Saravia v. De Yue Chen

• Decision Date: 02 October 2012
• Docket Number: Civil Action No. WGC-10-832
• Parties: RHINA SARAVIA, et al. Plaintiffs, v. DE YUE CHEN, et al. Defendants.
• Court: U.S. District Court — District of Maryland

RHINA SARAVIA, et al. Plaintiffs,

v.DE YUE CHEN, et al. Defendants.

Civil Action No. WGC-10-832

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND

October 2, 2012

MEMORANDUM OPINION

Plaintiffs Rhina Saravia, Rosa Maria Gamez and Phillip R. Murray, Esquire (as Personal Representative of the Estate of Decedent, Jose Fernando Gamez) (hereinafter the "Plaintiffs") brought this action against De Yue Chen and New Century Travel, Inc. (hereinafter the "Defendants") alleging negligence and wrongful death as a result of a fatal accident on February 10, 2009. The parties consented to proceed before a United States Magistrate Judge for all further proceedings in the case and the entry of a final judgment. See ECF Nos. 27-28. Pending before the Court and ready for resolution is Defendants' Motion for Summary Judgment (ECF No. 79). Plaintiffs have moved for leave to file a sur-reply (ECF No. 90) which Defendants oppose (ECF No. 91). Finding that the issues have been fully briefed and further finding that Defendants' Reply raises no new issues, the Court DENIES Plaintiffs' Motion for Leave to File Sur-Reply (ECF No. 90). No hearing is necessary with regard to Defendants' Motion for Summary Judgment and the Court now rules pursuant to Local Rule 105.6 (D. Md. 2011).

BACKGROUND¹

On February 10, 2009 the decedent Jose Fernando Gamez ("Mr. Gamez") purchased a propane grill at Lowe's on Riverdale Road in New Carrollton, Maryland.² The propane grill was secured with yellow rope in the bed of Mr. Gamez's Nissan Frontier pickup truck. Sometime thereafter Mr. Gamez departed Lowe's and presumably was driving to his home in the District of Columbia by taking the Baltimore Washington Parkway, in the southbound direction. At some point during this trip the method of securing the propane grill inside the bed of the pickup truck failed. When the propane grill bounced from inside the bed of the pickup truck, the propane grill hit the road leaving two parallel gouges in the pavement of the right lane. At this point in time the propane grill was dangling partially out of the pickup truck but was suspended in place by the rope. Sometime thereafter, as Mr. Gamez continued driving, three metal pieces of the propane grill fell on the pavement landing in both the right and left southbound lanes. ECF No. 79-4 (Bentivenga Dep. 29:13-30:6).³

Sometime thereafter, about 7:30 p.m., Mr. Gamez stopped his pickup truck in the right southbound lane. The two street lights were not functioning in the area where Mr. Gamez stopped. Mr. Gamez turned on his hazard lights and then apparently stepped out of his pickup truck, walking to the rear passenger side.

Zerihun Diriba ("Mr. Diriba") was driving a Nissan Sentra in the right southbound lane along the Baltimore Washington Parkway. Mr. Diriba saw a vehicle in the distance in front of him. At first he assumed the vehicle was moving at a slow speed. As he got closer Mr. Diriba realized the vehicle was completely stopped. Mr. Diriba adjusted the speed of his vehicle by slowing down. The pickup truck's hazard lights were on. The area was dark. As Mr. Diriba got a better view of the pickup truck he noticed "it was just parked in the middle of the right lane."⁴ ECF No. 79-5 (Diriba Dep. 12:15-16); ECF No. 83-4 (Diriba Dep. 12:15-16).⁵ Mr. Diriba cannot recall the distance between the pickup truck stopped in the road and his vehicle when he started to slow down. Mr. Diriba described the sequence of events:

A: [B]ecause I noticed that from a distance, so I started slowing down at reasonable speed, until I get closer to it, so you could say from the ramp. You know, it's dark, so that blinking light, you can see it. The moment it can be visible, I could now guess something is going on in there.

So I cannot give you exactly the distance.

Q: Okay. So once you saw -- you saw the hazard lights on, on the pickup truck?

A: Yes.

Q: Okay. And could you see both hazard lights?

A: I think so, but I'm not -- I think so. I think so. I could see the hazard lights anyway.

Q: Okay. And that indicated to you that there was a hazard ahead?

A: There's some kind of.

Q: Okay. And so in order to stop, did you have to -- or to slow down, did you have to apply your brakes?

A: Yes, I did.

Q: Okay. Do you know how you applied your brakes, in terms of whether it was whether you pumped them, or just slowly slowed down, or what can you -- please describe as best as you can recall, the manner in which you slowed your car by using your brakes?

A: Well, it's not like hard stop, like I came down. I was slowing down. The first option I was considering at that point was to make a left turn, but as I slowed down, that began really impossible or I would expose myself to other danger. So I almost decided on -- I mean, just stopping my car behind the pickup truck. But the speed of the bus kind of warned me, you know, I have to do something.

So -- but, I couldn't do anything anyway, so I slowed down and then kept my distance, and I kind of just applied -- it's not really a kind of brake you would take when you just accidentally brake, and then it's just a kind of more of slow down and park. It's not even a -- it's not really hard, hard brake.

* * *

But I realized I cannot make it, and I just kind of brake before I get close to probably when I knew I had enough distance to just stop.

ECF No. 79-5 (Diriba Dep. 23:22 - 25:16, 26:3-5); ECF No. 83-4 (Diriba Dep. 23:22 - 25:16, 26:3-5).

Once Mr. Diriba realized the pickup truck was stopped on the road, he considered moving into the left southbound lane, but the flow of traffic in that lane prevented Mr. Diriba from safely moving from the right southbound lane. Meanwhile, in his rearview mirror, Mr. Diriba realized a bus was behind him and that the bus had not adjusted its speed and was rapidly approaching Mr. Diriba's car from the rear. ECF No. 79-5 (Diriba Dep. 22:17-22); ECF No. 83-4 (Diriba Dep. 22:17-22). As a defensive measure Mr. Diriba moved his car toward the left within the right southbound lane behind the pickup truck and then stopped. ECF No. 79-5 (Diriba Dep. 14:13-17); ECF No. 83-4 (Diriba Dep. 14:13-17). As Mr. Diriba feared, the bus collided with his vehicle, striking the right rear passenger side of Mr. Diriba's car and pushing Mr. Diriba to the left before the bus turned toward the right shoulder. ECF No. 79-5 (Diriba Dep. 21:18 - 22:6); ECF No. 83-4 (Diriba Dep. 21:18 - 22:6). When the bus collided with Mr. Diriba's car, "then [the bus] brushed me off and then [the bus] pushed me to the left edge further." ECF No. 79-5 (Diriba Dep. 14:2-3); ECF No. 83-4 (Diriba Dep. 14:2-3).

There were no other vehicles between the pickup truck and Mr. Diriba's car, thus Mr. Diriba had an unobstructed view of the pickup truck as he was slowing down. During the sequence of events leading up to the bus colliding with the right rear passenger side of Mr. Diriba's car, Mr. Diriba did not see any pedestrian on the roadway anywhere. Further, Mr. Diriba does not recall seeing any vehicle behind him between his Nissan Sentra and the bus. "I only see the bus is bigger, and it's coming faster, so I just -- I was just only -- my recollection is, if there is any at all, I only remember the bus." ECF No. 79-5 (Diriba Dep. 33:22 - 34:3); ECF No. 83-4 (Diriba Dep. 33:22 - 34:3).

In addition to Mr. Diriba, Thomas Peters was also operating a motor vehicle, a Volkswagen Golf, in the right southbound lane of the Baltimore Washington Parkway. Mr. Peters described the sequence of events:

A: I was driving and going southbound, and at first I saw something shiny on the road. So -- like a piece of metal of some sort. So I saw that.

* * *

It was in the middle of the lane that I was in.

* * *

So I'm in [the right hand lane], and I see a shiny metal object. And you know, from there then my eyes go ahead, and I see what I at first thought to be two cars slowing down.

And then I realized that they weren't really slowing down. That they were stopped. And when I -- and I was at this point in time quickly coming onto them.

So I swerved, you know, which was the direction I was going to go anyway and --

* *

I swerved to the right. And at that point in time I -- my vehicle was st[r]uck by something in the rear. And my car went forward very quickly and it -- you know, then I pulled off on the shoulder.

ECF No. 79-3 (Peters Dep. 13:18-20, 14:1-2, 14 - 15:2, 4-8); ECF No. 83-2 (Peters Dep. 13:18-20, 14:1-2, 14 -15:2, 4-8).

The two stopped vehicles were a sedan and a small pickup truck. Although Mr. Peters knew other vehicles were traveling behind him, he could not recall any specific vehicle immediately behind him. ECF No. 79-3 (Peters Dep. 18:19 - 19:3); ECF No. 83-2 (Peters Dep. 18:19 - 19:3). When Mr. Peters swerved to the right upon realizing the pickup truck and the sedan were stopped, he said he did not drive past those vehicles. ECF No. 79-3 (Peters Dep. 27:2-5); ECF No. 83-2 (Peters Dep. 27:2-5).

A: It doesn't feel like I actually went by the cars. It's not like I swerved slightly. I swerved, you know, dramatically in such a way that at that point in time I was no longer parallel to those vehicles. I was more at an angle of, you know, 20 degrees or something like that that took me off to the exit, you know -- or not the exit but the New York Avenue -- so I mean, that's why I think that the accident happened pretty close to that off-ramp if not darn parallel.

ECF No. 79-3 (Peters Dep. 28:13 - 29:1); ECF No. 83-2 (Peters Dep. 28:13 - 29:1).

The sequence of events happened so quickly. By the time Mr. Peters recognized the two vehicles were stopped, not just slowing down, he adjusted his speed by slowing down and then moved to the right to avoid a collision.

A: But I can say that it all happened relatively quickly. I think I was -- I can say I was aware of the vehicles for sure. They were in my field of vision. I can say that I saw a shiny object. And I know I went through a period of believing that the vehicles were slowing down, and then I realized that those

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