By Cory Bilton

As local lawyers are aware, practicing law in the DC area can be a jurisdictional nightmare.  DC law differs from Virginia law, which differs from Maryland law, which differs from DC law.  Locals frequently cross state lines while commuting to work, and may cross into another jurisdiction for after-work drinks.  This multi-jurisdictional nature weaves its way into many legal disputes in the Metropolitan Washington, DC area.  Many times, disputes can arise over purely jurisdictional differences.

Recently, our office had a case filed in Prince George’s County, Maryland for an accident that occurred in DC.  Since tort law follows lex loci delicti commissi (“law of the place where the tort occurred”), the PG County Circuit Court was bound to follow the substantive law of Washington, DC.  In preparing for trial, one of the disputes that arose was whether to give the jury DC Jury Instruction § 5.19, titled “Fact of Accident Alone.”  The instruction, colloquially called the “mere happening” instruction, reads as follows:

The mere happening of an accident does not mean that any party to this action was negligent.  On the contrary, the law presumes that all parties exercised reasonable care until proven otherwise.  The burden of proof is upon the party alleging negligence to overcome this presumption of reasonable care by proving by a preponderance of the evidence that the negligence was the proximate cause of the accident.

In our case, the defendant drove over the double-yellow line before colliding with our client and another vehicle.  Defense counsel wanted to use the “mere happening” instruction in an attempt to argue that the mere happening of the defendant’s skidding, or of the collision, was not evidence of negligence.  We wanted to keep the instruction out because we felt that it would confuse the jury and because Maryland doesn’t have this jury instruction.

The absence of this instruction in Maryland is not an omission, either.  In Kennelly v. Burgess, the Court of Appeals of Maryland noted that, “[e]ven the use of a proper ‘mere happening’ instruction can lead to confusion in the minds of jurors as to the weight to be given to the unsuccessful result in determining negligence.”  Kennelly v. Burgess, 654 A.2d 1335, 1341 (Md. 1995).  The instruction, they concluded, “’elucidates the obvious’ and is generally redundant.  We note that the Maryland Civil Pattern Jury Instructions does not contain a ‘mere happening’ instruction, a further recognition of the undesirability of such an instruction.”  Id. at 1342.  So, in Maryland’s highest court’s opinion, this is a conscious deviation from DC.

So the question our office faced during the pre-trial conference was: Is the PG Circuit Court required to read DC’s ‘mere happening’ instruction to a Maryland jury, when the jury was required to apply DC’s substantive law in deciding the outcome of the case?  The answer turns on the distinction between substantive law and procedural law.  One of the clearest statements of this distinction was laid out by the Court of Appeals of Maryland in Vernon v. Aubinoe, 269 A.2d 620 (Md. 1970).  In that case, the plaintiff gave notice of her intent to rely upon foreign law (which happened to be DC law).  Id. at 621.  The court explained, “Accordingly, the case was tried under the law of that jurisdiction. [citations omitted]  Maryland law, however, controls as to the inferences to be drawn from the evidence, the sufficiency of the evidence, the inferences from it to go to the jury and other procedural matters.”  Id.  Therefore, matters of applying the substantive law to the circumstances are still under the control of Maryland law.

In a Maryland court, this is the “mere happening” instruction’s death knell.  In the comments to DC Instruction § 5.19, it states that the instruction is the law when testing the sufficiency of the evidence; a conclusion supported by a large number of DC cases.  The intentional (or fortuitous) use of the exact phrasing used in the Vernon (“sufficiency of the evidence”), strengthens the argument that the instruction should not be given to a Maryland jury.  Even in a case where DC law is applied, a Maryland court should still apply Maryland law to issues regarding the “sufficiency of the evidence” and “inferences from it to go to the jury.”

Therefore, the “mere happening” instruction should not be read to a Maryland jury, irrespective of the jurisdiction of the substantive law to be applied (in our case, where the car accident occurred).  This proved to be a convincing argument at the pre-trial conference.  The PG County Circuit Court judge agreed with us and ruled the “mere happening” instruction should not be given to the jury.

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