District of Columbia v. Ali-Brown

562 A.2d 636, 1989 D.C. App. LEXIS 146, 1989 WL 83476

• Court: District of Columbia Court of Appeals
• Decided: July 28, 1989
• Docket: No. 86-1365
• Status: Published

Opinions

PER CURIAM:

Plaintiff/appellee Virginia Ali-Brown was awarded compensatory damages for knee injuries she sustained by falling in a hole in a District of Columbia sidewalk, and in a subsequent fall at her place of employment. Plaintiff contended this second fall (which resulted in serious additional injury) was caused by a sudden buckling of the injured knee and was thus a direct result of the initial accident. Before us, appellant District of Columbia claims the trial court erred in not giving the requested standard and special contributory negligence instructions with regard to the office fall, and in otherwise frustrating such a defense.

As the case developed, the District had no serious cause to complain with respect to the instructions. Following the refusal to give the contributory negligence instruction, the trial court agreed to give the following instruction relating to the liability of the District for the second fall:

and if you further find that on July 23rd, 1981, Plaintiff while exerc/ising due care was caused to fall as a direct result of a weakness or physical instability produced by the injuries sustained in the first fall, then Plaintiff is entitled to recover for any injuries and damages proximately caused by the second fall, as well as those caused by the first. (Emphasis added.)

This instruction was a close adaptation of that approved in S.S. Kresge Co. v. Kenney, 66 App.D.C. 274, 86 F.2d 651 (1936), as a correct statement of the law. The instruction in that case required that the plaintiff be acting “as an ordinary and reasonable person” at the time of the subsequent injury. S.S. Kresge Co. v. Kenney, supra, 66 U.S.App.D.C. at 275, 86 F.2d at 652. Cf. Restatement (Second) of Torts § 460 (1965). At the District’s request, to which the plaintiff did not object, this wording was changed to “while exercising due care.”¹ Thus viewed as an element of proximate cause,² the proof of due care was for the plaintiff to show, District of Columbia v. Cooper, 483 A.2d 317, 321-22 (D.C.1984).³ In short, under the trial court’s express instructions, liability for injuries resulting from the second fall was contingent on the jury’s finding that plaintiff acted with due care, and, as indicated hereafter, the District did indeed vigorously argue its tripping theory in closing argument to the jury.

Nor can we agree with the District’s assertion that the trial court improperly “frustrated” the District’s presentation of its position with respect to the plaintiff’s asserted lack of due care in connection with the second injury. A fair appraisal of the record demonstrates that the trial court gave the District of Columbia ample opportunity to develop its position that Ms. Ali-Brown’s own lack of due care for her safety was a cause of her second injury. What the District complains of appears in fact to be nothing other than a careful governance of the conduct of cross-examination and closing argument in which the District of Columbia was permitted to utilize to its advantage precisely what material there was in the record helpful to its cause, but was not allowed to overstate that material.

The trial court placed no obstacle in the way of the District’s development of its position with respect to the cause of the second tripping or fall. The District was allowed to cross-examine Ms. Ali-Brown fully on this issue. It was free to offer exhibits or other witnesses on that question, although it did not do so.

The only asserted shortcoming is the manner in which the trial court limited the District’s use of the theory of how the second fall occurred, purportedly given by Ms. Ali-Brown to Dr. George J. Schonholtz and to Dr. Jeffrey I. Goltz or a member of his staff.

The plaintiff introduced early in the trial Exhibit No. 55, a report of Dr. Schonholtz which contains under the heading “History” the statement that after the first injury and resultant arthroscopy, plaintiff “returned to work and probably misstepped or tripped on an extension cord, reinjuring her knee.” This “History” reveals by its context that it in no way purports to be a verbatim statement of what Ms. Ali-Brown said to the physician; indeed, it contains so much technical information that it is obvious that its sources go beyond the utterances of Ms. Ali-Brown. The trial court twice sustained objections when the District in cross-examination tried to present the office incident as a “tripping fall,” or “tripping” over cords. While it is true that the trial court did not permit the District in cross-examining Dr. Schonholtz to refer to the incident as a “tripping fall,” the District was permitted to develop the fact that the plaintiff had had numerous discussions with Dr. Schonholtz concerning the circumstances of the July 28rd fall at her office, and that his initial impression was that she had tripped. The trial court did not hamper the District’s efforts to bring out precisely what had happened with respect to the taking of the history set forth in the report or its efforts to place before the jury the fact that based on discussions with the plaintiff, Dr. Schonholtz received the impression that she had tripped.

Similarly, when counsel for the District was cross-examining Dr. Goltz, the trial court declined to allow counsel to refer to the second accident as a “tripping over cords”, but indicated that counsel would be allowed to describe the occurrence “as set forth in the statement.”

The trial court made it clear to counsel that the reason it did not permit the District to go beyond a reference to what the statement of history contained was that counsel had not asked the doctors to state exactly what Ms. Ali-Brown had told them by way of history. The trial court so informed counsel while Dr. Goltz was on the witness stand. Therefore, the court limited cross-examination to precisely what the defense had available to it, the statement of history based upon discussions with a doctor which set forth the impression which the doctor took from the conversation. The District was not precluded from developing that both the doctors had gained the impression from the history that she had sustained her second injury as a result of tripping, and the jury was made aware of that.

Finally, the District complains of the trial court’s sustaining an objection during the District’s closing argument to the flat assertion that the tripping description of the doctors was based on the plaintiff’s description. Counsel for the District immediately rephrased the assertion as representing the impression that the doctors had received from her, and continued to forcefully argue the District’s theory without further interruption, including use of the word “tripping.”

The trial court allowed counsel for the District as much latitude on cross-examination and closing argument as he had shown himself entitled to. If the fact that Dr. Schonholtz discussed the cause of the second injury which plaintiff justifies the inference that it was she who told him she tripped, the District was not prejudiced because the jury was told of the discussion and the contents of the document and could have drawn the inference itself. In any event, even if what occurred should somehow be deemed a limitation on the presentation of the District’s theory concerning the second fall, it was so minor in nature, and so inconsequential in the context of the trial, that it should not lead to a reversal.⁴

Affirmed.

1 . Although neither party so requested and therefore has no cause to complain, the instruction as given might be slightly improved by following the Kresge model in separating out the two findings required of the jury. The wording in Kresge was that "if you further find from the evidence that the plaintiff acted as an ordinary and reasonable person ... in trying to get a drink of water and that while so doing she was caused to fall as a direct result [of the prior injury] ... then you are instructed that she is entitled to recover for the injuries sustained [in the second incident].” S.S. Kresge Co. v. Kenney, supra, 66 U.S.App.D.C. at 275, 86 F.2d at 652 (emphasis added).

2 . It has been noted that the due care requirement is necessary "both from the point of view of contributory negligence, and that of proximate cause." W. Keeton, Prosser and Keeton on the Law of Torts § 44 at 310 n. 90 (5th Ed.1984). Likewise, in Restatement (Second) of Torts § 460 comment b (1965): “Usually in such cases [of careless activity] the contributory negligence of the [plaintiff] will bar his recovery: but apart from such a defense, the [tortfeasor’s] conduct is not a legal cause of the second injury.” See generally Vance, Liability for Subsequent Injuries, 42 Tex.L.Rev. 86 (1963). Cf. the doctrine of "avoidable consequences.” Prosser and Keeton, supra, at 458-59.

3 .Thus, not only did the District suffer no substantial prejudice from the fact that the trial court did not employ the words "contributory negligence,” it indeed benefited from the imposition on the plaintiff of the burden of proving the causal relationship between the original fall and the injuries incurred as a result of the second fall.

4 . As discussed in the dissent, plaintiff (a federal employee) filed a workers’ compensation claim for the second injury. Payment of the judgment by the District may be subject to the provisions of 5 U.S.C. § 8132 (1982) requiring that no proceeds be paid to a beneficiary without first satisfying the interest of the United States in receiving a refund of any compensation paid by it.