126 Md. App. 556 - McQuay v. Schertle’s Empirical Analysis

Citation profile

2 federal appellate · 4 district · 29 state decisions

Most-quoted passages

The sentences later courts lift from this opinion, ranked by how many decisions quote each — the parts of the opinion doing the work. These counts are smaller than the citation total above because most of the 35 citing decisions cite the case generally; a passage count includes only decisions quoting that exact language verbatim.

1. “When the decedent’s conduct at the time of the accident is in dispute and his actions cannot be established by evidence other than his own obviously unavailable testimony, the presumption of due care fills the evidentiary void created by his absence. In that way, the presumption levels the playing field in those cases in which the decedent’s conduct is under attack but, as a consequence of the accident itself, he is unable to defend himself. To some extent probability is involved: Because people usually do not act so as to cause themselves harm, it is probable that the decedent was not putting himself in danger at the time of the accident; therefore, if by magic the decedent could be made to reappear and testify about what he had been doing immediately before the accident, his testimony probably would tend to show that he had been acting carefully, and thus would counter the defendant’s evidence of contributory negligence. In the appropriate case, the jury may consider the presumption in place of that missing testimony. The Maryland cases in which an instruction on the presumption has been approved are those in which the presumption has been needed to ameliorate the unfairness brought about by the loss of the decedent’s testimony. Like the presumption against a spoiler of evidence, the presumption of due care is rooted in the notion that one should not benefit from the elimination of unfavorable evidence. By the time the jury in a death by accident case has reached the issue ”

   1 later decision quote this exact passage
   e.g. 127 Md. App. 706 - Faith v. Keefer

2. “In Carrion v. Linzey, 342 Md. 266 , 675 A.2d 527 (1996), the Court of Appeals explained that by adopting the hybrid form of presumption articulated in Grier[ v. Rosenberg, 213 Md. 248 , 131 A.2d 737 (1957)] in fashioning Rule 5-301(a), the Rules Committee rejected both the "Thayer-Wigmore” approach to presumptions (found in Fed.R.Evid. 301) and the "Morgan-type” approach to presumptions (found in Unif.R.Evid. 301 (1986)). Id. at 278 , 675 A.2d 527 . The Court observed that under neither of these rejected approaches will the jury in a civil case be instructed about the existence or effect of a given presumption. Under the "Thayer-Wigmore” approach, the jury is not told of the presumption because once the opponent of the presumption has met his burden of producing evidence to rebut the presumed fact, making the issue a jury question, the presumption disappears from the case altogether. Under the "Morgan” approach, because the presumption operates to shift the burden of persuasion on the issue to which it applies, the court effectuates it by tailoring its burden of proof instruction to incorporate the reallocated burden of persuasion, thereby making a separate jury instruction about the presumption unnecessary.”

   1 later decision quote this exact passage
   e.g. City of Frederick v. Shankle

3. “To be sure, had Ms. Wozniak diligently eliminated all points within a 15 foot radius of the fire hydrant in choosing a spot to park, her car would not have been in the ... tractor’s path____Accordingly, her failure to park at a point that was not more than 15 feet from the fire hydrant may have been a “cause in fact” of the accident-just as the fact that she drove to the marine terminal that day at all was such a cause — in that, “but for” that conduct, the accident would not have happened. It was not, however, a legally cognizable cause of the accident____[T]he proximity of her car to the fire hydrant ... was irrelevant to the occurrence of the accident. It would be unfair under that circumstance to permit the jury to draw a legally meaningful link between Ms. Wozniak’s violation of the fire hydrant regulation and her death.”

   1 later decision quote this exact passage
   e.g. 182 Md. App. 632 - Rivers v. Hagner Management Corp.