prejudice can be

demonstrated by showing that the error was likely to have affected the verdict below; an error that does not affect the outcome of the case is harm less erro r. Crane , 382 Md. at 91, 854 A.2d at 1185; Beahm , 279 Md. at 331, 368 A.2d at 1011 (1977). We have also found reversible error when the prejudice was sub stantial. Fry , 375 Md. at 356, 825 A.2d at 1050. The focus of our inquiry is on the probability, not the possibility, of prejudice. Crane , 382 Md. at 91, 854 A.2d at 1185; Harford Sands, Inc. v. Groft , 320 Md. 136, 148, 577 A.2d 7, 12-13 (1990). We discu ssed the standard of review in civil cases in Crane, 382 Md. 83, 854 A.2d 1180, noting as follows: "Prejudice will be found if a showing is made that the error was likely to have affected the verdict below. `It is not the poss ibilit y, but the probability, of prejudice which is the object of the appellate inquiry.' `Cour ts are reluctan t to set aside verdicts for errors in th e admission or exclusion of evidence

(...continued) (1979) (noting that prejudice may be p resumed wh ere deviation from pre scribed court proced ure imp airs or de nies fu ll exercis e of pe rempto ry challen ges). -6-

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unless they cause substantial injustice.' Substantial prejudice must be shown. T o justify the reversal, an error below must have been `. . . both manifestly wrong and su bstantially injurious.'" Id. at 91-92, 854 A.2d at 1185 (citations omitted).

III. Petitioner argues that, even if the trial court erred by subm itting the driveridentification issue to the jury, the error, if any, was harmless because respondents suffered no prejud ice. Petitioner further asserts that, because the error was harmless, it was improper for the Court of Special A ppeals to vacate the jury's verdict. Respondents reply that the trial court erred in submitting any issue other than dam ages to the jury because the jury had been advised that liability was not contested and it was not disputed that Flores was the driver of the vehicle. Respondents assert also that submitting the driver-identification issue to the jury resulted in substantial prejudice, as evidenced by the small amount of damages awarded in relation to the damages proved. Respon dents claim that submitting the driver-identification issue to the jury was reversible error. We need not decide whether the trial court erred, because, assuming arguendo that it was error for the trial court to submit the first question to the jury, the ultimate question is whether prejudice resulted. Respon dents rely on Fry v. Ca rter , 375 M d. 341, 825 A.2d 1042, to support the assertion that the driver-identification question was prejud icial because it distracted the jury -7-

from focusing on the determination of damages. In Fry , a traffic control manager was killed alongside a highway when he was struck by roof trusses extending over the side of a passing flat-bed tractor-tr ailer. Id . at 344, 825 A.2d at 1043. The issue in Fry was whether the defendant tractor-trailer driver was negligent, not whether the defendant could have avoided the accident at the last minute. Id. at 355, 825 A.2d a t 1050. Nevertheless, the trial court instructed the jury on unavoidable accidents. Id. We held that it was e rror for the trial court to give an unavoidable accident instruction in a ne gligenc e action . Id. at 347, 825 A.2d at 1045. Moreover, we held that the instruction was prejudicial and constituted reversible error. We stated as follows: "The unavoidable accident instruction was prejudicial because it permitted the jury to specu late as to wh ether [the d efendan t] could have a voided the acc ident at th e last min ute . . . Suggestin g to the jury that it could decide the case on the grounds that the event was unavoidable was misleading because it diverted juror attention from the pivotal issue in the case -- negligence. The verdict in this case was a general verdict; thus it is unclear h ow the ju ry reached its verdict. The jury might have relied upon the unavoidable accident instruction as a basis for its verdict. " Id . at 356, 8 25 A.2 d at 105 0 (citatio ns omi tted) (em phasis a dded). Respon dents argue that the reasoning in Fry applies to the case sub judice because the jury was distracted from the issue of damages when it had to consider an issue conceded and resolved throug h stipula tion. W e disag ree. Fry addressed an imp roper jury instruction and the case sub judice concerns a question s ubmitted to the jury. More over, it was u nclear in Fry how the jury reached its verdict because it was a general verdict. Because we were -8-

unable to determine the conclusions utilized by the ju ry in making its decision, it was possible and probable that the jury relied on the improper instruction as a basis fo r its verdict. In the instant case, there was a spe cial verdict. The special verdict sheet req uired that the jury provide a separate an swer to the driver-identif ication que stion. The ju ry's verdict to this question was in favor of respon dents and , even if sub mitting the question to the jury was error because the issue had been resolved by stipulation, there is nothing in this record, other than the verdict itself, to suggest that the question distracted the jury from reaching a fair and proper verdict on the question of damages. The question did not prejudice respondents. Respondents, as well as the Court of Special Appeals, rely on Bloom v. Graff , 191 Md. 733, 63 A.2d 313 (1949). In Bloom , the parties stipu lated in open cou rt that "if a verd ict is found in favor of the plaintiff it should be in the amount of $896.09." Id. at 736, 63 A.2d at 315. In instructing the jury, however, the trial court stated that "[i]f you want to find for the plaintiffs you don 't have to bring in a verdic t of $86 9.09." Id. The jury rendered a verdict in favor o f the pla intiff fo r $250 . Id. at 735, 63 A.2d at 314. We held that it was error for the court to a llow the jury to find contrary to the agreement of the parties and we entered a final jud gmen t for $8 69.09. Id. at 737, 6 3 A.2d at 315. The Co urt of Spe cial Appe als concluded that "[a]s in Bloom, the circuit court erred by ignoring the stipulation between [the Bells] and Flores." The instant case and Bloom are markedly different. In Bloom , the trial court told the jury it could disregard the partie s' stipulation and that it could render a verdict contrary to the parties' agreement. In the case

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sub judice, the trial c ourt merely submitted a question to the jury, and the jury returned a verdict c onsisten t with th e stipula tion. Th ere wa s no pre judice. Submission of issues or questions to the jury does n ot necessar ily constitute revers ible error, partic ular ly when the question is answ ered in favor of the co mplaining party. In Kruszewski v. Holz , 265 Md. 434, 290 A.2d 534 (1972), the trial court submitted a question to the jury although the information sought by the question was unconte sted. Spe cific ally, the trial court asked, "Did Dr. Richard G. Holz obtain [appellant's] consent through misrepresentation?" Id. at 446, 290 A.2d 541. Appellant in that case argued that it was conceded on her part that Dr. Holz did not deliberately lie no r intentionally misrepresent the facts in order to o btain her consent to the operatio n. Id. at 446-47, 290 A.2d 541. Appellant further asserted that the question should not have be en subm itted to the jury bec ause it prejudiced her cause for the jury to think she was making the contention referenced in the questio n. Id. at 447, 290 A.2d 541. This Court held that it was not reversible error for the trial court to submit the question to the jury because the "question had to be answered in the negativ e." Id. Moreover, we stated that, "[w]e think her apprehension on this point is totally unwarranted." Id. The facts and rationale of Kruszewski are applicable to the instant case. Here, responde nts are concerned that submission of the driver-identification question prejudiced their cause by confusing the jury, about the stipulation and evidence on one hand and the court's questions on the other. Respondents assert that the confusion manifeste d itself in a

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substantially reduced v erdict. 3 Nevertheless, the jury answere d the ques tion in accordance with respondents' view of the stipula tion, and ther e is no evidence on the record indicating that the damages award was influenced by the submission of the driver-identification question. As in Kruszewski, it was not reversible error to include the driver-identification question on the jury verdict shee t. The driver -identification question, an swered in

accord ance w ith the pa rties' stipu lation, di d not pr ejudice respon dents.

JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED. CASE REM ANDED TO T H AT COURT WITH DIRECTIONS TO AFFIRM THE JUDGMENT OF THE CIRCU IT COURT FOR AN NE ARUNDEL COUNTY. COSTS IN THIS COURT AND IN THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPOND ENTS.

The jury was responsible for determining the injuries and resulting damages related to Ronald Bell's accident with Flores as opposed to Bell's second accident, which occurred seventeen days later. This was a complicated issue, but it is not probable that submission of the driver-identification question affected the jury's ability to determine damages. -11-

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