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REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 2039 September Term, 2010

MARJORIE GAYLE HENDRIX v. CHARLES ROBERT BURNS, ET UX.

Eyler, Deborah S., Meredith, Woodward, JJ.

Opinion by Eyler, Deborah S., J.

Filed: March 29, 2012

Marjorie Gayle Hendrix, the appellant, was injured in an automobile accident caused by Charles Robert Burns, one of the appellees. In the Circuit Court for Baltimore County, Mrs. Hendrix sued Mr. Burns and Candice Marie Burns, his wife, the other appellee, alleging battery and negligence against Mr. Burns and negligent entrustment against Mrs. Burns. Mrs. Hendrix prayed a jury trial. Before trial, the court granted summary judgment on the battery claim and Mr. and Mrs. Burns admitted liability on the negligence claims against them. The trial court granted motions in limine that precluded Mrs. Hendrix from

introducing certain evidence and making certain information known to the jury, as we shall discuss below; it also granted a motion to strike an amendment to the complaint. The case was tried to the jury solely on damages, for four days. The jurors returned a verdict in favor of Mrs. Hendrix for $85,000. Unhappy with the outcome, Mrs. Hendrix noted an appeal, posing four questions for review, which we have combined and reworded as follows: I. Did the circuit court err in granting summary judgment on the battery claim? Did the circuit court err or abuse its discretion by granting motions in limine that precluded the admission of certain evidence? Did the circuit court abuse its discretion by granting Mrs. Burns's motion to strike Mrs. Hendrix's amendment to the complaint?1

II.

III.

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The questions as framed by Mrs. Hendrix are:

1. Did the lower court err in granting summary judgment in favor of the Defendant/Appellee, Charles Robert Burns, on Appellant's claim of battery by automobile, where the record established that this Appellee was engaged in a high-speed "road rage"pursuit of another motorist on a heavily traveled
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We shall affirm the circuit court's judgment.

FACTS AND PROCEEDINGS
The automobile accident that gave rise to this lawsuit took place on July 25, 2005, at approximately 5:30 p.m., at the intersection of Belair Road and Glen Park Road, which at its western terminus is the entry to a shopping center. The intersection is controlled by a traffic light.

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thoroughfare, accelerated through a red traffic signal while chasing that motorist and then collided with Plaintiff/Appellant's vehicle as she lawfully proceeded through an intersection on a green light? 2. Did the total blackout imposed by the lower court at trial regarding both the assertion of, and the factual basis for, Appellant's claim for negligent entrustment against Appellee, Candice Marie Burns, violate Appellant's right to a fair, open and public jury trial and also operate to confuse and/or mislead the jury by preventing it from knowing the nature of and the factual basis for Appellant's cause of action against Ms. Burns? 3. Where the evidence of Appellees' pre- and post-crash conduct was relevant and material to the cause, the nature and extent of Appellant's claim for "noneconomic" damages for mental anguish and emotional distress ("psychic injury") resulting from her awareness that conduct, and given the nature of Appellant's career employment, did the lower court err, abuse its discretion and violate Appellant's right to a fair trial when granting the Appellees' Motion in limine to totally exclude all of the evidence at trial that formed the basis for that claim? 4. Where Appellant amended her Complaint against Appellee, Candice Marie Burns, more than thirty days prior to trial, in order to plead additional factual information that had been developed incident to pre-trial discovery proceedings, did the lower court err and abuse its discretion in granting Appellee's motion to strike Appellant's Amendment to her Complaint that alleged that additional information? 2

Mr. Burns was driving south on Belair Road, in a Jeep Cherokee. The traffic light at Glen Park Road was red in his direction, and at least one car was stopped at the light. Mr. Burns failed to stop for the red light and drove through the intersection. At the same time, Mrs. Hendrix was driving her Toyota Corolla through the intersection, in an easterly direction on Glen Park Road, having just exited the shopping center. The light was green in her favor when she entered the intersection, and remained so as she traveled through it. In the intersection, Mr. Burns's Jeep struck the rear driver's side of Mrs. Hendrix's Toyota, causing the Toyota to spin around at least once and almost hit another vehicle head-on. In the collision, Mrs. Hendrix sustained injuries to her neck, shoulders, chest, and abdomen and suffered emotional injuries, including thinking she would not survive. The Jeep Mr. Burns was driving was owned by Mrs. Burns. She allowed her husband to use it, with her knowledge and permission, on a regular basis. Mr. Burns had a history of substance abuse, a criminal record, and a record of driving violations. On the day of the accident, he had consumed alcohol. After the collision, he initially tried to leave the scene in his damaged Jeep, but did not get far, and walked back to the accident location. He was taken into custody and charged with reckless driving, driving while under the influence of alcohol, driving while impaired by alcohol, and related offenses. On November 1, 2005, also in the Circuit Court for Baltimore County, Mr. Burns was tried on an agreed statement of facts and was found guilty of driving while under the influence of alcohol and reckless driving. The State nolle prossed the remaining charges. Mr. Burns was sentenced to 18 months in prison, all but three months suspended, one year probation, a $250 3

fine for driving while under the influence of alcohol, and a $100 fine for reckless driving. On December 15, 2005, Mr. Burns's sentence for driving while under the influence of alcohol was reduced to 16 days in prison with 18 months probation and a $250 fine. On October 22, 2007, Mrs. Hendrix filed suit in the case at bar. As noted, before trial, the court granted summary judgment in favor of Mr. Burns on the battery claim; thereafter, and also before trial, Mr. Burns and Mrs. Burns each conceded liability for the claims against them (negligence against Mr. Burns and negligent entrustment against Mrs. Burns), leaving damages as the sole issue for decision by a jury.2 With knowledge that the Burnses each were conceding liability, the trial court granted motions in limine that precluded Mrs. Hendrix from introducing evidence that, in the time leading up to the accident, Mr. Burns had been drunk; had been involved in a "road rage" incident with another driver and was pursuing that driver when he ran the red light at the intersection; had attempted to flee after the accident; and had a criminal record that included DUI convictions. In a related decision, the trial court ruled that the jury could not be informed in opening statement (or in any other way) of the precise nature of the negligent entrustment claim for which Mrs. Burns had conceded liability, nor could Mrs. Hendrix introduce evidence of the facts underlying the negligent entrustment claim, i.e., the events in Mr. Burns's past that were known to his wife and gave rise to a duty on her part not to entrust the Jeep to him.

In a deposition on April 22, 2009, Mr. Burns had conceded, through counsel, "that [he] was the negligent cause of this accident" and had waived the affirmative defenses of contributory negligence and assumption of the risk. By letter of October 26, 2009, Mrs. Burns had conceded, through counsel, liability for negligent entrustment. 4

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On August 26, 2010, Mrs. Hendrix filed an amended complaint, changing the negligent entrustment count to add allegations of intentional misconduct on the part of Mrs. Burns. Mrs. Burns filed a motion to strike the amendments. The trial took place beginning September 29, 2010. At the outset, the court granted Mrs. Burns's motion to strike the portion of the complaint that had been amended. After jury selection, and before opening statements, the court gave introductory instructions to the jury, including that Mr. and Mrs. Burns had conceded liability. In that regard, the court told the jurors: Members of the panel, I wanted to also instruct you at the beginning here that this matter is before you with respect to damages for personal injuries sustained by [Mrs. Hendrix], and that the defendants [Mr. and Mrs. Burns] . . . have essentially stipulated to liability in this case so this is not an issue that you need to decide as to the accident and who caused the accident. It's a question as to the damages alleged to be sustained by [Mrs. Hendrix] and what amount that would be, you know, with respect to that. Mrs. Hendrix called Captain Jason Hahn of the Baltimore County Fire Department, who testified that he was the first emergency responder on the scene of the accident and called for a rescue team to extract Mrs. Hendrix from her damaged car. Gary Lay, an Emergency Medical Technician ("EMT"), testified that he arrived five minutes after the accident had happened. By then, Mrs. Hendrix had been removed from her vehicle. She was complaining of pain in her left shoulder, left flank, back, head, chest, left abdominal region, and neck. She had a half-inch laceration on her head. She was conscious and alert. EMT Lay examined Mrs. Hendrix, immobilized her neck, and transported her to The Johns Hopkins Bayview Medical Center. 5

Steven Hendrix, Mrs. Hendrix's husband, testified that when he arrived at the scene of the accident his wife already was in the ambulance and was complaining of "excruciating" pain. They went to the hospital and returned home early the next morning. They had to ask family members to come and help take care of Mrs. Hendrix. At the time of trial, Mrs. Hendrix still was experiencing neck pain. On cross-examination, Mr. Hendrix acknowledged that his wife's bruises went away after several months, and that she recently had traveled to Ireland for two weeks. Officer Ronald Leard of the Baltimore County Police Department also was called by Mrs. Hendrix. He testified that he was assigned to investigate the accident. He was not able to determine the speed of either vehicle prior to the impact. Mrs. Hendrix called two independent eyewitnesses. The first, Harry Monios, testified that he was driving a truck next to Mrs. Hendrix's vehicle at the time of the accident and saw the Jeep "fly" through the intersection. The Jeep hit Mr. Monios's truck and then "slammed into [Mrs. Hendrix's] car" and "spun it around." The second eyewitness, Ryan Cannon, testified that he also saw the accident happen. He saw the Jeep drive through the red light on Belair Road. He estimated that it was traveling at about 30 miles per hour. Mrs. Hendrix called Mr. Burns as an adverse witness. Mr. Burns testified that he remembered traveling through the intersection and that right before the crash he was driving at 45 miles per hour, which was the speed limit for that segment of Belair Road. Before he reached the intersection, he saw the traffic light turn yellow and attempted to slow down. He did not see any vehicles in the intersection until the time of impact. 6

Mrs. Hendrix's neighbor, Tracey Myers, a nurse, testified that she helped Mrs. Hendrix care for herself at home for several weeks after the accident. Nurse Myers observed extensive bruises that were "almost black" on Mrs. Hendrix's chest, breasts, belly, and sides in the days after the accident. She described Mrs. Hendrix as "a very caring and vibrant woman" who became "very despondent and very depressed that she could not do for herself and could not do for others as she has normally done." At the time of the accident, Mrs. Hendrix was employed at the Baltimore County 911 call center. Her friend and co-worker, Amy Siedlecki, testified that, after the accident, Mrs. Hendrix was unable to enjoy hobbies such as working in her garden, photography, or even reading a book. Another friend and co-worker from the 911 call center, Carol Redding, testified that Mrs. Hendrix was unable to work for two months after the accident. Ms. Redding called Mrs. Hendrix twice during that two month period, but Mrs. Hendrix was unable to come to the phone the first time and could speak for less than a minute the second time because it hurt too much to hold the phone to her ear. Ms. Redding observed that Mrs. Hendrix still had severe bruises when she returned to work, and had much less enthusiasm for her work than before the accident. Mrs. Hendrix's daughter, Stephanie Staats, testified that her mother had been very involved in caring for Staats's daughter after she was born in April 2005, but after the accident she was unable to hold the baby or otherwise help. Mrs. Hendrix also called Nathan Rosenblum, M.D., a board certified internist, who had been her treating physician since 1993 and had continued to treat her after the accident. Dr. Rosenblum testified about Mrs. Hendrix's health before the accident and the progression 7

and treatment of her injuries after the accident. Dr. Rosenblum's testimony consumes 125 pages of the trial transcript. Mrs. Hendrix testified on her own behalf. She described the events surrounding the accident. Immediately before the collision, she was in her Toyota Corolla facing east at the traffic light at the exit of the shopping center, perpendicular to Belair Road. The light was red, and then turned green. She hesitated after the light turned green and then proceeded through the intersection. She did not see the Jeep coming. She heard "boom boom" and her car started spinning toward another car. She slammed on her brakes and her car stopped just short of hitting the other car. Mrs. Hendrix further testified that, after the accident, she had trouble doing her job. She had worked at the 911 call center for 26 years as an operator, a position that involves sitting at a desk and typing data into a computer for long hours. On September 9, 2009, she retired. She testified that she could no longer garden or redecorate or even clean her house as much as she could before the accident. She had hoped that upon retirement she would develop a second career as a photographer, but she could not do so because the injuries she sustained in the accident made her unable to carry a camera around her neck. Her relationship with her granddaughter had been interrupted because of her injuries. On crossexamination, Mrs. Hendrix acknowledged traveling to Ireland for 10 days in 2009, taking two cruises, spending a long weekend in Ocean City, and taking a trip to Las Vegas with her daughter in March 2010. Over the course of the trial, Mrs. Hendrix moved into evidence photographs of her 8

family, the accident scene, the damage to her car, and the bruises on her abdomen, chest, and neck. Mr. and Mrs. Burns did not present any evidence. As noted, the trial lasted four days. After deliberations, the jury returned a verdict in favor of Mrs. Hendrix and against Mr. and Mrs. Burns for $85,000. Not satisfied with that award of damages, Mrs. Hendrix noted a timely appeal from the judgment entered on the verdict. We shall add pertinent facts as relevant to our discussion of the issues.

DISCUSSION
I. Summary Judgment On The Battery Claim As mentioned above, one of Mrs. Hendrix's claims against Mr. Burns was for battery. At the close of discovery, Mr. Burns filed a motion for summary judgment on that claim and requested a hearing. He argued that the facts most favorable to Mrs. Hendrix on the summary judgment record were legally insufficient to prove that he had intentionally struck her, which, he asserted, is an essential element of the tort of battery. He complained that, given that the defendants had conceded liability for negligence, the battery claim was being used as a means to introduce evidence on "the issue of alcohol and other alleged outrageous conduct," in an attempt to recover punitive damages. Mrs. Hendrix filed an opposition to the motion, arguing that the issue of Mr. Burns's intent was a factual question that "plainly [was] in dispute," and should be decided by a jury 9

on the basis of credibility. In support of her opposition, Mrs. Hendrix submitted affidavits by eyewitnesses Ryan Cannon and Harry Monios. She asserted that the affidavits showed that Mr. Burns had been engaged in "road rage" behavior immediately before the accident, which conduct was sufficient to prove intent and therefore establish liability for battery. She also argued that, even if that evidence was not sufficient to show an intent on Mr. Burns's part to harm her, it was sufficient to show an intent on his part to harm the person with whom he was engaged in the "road rage" incident and, under the doctrine of transferred intent, that would be sufficient intent to support a civil battery claim. In the affidavit by Ryan Cannon, he attested that he was driving south on Belair Road along the same route as Mr. Burns and at the same time. He first noticed Mr. Burns's Jeep at the intersection of Belair and Mountain Roads, which is about six miles north of the collision site. Mr. Burns was driving erratically, with his Jeep weaving between lanes of traffic in tight spots between other vehicles. Just south of Reckord Road, Mr. Burns began "tailgating" a Toyota Camry, at one point speeding around it and then slamming on his brakes, coming almost to a complete stop in front of it. The Camry just missed hitting the back of the Jeep. A few minutes later, Mr. Cannon witnessed Mr. Burns repeat the exact same actions toward the Camry. All the vehicles on that side of Belair Road continued to drive south. Mr. Burns's Jeep passed Mr. Cannon's vehicle at Sunshine Avenue. At that point, Mr. Burns was driving between 80 and 90 miles per hour. Mr. Cannon wrote down the Jeep's license plate number and called 911. Mr. Cannon continued driving south on Belair Road and then observed Mr. Burns's 10

Jeep in a southbound left turn lane at Forge Road, behind the Camry. Mr. Cannon saw Mr. Burns get out of the Jeep, walk over to the driver's side window of the Camry, and give the Camry driver an angry look. The Camry driver quickly maneuvered his car out of the left turn lane and back onto southbound Belair Road, passing Mr. Cannon's vehicle. This took place not far north of the location of the collision. As Mr. Cannon approached the intersection of Belair Road and Glen Park Road, he saw the Camry, ahead of him, drive through the intersection. The light turned red and Mr. Cannon stopped his car. He then looked in his rear view mirror and saw Mr. Burns's Jeep "approaching my vehicle . . . at a high rate of speed attempting to catch up with the Toyota Camry that had already driven through the intersection." Mr. Cannon saw a compact blue vehicle (which turned out to be Mrs. Hendrix's car) driving east on Glen Park Road, at about 5 to 10 miles per hour, having just left the shopping center. He then saw Mr. Burns drive his Jeep through the red light at the intersection, at a high rate of speed.3 The front of the Jeep hit the left rear of the compact car. Mr. Burns made no attempt to stop the Jeep before running the red light. After the accident, Mr. Burns got out of the Jeep briefly, got back in, and then tried to drive off, but the Jeep would not move. He then returned on foot to the site of the collision.

There is nothing in the record to explain why, in his affidavit, Mr. Cannon attested that Mr. Burns drove through the intersection at a high rate of speed, but at trial he testified that Mr. Burns drove through the intersection at 30 miles per hour. The discrepancy does not matter for purposes of our deciding whether the court erred in granting summary judgment on the battery claim, as we confine our review of that issue to the summary judgment record. 11

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In his affidavit, Harry Monios attested that, just before the collision, he was stopped in his vehicle -- a truck with a large trailer attached -- at the shopping center exit. He was facing east, perpendicular to Belair Road, and the light was red in his direction. A small Toyota (Mrs. Hendrix's car), which he described as silver, also was waiting at the red light, in the lane to his right. The light turned green, and he started to drive into the intersection. Mrs. Hendrix entered the intersection before he did. At that point, the Jeep drove through the red light on Belair Road, grazing Mr. Monios's truck and hitting Mrs. Hendrix's car. When the Jeep entered the intersection, the light had been red for drivers on Belair Road for "at least four or five seconds." Mr. Burns made no effort to stop for the red light. After the collision, Mr. Burns tried to flee the scene, without success. The court granted Mr. Burns's motion for summary judgment on the battery claim in a written ruling, stating, in relevant part: Affidavits filed in Opposition to the Motion for Summary Judgment show, in addition to negligence, that Charles Robert Burns may have had an ongoing dispute (road range [sic]) with a Camry automobile over a 6 mile distance as he and the Camry were traveling South on Belair Road. . . . According to the Plaintiff, this creates a jury question as to whether there was an intentional act against the Plaintiff in this case, who was not involved in the 6 mile South episode and who was hit by Burns as she crossed perpendicular to Burns at an intersection where Burns admits he did not stop as he should have to avoid the collision with the Plaintiff. Based on the argument, transcripts, and affidavits presented, I do not see sufficient facts to allow the Plaintiff to withstand summary judgment. Opposition facts show no intent against the Plaintiff so as to constitute a battery and no facts to support any theory of transferred intent that would constitute a battery. (Emphasis added.)

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Later, Mrs. Hendrix filed a motion for reconsideration, and another judge overruled that ruling, determining that summary judgment should not have been granted on the battery claim. Finally, yet a third judge reconsidered the motion for summary judgment, and reinstated the original ruling granting summary judgment in favor of Mr. Burns on the battery claim. That ruling stood. We review de novo a circuit court's decision to grant a motion for summary judgment. Poole v. Coakley & Williams Constr., Inc., 423 Md. 91, 108-09 (2011) (quoting Walk v. Hartford Cas. Ins. Co., 382 Md. 1, 14 (2004)). Essentially, we engage in the same two-part legal decision-making in which the circuit court engages when it is making its decision under Rule 2-501. See Jurgensen v. New Phoenix Atl. Condo. Council of Unit Owners, 380 Md. 106, 113-14 (2004). We determine first whether there is any genuine dispute of material fact. Appiah v. Hall, 416 Md. 533, 546 (2010). A material fact is one the decision about which will affect the outcome of the claim. Debbas v. Nelson, 389 Md. 364, 373 (2005) (quoting Todd v. Mass Transit Admin., 373 Md. 149, 155 (2003)). If there is a genuine dispute of material fact, summary judgment is not proper, and, on review, we shall reverse the decision to grant it. See, e.g., Thompson v. Balt. Cnty., 169 Md. App. 241 (2006) (reversing grant of summary judgment because of genuine dispute of material fact). If there is no genuine dispute of material fact, we then consider whether, on the undisputed material facts, the moving party is entitled to judgment on the claim as a matter of law. See 120 W. Fayette St., LLLP v. Mayor and City Council of Balt. City, 413 Md. 309, 328-29 (2010); Hill v. Knapp, 396 Md. 700, 711 (2007); O'Connor v. Balt. Cnty., 382 Md. 102, 110-11 (2004). If the 13

answer to that question is yes, we shall affirm the grant of summary judgment. See, e.g., Piscatelli v. Smith, 424 Md. 294 (2012) (affirming grant of summary judgment where opposing party failed to adduce facts that would demonstrate a genuine dispute of material fact and moving party was entitled to judgment as a matter of law). On appeal, Mrs. Hendrix argues that the facts in the summary judgment record taken most favorably to her battery claim did not entitle Mr. Burns to judgment as a matter of law. She maintains that the court erred in ruling that the tort of battery requires a showing of what she calls "specific intent" by the tortfeasor to cause harm to the plaintiff. She also argues that, to the extent that proof of intent to harm the plaintiff is required, there was evidence that Mr. Burns intended to harm the driver of the Camry, and that a jury could transfer that intent to harm to her, under the doctrine of transferred intent. Mr. Burns counters that the affidavits submitted by Mrs. Hendrix were conclusory and therefore would not constitute admissible evidence at trial, including the so-called evidence of intent. Alternatively, Mr. Burns argues that, even if the facts in the affidavits of Mr. Cannon and Mr. Monios were admissible in evidence, they were legally insufficient to show that he intended to cause a harmful or offensive contact with Mrs. Hendrix, which is the necessary intent element of the tort of battery; and that intent to cause a harmful or offensive contact cannot be proven even by conduct that is reckless or wanton. He further argues that, in Maryland, the doctrine of transferred intent only has been applied in criminal cases, and not to the tort of battery; and that, even if that doctrine were to apply, there was no evidence in the summary judgment record of an intent on his part to cause a harmful or offensive 14

contact with the driver of the Camry, so there was no evidence of a legally sufficient intent that could be transferred to Mrs. Hendrix. Finally, Mr. Burns asserts that, if there was error on the part of the circuit court in granting summary judgment on the battery count, the error was not prejudicial, because Mrs. Hendrix could not have adduced evidence at trial to support a punitive damages award, and therefore would have recovered the same amount of damages she recovered anyway on her negligence claims. "A battery occurs when one intends a harmful or offensive contact with another without that person's consent." Nelson v. Carroll, 355 Md. 593, 600 (1999) (citing RESTATEMENT (SECOND) OF TORTS

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