After a motor vehicle accident, Plaintiff brought suit in the Circuit Court for Montgomery County against the Defendant for negligence and against the Defendant’s mother for negligent entrustment. The driver Defendant was operating a motor vehicle owned by her mother when she allegedly struck Plaintiff as Plaintiff attempted to cross the street. 

The Circuit Court granted the parent Defendant’s motion for summary judgment. The driver Defendant and the Plaintiff proceeded to a jury trial on the issue of the driver Defendant’s negligence. At the conclusion of the trial, the jury found that the driver Defendant was negligent, but that the Plaintiff was contributorily negligent, thereby precluding any recovery by the Plaintiff. The Plaintiff appealed and the Court of Special Appeals affirmed the Circuit Court’s judgment.

The testimony of Plaintiff at trial was that she looked both ways before crossing the street and did not see the Defendant turning left onto the street she was attempting to cross as a pedestrian. Defendant also testified that she stopped at her stop sign, and attempted to navigate the left hand turn, but did not see the Plaintiff crossing the street until the very last second.

The burden of proving contributory negligence rests on the defendant. A defendant’s burden of production on the issue of contributory negligence is slight, and if she introduces more than a mere scintilla of evidence, more than surmise, possibility, or conjecture, that plaintiff has been guilty of negligence, she has generated a jury issue.

Plaintiff attempted to have the contributory negligence instruction to the jury removed because the Defendant did not give adequate notice of the contributory negligence defense prior to trial. He argued that she did not state facts in her answers to interrogatories or in her deposition that supported that defense. The Court denied the motion stating that the Defendant had asserted the affirmative defense in her answer and therefore it is preserved unless it’s affirmatively withdrawn or abandoned, or it is in some way communicated that the Defendant no longer wishes to assert it.

The Court of Special Appeals affirmed the Circuit Court’s ruling. In its discussion it stated that Plaintiff had been on notice that Defendant intended to assert contributory negligence from the day the Answer was filed. There is no authority that directly supports a proposition that a party raising a defense of contributory negligence must affirmatively renew it throughout the litigation. Nor is there any authority that supports Plaintiff’s broad assertion that an affirmative defense raised in an answer is, in every case, automatically waived by the failure to reassert it in discovery or in the pretrial statement. Further, the Court held that Plaintiff did not move to compel factual support for the affirmative defense throughout discovery, nor did she move for sanctions or an order to strike the defense prior to trial. Therefore, since the Defendant had asserted the affirmative defense of contributory negligence in her answer she had sufficiently preserved it for argument at trial. Even though her answers to interrogatories and deposition responses were vague, they were not untruthful.