Romero v. Brenes, 1504 September Term, 2008.

CourtCourt of Special Appeals of Maryland
Citation189 Md. App. 284,984 A.2d 346
Docket NumberNo. 1504 September Term, 2008.,1504 September Term, 2008.
PartiesDora ROMERO, et al. v. Claudia BRENES, personal representative of the Estate of Carlos Brenes.
Decision Date30 November 2009

Neil Dachis, Greenbelt, MD, for Appellee.

Panel: HOLLANDER, JAMES R. EYLER, and LAWRENCE F. RODOWSKY (Retired, Specially Assigned), JJ.

LAWRENCE F. RODOWSKY, Judge (Retired, Specially Assigned).

This appeal arises out of a collision between an automobile and a pole in a median strip that killed both the driver, Carlos Brenes (Carlos), and his front-seat passenger, Nelly Mursal (Nelly). Dora Romero and Abdinur Mohamed Mursal, the parents of Nelly Mursal and the personal representatives of her estate, appellants, filed a wrongful death action, see Maryland Code (2006 Repl. Vol.), § 3-904(a) of the Courts & Judicial Proceedings Article, and a survival action, see Maryland Code (2001 Repl. Vol.), § 7-401 of the Estates & Trusts Article, in the Circuit Court for Montgomery County. Appellants sued Claudia Brenes (Claudia), personal representative of the estate of Carlos Brenes, appellee. At trial, appellee moved for judgment at the close of appellants' evidence pursuant to Maryland Rule 2-519, arguing that the evidence was insufficient to establish that the negligence of Carlos was a proximate cause of the fatal crash. The court granted the motion and entered judgment, which prompted this appeal.

Appellants present three questions for our consideration.1

"1. Does the trial court's failure to weigh the evidence in favor of the nonmovant constitute error?

"2. Does the trial court's failure to infer negligence constitute error?

"3. Does the trial court's personal evaluation of the evidence invade the province of the jury and therefore constitute error?"

As explained below, the evidence was legally sufficient. Thus, we shall reverse.

Factual and Procedural Background

At trial, appellants called three witnesses. The first was Zulma Mursal (Zulma), Nelly's sister. Zulma had no personal knowledge relating to the accident, and her testimony is not relevant to the issue before us.

Appellants also called Gabriel Mercedes (Mercedes), Nelly's boyfriend, who testified to the following. In the early morning of October 2, 2004, Carlos drove Nelly and Elizabeth Balkazar (Balkazar) from a birthday party to the Coco Cabana Club at Riggs Road and University Boulevard where Mercedes worked as a security guard. Carlos was operating a "small, small sports car," grey in color ... that appeared to be a Celica. The purpose of the stop was for Nelly to obtain an apartment key from Mercedes. When they arrived, Mercedes came out of the club and gave Nelly the key. Mercedes leaned into the car on the passenger side and briefly spoke to Carlos. Mercedes did not detect any signs that Carlos was in any way impaired. Similarly, he did not notice anything inappropriate in Carlos's operation of his vehicle. When the vehicle left the club parking lot, Nelly was in the front passenger seat, and Balkazar was in the back seat.

After the vehicle left the club parking lot, Mercedes and Nelly were "texting" each other. At some point, Mercedes called Nelly on the phone, and while they were talking, the conversation was "cut off." Later, after leaving the club and as he was driving to his destination, he saw the aftermath of the accident. Police were at the scene, and he was not permitted to get close.

Authur2 Gatewood (Gatewood), a night auditor for Holiday Inn Express who had twenty-three years experience in driving automobiles, was called by the appellant. He testified to the following. At approximately 2:00 a.m. on October 2, he was at a 7-Eleven store on the north side of University Boulevard at its intersection with Piney Branch Road. While his vehicle was standing at the edge of the 7-Eleven parking lot, in anticipation of entering University Boulevard, by turning right in order to proceed westbound on that thoroughfare, he first noticed the vehicle in question. The witness described University Boulevard as containing three traffic lanes in each direction, separated by a median. It was dark that morning, it was not raining, and there were only a few cars on the road. When Gatewood surveyed the three oncoming lanes of westbound traffic, he observed two vehicles traveling abreast of one another approximately 500-600 feet away. The silver Toyota Celica driven by Carlos was traveling in the farthest right lane closest to Gatewood, while the other vehicle was in the farthest left lane. The middle lane was empty.

Gatewood waited until both vehicles passed him because they appeared to be exceeding the speed limit and he did not want to impede them by entering the roadway. The speed limit on University Boulevard was 40 m.p.h. at that point. When appellants' counsel asked Gatewood to approximate the speed of the two cars as they were passing him, he responded: "I'd say quick. I mean I'm not—I couldn't say I'm an expert, but I would say they were going a good 50 or 60. I'd say a little over the speed limit. It wasn't heinous, but it was moving quickly. Clearly speeding."

After both vehicles passed him, Gatewood turned onto University Boulevard behind them. He "could still see them in the next block as [he] pulled out and accelerated to speed." As Gatewood approached the red light at the next intersection, he observed, "about a block" ahead of him,

"what looked like a car making a hard left hand turn. It was headlights. So it struck me that that person was making a hard left for whatever reason, but I couldn't see clearly. But I could see the lights going from the right to the left as though someone were making a left turn."

From this witness's vantage point, and from the light that he saw, the Celica "moved from the right lane to the left lane, or I guess spun out."

When Gatewood continued driving to where the headlights had swerved in the roadway, he saw that "the vehicle had hit the curb on the right and come across and hit a pole that sits in the median on the left." He identified it as Carlos's Celica, which he described as "[t]wisted. The passenger side was completely obliterated. The windshield, I believe, was off. The roof of the car, the canopy, was mangled. Totaled. It was devastating."

The witness pulled over to the right-hand curb and called 9-1-1. He observed parts of the Celica "on the curb and in the street" where he had parked. "There was a headlight sitting next to [him]." It appeared to him that "the impact" had sent pieces "down the street."

Gatewood did not see the Celica strike either the lamp post, the right curb, or any other vehicle. He saw no pedestrians or animals in the vicinity. There were no other vehicles between Gatewood's car and the two cars that he had described. The roadway was straight. There was no "natural driveway" where he had observed the hard left.

The back seat passenger, Balkazar, survived the accident with serious injuries, but Carlos and Nelly died.

Balkazar did not testify in the plaintiffs' case in chief. The plaintiffs did not call any investigating police officer, any accident reconstructionist, and did not introduce photographs of the Celica.

When moving for judgment at the end of the plaintiffs' case, the appellee argued, in essence, that evidence that the driver was exceeding the speed limit merely proved negligence in the abstract, but that there was no direct evidence, and no permissible inference, that exceeding the speed limit had proximately caused the accident. Appellants argued that

"it is a fair inference that it was the excessive speed and the failure to maintain proper control of the car that caused the collision which took the life of the plaintiff. We think that the prima facie case has been established."

The court sent the jury to lunch in order fully to hear counsel on the motion. The court then said to appellants' counsel, "You're not arguing res ipsa, are you?" Counsel replied: "I'm not, Your Honor."

The plaintiffs, however, continued to argue that "a person has to control speed and maintain control of the vehicle so as to avoid an accident," and that the plaintiffs did not have any duty "to exclude every non-negligent possibility of the case." In opposition to the motion, appellants submitted that the evidence showed "a vehicle that was going too fast and a short distance down the road, that same vehicle ... went out of control ... struck the curb on the right ... and then crossed in a path over where it hit a pole at a high rate of speed." The court pointed out that the jury did not know "whether there was brake failure ... or a tire blew...."

After reviewing a number of Maryland cases in which there was evidence that the defendant motorist exceeded the speed limit, the court ruled that there was not "legally sufficient evidence connecting whatever the rate of speed may have been ... with the result."

From the granting of the motion, this appeal has been taken. The parties' briefs in this Court reiterate their arguments to the trial court.

Standard of Review

In reviewing the grant of a motion for judgment, we apply the same analysis as the trial court; we consider all the evidence, including inferences reasonably and logically drawn therefrom, in a light most favorable to the non-moving party. University of Baltimore v. Iz, 123 Md.App. 135, 149, 716 A.2d 1107, 1114, cert. denied, 351 Md. 663, 719 A.2d 1262 (1998) (quotations and citations omitted). Phrased another way, the standard is that "the granting of a motion for a directed verdict on the issue of negligence is never justified unless there is a total failure of legally sufficient evidence to prove it." Bricker v. Graceffo, 236 Md. 558, 563, 204 A.2d 512, 515 (1964).

Discussion

This is not a case in which the inquiry as to the sufficiency of the evidence of negligence is appropriately focused exclusively on whether speed was the proximate cause of...

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