District of Columbia v. Singleton

HARRELL, J. On 20 June 2008, Respondents Wayne Singleton and his eight-year-old son, Jaron, were passengers in a westbound bus on Route 50 in Prince George’s County. At a certain point during that journey, the bus left the travel-portion of Route 50 and became “airborne.” Singleton, asleep at that time, and Jaron, awake but non-comprehending, could not explain the ⁴⁰³ cause for the bus leaving the road, although Singleton woke-up in time to witness the bus landing in a wooded area and colliding with a tree. Respondents sued Petitioner, the District of Columbia (the District), endeavoring to prove that it was liable vicariously for the negligence of its assumed employee, the driver. Respondents produced at trial only themselves as eyewitnesses.

They refrained from calling in their case-in-chief the bus driver — a listed witness for the District— or other, reasonably available witnesses mentioned in Respondents’ testimony. In order to overcome the gaps in their proof of what caused the bus to leave the road, Respondents argued that res ipsa loquitur supplied an adequate inference of negligence to complete their prima facie case. The trial judge saw it differently at the close of the Respondents’ case-in-chief and granted the District’s motion for judgment. Under the circumstances of this case, Respondents failed to show that they were entitled to an inference of negligence.

Respondents’ evidence, in context, was too speculative. Their evidence failed to demonstrate that negligence on the part of the bus driver was more probably than not the cause of the accident or to eliminate other potential causes. Although a plaintiff seeking the inferential boost from the doctrine of res ipsa does not have to eliminate all other potential causation besides the defendant’s negligence or intentional act, a plaintiff must adduce evidence nonetheless that the defendant’s negligence more probably than not precipitated the accident. Given the gaps in their testimony, Respondents’ apparent tactical decision here to forgo calling known (or knowable) witnesses to supplement their meager evidence (or otherwise explain the absence of those witnesses), raises the inference that Respondents’ access to facts that might have illuminated the cause of the accident was equal to that of the District’s — a circumstance that militates against the successful invocation of res ipsa loquitur.

I. FACTS AND PROCEDURAL HISTORY On 8 January 2009, Respondents filed in the Circuit Court for Prince George’s County a negligence action against the ⁴⁰⁴ District. Respondents alleged that negligent operation of the bus, owned by the District and operated by its employee, caused their injuries. The jury trial began on 19 April 2010. Respondents testified to the following facts during their case-in-chief.

On 20 June 2008, the “D.C. Parks and Rec.” (presumably, the District of Columbia Department of Parks and Recreation) sponsored a day trip to Six Flags amusement park in Prince George’s County, Maryland. Singleton, as one of four adult chaperones, accompanied Jaron (and his other son, Prince, six-years old) on the trip. Approximately 18 persons went on the excursion, not counting the bus driver. At 8:00 a.m., the bus departed from the District of Columbia for Six Flags in Largo.

At the end of the visit to Six Flags later that day, the bus departed Largo to return Respondents and the others to the District of Columbia. The weather was sunny and the roads were dry at the time the bus left Six Flags. Singleton fell asleep at some point during the return trip while the bus was still in Prince George’s County. As the bus proceeded westbound on Route 50, approaching its intersection with the Baltimore — Washington Parkway in Prince George’s County, the bus left the travel-portion of the highway.

Singleton, asleep, did not observe why the bus left the road. Jaron, although awake at the time, could not recall what caused the accident. Singleton awoke while the bus was airborne, observing that the bus landed in a wooded area and collided with a tree. After the accident, Singleton walked back to Route 50 and noticed tire marks on the highway where the bus “jumped the median.” Emergency responders arrived shortly at the scene.

Motorists “who actually saw the accident” pulled over as well. An ambulance took Jaron to a hospital to treat cuts on an arm and his legs, and “a knot on his head.” Jaron testified that he felt fine soon after the accident, despite having recurring nightmares. Singleton sought treatment from his primary-care physician for a sore shoulder, neck, and back on the evening of the accident. X-rays of Singleton revealed no broken bones.

He underwent physical therapy for his shoulder, neck, and back for approximately five months. ⁴⁰⁵ The foregoing evidence was adduced from three witnesses during the Respondents’ case-in-chief at trial, themselves and a doctor' — 'the latter testifying about the extent of Respondents’ injuries only. Respondents did not call the bus driver as a witness, although he was identified on the District’s witness list for trial. Respondents failed also to summons or produce any of the other bus passengers, the emergency responders, or the motorists who witnessed the event and pulled over at the accident scene. Similarly, Respondents did not produce a copy of the police accident report or otherwise propose to re-construct the accident sequence.

Respondents failed to offer a reason why they withheld these potentially material witnesses and evidence. At the conclusion of Respondents’ case, the District moved for judgment. The District argued that Respondents failed to meet their evidentiary burden of adducing sufficient evidence for a prima facie case of the District’s vicarious negligence. Respondents, relying on Andrade v. Housein, 147 Md.App. 617 , 810 A.2d 494 (2002), countered that they were entitled to an inference that the District was negligent because Respondents established that the bus left the travel-portion of the road.

The trial court disagreed, explaining that there were “too many leaps of faith that a reasonable fact finder would have to take” in order find that the bus driver, more probably than not, was negligent. A defense judgment was entered as a consequence. Respondents filed timely an appeal to the Court of Special Appeals. A panel of the Court of Special Appeals, in an unpublished opinion, reversed the Circuit Court’s judgment.

The panel relied primarily on Romero v. Brenes, 189 Md.App. 284 , 984 A.2d 346 (2009). Romero held that, in cases where a vehicle leaves the road, “the failure to maintain control of the vehicle presents a prima facie case of negligence.” Romero, 189 Md.App. at 291 , 984 A.2d at 350 . Therefore, the panel concluded, Respondents’ evidence of the bus leaving the highway and crashing into a tree created a triable issue of negligence for the fact-finder. The District filed a motion for ⁴⁰⁶ reconsideration, which the intermediate appellate court denied.

We granted the District’s petition for a writ of certiorari, 422 Md. 352 , 30 A.3d 193 (2011), to consider the following (rephrased) question: Whether plaintiffs may invoke successfully res ipsa loquitur in a single-vehicle, motor tort negligence action arising from the vehicle leaving the road, where the plaintiffs were unable to recall the seminal circumstances of the accident and failed to produce other reasonably accessible and probative evidence to attempt to determine the cause of the accident. 1 For the reasons that follow, we conclude that the Circuit Court granted properly the District’s motion for judgment. Accordingly, the Court of Special Appeal’s judgment shall be reversed and the case remanded with directions to affirm the judgment of the Circuit Court for Prince George’s County.

II

STANDARD OF REVIEW We review, without deference, the trial court’s grant of a motion for judgment in a civil case. Thomas v. Panco Mgmt. of Md., LLC, 423 Md. 387, 393-94 , 31 A.3d 583, 587-88 (2011) (citing C & M Builders, LLC v. Strub, 420 Md. 268, 290 , 22 A.3d 867, 880 (2011)); Md. Rule 2-519(b) 2 . We conduct ⁴⁰⁷ the same analysis that a trial court should make when considering the motion for judgment. Thomas, 423 Md. at 394 , 31 A.3d at 588 .

Where the defendant, in a jury trial for negligence, argues that plaintiffs’ evidence is insufficient to create a triable issue, the court determines whether an inference of negligence is permissible; that is, whether the evidence demonstrates that it is more probable than not that the defendant was negligent. Vito v. Sargis & Jones, Ltd., 108 Md.App. 408, 417 , 672 A.2d 129, 134 (1996); Md. Rule 2-519(b). The court considers “the evidence and reasonable inferences drawn from the evidence in the light most favorable to the non-moving party.” Thomas, 423 Md. at 393 , 31 A.3d at 587 .

III

DISCUSSION With regard to a negligence action based on a perceptually single-vehicle accident, res ipsa loquitur (“res ipsa” or “the doctrine”) will be available “if the accident or injury is one which ordinarily would not occur without negligence on the part of the operator of the vehicle” and “the facts are so clear and certain that the inference [of negligence] arises naturally from them.” Knippenberg v. Windemuth, 249 Md. 159, 161 , 238 A.2d 915, 916-17 (1968). Res ipsa loquitur (literally, “the thing speaks for itself’) allows generally a plaintiff to establish a prima facie case of negligence when direct evidence of the cause of the accident is unavailable and the circumstantial evidence permits the drawing of an inference by the fact-finder that the defendant’s negligence was the cause. Dover Elevator Co. v. Swann, 334 Md. 231, 236-37 , 638 A.2d 762, 765-66 (1994); Blankenship v. Wagner, 261 Md. 37, 41 , 273 A.2d 412, 414 (1971). “ ‘The rule is not applied by the courts except where the facts and circumstances and the demand of justice make its application essential, depending upon the facts and circumstances in each particular case.’” Dover, 334 Md. at 246 , 638 A.2d at 769 (quoting Blankenship, 261 Md. at 41 , 273 A.2d at 414 ). Nonetheless, the plaintiff retains his or her burden to prove the defendant’s negligence. ⁴⁰⁸ Dover, 334 Md. at 236 , 638 A.2d at 765 .

A defendant confronted properly with a res ipsa inference is obliged to go forward with his case, shouldering what has been described as the “risk of non-persuasion.” Hickory Transfer Co. v. Nezbed, 202 Md. 253, 262 , 96 A.2d 241, 245 (1953). In effect, res ipsa loquitur allows the plaintiff to present the question of negligence to the fact-finder, notwithstanding a lack of direct evidence bearing on causation. Dover, 334 Md. at 236 , 638 A.2d at 765 (citing Munzert v. Am. Stores, 232 Md. 97, 103 , 192 A.2d 59, 62 (1963)).

To invoke successfully the doctrine, the plaintiff must establish that the accident was “(1) of a kind that does not ordinarily occur absent negligence, (2) that was caused by an instrumentality exclusively in the defendant’s control, and (3) that was not caused by an act or omission of the plaintiff.” Holzhauer v. Saks & Co., 346 Md. 328, 335-36 , 697 A.2d 89, 93 (1997) (citing Dover, 334 Md. at 236-37 , 638 A.2d at 765 ). Additionally, although not an indispensable requirement of res ipsa, “one of the circumstances which calls for the application of the doctrine is when the facts surrounding the accident are more within the knowledge of the defendant than within the knowledge of the plaintiff.” Johnson v. Jackson, 245 Md. 589, 594-95 , 226 A.2d 883, 886 (1967); see also Coastal Tank Lines v. Carroll, 205 Md. 137, 144-45 , 106 A.2d 98, 100-01 (1954); Vito, 108 Md.App. at 431 , 672 A.2d at 141 . To satisfy the exclusive-control requirement, the evidence adduced must demonstrate that no third-party or other intervening force contributed more probably than not to the accident. Holzhauer, 346 Md. at 337 , 697 A.2d at 93 ; Johnson, 245 Md. at 593 , 226 A.2d at 885 .

We iterated in Holzhauer that a res ipsa inference of the defendant’s negligence is not permissible where an intervening force may have precipitated the accident. Holzhauer, 346 Md. at 337 , 697 A.2d at 93 . The existence of that potentiality “ ‘weakens the probability that the injury is attributable to the defendant’s [negligent] act or omission.’ ” Holzhauer, 346 Md. at 337 , 697 A.2d at 93 (quoting Lee v. Hous. Auth. of Balt., 203 Md. 453, 461 , 101 A.2d 832, 836 (1954)).

In proving the absence of ⁴⁰⁹ other, more-probable causes of the accident, the plaintiff “is not required to exclude every possible cause for [his] injuries other than that of negligence; [he] is only required to show a greater likelihood that [his] injury was caused by the defendant’s negligence than by some other cause.” Norris v. Ross Stores, Inc., 159 Md.App. 323, 331 , 859 A.2d 266, 271 (2004); see also Leikach v. Royal Crown Bottling Co., 261 Md. 541, 548-50 , 276 A.2d 81, 84-85 (1971). In sum, res ipsa loquitur requires the conclusion that, “by relying on common sense and experience, the incident more probably resulted from the defendant’s negligence rather than from some other cause.” Norris, 159 Md.App. at 331 , 859 A.2d at 271 . A. Respondents failed to show that negligence attributable to the District more probably caused the accident than other potential causes. 3 This deficiency stems from their inability to recount personally the events leading to the bus leaving the travel-portion of Route 50 and their apparent decision not to adduce other reasonably available evidence that could have cast light on that inquiry (e.g., testimony from the bus driver, other bus passengers, motorists who witnessed the accident, emergency responders, or possibly the police accident report, if admissible in whole or in part). Respondents’ attorney stated during oral argument before this Court that he spoke with witnesses, indicating that obviously some of these witnesses were known and accessible.

Nonetheless, Respondents envisage that the nature of the accident entitled them merely to prove that the bus left the road and rest, taking advantage of res ipsa loquitur to plug the hole in the doughnut. Their ⁴¹⁰ position, however, belies the doctrine’s requirement that plaintiffs’ evidence must show that the defendant’s negligence, and not a third-party causation or force, more probably than not caused the accident, given the particular circumstances of the accident. In Hanes v. State ex rel. Lamm, we said that “[w]here a motor vehicle leaves the roadway without a prior collision and thereby causes injury or damage, the courts, as a general rule, are prepared to draw an inference of negligence from the occurrence, assuming, of course, that all the other conditions of applicability are met.” 236 Md. 28, 33 , 202 A.2d 364, 366 (1964) (emphasis added) (quoting C.T. Drechsler, Applicability of Res Ipsa Loquitur Doctrine Where Motor Vehicle Leaves Road, 79 A.L.R.2d 6 , at 18 (1961)).

Requiring plaintiffs to show that a motor vehicle left the roadway, without an antecedent collision, is not an absolute threshold condition for applying res ipsa loquitur. Rather, it represents one conception of the exclusive-control element of res ipsa whereby plaintiffs must demonstrate that the