Romero v. Brenes

JAMES R. EYLER, J.,

dissents and files opinion.

Dissenting Opinion by JAMES R. EYLER, Judge.

I respectfully dissent.

At trial, appellants’ theory, based on Authur Gatewood’s testimony, was that Carlos Brenes was driving at a speed in excess of the speed limit and that negligent act caused him to lose control of his vehicle, strike the right curb, and veer across the highway into the median. Viewing the evidence in *300a light most favorable to appellants, it permits a finding that Carlos Brenes (1) exceeded the speed limit on a straight road; (2) struck the right curb;1 (3) then swerved left, crossing all three lanes of the roadway; and, (4) collided with the light pole in the median. Appellants contend in this Court, as in the trial court, that Gatewood’s testimony permits a reasonable inference that Carlos Brenes’ violation of the speed limit was a cause-in-fact of the fatal accident. I disagree.

The basic rule is that the burden of proof is on the plaintiff to show that the defendant was guilty of negligence which directly contributed to the accident because the happening of the accident does not of itself constitute negligence. Brehm v. Lorenz, 206 Md. 500, 506, 112 A.2d 475 (1955). Appellants did not produce any evidence and have not argued that the speed of Carlos Brenes’ vehicle was unreasonable because of specific conditions then in existence. Appellants’ argument is based on a violation of a statutory rule of the road. While the violation of a statute may be evidence of negligence, only if the violation causes or contributes to the claimed injury will it constitute actionable negligence for which the defendant may be held liable. Alston v. Forsythe, 226 Md. 121, 130, 172 A.2d 474 (1961) (citations omitted). In this vein, the Court of Appeals has repeatedly held that “[ejxceeding the speeding limit does not constitute actionable negligence unless it is a proximate cause of injury or damage.” Myers v. Bright, 327 Md. 395, 405, 609 A.2d 1182 (1992) (quoting Alston v. Forsythe, 226 Md. 121, 130, 172 A.2d 474 (1961); Spence v. Wiles, 255 Md. 98, 105, 257 A.2d 164 (1969)).

In Myers v. Bright, the Court of Appeals expounded:

*301Evidence that a motorist was exceeding a posted speed limit or driving at an excessive rate of speed is not actionable unless such speed is a proximate cause of the accident. To show merely excessive speed is ordinarily not enough to support a verdict based on negligence unless there is some further showing that this excessive speed is a direct and proximate cause of the injury.

327 Md. at 405, 609 A.2d 1182 (quoting Keith C. Miller, Automobile Accident Law and Practice, § 19.10 (1991)(emphasis added)). Thus, even if appellants’ proof was sufficient to allow the jury to find that Carlos Brenes was exceeding the speed limit by 10-20 m.p.h. at the time of the accident,2 the rule in Myers dictates that appellants must make some further showing that exceeding the speed limit was a proximate cause of the accident to survive a motion for judgment.

Appellants contend that Mr. Gatewood’s testimony shows Carlos Brenes’ “obvious loss of control and initial collision with the right-hand side of the road.” In support of their position, appellants cite four Maryland cases in which they argue that proof of the causal connection between the driver’s speed and the claimed injury was slight, but still legally sufficient to generate a jury question.

In two of the cases cited by appellants, Sun Cab Co. v. Walston, 15 Md.App. 113, 289 A.2d 804 (1972), aff'd, 267 Md. 559, 298 A.2d 391 (1973), and Hanes v. State, 236 Md. 28, 202 A.2d 364 (1964), the plaintiffs relied on the doctrine of res ipsa loquitur, which relaxes the normal rules of proof by permitting an inference of both negligence and of proximate causation, to prove actionable negligence legally sufficient to war*302rant submission to the jury. See Peterson v. Underwood, 258 Md. 9, 19, 264 A.2d 851 (1970). Appellants do not rely on res ipsa loquitur, however, but cite the cases in support of their contention that the evidence was sufficient to permit an inference of causal connection between exceeding the speed limit and the accident.

In the case before us, regardless of whether appellants’ evidence could have been presented in reliance on res ipsa loquitur,3 it was not. In circuit court, appellants expressly disclaimed reliance on the doctrine and, as just stated, do not argue it in this Court. Under Maryland Rule 8-131(a), “the appellate court will not decide any ... issue unless it plainly appears by the record to have been raised in or decided by the trial court.” This Court ordinarily will not consider an issue not raised on appeal. Heineman v. Bright, 140 Md.App. 658, 671, 782 A.2d 365 (2001).

Despite the above, this Court has held that a party’s failure to expressly invoke the doctrine of res ipsa at trial or on appeal would not foreclose us from considering the issue. Unsatisfied Claim & Judgment Fund Board v. Bowles, 25 Md.App. 558, 563 n. 2, 334 A.2d 532 (1975) (stating it was appropriate to consider the applicability of res ipsa despite the parties’ failure to raise it because under the Maryland rules of practice the res ipsa doctrine is not a rule of pleading but relates to the burden of proof and sufficiency of evidence.) (citing Hanes, 236 Md. at 32, 202 A.2d 364). Here, though, appellants did not simply fail to raise the issue of res ipsa below or in this appeal. Rather, they expressly disclaimed reliance on it when the circuit court heard the parties’ respective arguments in light of the motion for judgment:

*303THE COURT: Let me ask Mr. Scanlin, You’re not arguing res ipsa, are you?
APPELLANTS’ COUNSEL: Pm not, Your Honor.

More important, however, appellants chose to proceed by attempting to prove a specific act of causal negligence by direct evidence, i.e., exceeding the speed limit, and that the act of exceeding the speed limit was a cause of the collision(s). Normally, a plaintiff must provide evidence of a defendant’s specific conduct, which can be by direct or circumstantial evidence, or both. Res ipsa loquitur is a rule of circumstantial evidence and an exception to the above requirement. When applicable, it permits an inference of actionable negligence in some unspecified way based on circumstantial evidence of events, even though the plaintiff was unable to prove a specific act. Dover Elevator v. Swann, 334 Md. 231, 259, 638 A.2d 762 (1994); Dan B. Dobbs, The Law of Torts, § 154 (West Group 2000). Res ipsa loquitur does not apply if a plaintiff presents evidence that, if believed, proves the specific act of negligence. Vito v. Sargis & Jones, Ltd., 108 Md.App. 408, 424, 672 A.2d 129 (1996), aff'd sub nom Cogan Kibler, Inc. v. Vito, 346 Md. 200, 695 A.2d 191 (1997). If a plaintiff presents consistent, circumstantial evidence of more than one specific act of negligence, it does not necessarily preclude the application of res ipsa loquitur, but it does preclude it if the plaintiff presents all of the evidence relating to the sequence of events. Blankenship v. Wagner, 261 Md. 37, 46, 273 A.2d 412 (1971); Vito, 108 Md.App. at 419-420, 672 A.2d 129; Dobbs, supra, at § 160.

The principle is sometimes phrased in the following terms. Res ipsa loquitur permits an inference to establish a prima facie case when evidence is unavailable or is available only to the defendant. Dover Elevator, 334 Md. at 261-62, 638 A.2d 762. It is phrased that way at times because, while a plaintiff is rarely precluded from relying on the doctrine solely because the defendant is in a better position to explain what happened, the doctrine is based on that premise. Peterson, 258 Md. at 19-20, 264 A.2d 851.

*304Here, appellants presented both direct evidence of a specific act of negligence, exceeding the speed limit, and evidence relating to the entire sequence of events. The combination of Mssrs. Mercedes’ and Gatewood’s testimony covered the period of time and sequence of events during the relatively short distance that the vehicle in question traveled between leaving the club and the point of the accident.

Moreover, in this case, the doctrine’s premise is not satisfied. This is not a case in which a vehicle suddenly and without explanation left a highway with no witnesses. The relevant facts were either known or equally available to the parties. Mr. Mercedes testified that Ms. Balkazar was a passenger in the vehicle, who survived the accident and had personal knowledge of the circumstances. Moreover, the parties’ joint pretrial statement listed many proposed witnesses for appellants, including Ms. Balkazar and several Montgomery County police officers. The statement also listed as appellants’ proposed exhibits police photos of the scene after the accident. Clearly, evidence that was available was available to appellants.4

Thus, the issue before this Court is whether, having produced direct evidence of exceeding the speed limit and evidence describing the sequence of events, the evidence permits a reasonable inference of causation. It must “amount to a reasonable likelihood or probability rather than possibility.” Peterson v. Underwood, 258 Md. at 17, 264 A.2d 851 (emphasis added). I will discuss Bozman v. State, 177 Md. 151, 9 A.2d 60 (1939) and Miller v. Graff, 196 Md. 609, 78 A.2d 220 (1951), two Court of Appeals cases relied on by appellants, where circumstantial evidence was sufficient to permit a reasonable *305inference that a driver’s speeding was a proximate cause of the accident. I will also discuss Sun Cab Co. v. Walston, 15 Md.App. 113, 289 A.2d 804 (1972), aff'd, 267 Md. 559, 298 A.2d 391 (1973), despite its reliance on the doctrine of res ipsa loquitur, as reliance on the doctrine was unnecessary because the evidence presented permitted the required inferences without regard to res ipsa loquitur,5 Finally, I will discuss the cases cited by the majority which were not cited by appellants.

The facts in the cases just referenced are instructive in demonstrating the need to prove something more than exceeding a speed limit to generate a question for the trier of fact and highlight the shortcomings of appellants’ evidence. Besides evidence of the driver’s excessive speed, there was a further showing, absent here, of either additional negligent acts by the drivers, evidence to support a finding that the speed was excessive under the circumstances (as distinguished from merely exceeding a speed limit), or other evidence to support a finding that the speed contributed to the happening of the accident.

In Miller v. Graff, 196 Md. 609, 78 A.2d 220 (1951), a taxi hit a four-year-old child, who was crossing the street in the middle of the block of a residential neighborhood. A high school and an elementary school were only two blocks away, and a “Slow, School” sign was posted on the street only a short distance beyond the scene. Id. at 617, 78 A.2d 220. A *306disinterested eyewitness testified that the taxi was traveling at forty-five miles per horn." in a twenty-five mile zone when the driver slammed on the brakes, skidding about eighteen feet before it struck the child and about six feet afterwards. A police officer also testified that one of the blood spots, which indicated where the child was struck, was about fifty-five feet from one end of the skid marks left by the taxi. Additionally, there was evidence it was daylight, the weather was clear, and the taxi driver had an unobstructed view of the entire block. The Court upheld the trial court’s denial of the taxi driver’s motion for a directed verdict6 because the evidence allowed a jury to find that the driver could have avoided hitting the child if he had been driving within the speed limit. At a point prior to impact, he saw the child and attempted to stop. Id. at 619, 78 A.2d 220.

In Bozman v. State, 177 Md. 151, 9 A.2d 60 (1939), a driver struck an eight-year-old boy crossing the road on his bicycle in broad daylight. The driver claimed he was driving within the forty-five mph speed limit, saw the boy at a distance of seventy five feet, jammed on the brakes immediately, and had almost stopped when he struck the child near the center of the road. Id. at 154, 9 A.2d 60. He moved for a directed verdict, claiming there were no inferences of negligence on his part. The skid marks left by his car, though, started only fifteen feet before the point of impact and extended diagonally across the road for seventy-five feet. The Court found there was legally sufficient evidence of negligence and upheld the trial court’s denial of the motion in light of (1) the seventy-five foot long skid marks; (2) the admission of the driver that he saw the boy at a distance of seventy-five feet; and, (3) “other testimony in the case.” Id. at 155, 9 A.2d 60. By merely reciting the facts in support of its finding sufficient evidence of negligence, the Court did not expressly delineate which evidence satisfied the proposition that the driver’s excessive speed was a cause-in-fact of the accident; however, the Court *307impliedly indicated that excessive speed could have contributed, based on the distance from which the driver first saw the child along with the length of the skid marks.

In Sun Cab Co. v. Walston, 15 Md.App. 113, 289 A.2d 804 (1972), aff'd, 267 Md. 559, 298 A.2d 391 (1973), the driver of a taxicab proceeding east on Edmondson Avenue applied brakes, slid, jumped over the median, and hit a truck traveling in the opposite direction. A witness observed all the events leading to the fatal accident from the front yard of his home. The witness testified that the cab was traveling thirty to forty m.p.h., in an area where the posted speed limit was thirty m.p.h. Id. at 148, 289 A.2d 804. Additionally, he testified that it was raining, the streets were wet, and all four tires of the taxi were bald. Other witnesses corroborated various aspects of his testimony. The defendants moved for a directed verdict at the close of all evidence, claiming there was insufficient evidence of the taxi driver’s negligence. The Court upheld the trial court’s denial of their motion and found circumstances entitled the jury to find that the taxi driver’s negligence was the sole proximate cause of the accident. Id. at 148, 289 A.2d 804.

In the above cases there was a showing of something more than speed which gave the driver’s speed significance under the circumstances and thereby allowed the inference that it was a cause-in-fact of the claimed injury. A plaintiff may achieve this threshold through proof of circumstances demonstrating that violation of the speed limit was unreasonable under the circumstances, like the driver’s using bald tires in the rain in Sun Cab or the driver’s inability to stop when aware of a hazard in Graff. It may also be accomplished through physical evidence and testimony that create context and consequences for the driver’s excessive speed. For instance, the evidence in Bozman of the driver’s admission that he saw the child seventy five feet before the point of impact, combined with the length of the skid marks indicative of his speed, permitted the inference that the driver could have stopped within that distance had he not been exceeding the speed limit.

*308Similarly, in the cases cited by the majority, there was evidence other than mere exceeding a speed limit. In Bavis v. Fonte, 241 Md. 123, 125, 215 A.2d 739 (1966), the plaintiff passenger testified to the entire sequence of events, which included that the driver was driving at a reasonable rate of speed, failed to negotiate a curve, hit the curb, and then a pole. The plaintiff also introduced a statement that the driver had given to a police officer stating that an unidentified vehicle had overtaken him from the rear and forced him to his right, causing him to hit the curb. The direct evidence permitted an inference that the driver had negligently driven too close to the curb, and hitting the curb caused him to lose control.

In Short v. Wells, 249 Md. 491, 493-495, 240 A.2d 224 (1968), there was evidence that, at the time of the accident, it was raining, the road was wet, and the vehicle had tires with “little tread” and “little gripping tendency.” There was also evidence that the driver was intoxicated.

In Powers v. State u/o Reynolds, 178 Md. 23, 28, 11 A.2d 909 (1940), there was evidence that the driver had consumed alcoholic beverages and was speeding on a mountain road, a speed unreasonable those circumstances.

In Stitzel v. Kurz, 18 Md.App. 525, 533, 308 A.2d 430, cert denied, 269 Md. 761 (1973), overruled on other grounds in Eastgate Associates v. Apper, 276 Md. 698, 350 A.2d 661 (1976), the driver testified that he was confused by an improper directional sign reflecting a curve, which caused him to apply his brakes unnecessarily. The evidence permitted an inference that he negligently reacted to the sign, which caused the accident. The sign was replaced, and the county was also sued for having placed the improper sign.

In Fields v. Morgan, 39 Md.App. 82, 83-84, 382 A.2d 1099 (1978), there was evidence that the driver was intoxicated, struck a pedestrian, left the scene, and that he and the passenger were fighting over the steering wheel when the accident occurred. There was ample evidence of specific acts of actionable evidence.

*309In Bowles, 25 Md.App. 558, 334 A.2d 532, like Hanes, 236 Md. 28, 202 A.2d 364, a vehicle left the roadway and struck a pedestrian and an embankment, respectively, without evidence of more, and without the availability of any other evidence. Res ipsa loquitur was applied in those cases to permit an inference of an unspecified act of negligence. Again, that was not the approach in this case, and res ipsa loquitur does not apply.

When I juxtapose the evidence in the cases in which the evidence was sufficient to permit an inference of a specific act or acts of negligence and the present matter, I find a fatal defect in appellants’ attempted prima facie showing of negligence, namely the absence of any facts that causally links the driver’s violation of the speed limit to the claimed injury. See Myers v. Bright, 327 Md. 395, 405, 609 A.2d 1182 (1992) (“Causal connection between the excessive speed and the collision must be proved by the evidence, as a fact, and not be left to mere speculation and conjecture.”) (quoting Roper v. Archibald, 680 S.W.2d 743, 748 (Mo.App.1984)).

Assuming the vehicle in question struck the right curb, as suggested by Mr. Gatewood, his testimony provides no insight as to what caused Carlos Brenes to strike the right curb. In their brief, the only explanation offered by appellants is that the car hit the right curb due to Carlos Brenes’ “obvious loss of control,” which is not helpful because it, in the absence of factual support, implicitly assumes the very proposition it purports to explain.

While common sense dictates that it is possible that the speeding caused the fatal accident, there were no facts presented from which the causal connection was probable. The only reasoning that could establish liability was that Carlos Brenes exceeded the speed limit, and it was that act which caused his car to collide with a light pole, post hoc, ergo propter hoc7 To allow a jury to draw this connection would *310entice them into “mere conjecture or speculation” based on possibility, rather than probability. It would amount to holding that liability may be predicated upon the mere happening of an accident which, exclusive of res ipsa loquitur or other situations giving rise to a prima facie presumption or inference of actionable negligence, is not the law of Maryland. Peterson, 258 Md. at 19, 264 A.2d 851 (quotations and citations omitted).

I would affirm the judgment.

. Mr. Gatewood’s testimony that Carlos Brenes’ car collided with the right curb is questionable. He did not see the actual impacts, if more than one; his testimony does not indicate whether the debris he noticed was by the right curb or whether it was on the left side in proximity to the Célica. Moreover, his conclusory statement that the Célica hit the right curb was an "assumption.” Nevertheless, Arthur Gatewood’s testimony was introduced without objection and permits a finding that the Célica collided with the right curb before crossing three lanes of traffic and hitting the light pole.

. If Mr. Gatewood’s testimony were credited by a factfinder, it would support a conclusion that Carlos Brenes was exceeding the speed limit at the time of the accident. Mr. Gatewood testified that, when he entered University Boulevard, he could see the two vehicles in the block ahead of him. When the accident occurred, he had reached the first intersection after entering the highway and was "about a block” behind the Célica and the unidentified vehicle. This testimony indicates a distance traveled of two blocks, with Mr. Gatewood being “about a block” behind the other vehicles when the accident occurred.

. In Hanes v. State, the Court of Appeals stated:

Where 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. at 33, 202 A.2d 364 (quoting 79 A.L.R.2d 6).

. I do not address the question whether res ipsa loquitur is inapplicable for other reasons, e.g., whether the accident is one that ordinarily does not occur in the absence of negligence. Compare Christ v. Wempe, 219 Md. 627, 150 A.2d 918 (1959) (mere fact a vehicle skidded or slid on a slippery highway not of itself sufficient for res ipsa loquitur) with Hanes, 236 Md. 28, 202 A.2d 364 (1964) (res ipsa loquitur properly applied where the vehicle skidded and left road without explanation, there was no evidence of specific acts of negligence, and the road was dry, straight, and slightly uphill at point of the accident).

. Some writers have commented on the fact that courts sometimes rely on res ipsa loquitur in error when it is not applicable. Dobbs, supra, at § 154. This has the effect of confusing the question whether inferences are permitted to show specific acts of actionable negligence with estimating the probabilities of unknown acts of actionable negligence. Id. When a court applies the doctrine where there is circumstantial evidence of specific acts of actionable negligence, what the court is actually doing is determining whether inferences from circumstantial evidence of specific acts of negligence are sufficient to create a question for the trier of fact. See, e.g., Vito, 108 Md.App. 408, 672 A.2d 129, aff'd in Cogan Kibler, Inc., 346 Md. at 202, 210-211, 695 A.2d 191 (stating that this Court’s reliance on res ipsa loquitur was misplaced because the plaintiff produced sufficient circumstantial evidence of actionable negligent acts to create a fact question)

. The motion for "directed verdict” is now a motion for judgment. Myers v. Bright, 327 Md. at 412 n. 2, 609 A.2d 1182.

. This Latin phrase (translation: "after this, therefore because of this”) reflects the logical fallacy committed when a person reasons that “since *310that event followed this one, that event must have been caused by this one.”