Pullman et al v. Washington Metropolitan Area Transit Authority

Filing 37

MEMORANDUM OPINION. Signed by Judge Deborah K. Chasanow on 3/10/2025. (sat, Chambers)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MARYLAND
LAURITA PULLMAN, Individually
:
and as Personal Representative of
the Estate of John Steele, III, :
et al.
:
v.
Civil Action No. DKC 22-1304
:
WASHINGTON METROPOLITAN AREA
TRANSIT AUTHORITY
:
MEMORANDUM OPINION
Presently pending and ready for resolution in this negligence
and wrongful death case brought by Plaintiffs Laurita Pullman,
individually and as personal representative of the Estate of John
Steele,

III

(“Decedent”),

Alexandra

Steele,

individually,

and

Tricia Steele, individually, and as Parent and Next Friend of J.S.,
minor child, (“Plaintiffs”) are the motion for summary judgment
(ECF No. 30) and the motion for leave to file video exhibits (ECF
No. 32) filed by Defendant Washington Metropolitan Area Transit
Authority (“WMATA”).

The issues have been briefed, and the court

now rules, no hearing being deemed necessary.

Local Rule 105.6.

For the following reasons, the motions will be granted.

I.

Background 1
A. Factual Background
Plaintiffs are the mother, daughter, wife, and minor child of

Decedent,

who

sadly

was

fatally

injured

when

his

motorcycle

collided with a WMATA bus (the “Bus”) on April 30, 2021, at about
3:00 p.m.

Douglas Darby (“Mr. Darby” or the “Bus Driver”), a WMATA

employee, was operating the Bus traveling westbound on Ellin Road
in Prince George’s County, Maryland.

Decedent was operating his

motorcycle traveling eastbound on Ellin Road at approximately
sixty miles per hour.

(ECF Nos. 30-7, at 5; 30-8, at 4).

The

posted speed limit on Ellin Road is thirty miles per hour.

Mr.

Darby approached the median that separates the eastbound and
westbound lanes of Ellin Road and began turning into the New
Carrollton Metro Station.

As Mr. Darby turned, the Bus entered

Decedent’s lane of travel.

Mr. Darby did not see Decedent.

Nos. 30-9, at 4; 34-4, at 2).

(ECF

Decedent attempted to slide but

collided with the Bus. Decedent was transported to Prince George’s
Hospital Center where he later died from his injuries.
B. Procedural Background
Plaintiffs commenced this action against WMATA under a theory
of vicarious liability in the Circuit Court for Prince George’s
County on April 28, 2022 (ECF No. 4).

1

On May 31, 2022, WMATA filed

Unless otherwise noted, the following facts are undisputed
and construed in the light most favorable to the nonmoving party.
2

a notice of removal pursuant to Md. Code Ann., Transp. § 10-204(81)
which gives this court original jurisdiction over actions brought
by or against WMATA (ECF No. 1).

On July 17, 2024, WMATA moved

for summary judgment (ECF No. 30) and moved for leave to file
related video exhibits (ECF No. 32). 2

Plaintiffs opposed the

motion for summary judgment on August 7, 2024 (ECF No. 34), and
WMATA replied on August 21, 2024 (ECF Nos. 35; 36).
II.

Motion for Summary Judgment

A. Standard of Review
A court will grant a motion for summary judgment when there
is no genuine dispute of a material fact, and the moving party is
entitled to judgment as a matter of law.

See Fed.R.Civ.P. 56(a);

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).

The moving

party bears the burden to demonstrate the absence of a genuine
dispute of material fact.

Med. Mut. Ins. Co. of N.C. v. Gnik, 93

F.4th 192, 200 (4th Cir. 2024)(citing Bouchat v. Balt. Ravens
Football Club, Inc., 346 F.3d 514, 522 (4th Cir. 2003)).

If the

moving party meets this burden, the burden then shifts to the nonmovant to show specific facts demonstrating a genuine issue for
trial.

Id.

A court must view the facts and the reasonable

inferences drawn therefrom “in the light most favorable to the

2

WMATA’s motion for leave to file video recordings as
exhibits (ECF No. 32) is unopposed and good cause exists to permit
the filings. The motion will be granted.
3

party opposing the motion.”

Matsushita Elec. Indus. Co. v. Zenith

Radio Corp., 475 U.S. 574, 587 (1986) (quotation marks omitted).
A material fact is one that “might affect the outcome of the
suit under the governing law.”
477 U.S. 242, 248 (1986).

Anderson v. Liberty Lobby, Inc.,

A dispute about a material fact is

genuine “if the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.”

Id.

B. Analysis
Plaintiffs assert wrongful death and survival action claims
against WMATA, arising from the death of Decedent and sounding in
negligence.

WMATA argues that it is entitled to summary judgment

because Plaintiffs’ claims are barred by Decedent’s contributory
negligence.

(ECF No. 30-1, at 5-12).

Plaintiffs respond that

Decedent was not contributorily negligent, and even if he was, the
last clear chance doctrine permits recovery.

(ECF No. 34, at 16-

25).
As will be discussed below, it is far from clear that the Bus
Driver was negligent when he made the left turn across Ellin Road
into the Metro Station.

Even if he was, however, the undisputed

evidence shows that Decedent was travelling well over the speed
limit (going at least sixty miles per hour in a thirty miles per
hour zone) and that his excess speed prevented him from being able
to avoid the collision once he saw the Bus was making the turn.
Thus, he was contributorily negligent.
4

There is no evidence of a

fresh opportunity for the Bus Driver to avert the collision and
the doctrine of last clear chance does not apply.
1. Primary Negligence
In its initial motion, WMATA denies that its driver was
negligent but does not move for summary judgment on that ground.
The evidence is disputed on that issue.

The parties agree the

“Boulevard Rule,” codified at Md. Code Ann., Transp. § 21-403,
does not apply here because the intersection at issue is not
controlled by a stop or yield sign.
at 16).

(ECF Nos. 30-1, at 6-9; 34,

Instead, the parties dispute the applicability of Md.

Code Ann., Transp. § 21-402(a), which states:
If a driver of a vehicle intends to turn to
the left in an intersection . . . the driver
shall yield the right-of-way to any other
vehicle that is approaching from the opposite
direction and is in the intersection or so
near to it as to be an immediate danger.
Md. Code Ann., Transp. § 21-402(a).

WMATA argues that § 21-402(a)

does not apply because “[a]t the time that [the Bus Driver]
initiated the turn, Decedent’s motorcycle was neither in the
intersection nor was an ‘immediate danger[]’” because Decedent’s
motorcycle was not visible to the Bus Driver.
7, n. 2).

(ECF No. 30-1, at

Plaintiffs argue that § 21-402(a) applies and because

Decedent was the favored driver, the Bus Driver was negligent by
failing to yield the right of way to Decedent.
16).

5

(ECF No. 34, at

When considering the evidence in the light most favorable to
the non-moving party, there is a dispute of material fact regarding
WMATA’s negligence.

It is undisputed that the Bus Driver made a

left turn across Ellin Road and into the Metro Station and that he
did not see Decedent until after the collision.
2).

(ECF No. 34-4, at

It is also undisputed that there was nothing obstructing the

Bus Driver’s view when he made the left turn.

(Id. at 3).

There

is, however, a dispute as to whether the Bus Driver could have
seen Decedent before making the left turn such that the Bus Driver
was required to yield to Decedent.

There are videos and still

photos depicting the scene and various events surrounding the
collision.

At the time the Bus approached the intersection to

start the left turn, Decedent was more than 360, and maybe 400,
feet away. (ECF Nos. 30-8, at 4; 34-1, at 8).

Skid marks begin

about 134.5 to 142 feet from the site of the collision. (ECF Nos.
30-7, at 12; 30-10, at 14).

Based on review of the Bus’s forward-

facing

(“Mr.

camera,

Gary

Lewis

Lewis”),

Plaintiffs’

opined that:
Based on the video timing and the camera view
of the bus operator, the operator had traveled
for approximately 4.2 seconds, and covered
over 70 feet, while looking to his left.
Approximately 2 seconds of that time, and 35
feet of that distance, was while making a left
turn across oncoming traffic lanes and while
the oncoming motorcycle would have been
clearly visible to the bus operator.

6

expert,

. . . In this case, the motorcycle would have
been visible to the bus operator for over 4
seconds.
(ECF No. 34-5, at 2). 3

From the videos provided by WMATA, it is

unclear exactly how fast Decedent appeared to be traveling and
thus it cannot be determined whether the Bus Driver’s left turn
was done in the face of “immediate danger.”

There are genuine

disputes of fact as to whether the Bus Driver was negligent.
2. Contributory Negligence
WMATA argues that even if its Bus Driver was negligent,
Decedent was contributorily negligent in his operation of his
motorcycle and therefore Plaintiffs are barred from recovery. (ECF
No. 30-1, at 4-6).

Plaintiffs concede that Decedent exceeded the

posted speed limit but argue that does not make him contributorily
negligent as a matter of law.

(ECF No. 34, at 16-19).

In Maryland, “a plaintiff who fails to observe ordinary care
for his own safety is contributorily negligent and is barred from
all recovery, regardless of the quantum of a defendant’s primary
negligence.”

Harrison v. Montgomery Cnty. Bd. of Educ., 295 Md.

442, 451 (1983).

“[I]n a wrongful death action, if the decedent

is found to have been contributorily negligent, then the survivors
are barred from recovery.”

Brady v. Walmart Inc., No. 21-01412-

AAQ, 2024 WL 2273382, at *17 (D.Md. May 20, 2024) (citing Dehn v.

3

Mr. Lewis testified that each driver “would’ve been able to
see each other at the same time.” (ECF No. 30-8, at 4).
7

Edgecombe, 152 Md.App. 657, 693-698 (2003), aff’d, 384 Md. 606
(2005)).
The

defendant

negligence.

has

the

burden

of

proving

contributory

Myers v. Bright, 327 Md. 395, 403 (1992).

“The focus

of the contributory negligence defense . . . ‘is whether the
plaintiff took appropriate precautions to protect his [or her] own
interests.’”

Konig v. Ames, No. 20-3038-ELH, 2021 WL 1561518, at

*5 (D.Md. Apr. 21, 2021) (alteration in the original) (quoting
Kassama v. Magat, 368 Md. 113, 127 (2002)).
“Exceeding the speed limit does not constitute actionable
negligence unless it is a proximate cause of injury or damage.”
Myers, 327 Md. at 405 (quoting Alston v. Forsythe, 226 Md. 121,
130 (1961)).

“[S]peed in excess of the posted speed limit is not

the proximate cause of an accident when the vehicle is where it is
entitled to be and the driver would not have been able to avoid an
accident even had he been driving at the lawful speed.”

Id.

(quoting Keith C. Miller, Automobile Accident Law and Practice, §
19.10 (1991)).
WMATA produced evidence that Decedent could have avoided the
collision if he was driving at the posted speed limit of thirty
miles per hour, or even fifteen miles over the limit.

David Plant,

WMATA’s expert, opined that:
In
addition,
research
shows
that
the
perception response time for this path
intrusion hazard is on average 1.6 second with
8

a 15th percentile time of 1.0 second and an
85th percentile time of 2.2 seconds.
One
second before the start of the rear tire mark,
the motorcycle was located about 247 feet from
impact. Using a perception response time of
1.0 seconds and a deceleration rate of 0.4g
(i.e., braking for a traffic light change),
the motorcycle would have come to a stop in
247 feet from a speed of 46 mph. One and six
tenths (1.6) seconds before the start of the
rear tire mark, the motorcycle was located
about 298 feet from impact.
Using a
perception response time of 1.6 seconds and a
deceleration rate of 0.4g (i.e., braking for
a traffic light change), the motorcycle would
have come to a stop in 298 feet from a speed
of 47 mph. Two and two tenths (2.2) seconds
before the start of the rear tire mark, the
motorcycle was located about 338 feet from
impact. Using a perception response time of
2.2 seconds and a deceleration rate of 0.4g
(i.e., braking for a traffic light change),
the motorcycle would have come to a stop in
338 feet from a speed of 47 mph. Based on my
analysis of the time distance movements of the
motorcycle, it is my opinion, to a reasonable
degree of scientific certainty, that the
motorcycle would have come to a stop had it
been traveling at 46 mph or less (i.e., 16 mph
above the speed limit) instead of the speed it
was traveling at, which was greater than 62
mph.
. . . .
In Exhibits 14 and 15, the motorcycle is
about 401 feet from [the Area of Impact].
Based on the surveillance video, the rear of
the bus cleared the right lane of eastbound
Ellin Road in 6.1 seconds from where it was
located in Exhibit 12, 13, 14, and 15 (i.e.,
about 5 seconds before the accident). At 30
mph (i.e., the speed limit) it would have
taken 9.1 seconds to travel 401 feet. At 45
mph (i.e., 15 mph over the speed limit) it
would have taken 6.1 seconds to travel 401
feet. It is my opinion, to a reasonable degree
9

of
scientific
certainty,
that
had
the
motorcycle been traveling at the speed limit
or even 15 mph over the speed limit (rather
than at least 62 mph), this accident would not
have happened.
(ECF No. 30-7, at 5-7)(emphasis added).
Plaintiffs do not dispute that Decedent was speeding but,
instead, contend that Decedent’s speed did not cause the collision.
(ECF No. 34, at 17; 31). 4

Plaintiffs argue that speed over skid

distance is the improper lens through which to judge Decedent’s
conduct because it “ignores that [Decedent] had the right of way
and the right to assume that [the Bus Driver] would operate the
bus with reasonable care[.]”

(ECF No. 34, at 17).

To support this argument, Plaintiffs cite Ghirardello v.
Malina, 238 Md. 498 (1965).

(ECF No. 34, at 17).

In Ghirardello,

Maryland’s highest court held:
[A]lthough a privileged driver is entitled to
assume that his right of way will be honored
by an unprivileged operator, he cannot
continue to rely upon the assumption after he
discovers, or by the exercise of reasonable
care
should
have
discovered,
that
the
unfavored driver does not intend to yield the
4

Plaintiffs later dispute WMATA’s conclusion that Decedent’s
speed caused the collision only “to the extent WMATA implies the
only way the collision would have been avoided is if” Decedent was
not speeding. (ECF No. 34, at 31). Plaintiffs argue that had the
Bus Driver looked, he would have seen Decedent and stopped the
Bus, avoiding the collision. (ECF Nos. 34, at 31; 34-6, at 2-3).
WMATA is not required to show Decedent’s speed was the sole cause
of the collision, only that it was a “proximate cause,” which
deprived Decedent of the “opportunity to take some action to avoid
the collision.” Myers, 327 Md. at 406.
10

right of way, and, if after such discovery or
failure to exercise reasonable care to make
the discovery, the privileged driver continues
to pursue his course without exercising
reasonable care for the safety of others, he
may be held liable notwithstanding his right
of way.
Id., at 507. 5

Plaintiffs contend that Decedent had the right to

assume his right of way would be honored by the Bus up until the
moment

the

Bus

“entered

his

lane[.]”

(ECF

No. 34,

at

17).

Plaintiffs argue that once the Bus entered his lane, “it would
have taken [Decedent] 1.6 seconds to react,” giving Decedent “less
than 0.5 seconds to brake or otherwise avoid the collision[.]”
(ECF No. 34, at 19).

Plaintiffs contend that because WMATA has

not provided evidence to show that Decedent would have been able
to stop his motorcycle in 0.5 seconds even doing thirty miles per
hour, WMATA has failed to meet its burden.

(ECF No. 34, at 19).

This assertion is contrary to the holding in Ghirardello. Decedent
could no longer assume that the bus driver would respect his right
of way once he “discover[ed], or by the exercise of reasonable
care should have discovered” that the Bus did not intend to yield.
That point is not when the Bus physically entered Decedent’s lane;

5

Before this observation, the court remarked: “And, even
though entitled to the statutory right of way, a driver is not
relieved from the duty of using reasonable care to avoid a
collision. He should proceed at a lawful rate of speed, keep his
car under reasonable control, and be careful to avoid injury to
others.” Ghirardello, 238 Md. at 507.

11

rather, it is when Decedent should have discovered the Bus was
making a turn across both lanes. 6

A driver does not initiate a

left turn without intending to complete it.
The undisputed evidence in the record shows that Decedent was
driving at sixty miles an hour, was more than 360-400 feet from
the site of the collision when the Bus began its turn, and was
more than 130 feet away when he applied his brakes.

Had Decedent

been driving at a non-negligent speed of thirty, or even fortyfive miles an hour, the accident would not have occurred.

Either

the Bus would have cleared the intersection before Decedent got
there or Decedent would have had adequate time to avoid the
collision from the point at which he saw, or should have seen, the
Bus.

(ECF No. 30-7, at 7).

Accordingly, WMATA has met its burden

of establishing contributory negligence.
3. Last Clear Chance
Plaintiffs argue that even if Decedent was contributorily
negligent, the last clear chance doctrine applies.

The last clear

chance doctrine is an exception to the general prohibition on
recovery by a contributorily negligent plaintiff.
[T]he doctrine of last clear chance permits a
contributorily negligent plaintiff to recover
damages from a negligent defendant if each of
the following elements is satisfied: (i) the
defendant is negligent; (ii) the plaintiff is
6

As noted above, Plaintiffs’ expert testified that, if the
bus driver should have seen Decedent, Decedent should have seen
the turning bus.
12

contributorily negligent;
and
(iii)
the
plaintiff makes “a showing of something new or
sequential, which affords the defendant a
fresh opportunity (of which he fails to avail
himself) to avert the consequences of his
original negligence.”
Carter

v.

Senate

Masonry,

Inc.,

156

Md.App.

162,

168

(2004)

(quoting Burdette v. Rockville Crane Rental, Inc., 130 Md.App.
193, 216 (2000)).

“‘A fresh opportunity’ is the operative phrase,

for the doctrine will apply only if ‘the acts of the respective
parties [were] sequential and not concurrent.’”

Carter, 156

Md.App. at 168 (quoting Burdette, 130 Md.App. at 216).

“The

doctrine ‘assumes’ that, after the primary negligence of the
plaintiff and defendant, ‘the defendant could, and the plaintiff
could not, by the use of the means available avert the accident.’”
Id. at 168-69 (quoting United Rys. & Elec. Co. v. Sherwood Bros.,
161 Md. 304, 310 (1931)).
Plaintiffs argue that WMATA’s primary negligence was the Bus
Driver’s failure properly to monitor the intersection for oncoming
traffic before entering the intersection.

(ECF No. 34-5, at 2).

Plaintiffs

sequential

contend

that

WMATA

had

two

acts

of

negligence: (1) continuing across the oncoming lanes of traffic
and (2) failing to stop the Bus before entering Decedent’s lane of
travel.

(Id.).

The Bus Driver’s alleged failure properly to monitor the
intersection before turning, continuing across the intersection,

13

and failure to stop before entering Decedent’s lane are all part
of

the

alleged

primary

negligence,

making

the

left

turn.

Plaintiffs cannot rely on the alleged primary negligence as the
basis for asserting the last clear chance doctrine.

See Benton v.

Henry, 241 Md. 32, 35 (1965) (“The defendant’s act of primary
negligence may not be used again to serve as the last clear chance
of avoiding the injury.”).

There is no evidence in the record of

any sequential action or “fresh opportunity” for the Bus Driver to
avoid the collision.

See Palenchar v. Jarrett, 507 F.Supp.2d 502,

513 (D.Md. 2007) (“[W]hile he arguably should have detected the
presence of the truck . . . before he actually did, this duty did
not

constitute

a

‘fresh

opportunity

to

avoid

the

harm

that

occurred,’ but instead amounted to a continuing obligation to
exercise reasonable care[.]”).
“fresh

opportunity”

for

Because there is no evidence of a

WMATA

to

avoid

the

collision

after

Decedent’s contributory negligence, the doctrine does not apply.
III. Conclusion
For

the

foregoing

judgment will be granted.

reasons,

WMATA’s

motion

for

summary

A separate order will follow.

/s/
DEBORAH K. CHASANOW
United States District Judge

14