Gleason v. Jack Alan Enterprises, Inc.

Liss, J., delivered the opinion of the Court. This case is an example of “a riddle wrapped in a mystery inside an enigma.” 1 It arises out of an automobile accident, involving a delivery truck and a pedestrian, which occurred on June 9, 1975 in Silver Spring, Maryland, at the intersection of Fenton Street and Ellsworth Drive. William C. Gleason, 2 the appellant, was on that date on a shopping trip to the area and was standing on the southeast corner of the intersection some four feet back from the curb waiting for the light to change so that he could cross the street, when he was struck by a driverless 1969 Chevrolet van truck owned by the appellee, Jack Alan Enterprises, Inc. Appellant claims damages for personal injuries resulting from the accident. The evidence submitted by the appellant established that prior to striking the appellant the appellee’s truck had been parked by one of its employees on an incline at the curb ⁵⁶⁴ facing northbound on Fenton Street at a distance of between 400 to 500 feet from the intersection.

At the time the collision occurred the employee who had parked the truck was examining the floors in an office building on Fenton Street where he was about to install carpeting. The back doors of the truck were partially opened and tied together to a roll of carpeting protruding from the doors. The police officer who investigated the accident testified that his investigation at the scene revealed that the truck had rolled backwards down the hill on Fenton Street, jumped the curb where the appellant was standing, struck the appellant and a pole, and finally stopped facing northbound in the intersection blocking traffic. The only damage to the body of the truck was to its rear end where it struck the pole.

Upon checking the emergency brake, the officer found it to be fully engaged and “jammed” so that it could not be moved in either direction. The employee who had parked the truck identified himself at the scene and told the officer that he had engaged the emergency brake when parking the vehicle. The officer had no recollection as to whether his investigation disclosed that the wheels of the truck were turned into the curb nor whether the truck was left in gear when it was parked. The keys were not in the ignition.

The officer did not know how long prior to the accident the truck had been parked at the curb as he did not inquire into the matter and the information was not volunteered. There was no complaint or suggestion by the appellee’s driver that the truck had been struck by any other vehicle or that anyone had tampered with the vehicle prior to the accident. The only witnesses offered by the appellant were himself and the police officer. At the close of the appellant’s case the appellee moved for a directed verdict.

The trial court granted the motion on the ground that the appellant had relied on the legal proposition that the accident was controlled by the doctrine of res ipsa loquitur and that the appellant had failed to establish that the instrumentality causing the injury was within the exclusive control of the defendant. The court directed the clerk to enter a verdict for ⁵⁶⁵ the defendant pursuant to Rule 552 a. It is from that judgment that this appeal is taken. The sole issue to be determined is whether the trial court erred in granting appellee’s motion for a directed verdict at the conclusion of the appellant’s case.

In ruling on a motion for a directed verdict, the trial court was required to consider all of the evidence in a light most favorable to the appellant together with all reasonable and legitimate inferences which could have been deduced therefrom. The appellee was not entitled to a directed verdict in its favor unless the facts and circumstances were such as to permit only one inference with regard to the issue presented. Smack v. Johnson, 238 Md. 35 , 207 A. 2d 511 (1965). If there was legally relevant and competent evidence, however slight, from which a rational mind could infer a fact in issue, then the lower court invaded the province of the jury by granting the directed verdict.

Baulsir v. Sugar, 266 Md. 390 , 293 A. 2d 253 (1972); Katz v. Holsinger, 264 Md. 307 , 286 A. 2d 115 (1972); Plitt v. Greenberg, 242 Md. 359 , 219 A. 2d 237 (1966); Keene v. Arlan’s Dept. Store, 35 Md. App. 250 , 370 A. 2d 124 (1977). The appellant being unable to establish the cause responsible for the unattended truck’s rolling down the incline elected to rely on the doctrine of res ipsa loquitur. The characteristics of res ipsa loquitur and the reason for the rule were cited by the Court of Appeals in Potts v. Armour & Co., 183 Md. 483 , 39 A. 2d 552 (1944): “Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence, not that they compel such an inference; that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking, but it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. ⁵⁶⁶ The justice of the rule permitting proof of negligence by circumstantial evidence is found in the circumstance that the principal evidence of the true cause of the accident is accessible to the defendant, but inaccessible to the victim of the accident.

The rule is not applied by the courts except where the facts and the demands of justice make its application essential, depending upon the facts and circumstances in each particular case.” In order to invoke the doctrine three concurring circumstances must be shown by the evidence: (1) it must appear that the accident was of such a nature that it would not ordinarily occur without the defendant’s negligence; (2) the plaintiff must demonstrate that the apparatus or instrument which caused the injury was in the defendant’s exclusive control; and (3) that no action on the part of the plaintiff or a third party or other intervening force might just as well have caused the injury. Blankenship v. Wagner, 261 Md. 37 , 273 A. 2d 412 (1971); Leikach v. Royal Crown, 261 Md. 541 , 276 A. 2d 81 (1971). The trial court reached the conclusion that the appellant had offered sufficient evidence to generate a jury question as to the propositions stated in the first and third criteria above stated. No contention to the contrary has been made by the appellee in this appeal.

The trial judge, however, concluded that the appellant had failed to offer sufficient evidence to require the case to be submitted to the jury because of a lack of proof that the instrumentality causing the injury was within the exclusive control of the appellee. He reached that conclusion on the ground that the evidence: “in no way establishes when the truck was parked on Fenton Street or how long it remained unattended before it slipped backwards down Fenton Street to the intersection of Ellsworth Drive; and this is not a case of evaluating whether a time interval of ten minutes or two minutes or any other space of time establishes lack of exclusive ⁵⁶⁷ control. There is simply a complete lack of evidence on the point.” 2 Harper and James, The Law of Torts § 19.7 (1956), in discussing the principle of “exclusive control” says: “The requirement as it is generally applied is more accurately stated as one that the evidence must afford a rational basis for concluding that the cause of the accident was probably such that the defendant would be responsible for any negligence connected with it. That does not mean that the possibility of other causes must be altogether eliminated, but only that their likelihood must be so reduced that the greater probability lies at the defendant’s door.” Comment e, § 328D of the Restatement (Second) of Torts, as quoted in Leikach v. Royal Crown, supra, at 549-50, 276 A. 2d at 85 , states: “The plaintiffs burden of proof (see § 328 A) requires him to produce evidence which will permit the conclusion that it is more likely than not that his injuries were caused by the defendant’s negligence, Where the probabilities are at best evenly divided between negligence and its absence, it becomes the duty of the court to direct the jury that there is no sufficient proof.

The plaintiff need not, however, conclusively exclude all other possible explanations, and so prove his caSe beyond a reasonable doubt. Such proof is not required in civil actions, in contrast to criminal cases. It is enough that the facts proved reasonably permit the conclusion that negligence is the more probable explanation. This conclusion is not for the court to draw, or to refuse to draw, in any case where either conclusion is reasonable; and even though the court would not itself find negligence, it must still leave the question to the jury if reasonable men might do so.” ⁵⁶⁸ Comment g to the same Section adds: “The plaintiff may sustain this burden of proof [by] * * * a showing that the defendant is responsible for all reasonably probable causes to which the event can be attributed.

Usually this is done by showing that a specific instrumentality which has caused the event, or all reasonably probable causes, were under the exclusive control of the defendant. Thus the responsibility of the defendant is proved by eliminating that of any other person. It is not, however, necessary to the inference that the defendant have such exclusive control; and exclusive control is merely one way of proving his responsibility.” The appellee urges that the case of Johnson v. Jackson, 245 Md. 589 , 226 A. 2d 883 (1966), is dispositive of this case. It calls our attention to the comments of Judge Finan, speaking for the Court of Appeals: “To paraphrase the comments of' the trial judge, he thought that in viewing all of the evidence produced by the appellant, it was unreasonable to assume that the parked vehicle, after having remained stationary on an incline for a period of from five to ten minutes, would not of its own accord have drifted downhill, unless an