Experts: Claim of Inadequate Crowd Control Causing Plaintiff's Fall Must Have Expert Testimony on Standard of Care

Hill v. Metropolitan AME Church, __ A.2d __ (D.C. 2001). Opinion by Steadman, joined by Farrell and King. Trial judge: Mize.

FACTS: Plaintiff was leaving the Metropolitan AME Church after the installation ceremony for the new chair of the NAACP, when the crowd surged behind her, causing her to fall as she reached the top of the stairway. She sued the church and the NAACP on grounds that they were negligent in not having ushers control the exiting of the crowd of 1,700 to 2,000 persons. Trial court granted summary judgment for defendants for plaintiff's failure to have expert testimony on crowd control.

OUTCOME: Judgment for defendants AFFIRMED.

COMMENT: Opinion provides useful review of modern decisions on the need for expert testimony where some aspect of the issue is within common knowledge but other aspects are not. Cases include: D.C. v. Freeman, 477 A.2d 713 (D.C. 1984) (expert needed on whether intersection required more signage or lights); Messina v. D.C., 663 A.2d 535 (D.C. 1995) (expert needed on playground cushioning beneath monkey bars); Katkish v. D.C., 763 A.2d 703 (D.C. 2000) (expert needed on whether leaning tree is dangerous); D.C. v. Shannon, 696 A.2d 1359 (D.C. 1997) (no expert needed where open hole in playground slide tubing was obviously dangerous); Jimenez v. Hawk, 683 A.2d 457 (D.C. 1996) (no expert needed on whether abandoned oil tank should have been capped).

No Joint Tortfeasor Credits for Settlement Where Maryland Law Applies and Settler Was Never Adjudicated to be Tortfeasor

Logan v. Providence Hospital, __ A.2d __ (D.C. 2001). Opinion by Ruiz, joined by Wagner and Schwelb. Trial court: Rufus King III.

FACTS: Man swallowed water in hotel swimming pool and had to be resuscitated. He was taken to hospital and developed fatal pneumothorax due to incorrect use of respirator. Personal representative sued hotel in Maryland and settled for present value of $360,000. Plaintiff filed separate suit in D.C. against hospital and doctor. Jury found for plaintiff and awarded $476,000. Trial court applied D.C. law to settlement and gave non-settling defendant a pro tanto credit for entire amount of Maryland settlement with hotel, reducing final award to $116,000.

OUTCOME: Reduced judgment REVERSED.

HOLDING: (1) A release entered in a Maryland legal proceeding should be interpreted according to Maryland law to decide its effect on related litigation, even though the other litigation is in D.C.

(2) Under Maryland law, if settler is not established to be a joint tortfeasor, non-settler has no right of credit whatsoever.

COMMENT: If D.C. law had applied, plaintiff would have been better off arguing the reverse ñ that the settling tortfeasor WAS a joint tortfeasor, because then the non-settler would be entitled only to a pro rata credit, whereas D.C. law allows a higher dollar-for-dollar credit where the settler was never found to be a joint tortfeasor. Maryland's law, Md. Code, Cts. & Jud. Proc. § 3-1404, gives the non-settler the higher of either the pro rata or pro tanto credits, but ONLY where the settler is found to be a joint tortfeasor or where the release provides that he shall be treated as a joint tortfeasor. See Swigert v. Welk, 133 A.2d 428 (Md. 1957). Where the settler is not a tortfeasor at all, the settlement is treated as a gratuity for which the non-settler gets no credit. This case follows Berg v . Footer, 673 A.2d 1244 (D.C. 1996), in finding exceptions to the "single satisfaction" rule and allowing the plaintiff to recover more than the jury awarded.

BRIEFS

D.C. Leash Law Too Vague to Warrant Negligence Per Se Jury Instruction When It Is Violated. Chadbourne v. Kappaz,__ A.2d __ (D.C. 2001). Opinion by Washington, joined by Steadman and Ruiz. Leash law, D.C. Code § 6-1008(a), states that "no owner of an animal shall allow the animal to go at large." "At large" is defined in D.C. Code § 6-1001(1) as an animal "found off the premises of its owner and neither leashed nor otherwise under the immediate control of a person capable of physically restraining it." Court holds that this definition "does not contain the kind of specific guidelines that would allow one to determine whether the statute has been violated without resorting to a common law reasonable care analysis."

Personal Jurisdiction: Plaintiff Could Not Sue Out-of-State Corporation in D.C. Solely on Theory that Some of Product Manufactured by Defendant Found Its Way Into Products Sold in D.C. Holder v. Haarmann & Reimer Corp.,__ A.2d __ (D.C. 2001). Opinion by Schwelb, joined by Ruiz and Belson. Antitrust case. Plaintiff failed to establish that nonresident defendant had "transacted business" in D.C., pursuant to D.C. Code § 13-423(a)(1), because there was no evidence that defendant had sold its product directly to anyone in D.C. or that it even had sold to a distributor knowing that such distributor would be putting the product into the D.C. market.

Attorney Who Disparages Defendant in Pre-Suit Solicitation of Potential Plaintiff Has Absolute Privilege from Being Sued for Libel. Finkelstein, Thompson & Loughran v. Hemispherx Biopharma, Inc.,__ A.2d __ (D.C. 2001). Attorney sent message to a person on an Internet chat room offering to discuss potential shareholder suit against publicly traded company. Company sued attorney for libel. Court finds absolute "judicial proceedings privilege" in pre-suit statements by the attorney.