Finkelstein v. District of Columbia

*615WAGNER, Associate Judge,

concurring in part and dissenting in part:

I concur in the result reached by the majority affirming the order of the trial court for a new trial; however, I cannot join in all of its reasons for doing so. I dissent from that portion of the decision which holds that the jury summation made by appellant’s counsel provides support for its decision. On the contrary, I agree with the dissenting opinion of Judge Ferren that such a rationale for rejecting the jury’s verdict is improper and legally unsupportable. However, unlike my dissenting colleagues, I conclude that there is firm support in the record for sustaining the trial court’s grant of a new trial on all claims except the claim for intentional infliction of emotional distress under the Wrongful Death Act, D.C.Code § 16-2701 (1989). As to that claim, contrary to the positions of all of my colleagues, I conclude that the trial court’s grant of judgment notwithstanding the verdict should be affirmed. For these reasons, I am compelled to state separately the reasons for my dissent from portions of the majority opinion and my rationale for joining in the majority’s af-firmance of the order for a new trial on all except one claim and for concluding that judgment notwithstanding the verdict should be affirmed on the claim for negligent infliction of emotional distress under the Wrongful Death Act.

I.

My primary disagreement with the majority opinion is its reliance upon the closing argument of appellant’s counsel in divining the jury’s focus in measuring damages and in testing the trial court’s finding of excessive verdict against the elements of damages thus pinpointed. This method of analysis, in my view, is inconsistent with basic principles which determine the issues to be resolved by the jury. The civil trial is governed by well established procedures which narrow the issues for the jury’s consideration.1 Unless the issues raised by the pleadings have been withdrawn by the parties or eliminated through such mechanisms, a plaintiff is entitled to have all theories of recovery and all elements of damages considered by the jury. McDaniel v. Cusimano, 148 A.2d 303, 305 (D.C.1959); Metropolitan Railroad v. Moore, 121 U.S. 558, 568, 7 S.Ct. 1334, 1339, 30 L.Ed. 1022 (1887). To that end, the court instructs the jury on the law of the case and the theories of the parties. Reese v. Wells, 73 A.2d 899, 902 (D.C.1950). Unless the contrary appears, jurors are presumed to follow and understand the instructions of the court. German v. United States, 525 A.2d 596, 609 (D.C.1987); Burkley v. United States, 373 A.2d 878, 881 (D.C.1977). Absent an instruction to do otherwise, it is assumed that the jury will regard all evidence and elements of damages as proper for consideration, rather than the contrary. Hayes v. Sutton, 190 A.2d 655, 656 (D.C.1963). Thus, where one item of damages submitted in evidence is improper for consideration {e.g., where proof is insufficient to establish a causal connection between the negligent act and damages claimed), it is error not to so instruct the jury. Id. These principles dictate against any assumption that the jury overlooked an element of damages simply because omitted or not emphasized in closing argument, which is not evidence. See Harmatz v. Zenith Radio Corporation, 265 A.2d 291, 292 (D.C.1970).2

Although the court has the power to direct a verdict at the conclusion of counsel’s opening statement, we have cautioned that the power must be exercised sparingly. Cook v. Safeway Stores, Inc., 354 A.2d 507, 508 (D.C.1976). For obvious reasons, we have never held that omissions from closing argument of essential elements of a *616claim may constitute a basis for the conclusion that the claim is no longer pursued. While the focus of closing argument may provide insight into the attorney’s view of the case, it provides no clue as to which of several injuries or damages the jury found proven in rendering a general verdict. Although we can reasonably infer from experience the adverse influence of improper arguments upon a jury, we have no way of fathoming whether the absence of argument on an issue resulted in the jury’s failure to decide it or to give it consideration. Even the fairness of an argument cannot be determined, except in extreme cases, without viewing it in light of the evidence and other trial proceedings. Haigler v. Logan Motor Co., 86 A.2d 108, 109 (D.C.1952). So too, except where some improper element is injected which may infect the jury’s decision, the elements of damages comprising its verdict must be judged with reference to the evidence and the court’s instructions.

A new trial for excessive verdict will be reversed only when the amount of damages awarded by the jury clearly exceeds the maximum limit of a reasonable range within which the jury could operate. Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 594 (D.C.1985) (quoting Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 114, 409 F.2d 145, 149, cert. denied, 396 U.S. 835, 90 S.Ct. 93, 24 L.Ed.2d 85 (1969)). In determining whether this standard is met, we must examine the extent and nature of the damages proved by the evidence. See Weinberg v. Johnson, 518 A.2d 985, 994 (D.C.1986); Taylor v. Washington, supra. This evaluation cannot be accomplished by reference to closing argument. For all of the foregoing reasons, I cannot agree with the majority that the closing argument of counsel can be utilized, by the trial court or by this court in review, to ascertain that the jury considered certain elements of damages and disregarded others in making its composite award.

II.

In determining whether the trial court abused its discretion in concluding that the verdict was outside the maximum limit of a reasonable range, the inquiry must be focused on whether there is firm evidentiary support in the record for the trial court’s finding. Weinberg v. Johnson, supra, 518 A.2d at 994. There is such firm support in the record of this case. On certain claims, however, multiple theories of liability were presented, some permissible and some impermissible. As to such claims, a new trial can be granted for that reason alone. District of Columbia v. White, 442 A.2d 159, 165 (D.C.1982).

The jury considered and returned separate verdicts on independent claims for damages based on negligence and negligent infliction of emotional distress. Appellant pursued each of the causes of action under both the Wrongful Death Act, D.C.Code § 16-2701 et seq. (1989) and the Survival Act, D.C.Code § 12-101 et seq. (1989). In reviewing the trial court’s grant of a judgment notwithstanding the verdict, each claim and the-evidence which supports it must be examined separately to determine whether, viewing the evidence in the light most favorable to appellant, no reasonable juror could have reached a verdict in appellant’s favor on the particular cause for which a verdict was returned. See Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C.1986).

Our review is somewhat complicated by the fact that appellant advanced more than one theory of liability for each of the four causes of action for which a verdict was rendered, and written interrogatories were not submitted to the jury for special findings on which theory or theories the jury found appellee liable.3 Similarly, special findings were not made on which injuries *617or damages were found to have been proximately caused by appellant’s negligent acts or omissions. Nevertheless, it can be determined from the record that certain theories of negligence were not established by the evidence and that the evidence did not show that injury or extensive damages resulted from all negligent acts or omissions which were proved.

A. Wrongful Death Act Claims

Appellant is not entitled to an award of damages under the Wrongful Death Act on any theory for negligent infliction of emotional distress. Under the Wrongful Death Act, the wrongful act upon which liability is premised must result in death before recovery may be had. D.C.Code § 16-2701 (1989). The record is devoid of any proof that emotional distress caused decedent’s death.

Claims under the Wrongful Death Act are intended to compensate decedent’s close relatives for losses sustained by them where decedent’s death results from the wrongful act of another. Semler v. Psychiatric Institute of Washington, D.C., 188 U.S.App.D.C. 41, 43-44, 575 F.2d 922, 924-25 (1978); Runyon v. District of Columbia, 150 U.S.App.D.C. 228, 230, 463 F.2d 1319, 1321 (1972). Damages in such actions are measured from date of decedent’s death. Doe v. Binker, 492 A.2d 857, 864 (D.C.1985). The tort of negligent infliction of emotional distress allows a plaintiff to recover for emotional distress, mental disturbance or its consequences where negligently caused by conduct which the tortfeasor knew or should have realized involved an unreasonable risk of causing such harm. Asuncion v. Columbia Hosp. for Women, 514 A.2d 1187, 1188-89 (D.C.1986); Bass v. Nooney Company, 646 S.W.2d 765, 772-73 (Mo.1983) (en banc). Under the modern rule, to be actionable, the emotional distress must be serious and foreseeable, i.e., “ ‘medically diagnosable’ and ‘medically significant’.” Asuncion, supra, 514 A.2d at 1189 (citing Bass, supra, 646 S.W.2d at 772-73).

An action for negligent infliction of emotional distress is personal to the injured party. While cognizable under the Survival Statute,4 which preserves for the estate rights of action a decedent would have had if he lived,5 it is doubtful that such an action is ever viable under the Wrongful Death Act. Appellant failed to offer proof to a reasonable degree of medical certainty that emotional distress was a proximate cause of decedent’s death. See Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986). Where there is no proof that decedent’s death was caused by infliction of emotional distress or mental disturbance, no action will lie under the Wrongful Death Act for the tort. Therefore, the trial court did not err in granting judgment notwithstanding the verdict on the wrongful death claim based on negligent infliction of emotional distress. Ap-pellee is entitled to judgment notwithstanding the adverse verdict against it on this claim. See Oxendine, supra, 506 A.2d at 1103; District of Columbia v. Gandy, 450 A.2d 896, 900 (D.C.1982).

Appellant offered evidence in support of only one of the possible theories of negligence which resulted in death thereby warranting recovery under the Wrongful Death Act. In my view, liability for negligence causing death can be premised only upon the failure of the correctional officers to observe Mr. Barman’s condition from 3:05 p.m. until 6:05 p.m.6 and to provide him with medical treatment necessary to save his life. As to this theory of liability, appellant established the applicable standard of care, appellee’s deviation from that standard and a causal relationship between ap-pellee’s negligence and Barman’s death. See Washington v. Washington Hosp. Center, 579 A.2d 177, 181 (D.C.1990).

The remaining claims of negligence, which appellant contends resulted in a sex*618ual attack on Mr. Barman and his exposure to a chemical, were not shown to be the cause of decedent’s death. Therefore, any negligent acts or omissions which resulted in these earlier incidents provide no basis for recovery Under the Wrongful Death Act. See D.C.Code § 16-2701. As the majority points out, appellant’s expert failed to offer an opinion based upon a reasonable degree of medical certainty that decedent’s death, more likely than not, proximately resulted from a “sexual attack” or chemical exposure. Testimony based upon the mere possibility of a causal relationship between the negligent act and the injury (or death) is insufficient for the imposition of liability. Baltimore v. B.F. Goodrich Co., 545 A.2d 1228, 1232 n. 6 (D.C.1988) (citing Psychiatric Institute of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986)). The expert’s testimony with respect to any causal relationship between these earlier incidents and decedent’s death did not rise above the level of a mere possibility of a connection between the events and decedent’s death. Therefore, the evidence was insufficient to establish proximate cause. Absent proof of this nexus, the theories of negligence which purportedly resulted in a sexual attack and chemical exposure should not have been submitted to the jury for consideration under the Wrongful Death Act.

We have held that where several theories of liability have been submitted to the jury, one permissible and the other impermissible, and it cannot be determined upon which theory the jury relied in reaching a favorable verdict for appellant, the case must be remanded for a new trial. District of Columbia v. White, supra, 442 A.2d at 165. Since any earlier acts of negligence (prior to the failure to provide medical care between 3:05 p.m. and time of death) did not cause death, these theories of recovery were improper for consideration in conjunction with the one viable theory of recovery. Although the jury’s verdict could be based properly on one of the three theories of negligence, we cannot determine upon which theory the jury actually based its verdict; therefore, under White, a new trial is warranted.7 Id.

B. Survival Act Claims

The jury reserved the major portion of its damage awards for appellant’s claims for negligence and negligent infliction of emotional distress under the Survival Act: $30,000 for negligence and $1,000,000 for negligent infliction of emotional distress. Under this Act, the rights of action which decedent would have had if he had lived are preserved. Semler, supra, 188 U.S.App.D.C. at 44, 575 F.2d at 925. Recovery is restricted to what decedent would have recovered for the tort had death not intervened. Id.; Graves v. United States, 517 F.Supp. 95, 99 (D.D.C.1981) (citing Semler, supra). Although future lost earnings are recoverable under the Survival Act, such future losses are implicated only as to the negligent conduct giving rise to the claim which resulted in death. See Semler, supra, 188 U.S.App.D.C. at 43, 575 F.2d at 924. Any tort actions preserved under the Survival Act which do not result in death, allow recovery to the extent allowed for such claims where the person survives. To the extent proved by the evidence, a plaintiff may recover all cognizable items of damages (e.g., pecuniary losses, physical pain, discomfort, inconvenience, humiliation, embarrassment) proximately resulting from a defendant’s negligent act or omission. See Wingfield v. Peoples Drug Store, Inc., 379 A.2d 685, 688 (D.C.1977).

It is elementary that a plaintiff is entitled to compensation only for those injuries or damages proximately caused by a particular tort. District of Columbia v. Freeman, 477 A.2d 713, 715-16 (D.C.1984) (injury or damage must be a direct result or reasonably probable consequence of negligent act or omission to allow recovery); Boiseau v. Morrissette, 78 A.2d 777, 780 (D.C.1951). In this case, not every theory of negligence was proved, and every theory advanced would not support fully the total *619damages claimed. Therefore, it is necessary to consider any separate injuries and damages traceable to a proven act of negligence in evaluating the trial court’s ruling that the verdict was excessive. Again, we are hampered, but not totally restricted in our review, by the absence of special verdict findings for each claim.

1. Assault and chemical exposure

Appellee’s only negligent acts or omissions which could proximately have resulted in the “sexual assault” were its negligence in allowing decedent in an area where he could be exposed to other inmates and its failure to intercede to prevent continuation of the sexual activity observed by its employee. Similarly, the chemical exposure can be traced only to appellee’s failure to keep decedent from an area of danger. In order to recover, a plaintiff must prove the causal connection between the tort-feasor’s negligence and all injuries and damages claimed. Manes v. Dowling, 375 A.2d 221, 224 (D.C.1977).

It was not shown that pecuniary losses resulted from either incident. Since any injuries traceable to two events did not result in death, future income losses cannot be predicated on these claims. Additionally, appellant’s damages for pain, suffering, mental anguish and the like endured by Mr. Barman as a result of the “sexual assault” and chemical exposure, cannot be amassed as part of any suffering he endured as a result of the asthma attack which went untreated. No nexus was shown between these events and decedent’s death for the reasons previously stated. Liability for damages will not attach absent a direct causal link between the breach of duty and the injury. District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C.1984). Generally, recovery for injuries of this nature is based upon a showing of the nature, intensity and duration of such injuries. See, e.g., Garner v. Sam S. Bevard & Sons, 342 A.2d 52, 54 (D.C.1975). The injuries and elements of damages flowing from each negligent act in this case must be viewed separately because they were not triggered by the same event.8

Appellant failed to establish that Mr. Barman was forcibly assaulted or suffered pain, mental distress or emotional anguish as a result of appellee’s negligent omission which provided the opportunity for the sexual activities recounted by Raymond Stro-man, the only witness to the event who testified at trial. The witness described Mr. Barman’s reaction to the graphically detailed acts of mutual masturbation as one of pleasure, not pain. Assuming the sufficiency of the deposition testimony of Stroman to establish that sodomous acts occurred between decedent and other inmates,9 that testimony provides no clue that the acts were involuntary nor that decedent experienced pain, suffering, mental anguish or distress. No matter how disdainfully one may view such acts, absent evidence that these acts were non-consensual or otherwise resulted in injury, we cannot impute that revulsion to decedent nor speculate that an involuntary sex act, injury, anguish or suffering occurred. On this claim, appellant failed to sustain his burden of establishing the fact of the injury (i.e., a non-consensual sex act) traceable to appellee’s negligence.10

*620Here, the only portion of the deposition read at trial does not elucidate the event. The statement by Stroman in the deposition was that he "... told the residents I say yeah. Then they screwed the boy to death when I got back.” This excerpt from the deposition cannot provide evidence that the literal consequences described in the obvious hyperbole (i.e., decedent’s death) flowed from the sodomous acts. Indeed, the statement does not even recount what the witness saw. The witness only reported what he remarked to others. In acknowledging that he made an effort to testify truthfully at the deposition, the witness at best acknowledged that he did in fact make the statement to other inmates. Moreover, the statement sheds no light on what the witness observed about decedent’s reactions to the incident.11 Therefore, we are left with Stroman’s trial testimony that whatever acts he saw were voluntary. To conclude otherwise would require impermissible speculation.

There was no evidence that decedent suffered injury as a result of chemical exposure. The incident was not proven to have proximately caused decedent’s death nor did it result in observable injury on which to base an independent recovery for the tort. Moreover, any damages recoverable solely because the victim was subjected to this offensive act would not be so substantial as to justify the verdict rendered in this case. After the incident, Mr. Barman indicated that he was tired and did not feel well. We can only speculate about the cause of his fatigue and illness.12 Even assuming the causal connection between the chemical exposure and decedent’s feeling of fatigue and illness, no more than modest damages would be warranted given the extent, nature and duration of the observable, limited reported consequences.

2. Negligent failure to provide medical assistance

Any substantial damages to which appellant is entitled necessarily resulted from the remaining theory of liability, appellee’s negligent failure to monitor Mr. Barman in his cell and to provide him with medical assistance which would have saved his life. Therefore, I agree with the conclusions of the majority and the trial court that the significant period for measuring decedent’s damages resulting from this negligence is from the time he entered his cell at about 3:05 p.m. until his death (which occurred by about 5:05 p.m.). At least as to the claim for negligent infliction of emotional distress under the Survival Act, the award of damages for this brief period, as the majority concludes, was out of proportion to the pain and suffering proven during this critical period. Accordingly, I concur in the result reached by the majority affirming the order granting a new trial because the verdict was excessive.

The separate claims for negligence and negligent infliction of emotional distress under the Survival Act were based on the same theories of liability. I find no need to address separately whether the trial court erred in concluding that the verdict returned on the claim for negligence under the Survival Act was excessive. The issues for both claims are related. Where the issues are not separate and distinct, a retrial on all issues is warranted. Weinberg v. Johnson, supra, 518 A.2d at 993; Lacy v. District of Columbia, 408 A.2d 985, 990 (D.C.1979). Therefore, a new trial is required.

*621III.

Conclusions

For the reasons stated in Part II. A. of this separate opinion, I conclude that, viewing the evidence in the light most favorable to appellant, no reasonable juror could have found for appellant on the claim for negligent infliction of emotional distress under the Wrongful Death Act. Therefore, I would affirm the trial court’s order granting a judgment notwithstanding the verdict as to that claim.13 See Oxendine v. Merrell Dow Pharmaceuticals, Inc., supra, 506 A.2d at 1103. The claim for negligence under the Wrongful Death Act requires a new trial because several theories of liability, including impermissible ones, were submitted to the jury, and the theory on which the verdict was based ultimately cannot be determined. See District of Columbia v. White, supra, 442 A.2d at 165. For this reason, I would grant a new trial on the claim. Therefore, I concur in the result reached by the majority in affirming the order for a new trial on the claim. I also join the majority in affirming the trial court’s order for a new trial of the claims under the Survival Act for the reasons stated herein.

. See, e.g., Super.Ct.Civ.R. 12(b)(6) (failure to state claim upon which relief can be granted) Super.Ct.Civ.R. 56(d) (partial summary judgment); Super.Ct.Civ.R. 16(c)(1) & (e)(2) (pretrial procedure for simplification or elimination of frivolous claims or defenses and pretrial order which controls action absent modification); see also Gabrou v. May Department Stores Co., 462 A.2d 1102, 1104 (D.C.1983) (directed verdict for issues on which no reasonable juror can find for non-moving party).

. See also Standardized Civil Jury Instructions for the District of Columbia, No. 2-5 (1985).

. See Super.Ct.Civ.R. 49(b); Flynn v. Staples, 34 App.D.C. 92, 97 (1909) (special issues may be submitted to the jury to determine which negligent acts form basis for verdict); Nesmith v. Alford, 318 F.2d 110, 125 n. 30 (5th Cir.1963) (special interrogatories urged for complicated issues, multiple and subsidiary); see also Allen v. Uni-First Corp., 151 Vt. 229, 232, 558 A.2d 961, 963 (1989) (special interrogatories encouraged for multiple, overlapping theories of liability).

. D.C.Code § 16-2701.

. See Semler, supra, 188 U.S.App.D.C. at 44, 575 F.2d at 925.

.The evidence showed that death occurred from one to two hours before discovery of the body. Therefore, evidence of appellee’s omissions must be considered between 3:05 p.m. and about 5:05 p.m.

. Appellant states in his brief that he does not seek a new trial on the wrongful death claims for which the jury awarded only nominal damages. Nevertheless, a review of each claim assists in demonstrating the propriety of the trial court’s ruling on the remaining claims.

. Although not mandatory, the use of special interrogatories in such cases not only guides the jury, but also assists with post-verdict review. See Super.Ct.Civ.R. 49(b).

. This conclusion is premised on a statement in the deposition which was used to impeach the witness’ testimony. The jury was instructed that prior inconsistent statements could be used to evaluate credibility and not for establishing the truth of any fact contained in the statement. I recognize that where a witness affirms the truth of a prior inconsistent statement, it may be considered not only for impeachment purposes, but also as substantive evidence in the case. See Watts v. United States, 362 A.2d 706, 711-12 n. 11 (D.C.1976) (en banc) United States v. Borelli, 336 F.2d 376, 391 (2d Cir.1964). However, unequivocal affirmance of the prior statement by the witness is questionable here, given that he acknowledged having tried to tell the truth at deposition and elaborated, explained and denied at trial having seen the sodo-mous act mentioned in the deposition.

.I recognize that sexual contact with a person who is incapable of consenting is deemed to be involuntary. However, appellant failed to establish that the nature of any mental illness suffered by Mr. Barman rendered him incapable of consenting to such acts. Presumably, not everyone who suffers a mental illness is incapa*620ble of functioning in all areas. Moreover, appellant proceeded on the theory of forcible sodomy at trial. See Hackes v. Hackes, 446 A.2d 396, 398 (D.C.1982) ("Parties may not assert one theory at trial and another on appeal.”)

. Cause of death in this case required expert testimony. Considering that cause of death was a central issue in the case, admission into evidence of Stroman's "lay opinion” expressed through comments he made to others about the cause of decedent’s death was highly prejudicial and lacked probative value. Therefore, it should not have been allowed for any purpose other than impeachment. Apparently, the trial court allowed it only for that purpose.

. There are circumstances where pain and suffering may be inferred from the fact of physical injury without the aid of expert testimony. Jones v. Miller, 290 A.2d 587, 591 (D.C.1972). Here there was no obvious physical injury from the chemical exposure.

. The affirmance would be based on grounds different from those relied on by the trial court. See In re O.L., 584 A.2d 1230, 1232 n. 6 (D.C.1990) (a correct decision of the trial court must be affirmed even if reached for the wrong reason).