District of Columbia v. Brown

STEADMAN, Associate Judge,

concurring in part and dissenting in part:

I am in accord with the majority’s analysis in Part II that ordinary contributory negligence would bar recovery here. I cannot agree, however, that the District was entitled to a judgment notwithstanding the verdict (or a directed verdict, to which the same legal standard is applied) on the ground that the victim here was contribu-torily negligent as a matter of law.

As the majority points out, a judgment notwithstanding the verdict is proper only in “extreme cases,” where the evidence can be read by any reasonable person in only one light. Furthermore, and importantly, the party seeking the JNOV here is the party bearing the burden of proof, which a defendant has in attempting to establish a contributory negligence claim. Singer v. Doyle, 236 A.2d 436, 438 (D.C.1967).1 Thus, it is not a question simply of determining whether the evidence presented, if believed, is sufficient, in its most favorable light, to permit a reasonable person to find that that burden had been met, a task difficult enough in itself. See, e.g., Levy v. Schnabel Foundation Co., 584 A.2d 1251, 1255 (D.C.1991) (JNOV in favor of defendant improper where expert evidence of standard of care was “sufficient, albeit barely so,” to require submission of case to the jury). Rather, it is the even more exacting question2 of asserting that the evidence presented not only must be believed but also, even if taken in the light most favorable to the other party, will admit of only one conclusion to any reasonable mind: that the burden has been met. See, e.g., Tilghman v. Johnson, 513 A.2d 1350, 1351 (D.C.1986) (“only in the exceptional case is evidence so clear and unambiguous that contributory negligence should be found as a matter of law”); Carter v. Singleton, 219 A.2d 114, 115 (D.C.1966); see 5A Moore’s FedeRal Practice ¶ 50.02[1] at 50-32 (2d ed. 1990) and cases cited (in motion for directed verdict in favor of party with burden of proof, court must test evidence “not for its sufficiency, but rather for its overwhelming effect”).

Finally, this is not a situation of an appellate court affirming the granting of a JNOV by a trial court who was present at presentation of the evidence and could itself weigh the strength of the evidence as it appeared to one who was there.3 Quite the contrary, we are rejecting the view not only of the jury but of the trial court as expressly set forth in the record. In ruling against the grant of a directed verdict, the trial court noted:

[TJhat’s not to say that a person who comes in contact with the door deliberately is necessarily as a matter of law acting in a negligent manner. There are a lot of intentional contacts with that door that would not demonstrate any contributory negligence on the part of the person.
How many times have each of us come in contact with an elevator door intentionally and deliberately? How many times have we done that? How many times have we banged on an elevator door when it didn’t come or when it was being held or when it wouldn’t close or et cet-*390era? That’s human nature. We all have done it....
It would not defeat that requirement [of the Elevator Code] to require, however, that a person who did come in contact with the elevator door be acting in a reasonable manner in light of all the circumstances as they existed at the time in question, and whether a person was or was not is a matter, in my judgment in this case — I can’t say that the decedent was or was not. It all — it all depends on evaluation of the facts and circumstances.
Mr. Gathers, according to Mr. Gathers, Mr. Covington didn’t make that much of a contact with the elevator. It was a matter that was rather incidental as far as Mr. Gathers was concerned. It did not appear to be that much and it’s a question for the jury to determine to what extent he was negligent and to what extent the door was able to withstand the amount of pressure in question, the extent to which it did, the extent to which it didn’t. All of these are factual questions, it seems to me, that have to be resolved by the jury.

This does not appear to be an impermissible view of the record. There was only one eyewitness to the event, Michael Gathers, who testified.4 Gathers said that Coving-ton “took a large step and hit the door and went straight through it,” later indicating that Covington hit the door with his shoulder above the middle and on the right side of the door. Efforts to get Gathers to admit that Covington hit the door more than once,5 or had done so to demonstrate a football maneuver or from a three-point stance were all unsuccessful.6 The issue of the gap and its nature and significance was subsequently thoroughly aired, even assuming that the victim here had a duty to observe it.7 As the trial court had observed early in the trial, the issue of contributory negligence was a “question of degree.”8

On this record as I understand it, and given the stringent legal standards adumb*391rated above, I cannot find error in the trial court’s denial of the JNOV.9

.The defendant claiming contributory negligence has essentially the same burden as the plaintiff in proving negligence, with the difference that the standard of care for contributory negligence is the degree of care a reasonable person would take for his or her own safety. Restatement (Second) of Torts § 466, comment f (1965). See District of Columbia v. Mitchell, 533 A.2d 629, 639 (D.C.1987).

. But not an impossible one. See, e.g., Washington v. A & H Garcias Trash Hauling Co., 584 A.2d 544 (D.C.1990) (contributory negligence as matter of law where bicyclist in right parking lane was hit by truck lawfully turning right from center lane).

. This was the situation, for example, in Washington v. A & H Garcias Trash Hauling Co, supra note 2, 584 A.2d 544, where we affirmed the trial court’s grant of a JNOV.

. Four youngsters, including Gathers and Cov-ington, were talking in front of the elevator. Andre Thomas, another of the group, also testified but he did not see Covington make contact with the door but simply heard a "boom” and Covington was gone.

By the reference to Covington’s status on the property, I do not understand the majority to be suggesting that a more stringent test should apply on the issue of contributory negligence. Gathers testified that for five or six years the building had been a regular gathering place for youths in the neighborhood and had no doors to impede ingress or egress. Gathers further testified that he knew people living on the floor where the incident occurred.

. As the majority indicates, Covington had hit an elevator door on an occasion some days previously where Gathers was also present. On that occasion, Covington had hit the door much harder.

. He did answer "yes” to the final question in cross-examination: “But there is no doubt in your mind that when Mr. Covington struck that door he lunged at it and hit it hard and he did it deliberately, isn’t that true?” But how hard is “hard”, and it is difficult to support a JNOV on a single reply to a question phrased by opposing counsel. Likewise, experience might suggest that relatively common impacts could make the "loud noise” or “boom” that was mentioned. Nor does the testimony relative to the experiment by the expert seem to establish with total clarity the nature of the impact. Our obligation to give “the advantage of every fair and reasonable intendment that the evidence can justify,” Guardian Ins. Co. v. Anacostia Chrysler-Plymouth, Inc., 320 A.2d 315, 317 (D.C.1974), applies equally to situations, as here, where the person bearing the burden of proof seeks a JNOV in its favor; that is, such inferences are to be drawn against the moving party.

. There was some indication that some small gap may be a permissible characteristic of elevators.

. The court made the point in denying the motion for the directed verdict following opening statements:

THE COURT: Well, Mr. Rashad [the District’s counsel], suppose someone is standing on the first floor of a six floor building and has reason to believe that someone is holding the door — holding the elevator on the second floor and bangs on the elevator door with their hand intentionally and volitionally and deliberately, perhaps also somewhat angrily, certainly frustrated, and the door caves in and they go falling down below.
Is such a person automatically and as a matter of law precluded from recovering on the theory of negligence if some negligence is shown on the part of the building owner in maintaining that elevator? ... I mean what you are saying is a question of degree, is that right?

. Given the majority’s contrary conclusion, there is no occasion for me to examine the District's claim that the refusal to permit a blood transfusion bars recovery. Apart from this issue, I would reverse and remand for a new trial to deal with the error discussed in part II of the majority opinion.