Last Clear Chance: Plaintiff Doesn't Have to Prove Defendant Actually Knew of Plaintiff's Peril

WMATA v. Young, __ A.2d __ (D.C. 1999). Opinion by Terry, joined by Farrell and Greene.

FACTS: Young was riding his bicycle westbound on Calvert Street in the right lane. A Metro bus was also traveling westbound. Witnesses disagreed over whether the bus was in the left or right lane. Both were approaching the intersection where Calvert ends and a sharp right turn would take one onto 29th Street northbound, and a wide-angle turn would take one onto Cleveland Avenue headed northwesterly. While the bicyclist was riding along the right side of the bus, the bus made a sharp right turn onto 29th Street. The bicycle struck the side of the bus and the rider was thrown underneath, suffering serious injuries. The bus driver testified he saw a bicycle in his interior mirror just before starting his turn, and he thought the bike was on the sidewalk. He did not see the cyclist as he was turning but felt the impact. Plaintiff introduced evidence that the bus driver's outside righthand mirror if properly adjusted would have allowed him to see the bicyclist before he began the turn. Jury found that both the bus driver and the bicyclist were negligent but the bus driver had the last clear chance to avoid the accident.

OUTCOME: Verdict for plaintiff AFFIRMED.

HOLDING: 1. Although evidence was close, last clear chance was a jury question. Jury could reasonably find all four elements of last clear chance: (1) Plaintiff was in a position of peril caused by both his negligence (riding alongside a bus that was about to turn) and that of the defendant (making an improper right turn from the left lane). (2) Plaintiff was unable to extricate himself from the danger (once he was alongside the bus and it was about to turn. (3) Driver should have been aware, before he began to turn, of plaintiff's inability to extricate himself, because proper use of righthand mirror would have revealed plaintiff's presence. (Court holds on this point that plaintiff does not have to prove that defendant was actually aware of plaintiff's peril.) (4) Driver could have avoided accident by aborting the turn.

2. Trial court didn't err in admitting evidence of WMATA's Standard Operating Procedure for making bus right turns, despite WMATA's contention that it described the ideal way to turn, not the mandatory one, and that it could not have been followed at this intersection. Court holds that SOP, while not conclusive, provides some evidence of the standard of care.

Res Ipsa Loquitur: Plaintiff Must Have Expert (Two Cases)

Burns and Loss of Hair from a Beauty Salon Chemical Hair Treatment

Scott v. James, ___ A.2d ___ (D.C. 1999). Opinion by Reid, joined by Mack; Schwelb dissenting.

FACTS: Scott underwent application of a "hair relaxer" at James's beauty salon. Her scalp started to burn. The hair dresser rinsed off the relaxer and cut off three or four inches of "damage" but within a couple weeks, her hair turned brittle and began to come out in clumps. The beauty salon offered her free treatments but they didn't seem to help. Plaintiff cut off all her hair and eventually recovered when the new hair grew in normally. At trial, plaintiff offered only her own testimony and that of her roommate who witnessed the damage. She did not call any subsequent treating hair dresser or the defendant and did not identify the product that damaged her hair. She also admitted she never saw a doctor until more than two years after the event, and that doctor merely prescribed moisturizing cream for her skin. Trial court threw out case at end of plaintiff's evidence.

OUTCOME: Directed verdict for defendant AFFIRMED.

HOLDING: Plaintiff claiming injury from a chemical hair treatment must call an expert witness at least to establish that this type of injury does not ordinarily occur without negligent application by the hair dresser. Thus plaintiff failed to meet the first element of a res ipsa loquitur claim that "the occurrence is of the kind which ordinarily does not occur in the absence of someone's negligence." Hailey v. Otis Elevator Co., 636 A.2d 426, 428 (D.C. 1994).

COMMENT: Judge Schwelb in dissent writes that the case should have gone to the jury because it is common knowledge that chemical treatments of the hair don't ordinarily cause it to fall out in clumps. He argues that burden should shift to hair dresser to rebut inference of negligence, especially since the facts concerning how the injury happened are more accessible to the defendant.

Escalator Injury: Plaintiff Must Call Expert to Show that "Violent Jerking" Doesn't Happen Without Negligent Maintenance

Crenshaw v. WMATA, __ A.2d __ (D.C. 1999). Opinion by Washington (sitting by designation), joined by Schwelb and Farrell.

FACTS : Plaintiff claimed she was standing on a Metro escalator, tightened her grip on the handrail after it made a small jerking motion, but then fell after the escalator jerked more violently. Records showed the escalator worked before and after the incident and that it had been maintained on schedule. WMATA and Schindler, the escalator maintenance contractor, moved for summary judgment at the close of discovery.

OUTCOME: Summary judgment for defendants AFFIRMED.

HOLDING: Plaintiff is not entitled to rely on doctrine of res ipsa loquitur because plaintiff had no expert to show that jerking motions, even violent ones, do not ordinarily happen without negligence by those maintaining the escalator. Court relies on Hailey v. Otis Elevator Co., 636 A.2d 426 (D.C. 1994). The fact that Hailey involved only a "slight jerking" compared to the violent one here does not distinguish the case or excuse the plaintiff from the obligation of calling an expert.

Res Judicata: Plaintiff Who Loses Against One Tortfeasor Is Not Barred from Suing a Second Tortfeasor

Patton v. Klein, __ A.2d __ (D.C. 1999). Per curiam. (Wagner, Schwelb and Benson.)

FACTS: Estate of woman who died of breast cancer sued her surgeon for failure to make the diagnosis in 1988, when she presented with a lump in the upper outer quadrant of breast. Surgeon's defense was that the lump was merely an enlarged but non-malignant lymph node. Radiologist who did mammogram and sonogram of the breast in 1988 testified in support of surgeon but also admitted in trial testimony that his written report about his radiology findings was in error. Plaintiff lost trial against the surgeon. Plaintiff then sued the radiologist in separate action, alleging that radiologist's trial testimony supported claim that he negligently failed to visualize the suspicious lump. Trial court granted summary judgment on res judicata ground that the claim could have been litigated in the original case.

OUTCOME: Summary judgment for defendant REVERSED.

HOLDING: (1) Doctrine of res judicata (claim preclusion) doesn't bar plaintiff's claim against radiologist because radiologist was not a party in the prior action and wasn't in privity with anyone sued in prior action.

(2) Doctrine of collateral estoppel (issue preclusion) also doesn't bar the action. Plaintiff could be barred from suit against second doctor if an issue of fact essential to the second case was decided against the plaintiff in the first case. Defendant radiologist claimed the jury must have decided the plaintiff did not have cancer when radiologist and surgeon examined her. However, the jury's verdict of "no negli-gence" against the first doctor could have been based on some other ground.

COMMENT: Case highlights common misconception that plaintiff cannot "split her cause of action" and thus is obligated to bring all claims against all parties in a single case. That is not true. All claims against one party and those in privity with that party must indeed be joined in a single case, but not claims against independent parties, even for the same injury. Plaintiff here tried to justify second suit on grounds of newly discovered evidence, but appellate court did not reach that issue since the new case was not otherwise barred by traditional res judicata or collateral estoppel doctrines.

Suits against D.C. Government:

* Even Mentally Incompetent Must Give Six-Month Notice;

* Section 1983 Claims Require Detailed Statistical Evidence of Police Misconduct

Gross v. District of Columbia, __ A.2d __ (D.C. 1999). Opinion by Steadman, joined by Terry and King.

FACTS: Plaintiff was beaten by unknown police officers in a nightclub near Howard U. campus. Plaintiff later dropped out of school and was admitted to a mental hospital. His brother filed suit on his behalf against the District three years later. Plaintiff did not send notice to the mayor within six months of injury as required by D.C. Code § 12-309. In opposing District's motion to dismiss, plaintiff filed an affidavit from a treating psychiatrist that he was non compos mentis from the time of the alleged incident. Plaintiff also alleged the District must have had a police report about the incident, since the police took the plaintiff to a hospital afterwards, but the District denied existence of any report. Plaintiff also sued District for violation of his constitutional rights under 42 U.S.C. § 1983. Plaintiff submitted affidavit from expert, Robert Klotz, to support contention that lack of training constituted municipal policy of "deliberate indifference" to plaintiff's rights. Trial court dismissed case.

OUTCOME: Summary judgment for District AFFIRMED.

HOLDING: (1) Mental incompetence doesn't excuse non-compliance with notice requirement of D.C. Code § 12-309. Court previously held that minors are not exempt either.

(2) While 12-309 notice isn't required for constitutional claim, plaintiff failed to submit sufficiently detailed affidavit of expert to establish that D.C. government had a policy that led to excessive use of force by its officers. Plaintiff should have proffered detailed statistics of police violence to show a widespread pattern of misconduct and also should have cited studies showing link between inadequate training and violence.

COMMENT: Court distinguished a successful Section 1983 claim cited by the plaintiff on ground that plaintiff there had extremely detailed statistical evidence. See Cox v. District of Columbia, 821 F.Supp. 1 (D.D.C. 1993), aff'd without opinion 40 F.3d 475 (D.C. Cir. 1994). Query whether federal court might have been more hospitable to plaintiff's claim.

Slip and Fall: Sidewalk's Proximity to a Police Station Helps Establish Constructive Notice

Lynn v. District of Columbia, __ A.2d __ (D.C. 1999). Per curiam (Terry, Ruiz & Pryor).

FACTS: Plaintiff stepped up onto a curb from the street and fell into a treebox whose dirt level had shrunk to three inches below the adjacent pavement. Plaintiff testified it had been that way for at least a month. Accident occurred at a busy intersection at Benning and F streets Southeast, near a police station, a public school and shopping areas. Plaintiff also testified she could have used another route to cross the street but it had its own hazards and she was trying to protect her children. Court grants summary judgment against the plaintiff on grounds of inadequate proof of notice and plaintiff's contributory negligence for not using a different route.

OUTCOME: Summary judgment for D.C. REVERSED.

HOLDING: (1) Plaintiff presented fact issue on constructive notice. If jury believed plaintiff that treebox had been that way for a month, fact that police station was nearby would give rise to permissible inference that police would have been able to observe condition and report it.

(2) Plaintiff's awareness of danger and existence of alternate route don't make her contributorily negligent as a matter of law, especially since plaintiff and another witness testified that alternate route was also hazardous.

COMMENT: Another recent case holding that slip-and-fall plaintiff had produced sufficient evidence of notice is District of Columbia v. Murtaugh, 728 A.2d 1237 (D.C. 1999). In Murtaugh, plaintiff had a video deposition of a police officer testifying that he had seen a pothole in an alley and reported it to the mayor's command post several weeks before the plaintiff fell into the pothole. When seen by the police officer, the pothole was surrounded by sawhorses and tape, but on the night plaintiff was hurt, only one sawhorse marked the spot and didn't sufficiently shield the area.

BRIEFS

Dismissal in favor of arbitration is not immediately appealable. Plaintiff sued the union where she was employed for sexual harassment. Trial court granted defendants' motion to refer case to arbitration. HELD: an order DENYNG arbitration is immediately appealable under the arbitration statute, but an order REQUIRING arbitration is not. D.C. Code § 16-4317(a). Judith v. Graphic Communications Int'l Union, 727 A.2d 890 (D.C. 1999).

District has no respondeat superior liability for police employee's theft of criminal suspect's money from property room, unless government itself was grossly negligent. D.C. Code § 4-162 allows claims for loss of property in custody of police property clerk only if plaintiff proves gross negligence. Here, government itself followed its usual procedures for safeguarding property so couldn't be found grossly negligent. Employee who stole money could have been found liable because it was an intentional theft, but D.C. has no vicarious liability for its property clerk's intentional acts. Mefford v. District of Columbia, 728 A.2d 607 (D.C. 1999).

Trial court can't bar cross-examination even though party being cross-examined isn't represented by counsel. In this case, woman brought action for civil protective order against boyfriend who beat her. She appeared at hearing pro se, while he had a lawyer. Court wouldn't let his lawyer cross-examine her on grounds that it was a civil proceeding and there was no right of cross-examination or confrontation. HELD: court can place limits on cross-examination but can't deny it altogether. Tyree v. Evans, 728 A.2d 101 (D.C. 1999).

Title VII plaintiffs must wait 180 days after filing EEOC complaint before filing lawsuit, even though EEOC gave employee a "right-to-sue" letter before the 180 days. In this case, plaintiff won a $7 million sex harassment judgment against her former employer, Fannie Mae. Trial judge reduced verdict to $900,000. D.C. Circuit throws out entire verdict on grounds that EEOC erroneously issued a "right-to-sue" letter to plaintiff before the expiration of 180 days after plaintiff's filing of EEOC complaint, which the court holds is a mandatory cooling-off period established by Congress that EEOC may not disregard. Since case will have to be refiled and retried, court rules on plaintiff's cross-appeal that trial judge erroneously reduced some elements of plaintiff's damages to comport with Title VII damages cap. Trial judge should have just reallocated those damages exceeding the cap to plaintiff's D.C. Human Rights Act claim, where no damage cap applies. Martini v. Federal National Mortgage Ass'n, __ F.3d __ (D.C. Cir. 1999).