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 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
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 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.
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
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,
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,
We granted the District’s petition for a writ of certiorari,
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,
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,
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.,
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,
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,
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 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 cases upon which Respondents rely support implicitly the above principle. For instance, in
Romero v. Brenes,
an automobile left the road and killed the driver and the front-seat passenger.
4
We are persuaded also by the Supreme Court of Connecticut’s case of
Chasse v. Albert,
where a sleeping passenger in a vehicle that left the road sued, on a negligence theory, the administratrix of the deceased driver’s estate.
Here, Respondents’ perhaps unnecessarily bare-bones case-in-chief failed to eliminate sufficiently other causes of the accident, and failed to evince that the bus driver’s negligence was the most probable causative factor. Respondents point out that their testimony established that the driving conditions were dry and that there were tire marks on Route 50 where the bus “jumped the median.” This evidence, however, is ambiguous. Tire marks do not demonstrate necessarily that the speed of the bus was excessive relative to the ambient physical conditions or even the posted limit on that section of the road (there was no evidence of the latter or the speed of the bus as it crossed the median). “Tire-skid” marks, if that is what Singleton observed, could indicate also a sudden emergency, such as a tire blowout, avoiding another vehicle or other moving obstacle, an unforeseen medical emergency, or a mechanical failure unrelated to inadequate maintenance. Although plaintiffs are not required to exclude all other potential causes of the accident, Respondents’ limited evidence here established only that “the probabilities are at best evenly divided between negligence and its absence,” in which case “it becomes the duty of a court to direct a jury that there is no sufficient proof.”
Leikach,
Despite the gaps in their evidence, Respondents point to Hickory Transfer Company for the proposition that res ipsa loquitur applies where a plaintiff shows merely the occurrence of a vehicle leaving the highway autonomously and rests:
When a vehicle leaves a highway and crashes into a building, or a pedestrian on a sidewalk, the injured party may show the happening of the event and rest. In lieu of direct proof of negligence he may rely on the inference of negligence to be deduced from all the circumstances. In such a case it is said “the thing speaks for itself,” or res ipsa loquitur.
Respondents’ evidence failed to evince that the District’s bus driver’s negligence more probably than not caused the bus to leave the road because other potential causes were not explored or excluded sufficiently. Thus, we cannot say their evidence is “so clear and certain that the inference [of negligence] arises naturally.”
Knippenberg,
B.
Our conclusion that res ipsa loquitur is inapplicable in the present case is buoyed by Respondents’ apparent tactical decision to avoid reasonably available witnesses. Application
of res ipsa loquitur is justified, in some circumstances, by a defendant’s superior access to identification of the facts surrounding the accident.
Johnson,
In
Johnson,
the defendant’s unattended Buick drifted down an alley and struck the plaintiff.
Here, Respondents failed to produce apparently reasonably accessible witnesses
6
that might have supplemented their limited evidence with additional direct or circumstantial evidence of negligence. Although it is understandable that Respondents may have been loathe to call the bus driver, a listed defense witness and inferentially hostile to Respondents’ case, Respondents’ testimony established the existence of other potential witnesses: the other passengers on the bus, motorists
Our Court of Special Appeals brethren suggest, however, that a plaintiffs inferior access to the facts of the accident is not a “ ‘hard and fast’ ” res ipsa requirement, and that a plaintiff can proceed to the jury without proving this quasi-element.
Vito,
JUDGMENT OF THE COURT OF SPECIAL APPEALS REVERSED; CASE REMANDED TO THE COURT OF SPECIAL APPEALS WITH INSTRUCTIONS TO AFFIRM THE JUDGMENT OF THE CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY. COSTS IN THIS COURT AND THE COURT OF SPECIAL APPEALS TO BE PAID BY RESPONDENTS.
Notes
. The District, in its petition for a writ of certiorari, framed its question as
When a passenger of a motor vehicle that left the road in an accident brings a negligence claim, then at trial presents no evidence as to the cause of the accident, as he concedes he was asleep when the vehicle left the road and did not know why or how it did so, did the trial court properly find he did not establish a prima facie case, and did the Court of Special Appeals err by reversing that decision?
. Md. Rule 2-519(b) provides in pertinent part:
When a defendant moves for judgment at the close of the evidence offered by the plaintiff in an action tried by the court, the court may proceed, as the trier of fact, to determine the facts and to render judgment against the plaintiff or may decline to render judgment until the close of all the evidence. When a motion for judgment is made under any other circumstances, the court shall consider all evidence and inferences in the light most favorable to the party against whom the motion is made.
. Amicus curiae, the Maryland Association of Justice, contended in its brief that the District conceded the exclusive-control element of res ipsa loquitur by not renewing its argument before this Court that Respondents failed to adduce evidence that the District owned and operated the bus. That contention, however, dealt with whether the District owned the bus for purposes of liability, an ownership/control issue distinct from res ipsa loquitur.
. In
Romero,
a backseat passenger survived the car accident, but suffered serious injuries. For reasons not discussed in the opinion,
plaintiffs did not call the surviving passenger to testify.
Romero v. Brenes,
. As
Coastal Tank Lines
notes, the statement from
Hickory Transfer Company
was applied in
Shirks Motor Express v. Oxenham,
. During oral argument before this Court, Respondents attempted to excuse the absence from their case-in-chief of these witnesses because pre-trial interviews of them revealed that they did not know the cause of the accident. Substantiation of this claim, however, is not reflected in the factual record of the case.
. Though not briefed by the parties, we observe that the failure of a plaintiff in a negligence action to produce reasonably available and explanatory evidence about the accident to supplement his/her deficient evidence may preclude, in and of itself, plaintiffs from invoking res ipsa loquitur.
See McDonald
v.
Smitty’s Super Valu,