Donna Djan brought a negligence action against the Washington Metropolitan Area Transit Authority (“WMATA”) in the Circuit Court for Prince George’s County. She sought recompense for injuries she received while a passenger on a WMATA bus. The jury returned a verdict in favor of Ms. Djan and against WMATA in the amount of $25,714.40.
WMATA claims in this appeal that the trial judge erred in denying its motion for judgment notwithstanding the verdict. We agree with WMATA and shall reverse the judgment. 1
I.
On Mаy 11, 2005, Ms. Djan, age 41, hailed a Metrobus near the intersection of East-West Highway and 23rd Avenue in Prince George’s County. She was carrying a cube-shaped box (two-and-one-half feet by two-and-one-half feet) in size. The box, while not heavy, was awkward to carry and required her to use both hands to transport it. Because the passenger was carrying a box, the bus driver, Joseph Washington, lowered the steps to curb level sо that Ms. Djan would not have to climb the steps.
Ms. Djan testified that she boarded the bus with no trouble and was heading for a seat so that she could set the box down and pay her fare when the bus “took off pretty fast. He [the bus driver] kind of gunned it.” Later in her testimony, Ms. Djan and her counsel had the following brief exchange:
Q: And can you describe, I know you said pretty fast, but can you describe the manner in which the bus took off?
A: It jerked. It jerked mе forward so I guess he gunned it, it was like a little hard. I don’t know how to describe that, but it—
The jerk of the bus caused Ms. Djan to fall forward and for her left knee to hit a seat. Although she did not fall to the floor, she suffered a left knеe injury as a result of the impact of her knee with the seat.
Ms. Djan further testified that she had felt jerks and jolts while riding the bus in the past, “but not to the point where it threw me in a seat.”
During redirect examination, the following briеf colloquy occurred:
Q: Did you experience prior jerks on the bus?
A: Yes. I mean—
Q: How, was this in any way different?
A: Yes, because at this time I had no way of holding onto a railing. I wasn’t in my seat so I had no way of holding myself without going straight into that seat.
At the close of Ms. Djan’s case, WMATA made a motion for judgment on the basis that the plaintiff had failed to prove facts sufficient to sustain a negligence action. The trial judge reserved on the motion. At the close of all the evidence, WMATA renewed its motiоn for judgment, and the judge again reserved his ruling.
II.
ANALYSIS
A. Standard of Review
The standard оf review applicable when a motion for judgment notwithstanding the verdict has been denied is the same standard applicable when a trial judge denies a motion for judgment made at the conclusion of the evidentiary phase of the trial, viz:
On review of a motion for judgment in a civil negligence case, we ask whether on the evidence adduced, viewed in the light most favorable to the non-moving party, аny reasonable trier of fact could find the elements of the tort by a preponderance of the evidence. Lowery v. Smithsburg Emergency Medical Service,173 Md.App. 662 ,920 A.2d 546 (2007); Tate v. Bd. of Educ. of Prince George’s County, 155 Md.App. 536, 544,843 A.2d 890 (2004). If there is even a slight amount of evidence that would support a finding by the trier of fact in favor of the plaintiff, the motion for judgment should be denied. Lowery, supra,173 Md.App. at 683 ,920 A.2d 546 ; Tate, supra,155 Md.App. at 544 ,843 A.2d 890 .
Waldt v. Univ. of Md. Medical System Corp.,
B. Discussion
Under Maryland law, a common carrier owes its passеngers the highest degree of care to provide safe means and methods of transportation for them.
Todd v. Mass Transit Admin.,
The driver of a common carrier is not required to wait for a passenger to sit down before starting unless the passenger has some obvious infirmity. This principle has been enunciated in numerous cases.
Mass Transit Admin, v. Miller,
As Judge Davidson, for the Court of Special Appeals, aptly observed
... these cases are part of a long line of cases, too numerous to review here, which make it abundantly clear that once a passenger has planted both feet on a level portion of the floor of a vehicle sufficient in size to carry passengers in safety—be the place within or without the actual body of thе car—he is in a place of safety and fairly on board. The duty is then his to see that he is not harmed by the normal movements of the car.
About a year prior to the
Miller II
decision, this Court said: “In Maryland, a bus driver is not required to wait until his
passengers are seated before starting the bus in operation, unless the passenger labors under some apparent infirmity or disability.”
Carolina Coach Co. v. Bradley,
In the subject case, Ms. Djan had boarded the Metrо-bus and was fully and fairly on board when the driver started the bus. She had no disability or infirmity.
Ms. Djan argues that since her hands were not free to grasp a pole or a seat to help her keep her balance whеn the bus started, the driver should have treated her as a handicapped passenger and waited for her to set her box down or seat herself before he started the bus. Furthermore, she argues that because the driver lowered the steps of the bus for her, he did view her as a handicapped passenger. She attempts to build on this last point by pointing out that WMATA’s standard operating procedures require a Metrobus driver to ensure that elderly and disabled passengers are seated before the driver moves the bus.
Appellant’s argument is invalid for two reasons. First, the undisputed facts were that Ms. Djan was neither disаbled nor elderly. Second, as the Court of Appeals has stated, “We have long held that the custom and practice of a party, as distinguished from general custom and practice ... is not helpful in a determination of what constitutes reasonable care.”
W. Md. Ry. Co. v. Griffis,
When a passengеr files a negligence claim against a motor carrier for injuries received when the carrier makes a
sudden start or stop, the passenger must prove that the movement was unusual or extraordinаry.
Balt. Transit Co. v. Sun Cab Co.,
It is ... well settled in this State that a passenger on a bus or other common carrier who bases a negligence action on the sudden stop of the carrier cannot establish a case “merely by adjectival descriptions of the nature of the stop,” but rather must show in addition some “definite, factual incident” created by the stop which shows it to be sо abnormal and extraordinary that it can be legally found to have constituted negligence in operation.
Cases in which the Court found circumstances amounting to a definite, factual incident include
Balt. Transit Co. v. Sun Cab Co.,
The facts in
Retkowsky v. Balt. Transit Co., supra,
are similar to those in the case at hand.
Retkowsky
concerned a 66-year-old woman who was injured when the streetcar she had just boarded made a sudden start. ■
[Plaintiff] made no attempt to show any unusual or extraordinary effect upon any other passenger, that there were any spontaneous exclamations of excitement by anyone, that therе was any physical damage to the streetcar or the bags that she was carrying, or that she was thrown or propelled any unusual distance when she fell.
The Retkowsky Court also took note of the fact that the requirement [of more than a mere adjectival statement to prove that a start was unusual or extraordinary] was not unique to Maryland, viz:
Proof of the negligence of a carrier by the characterization of the manner of stopping or starting a car or bus by strong adjectives or expletives will not generally suffice as descriptions of an act of negligence. This rule has been adopted generally by the courts as a matter of public policy, to avoid having liability based upon a mere expression of feeling on the part of the injured, which the experience of the courts has shоwn to be oftentimes the exaggeration of self-interest in anticipation of a judgment against a responsible defendant.
Id.
at 441,
In the subject case, Ms. Djan produced no evidence at trial concеrning the motion of the bus, other than the adjectival description of the bus’s motion quoted in Part I. There was no evidence that any passengers exclaimed at the start of the bus, that any baggage fell over or fell off a rack, that anyone else was injured, or that she was propelled any unusual distance. In short, there was no evidence presented of any definite, factual incident created by thе start that would have showed the start to have been “so abnormal and extraordi nary” that it could legally have been found “to have constituted negligence in operation.”
Because appellee presented insufficient evidence to prove that WMATA was negligent, the trial judge erred when he denied WMATA’s motion for judgment notwithstanding the verdict.
JUDGMENT REVERSED; COSTS TO BE PAID BY APPELLEE.
Notes
. WMATA also claims that the court erred in excluding the testimony of a witness. We need not decide that issue.