Court of Special Appeals Distinguishes Burdens of “Persuasion” and “Production”

In further discussion, or perhaps just a reiteration, of Maryland’s evidentiary rule regarding presumptions, the Court of Special Appeals affirmed the jury’s verdict of no negligence, in favor of the defendant, in Cooper v. Singleton, No. 0849, Sept. Term 2013, June 26, 2014. The facts were fairly straightforward, the plaintiff’s injuries having occurred as a result of the accident in which the defendant Singleton was the last driver of a line of four (4) vehicles and the plaintiff Cooper was the driver of the second vehicle. At trial, Cooper relied upon the argument that, liability essentially having been the result of a rear-end collision, the plaintiff enjoyed the benefit of a presumption that the defendant was negligent. Singleton, in response to the plaintiff’s allegations, pled the defense of “sudden incapacity,” in that he had suffered a grand mal seizure immediately preceding the collision.

At the conclusion of the trial, Cooper relied upon the presumption of negligence to meet his burden of proof; Singleton’s counter to this presumption was the argument of sudden unexpected incapacity. Each party sought to gain the upper hand by submitting a non-standard instruction to the trial judge. Singleton requested the instruction that “the mere happening of an accident creates no presumption of negligence on the part of the defendant;” Cooper responded with the instruction that “when a lawfully stopped vehicle is rear-ended by another vehicle, there is a presumption of negligence on the part of the following driver.” The trial court gave neither instruction, and the jury returned a defense verdict. Cooper appealed.

In affirming the trial decision, the Court of Special Appeals discussed at length the distinction between the burden of proof/persuasion and the burden of production. Judge Moylan, in his usual literary and entertaining style, basically explained that even though one party may shift the burden of production, the burden of persuasion does not shift with respect to a party’s obligation to prove his theory of negligence (or affirmative defense). The Court also cautioned litigants who, either innocently (i.e., because of nescience) or otherwise, attempt to conflate or blur the distinctions (and related court opinions) between burden of persuasion and burden of production. The Court also reiterated the very narrow applicability of the “mere negligence” instruction, basically suggesting that it be relegated to the hinterland of abstraction, apparently only to be considered in the “factual vacuum” of academia. Good luck with that…