Domingos Ayala v. Lee

ZARNOCH, J. This case presents two key issues for resolution: (1) Can a driver be found negligent if an accident occurs when his truck crashes into a parked vehicle but the apparently healthy driver has no memory of the accident? and (2) Is a plaintiffs status as an undocumented immigrant 1 relevant and admissible evidence in this personal injury action? Appellants Rigoberto E. Domingos Ayala and Jose R. Rodas Santacruz were working for Ebb Tide Tents and Party Rent ⁴⁶² ais (“Ebb Tide”) when they were involved in a motor vehicle accident. The truck driven by appellee Robert F. Lee, holder of a commercial driver’s license, on behalf of his employer Bay State Pool Supplies of Baltimore, Inc. (“Bay State”), collided with Ebb Tide’s parked truck, resulting in severe injuries to Ayala and Santacruz. Ayala, Santacruz, and Imelda Carolina Chavez Ventura, Ayala’s wife, sued Lee and Bay State for negligence.

A six-day jury trial resulted in a jury verdict for Lee and Bay State, which appellants now ask us to reverse. We agree with appellants and therefore we reverse the judgment and remand for further proceedings. FACTS AND LEGAL PROCEEDINGS Ayala and Santacruz were working for William Edward Comegys, Jr., then the owner of Ebb Tide, on September 27, 2010. Comegys was driving the three of them from the company headquarters to a job site in Annapolis and was traveling westbound on Route 50.

It was raining, and the truck’s windshield wipers stopped working at some point during the drive. After crossing the Bay Bridge, Comegys stopped the truck and pulled over to the right hand shoulder of Route 50. The vehicle was fully out of the travel lanes, with the two right wheels on the grass and the two left wheels on the paved part of the shoulder. The emergency flashers were also on.

Comegys, Ayala, and Santacruz all exited the truck and went to work on the windshield wipers. They had just fixed the wipers and were standing in front of the vehicle when suddenly their truck was struck from behind by the truck owned by Bay State and operated by Lee. Comegys was killed as a result of the impact. Ayala and Santacruz survived, but suffered serious and permanent injuries to their lower extremities.

Ayala, Santacruz, and Ventura filed a complaint against Lee and Bay State in the Circuit Court for Anne Arundel County on November 3, 2010. 2 Ayala and Santacruz each alleged ⁴⁶³ counts of negligence against Lee and Bay State (Counts I and II) and counts of negligent entrustment and hiring against Bay State (Counts III and IV). 3 Ayala and Ventura also claimed loss of consortium against Lee and Bay State (Count V). The damages sought included past and future medical expenses, loss of income, and loss of earning capacity. It became obvious even before trial that Ayala and Santacruz’s immigration status would be at issue. Ayala and Santacruz are originally from El Salvador.

In 2006, they entered the United States through Texas without presenting themselves to federal immigration authorities. They eventually settled in Maryland. Each acquired a Social Security Number and used it to get a permanent resident card, seek employment, and pay taxes. However, each Social Security Number was acquired illegally.

Ayala and Santacruz are therefore undocumented immigrants. 4 Appellants moved to exclude evidence of their immigration status at trial in a written motion filed on April 26, 2012. The circuit court considered this and other motions in limine at a hearing on May 29, and ruled that immigration status was relevant and admissible evidence. Because Ayala and Santacruz asked for income-based damages, the circuit court reasoned that they had opened the door to inquiries about their immigration status. In the court’s view, there was a valid question over whether or not a plaintiff could legally earn the income he was claiming in damages.

The court also found that the fact that Ayala and Santacruz had misrepresented ⁴⁶⁴ their immigration status on employment forms was relevant to their credibility. Accordingly, at the August 2012 trial, the jury heard extensive testimony from Ayala and Santacruz on their legal status and how they came to the United States. Indeed, the second question asked of Ayala during cross-examination was: ‘You do not have a Social Security Number issued to you by the United States Government?” Counsel for Bay State and Lee also asked almost every other witness questions related to appellants’ immigration status. 5 Ayala and Santacruz also testified about their injuries as a result of the accident and how those injuries had affected their ability to work. They called expert witnesses to corroborate their testimony, including the orthopedist who treated them, a rehabilitation specialist, and an economist.

The Maryland State Troopers who had responded to the accident also testified. They described the work they did to reconstruct the accident scene, which showed that the front right corner of the Bay State truck hit the back left corner of the Ebb Tide truck. There was no damage to any other part of the Bay State truck. The officers also testified that the conditions that day included some rain but no obstructions to vision or any construction along that portion of Route 50.

Lee and Bay State relied on testimony from their own medical expert, who testified that Ayala and Santacruz’s injuries were less severe than they claimed, and video evidence from an investigator who had recorded Ayala and Santacruz performing various day-to-day activities. They also present ⁴⁶⁵ ed, over objection, the de bene esse deposition of the woman who had been lawfully issued the Social Security Number Ayala was using. Absent from the trial, however, was Lee himself. Because Lee was hospitalized, his deposition was read to the jury and served as his testimony.

Accordingly, the jury heard that Lee was driving about fifty miles per hour in the right travel lane of Route 50. He saw a vehicle in his left side mirror and thought “Buddy, you’re getting too close. You’re coming into my lane.” Lee’s next memory was of crashing through the brush on the right side of the highway. He did not remember striking the Ebb Tide truck, nor did he remember seeing the truck.

When asked how his vehicle moved to the right shoulder, Lee stated that “I must have just turned the wheel to the right, slightly.” When asked if he was guessing, Lee said “I don’t remember turning the wheel, but I could have — but it could have been [a] reaction as I was looking, you know.” Appellants moved for “judgment on the issue of liability” at the close of Lee and Bay State’s case, which the circuit court denied. The case was submitted to the jury, which found that Lee and Bay State were not negligent. Ayala and Santacruz timely appealed. Additional facts will be discussed below.

QUESTIONS PRESENTED Appellants ask us to review five questions, 6 which we have consolidated: ⁴⁶⁶ I. Did the circuit court err when it denied appellants’ motion for judgment?

II

Did the circuit court abuse its discretion when it denied appellants’ motion in limine to exclude evidence of appellants’ immigration status at trial?

III

Did the circuit court abuse its discretion when it permitted a de bene esse deposition of a witness who was legally issued the Social Security Number Ayala used?

IV

Did circuit court err when it refused to give appellants’ requested jury instructions? Because we conclude that the circuit court erred when it denied appellants’ motion for judgment, we do not reach the third and fourth questions. We therefore reverse the denial of the motion for judgment and remand for trial on the issue of damages. Given that appellants’ immigration status may again appear relevant at that stage, however, we also consider appellants’ second question and address the propriety of evidence of immigration status.

DISCUSSION I. Motion for Judgment A. Background Appellants argue that the facts of the accident “create a presumption of negligence” because Lee failed to maintain control of his vehicle. They assert that Lee violated two ⁴⁶⁷ Maryland state laws when he crashed into the Ebb Tide vehicle: (1) Md.Code (1977, 2012 RepLVol.), Transportation Article (“Trans.”), § 21-309(b), which states that a “vehicle shall be driven as nearly as practicable entirely within a single lane”; and (2) Trans. § 21-312(b), which states that a “person may not drive a vehicle from any controlled access highway except at the entrances and exits established by public authority.” They contend that these violations are prima facie evidence of negligence. They therefore ask us to reverse the circuit court’s denial of their motion for judgment. By contrast, appellees argue that Lee did not violate any state laws because restrictions on lane changes and access to and from a highway do not apply to travel to and from the shoulder of a highway.

Appellees argue in the alternative that even if the laws apply, they create only an inference of negligence, not a presumption, making the court’s denial of the motion for judgment and submission of the case to the jury appropriate. B. Standard of Review An appellate court reviews de novo the denial of a motion for judgment in a civil case, applying the same standard as the circuit court. See District of Columbia v. Singleton, 425 Md. 398, 406 , 41 A.3d 717 (2012). The evidence and reasonable inferences drawn therefrom are viewed in the light most favorable to the non-moving party.

Id. at 407 , 41 A.3d 717 (Citation omitted). If there was “any evidence, no matter how slight, that was legally sufficient to generate a jury question,” the motion was properly denied. Address v. Millstone, 208 Md.App. 62, 80 , 56 A.3d 323 (2012) (Quotation omitted). But, “where the evidence is not such as to generate a jury question, i.e., permits but one conclusion, the question is one of law and the motion must be granted.” Id.

(Quotation omitted); see also Brown v. Bendix Radio Div. of Bendix Aviation Corp., 187 Md. 613, 619 , 51 A.2d 292 (1947) (“[I]t is only where the minds of reasonable men cannot differ that the court is justified in deciding the question [of negligence] as a matter of law.”). ⁴⁶⁸ C. Negligence as a Matter of Law Finding negligence as a matter of law requires finding “in the evidence some prominent and decisive act, or failure to act, which permits of but one interpretation and in regard to which there is no room for reasonable minds to differ.” Weishaar v. Canestrale, 241 Md. 676, 681 , 217 A.2d 525 (1966); see also Baltimore Transit Co. v. Prinz, 215 Md. 398, 403 , 137 A.2d 700 (1958) (“[N]egligence and reasonable care derive their significance from a factual background, in which there must be evidence of circumstances which support a legitimate inference that in the exercise of reasonable care injury could have been avoided.”). Appellants bear the burden of proof of showing that Lee and Bay State were “guilty of negligence which directly contributed to the accident, since the happening of the accident does not of itself constitute negligence, and evidence of negligence does not give rise to liability unless the negligence was the cause of the injury.” Brehm v. Lorenz, 206 Md. 500, 506 , 112 A.2d 475 (1955). We believe that appellants have met their burden, as the evidence shows both that Lee was negligent as a matter of law in two significant ways and that his negligence was the cause of appellants’ injuries. Lee was negligent as a matter of law because he (1) moved the Bay State truck from a travel lane to the shoulder when it was not safe to do so, and (2) failed to maintain a proper lookout. 1.

Lane Changes Trans. § 21-309(b) states that a “vehicle shall be driven as nearly as practicable entirely within a single lane and may not be moved from that lane or moved from a shoulder or bikeway into a lane until the driver has determined that it is safe to do so.” 7 Lee testified that he was ⁴⁶⁹ driving in the right hand lane of Route 50. It was undisputed that the Ebb Tide truck was parked on the right shoulder of Route 50. Therefore, when Lee drove into the Ebb Tide truck, he “moved from” his lane into the shoulder. It was plainly not safe to do so, given that there was a vehicle in Lee’s path and he crashed into it.

Lee thus violated the statute, and, because the statutory violation was the proximate cause of the accident, he and his employer are liable for negligence. 8 See Ford v. Bradford, 213 Md. 534, 541 , 132 A.2d 488 (1957) (“[T]he violation of a statutory regulation is evidence of negligence, and if such violation causes or contributes to the injuries complained of it constitutes negligence.”). 2. Duty to Keep a Lookout Drivers of motor vehicles have a duty to both “observe carefully the road in front of them” and “be reasonably aware of what is occurring along the sides of a street or highway.” Morris v. Williams, 258 Md. 625, 628 , 267 A.2d 148 (1970). The duty to keep a lookout “follows the motorist wherever he directs his vehicle. The degree of vigilance necessary to constitute ordinary care varies with the circumstances, and certainly would be greater when one drives from pavement to shoulder.” Murphy v. Bd. of County Comm’rs, 13 Md.App. 497, 510 , 284 A.2d 261 (1971).

Although the duty to keep a lookout is not specifically enumerated in any statute, 9 it is a clear common law duty that dates back to the early ⁴⁷⁰ twentieth-century rise in the popularity of automobiles. See, e.g., Mahan v. State, to Use of Carr, 172 Md. 373, 383 , 191 A. 575 (1937) (a driver “has no right to assume that the road is clear, but that, under virtually all circumstances and at all times, he must be reasonably vigilant and must anticipate and expect the presence of others”) (Quotation omitted); Gittings v. Schenuit, 122 Md. 282, 287 , 90 A. 51 (1914) (stating that it was the defendant driver’s “duty to keep a sharp lookout in the direction he was going”). The duty to keep a lookout is most frequently implicated in cases where a driver says that he looked and did not see anything, but then crashed into something anyway. For example, in Dashiell v. Moore, 177 Md. 657, 661 , 11 A.2d 640 (1940), the defendant was changing the radio station while he was driving and struck a mule that was on the highway.

He testified that he kept his eyes on the road while adjusting the radio and that he did not see the mule. Id. at 664 , 11 A.2d 640 . In affirming the judgment of negligence against the defendant, the Court of Appeals observed that “[i]t is settled law in this state that one will not be permitted to say that he looked and failed to see what he must have seen had he looked.” Id. at 666 , 11 A.2d 640 . The Court explained further: It is also a rational and a reasonable inference that had the defendant looked he could not have failed to see so large an object as a thirteen hundred pound mule which was there to be seen directly in front of his car and directly in front of his headlights at some distance before the collision.

It was undoubtedly there, it was not invisible, and yet he said that ⁴⁷¹ he never saw it at all before the collision, at the time of the collision or afterwards. It is not an unreasonable inference, therefore, that he could not have been looking ahead when he was adjusting the radio, or if he was, that his bent position prevented him from seeing the road directly in front of him.... The duty to look implies the duty to see what is in plain sight unless some reasonable explanation is shown. Where there is nothing to obstruct the vision of a driver, it is negligence not to see what is clearly visible.

Id. at 666-67 , 11 A.2d 640 (Quotation omitted). 10 See also Vizzini v. Dopkin, 176 Md. 639, 643 , 6 A.2d 637 (1939) (“The defendant said he was looking straight ahead and did not see the man pass in front of him, when it was obvious that he did pass in front of him. His failure to see the plaintiff does not relieve him of responsibility. The fact that there was rain, snow, or sleet, resulting in less visibility, is no excuse or reason for not seeing the plaintiff. When weather conditions or darkness are such as to interfere with or shade the view of the road, it only serves to increase the degree of care required of a driver.”); Baltimore Traction Co. v. Helms, 84 Md. 515, 526 , 36 A. 119 (1897) (“If a witness who can see testifies that he looked, and did not see an object which, if he had looked, he must have seen, such testimony is unworthy of consideration.”).

Here, we do not even have testimony from Lee that he looked but did not see anything. He never said he looked ahead or to the right; his attention was focused to his left, where he thought he saw another vehicle “getting too close” to ⁴⁷² his vehicle. 11 Yet the Ebb Tide truck was plainly visible on the shoulder ahead of him. Testimony showed that although it was raining on the day of the accident, there were no obstructions to vision along that portion of Route 50, nor was there any construction on that stretch of the roadway. In not seeing a truck that was clearly there, Lee failed to keep a proper lookout and was thus negligent because that failure resulted in the accident.

Lee would gain nothing by couching the events that led to the collision as an “unavoidable accident.” In Fry v. Carter, 375 Md. 341 , 825 A.2d 1042 (2003), the Court of Appeals concluded that an unavoidable accident is not a separate defense and that an instruction on unavoidable accident should no longer be given in negligence actions because it allows the jury “to speculate about last minute happenings.” Id. at 356 , 825 A.2d 1042 . In so doing, the Court “recounted earlier cases discounting the notion that automobile accidents occur without negligence.” Id. at 352 , 825 A.2d 1042 . And the Court found that there was ample evidence of negligence on the part of a tractor-trailer driver who struck and killed a traffic control manager standing in the gore off the road. Id. at 355 , 825 A.2d 1042 .

Although the driver said he did not see the victim, blamed the accident on the State Highway Administration for narrowing the lanes, and argued that he could not have moved left to avoid the accident because of the presence of another vehicle, the Court rejected his contention that the accident was unavoidable and not negligent. Id. at 356 , 825 A.2d 1042 . The driver “could have slowed his speed further and continued to sound his horn,” but did not. Id. at 355 , 825 A.2d 1042 .

In this case, Lee did even less to prevent the collision. We pause to address two other points Lee raises in arguing that he was not negligent as a matter of law. Lee characterizes the evidence as “merely establishing] that he was not speeding, was watching for vehicles around him, and reacted ⁴⁷³ to a motorist drifting into his lane of traffic.” This view misstates the evidence before the trial court and the inferences that can logically be drawn from that evidence. First, the fact that Lee did not recall seeing the Ebb Tide truck demonstrates that he was not in fact watching for vehicles around him, despite his duty to keep a lookout.

Second, Lee’s own testimony established that his “reaction” to seeing a vehicle on his left was both unintentional and unexplained. In his deposition, Lee stated that he “must have just turned the wheel to the right, slightly,” though he did not remember doing so. Whether or not Lee made the less negligent choice in the moment is irrelevant because he did not in fact make a choice at all: he saw a vehicle on his left but did not “remember turning the wheel” or crashing into the Ebb Tide truck on his right. 12 To hold that this “I-didn’i>-see-it-and-I-don’t-remember” defense without any real proof of justification is enough to force a negligence question to the jury would only encourage irresponsible behavior and foster bad tort law. We therefore vacate the jury verdict and reverse the denial of appellants’ motion for judgment on the issue of liability.

II

Immigration Status A. Background Before the trial, appellants moved in limine to exclude evidence of their immigration status. They argued that their immigration status was irrelevant because “it neither serve[d] to bar [their] right to bring the actions nor as a defense for the Defendants’ illegal and negligent actions but merely [was] an attempt to prejudice the jury against [them] for their statuses.” In the alternative, appellants argued that their ⁴⁷⁴ immigration status should be excluded as prejudicial because the evidence “would poison the jury against [them] and prejudice the jury with information utterly irrelevant to the harms committed against [them] or the injuries they suffered.” Appellants apparently filed this motion in response to correspondence they received from appellees’ attorney, which indicated that appellees planned to a call a witness who would testify that Ayala’s and Santacruz’s Social Security Number cards and permanent resident cards were not legitimate. Not surprisingly, appellees opposed the motion in limine, arguing that evidence pertaining to immigration status was relevant because appellants were undocumented immigrants who were “prohibited by federal immigration law from earning any wages in the United States.” They asserted that the Immigration Reform and Control Act of 1986 (“IRCA”), 8 U.S.C. § 1324a, and Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137 , 122 S.Ct. 1275 , 152 L.Ed.2d 271 (2002), suggested that appellants, because of their undocumented immigrant status, could not recover lost future earnings in the United States. As discussed above, the circuit court ruled that immigration status was relevant and admissible evidence at a motions hearing prior to the trial.

The court provided additional reasoning in a written opinion filed just prior to the August 2012 jury trial. It noted that appellants’ immigration status was not relevant to the duty of care or the injuries alleged and that “[its] potential to unfairly prejudice [appellants] is [too] obvious to require elaboration.” However, it emphasized that appellants’ “claims for lost future wages and future medical expenses” put their immigration status at issue, because there were logical questions regarding how “a plaintiffs immigration status may create a greater likelihood that his earnings will not be earned in the U.S. labor market” and “as to the likelihood that a plaintiffs future care will not be provided in the expensive U.S. healthcare system.” B. Standard of Review An evidentiary ruling on a motion in limine “is left to the sound discretion of the trial judge and will only be ⁴⁷⁵ reversed upon a clear showing of abuse of discretion.” Malik v. State, 152 Md.App. 305, 324 , 831 A.2d 1101 (2003). The determination of relevancy and admission of evidence at trial is also reviewed for an abuse of discretion. Martin v. State, 364 Md. 692, 705 , 775 A.2d 385 (2001).

C. Federal Law Because the federal government has the “preeminent role ... with respect to the regulation of aliens within our borders,” Toll v. Moreno, 458 U.S. 1, 10 , 102 S.Ct. 2977 , 73 L.Ed.2d 563 (1982), questions about immigration status frequently start with an examination of federal law. With the IRCA, Congress declared that “it is unlawful for a person or other entity to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien ... with respect to such employment.” 8 U.S.C. § 1324a(a)(1) (2013). However, the IRCA and its enforcement policies typically penalize employers rather than employees, 13 and no federal statute or Supreme Court case has directly