Ehab Asal v. Estate of Mina

• Court: District of Columbia Court of Appeals
• Decided: March 18, 2021
• Docket: 18-CV-534, 19-CV-642 & 19-CV-643
• Status: Published

Opinion

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

DISTRICT OF COLUMBIA COURT OF APPEALS

Nos. 18-CV-534, 19-CV-642, & 19-CV-643

EHAB ANWAR ASAL ET AL., APPELLANTS, v.

FAYEZ F. MINA, AS ADMINISTRATOR AND LEGAL REPRESENTATIVE OF THE ESTATE OF GEORGE FAYEZ MINA, APPELLEE.

Appeals from the Superior Court of the District of Columbia (CAB-9125-15)

(Hon. William M. Jackson, Trial Judge)

(Argued January 7, 2020 Decided March 18, 2021)

Patricia Lambert, with whom Brian Cathel and Emily Devan were on the brief, for appellants Ehab Asal and Hala Asal.

Laura Basem Jacobs for appellant Nationwide Property & Casualty Insurance Co.

Peter Scherr, with whom Scott Futrovsky was on the brief, for appellee.

Before BLACKBURNE-RIGSBY, Chief Judge, THOMPSON, Associate Judge, and RUIZ, Senior Judge.

Opinion by Associate Judge THOMPSON, dissenting in part, at page 50.

BLACKBURNE-RIGSBY, Chief Judge: In this appeal, we address the rights and

respective duties of drivers and pedestrians when crossing at unsignalized 2

crosswalks. It arises from a jury verdict finding Ehab and Hala Asal liable for the

death of George F. Mina after he was struck by the Asals’ vehicle. The Asals appeal

the trial court’s directed verdict on the issues of negligence and contributory

negligence in favor of Mr. Mina’s estate, as well as its decision to leave undisturbed

the jury’s $275,000 non-economic damages award on the survival action.

Nationwide Property & Casualty Insurance Co. (“Nationwide”), the Asals’ auto

insurer, appeals the trial court’s ruling that Mr. Mina’s estate is entitled to garnish

the benefits of the Asals’ insurance policy. Finding no error, we affirm.

I. Background

In June 2015, driver Ehab Asal struck and killed pedestrian George F. Mina.

Mr. Mina’s father, Fayez Mina, acting as the personal representative of Mr. Mina’s

estate (the “Estate”), filed a complaint against Mr. Asal and his wife, Hala Asal,

alleging, in relevant part, claims under the District of Columbia’s Survival Act, D.C.

Code § 12-101 (2012 Repl.), and Wrongful Death Act, D.C. Code § 16-2701 (2012

Repl.). 1 A one-day jury trial was held on November 15, 2017, which established

largely undisputed facts, as the collision was caught on video camera.

1 At the time of the collision, Mr. Asal was driving a car owned by his wife, Ms. Asal. The Estate named Ms. Asal as a defendant because she owned the car, not because of her involvement in the collision. 3

A. Factual Background

The following facts are derived from the trial testimony, which was

corroborated by the surveillance footage viewed by the trial court and the jury. On

June 10, 2015, at approximately 5:06 p.m., Mr. Mina waited in the bus lane inside

the crosswalk on the southeast corner of Wisconsin Avenue and Veazey Street NW

to cross Wisconsin Avenue. Wisconsin Avenue is a busy, six-lane roadway with

three northbound and three southbound lanes of traffic. At Veazey Street, an

unsignalized crosswalk divides Wisconsin Avenue, with several pedestrian crossing

signs facing drivers in both directions – including a sign in the middle of Wisconsin

Avenue; the intersection does not have a stop sign. Emma Rigney, who was driving

a red SUV northbound in the middle lane on Wisconsin Avenue, testified that she

stopped just before the crosswalk to let Mr. Mina cross. The two made eye contact,

Mr. Mina smiled and waved, and he proceeded to cross. While walking past Ms.

Rigney’s stopped car, Mr. Mina turned his head and attention away from the

oncoming northbound lanes (the direction of Ms. Rigney’s car) and toward the

opposite, southbound lanes to observe oncoming traffic. He then turned his attention

back, to observe the innermost northbound lane. At that time, Mr. Asal’s vehicle,

which was proceeding in that lane, collided with Mr. Mina. Mr. Mina’s body hit the 4

side of Mr. Asal’s car, his head hit the windshield, and he was thrown five to six feet

onto the pavement, where he lost consciousness.

Mr. Asal testified that he knew the area well because he passed through it

every day driving to his job at a restaurant located approximately four blocks from

the intersection. He was also aware of the crosswalk at that location and that it was

marked by several pedestrian warning signs facing his direction. Approaching

Veazey Street at the time of the collision, Mr. Asal was driving northbound in the

left, innermost northbound lane of Wisconsin Avenue at approximately twenty to

thirty miles per hour. Mr. Asal observed Ms. Rigney’s car (in the middle northbound

lane) slow down as it approached the crosswalk, but testified that he did not see her

car stop. 2 The car immediately in front of Mr. Asal in his lane and an oncoming

southbound car both drove through the intersection without stopping. Mr. Asal

testified that he did not see a pedestrian in the crosswalk, and he did not slow down

or stop at the crosswalk. Mr. Asal testified that he did not see Mr. Mina until the

collision, when Mr. Mina struck his windshield.

2 Mr. Asal testified that, in his experience, cars that were slowing down as they approached the intersection were generally turning, not stopping. On cross- examination, however, Mr. Asal confirmed that there was no street sign that authorized a car to turn right from the middle lane and that he did not observe Ms. Rigney with her right turn signal on at the time. 5

Dr. John Davitt, a medical resident at Washington Hospital Center, testified

that he was sitting at a restaurant adjacent to the crosswalk when he heard the

collision and saw Mr. Mina being tossed from Mr. Asal’s car onto the pavement.

Dr. Davitt immediately went to the crosswalk, where he found Mr. Mina bleeding,

unconscious, and unarousable, though breathing and with a pulse. Dr. Davitt

stabilized Mr. Mina’s head and neck while waiting for an ambulance to arrive.

An ambulance transported Mr. Mina to the George Washington University

Hospital emergency room. Dr. Babak Sarani, Mr. Mina’s treating physician and the

Estate’s expert witness, testified that Mr. Mina was

“radioed [in] as being unconscious” and confirmed that he was “in a very deep state

of coma” upon his arrival at the emergency room. Dr. Sarani rated Mr. Mina a three

on the Glasgow coma scale, the lowest score, indicative of “a deeply comatose

person.” 3 Dr. Sarani testified regarding the extent of Mr. Mina’s injuries and the

3 Dr. Sarani explained that the Glasgow coma scale “is a means of measuring someone’s degree of coma” – “how awake are you versus how . . . deep a coma are you in.” The score ranges from three to fifteen, with the lowest score, representing a deeply comatose person, being a three. See also Clements v. United States, 669 A.2d 1271, 1274 (D.C. 1995) (describing the Glasgow Coma Scale as a “measurement of [the] degree of alertness” that “rat[es] a person between a high of 15 and a low of 3”). 6

medical procedures and therapies he underwent following his arrival at the hospital. 4

Mr. Mina died on June 16, 2015, six days after the collision. Dr. Sarani testified that

Mr. Mina was unconscious from the moment he arrived at the hospital until he died.

B. Judgment in Favor of the Estate

At the close of evidence, the trial court granted the Estate’s motion for a

directed verdict on the issues of Mr. Asal’s negligence and Mr. Mina’s contributory

negligence. As to negligence, the trial court ruled that Mr. Asal – knowing there

was a pedestrian warning sign and seeing Ms. Rigney’s car slow down (if not stop)

– had a duty to stop and did not. As to contributory negligence, the trial court ruled

that, once Ms. Rigney’s vehicle stopped to allow Mr. Mina to cross, Mr. Mina did

not have a continuing obligation to expect wrongful conduct by other vehicles, i.e.,

that they would drive through the intersection while he was using the crosswalk.

Thus, the only issue remaining for the jury was non-economic compensatory

4 Over defense objection, Dr. Sarani testified that Mr. Mina underwent several emergency surgeries, in which surgeons removed portions of Mr. Mina’s skull to extract a blood clot and alleviate pressure in the brain. While those procedures were initially successful, Mr. Mina’s brain began to experience internal bleeding and increasing internal pressure. Because surgery was no longer an option, doctors treated Mr. Mina by medicating him with sedatives, and then cooling his body by circulating ice-cold water into his veins and rewarming his body. Mr. Mina’s body ultimately went into multiple organ failure. 7

damages, e.g., for pain and suffering. The jury awarded the Estate a total of

$801,779.30 in damages, including an award of $275,000 in non-economic damages

in the survival action. The trial court entered judgment that same day, November

15, 2017.

Following the entry of judgment, the Asals, on December 12, 2017, moved

for a new trial, arguing that the trial court erred in not submitting the issue of

contributory negligence to the jury, or, in the alternative, for remittitur of the non-

economic damages award because the $275,000 award was not supported by the

evidence. The Asals also filed a motion to stay the execution of judgment pending

a decision on the motion for a new trial. The Estate opposed and responded with a

cross-motion, requesting as a condition for a stay that the Asals post adequate

security through a bond, pursuant to Super. Ct. Civ. R. 62. On May 3, 2018, the trial

court entered separate orders that, in relevant part, (1) denied the Asals’ motion for

a new trial, and (2) granted the Estate’s cross-motion, requiring that the Asals post

a $808,226.00 bond as adequate security for a stay by June 4, 2018. 5 The Asals

timely appealed those orders. 6

5 The $808,226.00 amount comprised the $801,779.30 judgment, plus previously-awarded sanctions of $6,446.70. 6 This court denied the Asals’ emergency motion to stay the execution of judgment. 8

C. Nationwide’s Dispute Regarding the Asals’ Insurance Policy

The Asals maintained a Personal Auto Policy with Nationwide (the “Policy”).

Nationwide delivered the Policy to the Asals in Virginia for a vehicle they owned in

Virginia. The relevant parts of that Policy provided as follows. Pursuant to Part B

(“Liability Coverage”), Nationwide agreed to “pay damages for bodily injury . . . for

which any insured becomes legally responsible because of an auto accident” up to

an applicable limit of $200,000, all defense costs incurred in settling or defending

any claim or suit, and “[p]remiums on appeal bonds and bonds to release attachments

in any suit” that Nationwide defends. Pursuant to Part E (“Duties After an Accident

or Loss”), Nationwide may deny Liability Coverage under Part B “if failure to

comply with the following duties is prejudicial to us,” including the duty to

“[c]ooperate with [Nationwide] in the investigation, settlement, or defense of any

claim or suit.” Part F provided:

No legal action may be brought against us [Nationwide] until there has been full compliance with all the terms of this policy. In addition, under Part B, no legal action may be brought against us until:

1. We agree in writing that the insured has an obligation to pay; or 9

2. The amount of that obligation has been finally determined by judgment after trial. If that judgment is returned unsatisfied, legal action may then be maintained against us for the amount of the obligation that does not exceed the limits of applicable coverage under this policy.

Pursuant to the Policy, Nationwide paid all of the Asals’ defense and appeal costs in

this matter.

On June 7, 2018, the Asals filed a motion to clarify the trial court’s order of

May 3, 2018, which required them to post a $808,226.00 bond by June 4, 2018. In

their motion, the Asals asserted that Nationwide “indicated that it will not provide

collateral for a bond in an amount over $200,000, which is the limit of the applicable

insurance policy.” Without providing any justification, the trial court declined to

clarify its prior order.

Neither the Asals nor Nationwide posted the required bond or paid any of the

judgment. Therefore, on September 18, 2018, the Estate filed a writ of attachment

against Nationwide in an effort to seize the proceeds of the Asals’ insurance policy,

and served interrogatories on Nationwide. Nationwide answered the interrogatories

attached to the writ, denying that it possessed any property belonging to the Asals.

Thereafter, the Estate filed a motion for judgment of condemnation against the Asals

and Nationwide, asserting that the Estate, as the prevailing party in the underlying 10

suit, became a judgment creditor under the Policy and therefore subrogated to the

Asals’ right of indemnification, which required Nationwide to remit the $200,000

Policy limit to the Estate. In opposition, Nationwide asserted that (1) the benefits of

the Policy were not the property of the Asals and therefore not obtainable through a

writ of attachment; and (2) Nationwide had no obligation to pay any amount until

after the conclusion of the appeals process because, under the cooperation clause in

Part E of the Policy, determining the insured’s compliance with the obligation to

cooperate can “be made only after the conclusion of the litigation process, including

the appeal and further trial.”

After a January 18, 2019, hearing, the trial court granted the Estate’s motion

and entered a judgment of condemnation against the Asals and Nationwide for

$200,000. In granting the motion, the trial court, finding no controlling law in the

District, relied on Peninsula Ins. Co. v. Houser, 238 A.2d 95, 97 (Md. 1968), which

holds that a judgment creditor is entitled to the same financial and legal rights as the

judgment debtor under an automobile liability insurance policy. Therefore, the trial

court ruled that the Estate was entitled to collect on and garnish the Asals’ Policy up

to its limit at the time of the November 15, 2017, judgment because, on that date,

“the Asal’s [sic] status changed from Defendants to judgment debtors and 11

Nationwide from interested party to garnishee.” Both Nationwide and the Asals

appeal from that order. 7

II. Negligence

The trial court did not err in its decision to direct a verdict as to Mr. Asal’s

negligence. The Asals contend that the trial court should have allowed the issue of

negligence to go to the jury because there was some evidence that Mr. Asal’s failure

to stop at the crosswalk, as required by D.C. Code § 50-2201.28(a-1) (2014 Repl.),

was “excusable,” thereby defeating a finding of negligence per se and that the jury

should have had the opportunity to weigh Mr. Asal’s reasons for failing to stop. 8

In reviewing the grant of a directed verdict, we use the same test applied by

the trial court, viewing the evidence in the light most favorable to the non-moving

7 Although the Asals’ appeal was docketed in this court as case No. 19-CV- 642, no parties filed any briefs or documents under that case number. Nationwide’s appeal, No. 19-CV-643, was fully briefed before this court, and we decide the merits of the issues in both appeals as presented in those briefs. 8 D.C. Code § 50-2201.28(a-1) provides that “[w]henever a vehicle is stopped at a marked crosswalk at an unsignalized intersection, a vehicle approaching the crosswalk in an adjacent lane or from behind the stopped vehicle shall stop and give the right-of-way to ensure the safety of pedestrians and bicyclists before passing the stopped vehicle.” 12

party and drawing all inferences in its favor. See Nicola v. Wash. Times Corp., 947

A.2d 1164, 1170 (D.C. 2008); Wilson v. Wash. Metro. Area Transit Auth., 912 A.2d

1186, 1188 (D.C. 2006); Abebe v. Benitez, 667 A.2d 834, 836 (D.C. 1995) (per

curiam). “As long as there is some evidence from which jurors could find that the

party has met its burden, a trial judge must not grant a directed verdict.” Abebe, 667

A.2d at 836. Thus, a trial court presiding over a jury trial may direct a verdict against

a party only if it “has been fully heard on an issue, and there is no legally sufficient

evidentiary basis for a reasonable jury to find for” that party. Evans-Reid v. District

of Columbia, 930 A.2d 930, 936 (D.C. 2007). “This court considers de novo

whether the evidence was sufficient to go to the jury.” Wilson, 912 A.2d at 1188

(emphasis omitted).

Where a person’s violation of a statute proximately causes an injury that the

statute was designed to prevent, “there is a rebuttable presumption of negligence on

the part of the violator,” i.e., negligence per se. Robinson v. District of Columbia,

580 A.2d 1255, 1256 (D.C. 1990). If the violator demonstrates that he or she did

“everything a reasonably prudent person would have done to comply with the law,”

then the statutory violation merely constitutes evidence of negligence. Id. Here, the

trial court ruled that Mr. Asal was negligent when he failed to stop for Mr. Mina,

“not merely from violation of the statute, but from the facts that have been introduced 13

thus far,” i.e., finding liability as to both negligence per se and negligence. Thus,

while Mr. Asal contends that the jury should have been permitted to consider his

reasons for failing to stop and thereby evaluate whether his conduct was negligent,

it is clear that the trial court evaluated Mr. Asal’s reasons for failing to stop and

nevertheless determined that he was negligent as a matter of law. Thus, the trial

court directed a verdict as to both negligence and negligence per se.

On appeal, the Asals argue that Mr. Asal did not comply with D.C. Code §

50-2201.28 because he thought Ms. Rigney was “merely turning,” based on “what

he observed and his experience driving regularly in the area.” However, they

advance no explanation as to why Mr. Asal’s reasons for failing to stop demonstrate

that he “did everything a reasonably prudent person would have done to comply with

the law.” Robinson, 580 A.2d at 1256. Mr. Asal testified that he believed Ms.

Rigney was going to make a right turn despite his testimony that she was in the

center lane of traffic, that there was no street sign that authorized her to turn right

from the middle lane, and that he did not observe her as having her right turn signal

on. Thus, all that is left is what the Asals argue is Mr. Asal’s “experience.” See

supra note 2. However, the record provides no evidence that Mr. Asal regularly

observed vehicles making right turns from the middle lane of traffic or that it was

the regular practice at that intersection; he only testified that the right lane is a “bus 14

stop.” 9 On this record, there is no legally sufficient evidentiary basis for a jury to

conclude that Mr. Asal’s reasons for failing to stop excused his violation of D.C.

Code § 50-2201.28, such that the issue of negligence should have gone to the jury.

See Evans-Reid, 930 A.2d at 936. Therefore, we find no error in the directed verdict

on Mr. Asal’s negligence.

III. Contributory Negligence

The Asals argue that the trial court erred in directing a verdict for the Estate

on the issue of contributory negligence, rather than submitting the issue to the jury.

We find no such error. For the reasons explained below, we hold that a pedestrian

has a duty to exercise reasonable care for the protection of his or her own safety,

even when he or she has the right-of-way at an unsignalized intersection or

crosswalk. We conclude that the evidence, viewed in the light most favorable to the

Asals and drawing all inferences in their favor, was insufficient to support any

finding by a reasonable jury that Mr. Mina was contributorily negligent, i.e., that he

9 Mr. Asal testified that, at the time of the collision, there were no cars parked along the right-hand side of the street. The video footage corroborates that the right lane was empty of cars, and it also shows that there was no bus coming to or at that bus stop in the twenty-five seconds preceding his collision with Mr. Mina. 15

engaged in conduct that was unreasonable under the circumstances. Therefore, the

trial court properly directed a verdict in favor of the Estate on that issue. 10

A. A Pedestrian’s Duty of Reasonable Care

Having considered the principles of contributory negligence, our

jurisprudence in pedestrian-vehicle collision cases, and the relevant statutory and

regulatory framework, we clarify that in all circumstances a pedestrian has a “duty

to exercise reasonable care for the protection of his or her own safety.” Lyons v.

Barrazotto, 667 A.2d 314, 322 (D.C. 1995); see also Standardized Civil Jury

Instructions for the District of Columbia, No. 7.13 (2020 Rev. Edition) (“Before

attempting to cross a street, it is a pedestrian’s duty to make reasonable observations

to learn the traffic conditions confronting him or her, and try to make a sensible

10 We are not persuaded by the Estate’s argument that the Asals waived a contributory negligence defense. The Asals asserted contributory negligence as an affirmative defense in their Answer, raised the defense during the deposition of Mr. Asal, and addressed it in the Joint Pre-Trial Statement by requesting a jury instruction for “Contributory Negligence Defined” and proposing a verdict sheet with a contributory negligence instruction. Because the Estate was sufficiently on notice of the defense, we conclude that it was not waived. Cf. Word v. Ham, 495 A.2d 748, 751 (D.C. 1985) (per curiam) (“Appellees were put on notice of the defense by appellants’ opposition to their motion for summary judgment and had the opportunity to respond, and thus cannot claim to have been prejudiced by appellants’ failure to plead this defense in their answer or counterclaim.”). 16

decision whether it is reasonably safe to attempt the crossing.”). Here, we hold that

a pedestrian has a duty to exercise reasonable care when crossing at an unsignalized

intersection or crosswalk, even when he or she has the right-of-way. Thus,

contributory negligence plays a role in determining liability in negligence cases

involving pedestrians, even when the pedestrian has the right-of-way. We reject the

Estate’s argument that a pedestrian, once legally crossing within the crosswalk, has

“no duty to continually observe for traffic which was legally required to stop in

advance of the crosswalk.”

i. Contributory Negligence Principles

In the District, a plaintiff in a negligence action generally cannot recover when

he or she is found to have been contributorily negligent. See Civic v. Signature

Collision Ctrs., LLC, 221 A.3d 528, 530 (D.C. 2019). 11 Contributory negligence

evaluates “the objective reasonableness of the plaintiff’s conduct,” determining

whether “the plaintiff’s behavior in encountering the risk [created by the defendant’s

11 The District remains one of the few jurisdictions that generally retains a pure contributory negligence defense. See, e.g., Jarrett v. Woodward Bros., Inc., 751 A.2d 972, 985 & n.20 (D.C. 2000) (noting that the District is different from the “great majority of jurisdictions,” most of which “have some sort of comparative negligence regime”). But see infra note 12. Even a contributorily negligent plaintiff may recover if the defendant had the “last clear chance” to avoid the injury. District of Columbia v. Huysman, 650 A.2d 1323, 1326 (D.C. 1994). 17

breach of duty] departed from the standard of care that is to be expected of the

reasonable person in the plaintiff’s position.” Sinai v. Polinger Co., 498 A.2d 520,

524 (D.C. 1985). “As a general proposition, a plaintiff is not bound to anticipate

negligent conduct on the part of others. Rather, he may assume that others will fulfill

their duties.” Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. 1985) (citation

omitted).

ii. Relevant Jurisprudence

This court has not had occasion to consider a pedestrian’s duty when crossing

the street in the case of a pedestrian-vehicle collision. Our predecessor courts,

however, provide sufficient guidance from which we can discern relevant principles.

Griffith v. Slaybaugh, 29 F.2d 437 (D.C. Cir. 1928), is one of the earliest

relevant decisions and dealt with a signalized crosswalk. In Griffith, two

pedestrians, “walking rapidly,” began crossing when the signal was green, thus

authorizing their passage; as they crossed, the light changed to red, and a car

traveling perpendicular through the intersection struck them. Id. at 437-38. The

court affirmed a judgment in favor of the pedestrians. Id. at 439. After reviewing 18

the relevant traffic regulations, the court identified the following as a “clear

expression of the law”:

[O]ne entering the street intersection under the direction of the traffic officer has the right of way and this right of way continues until he reaches the other side of the street, and the fact that the semaphore was changed, giving the traffic in the other direction notice to proceed, does not give them the right of way over the one first entering the street crossing, and the one first entering has the right to presume that he can pass over in safety and is not required to exercise continuous and extra observation to avoid vehicles using such street.

Id. at 438 (quoting Riddel v. Lyon, 213 P. 487, 489 (Wash. 1923)). As the court

noted, the pedestrian in a crosswalk always has the right of way, except where there

is a traffic signal, in which case the pedestrian has “the right of way along with other

traffic moving in observance with the traffic signals.” Id. Under the facts of Griffith,

where plaintiffs had a green light when they began to cross the street, the court noted

that “[c]learly there was no contributory negligence on the part of the plaintiffs, since

they were where they had a right to be and were diligently using their best efforts to

clear the street.” Id.

Thereafter, in American Ice Co. v. Moorehead, 66 F.2d 792, 793-94 (D.C. Cir.

1933), the court affirmed a verdict in favor of a pedestrian in a pedestrian-vehicle

collision. The pedestrian was crossing at an unsignalized crosswalk when a truck 19

struck her. Id. at 792-93. The court noted that, because the applicable traffic

regulation gave the pedestrian the right-of-way while in the crosswalk, she “had the

right . . . to assume that the driver . . . would exercise reasonable care to look out for

and avoid injuring a pedestrian attempting to cross the street.” Id. at 793. It held

that there was no error in the trial court giving a contributory negligence instruction

because there was “some conflict” as to whether the pedestrian, who was walking

with her husband, was within the lines demarcating the crosswalk. Id. at 793-94.

The contributory negligence instruction informed the jury that they were to

determine the pedestrian’s “omission to do anything which a reasonable person,

guided by those ordinary considerations which regulate human conduct, would do

in the circumstances.” Id. The jury concluded that the pedestrians were in the

crosswalk – “were where they had a right to be” – and thus the “danger arose only

as a result of the negligent conduct of [the] driver.” Id. at 793.

Relatedly, in Miller v. Clark, 109 F.2d 677, 677-78 (D.C. Cir. 1940), the court

affirmed the trial court’s denial of a driver’s motion for a directed verdict on the

issue of a pedestrian’s contributory negligence. The pedestrian in Miller looked both

ways as she entered a crosswalk, “saw her way clear,” began crossing the street, and

was hit by a truck. Id. at 677. The court concluded that the “evidence support[ed],

if . . . not require[d], the inference that [the pedestrian] was free from contributory 20

negligence.” Id. The court noted that it may have been “possible, notwithstanding

[the driver’s] negligence, [that] the greatest of care on [the pedestrian’s] part might

have prevented the accident; but she was, of course, required to use only reasonable

care.” Id. at 677-78. It elaborated that “reasonable care did not necessarily require

[the pedestrian], before or after entering the crosswalk, to look again up [the street]

on the chance that a negligent driver might approach swiftly and without warning

from around the corner.” Id. at 678.

Finally, in Long v. Mercer, the court affirmed the trial court’s denial of a

driver’s motions for directed verdicts as to a pedestrian’s contributory negligence.

125 A.2d 685, 687 (D.C. 1956). The pedestrian began crossing the street while the

traffic light controlling her passage was green. Id. at 686. While the pedestrian was

still crossing, the light changed to red; although several cars waited to allow the

pedestrian to complete passage, the defendant-cab driver did not and struck the

pedestrian. Id. The driver argued that the pedestrian “failed to exercise reasonable

care for her own safety after the light had changed to red against her,” urging that

she “had a duty under the circumstances to look to her right and to do so observantly

and with effect; that is to see what was there to be seen.” Id. The court noted that

it was “a reasonable inference” under the facts of the case – approaching nightfall,

crowded traffic, the pedestrian’s need to watch her footing, and the conduct of other 21

cars that had stopped – that the pedestrian “became aware of defendants’ taxicab as

soon as could be expected of any reasonably prudent person.” Id. at 687. Even

though the pedestrian had the right-of-way, “watchfulness in several directions was

required of plaintiff for her own safety.” Id. However, “the fact that she did not see

the taxicab although it ‘was there to be seen’ does not . . . indicate contributory

negligence as a matter of law.” Id.

These cases establish that pedestrians always have a duty to use reasonable

care for the protection of their own safety and that of others, even when they have

the right-of-way while using a crosswalk. That right-of-way, however, is determined

by the applicable statutes and regulations governing pedestrian and driver conduct,

and it further informs whether conduct in a particular case is reasonable. Thus, we

must review that legal framework before espousing general principles (see infra

Section II.A.iii) and before applying it to the facts of this case (see infra Section

II.B).

iii. Statutory and Regulatory Framework

The District’s statutory and regulatory framework establishes a pedestrian’s

right-of-way in certain circumstances, and we discuss the framework that is 22

applicable to unsignalized intersections and crosswalks. The only statutory

provision is D.C. Code § 50-2201.28 (“Right-of-way at crosswalks”), which, in

relevant part, reads:

(a) The driver of a vehicle shall stop and remain stopped to allow a pedestrian to cross the roadway within any marked crosswalk, or unmarked crosswalk at an intersection, when the pedestrian is upon the lane, or within one lane approaching the lane, on which the vehicle is traveling or onto which it is turning.

(a-1) Whenever a vehicle is stopped at a marked crosswalk at an unsignalized intersection, a vehicle approaching the crosswalk in an adjacent lane or from behind the stopped vehicle shall stop and give the right-of-way to ensure the safety of pedestrians and bicyclists before passing the stopped vehicle.

Applicable regulations reinforce the statutory right-of-way of a pedestrian in an

unsignalized crosswalk. For example, 18 DCMR § 2208.12 (2020) requires vehicles

to “give the right-of-way to a pedestrian” within marked or unmarked crosswalks at

intersections without traffic-controlled signals; § 2208.4 and 2208.6 require vehicles

at stop and yield signs to “yield the right-of-way to pedestrians”; and § 2221.5 (2020)

partially reiterates the requirements of subsection (a-1) of the statute. This

framework identifies a pedestrian’s right-of-way in terms of the driver conduct 23

required, yielding so the pedestrian can cross safely. 12 As the Griffith court

explained, a pedestrian crossing in an unsignalized crosswalk always has the right

of way because he or she lacks the additional protections offered by traffic signals

and is therefore more exposed to the “dangers attending [the use of automobiles]

upon the public highway.” 29 F.2d at 439.

One of the few regulatory provisions directed at pedestrian conduct, rather

than driver conduct, is 18 DCMR § 2303.2 (2020), which states that a pedestrian

may not “suddenly leave a curb . . . or other designated place of safety and walk or

turn into the path of a vehicle which is so close that it impossible for the driver to

yield” – thereby prohibiting a pedestrian from engaging in conduct that contravenes

his or her “responsibility to exercise due care for his [or her] own safety.” Garcia

v. Bynum, 635 F. Supp. 745, 747 (D.D.C. 1986) (granting defendant-driver’s motion

notwithstanding the verdict in pedestrian-vehicle collision case where plaintiff-

pedestrian “walked out from between two unmarked cars in the middle of the block,”

“in a relatively darkened area,” “knowing that a car was approaching a yellow light

12 The District’s statute and regulations governing conduct at signalized intersections similarly regulate a driver’s conduct. See D.C. Code § 50-2201.28(b) (requiring a driver to “give[] the right-of-way” to a “pedestrian who has begun crossing on the ‘WALK’ signal . . . to continue to the opposite sidewalk or safety island, whichever is nearest”); 18 DCMR § 2208.11 (same); 18 DCMR § 2302.2 (2020) (“Pedestrians facing a ‘WALK’ signal may proceed . . . and shall be given the right-of-way by the drivers of all vehicles.”). 24

not far from him”), aff’d 816 F.2d 791 (D.C. Cir. 1987). Garcia did not involve a

crosswalk, however, so the obligations on the driver that are incident to the

pedestrian’s right of way did not come into play in evaluating the reasonableness of

the pedestrian’s conduct. See id.

iv. Legal Standard

In light of the above authorities, we hold that pedestrians crossing at an

unsignalized intersection or using a crosswalk always have a duty to use reasonable

care for the protection of their own safety and that of others, even when they have

the right-of-way. We find no support for the argument advanced by the Estate that

a pedestrian with the right-of-way has no continuing duty to act reasonably and,

therefore, cannot be barred from recovery as a result of his or her contributory

negligence. Rather, the case law and the statutory and regulatory scheme establish

that a pedestrian’s negligent conduct, even when he or she has the right-of-way, may

bar his or her recovery for a driver’s negligence. 13

13 Further informing our holding is the recently-passed Motor Vehicle Collision Recovery Act of 2016, D.C. Law 21-167, § 3, 63 D.C. Reg. 12592 (2016), enacted after the events herein, which limits the application of contributory negligence to pedestrians involved in pedestrian-vehicle collisions to cases in which the pedestrian’s “negligence is . . . [g]reater than the aggregated total amount of negligence of all of the defendants that proximately caused” the pedestrian’s injuries. 25

The case law affirms that pedestrians always have a duty to act reasonably,

even when they have the right-of-way. See, e.g., Long, 125 A.2d at 687 (noting that

“watchfulness in several directions was required of [pedestrian] for her own safety,”

despite her right-of-way). A pedestrian’s duty, however, is only to act reasonably

under the circumstances. A pedestrian need not exercise the “greatest of care,”

Miller, 109 F.2d at 678, or “continuous and extra observation to avoid vehicles,”

Griffith, 29 F.2d at 439, even if such prudent conduct may have avoided a collision

altogether. Moreover, to act reasonably, a pedestrian need not anticipate or act in

such a way that assumes wrongful conduct of others. To the contrary, a pedestrian

may rely on his or her reasonable expectations of lawful conduct by others. See

Stager, 494 A.2d at 1311 (“[A] plaintiff is not bound to anticipate negligent conduct

on the part of others. Rather, he may assume that others will fulfill their duties.”);

Griffith, 29 F.2d at 438 (noting that a pedestrian with the right-of-way has a “right

to presume that he can pass over in safety”).

D.C. Code § 50-2204.52(a) (2012 Repl. & 2020 Supp.). The statute acknowledges that a pedestrian’s contributory negligence, regardless of right-of-way, can bar his or her recovery in a pedestrian-vehicle collision when the pedestrian’s negligence is greater than that of the driver. 26

The facts of a particular case determine whether a pedestrian’s conduct may

give rise to a contributory negligence instruction. On the one hand, evidence that a

pedestrian did not see a vehicle “although it was there to be seen” does not, alone,

establish an inference of contributory negligence. Long, 125 A.2d at 687 (internal

quotation marks omitted). 14 For example, a contributory negligence instruction is

not warranted when a pedestrian, after looking both ways to cross the street, does

not again look up the street “on the chance that a negligent driver might approach

swiftly and without warning from around the corner.” Miller, 109 F.2d at 678. On

the other hand, a pedestrian’s conduct that deviates from what is reasonable or does

not conform to his or her right-of-way may support an instruction of contributory

negligence. See, e.g., Moorehead, 66 F.2d at 793-94 (noting “some conflict” as to

whether pedestrian was within the lines demarcating the crosswalk and concluding

that there was no error in the trial court’s contributory negligence instruction).

Whether conduct is reasonable is, of course, informed by whether a pedestrian

has the right-of-way and, as a consequence, the conduct he or she reasonably

14 A contrary rule would be antithetical to the fault-based principles of contributory negligence because it would exonerate the driver in virtually every case as, save few exceptions, whenever there is a collision with a car, the vehicle will logically be there to be seen. Contributory negligence is not determined by whether the pedestrian was physically able to see the vehicle, but whether the pedestrian should be faulted for not adverting the danger it presented and acting to prevent it. 27

assumes of surrounding drivers. The District’s statutory and regulatory framework

delineates a pedestrian’s right-of-way indirectly by affirmatively regulating driver

conduct. See, e.g., D.C. Code § 50-2201.28(a) and (a-1) (requiring that drivers

“shall stop” at intersections and give pedestrians the right-of-way in certain

circumstances); 18 DCMR §§ 2208.4, 2208.6, 2221.5 (same). Therefore, a

pedestrian acts reasonably when he or she engages in conduct that comports with

these statutorily- and regulatorily-required driver obligations. While such a right-

of-way may inform a pedestrian’s conduct in certain circumstances, it does not

absolve the pedestrian of his or her continuing obligation to act reasonably. A right-

of-way does not excuse negligent conduct. Cf. Capital Trans. Co. v. Smallwood,

162 F.2d 14, 15 (D.C. Cir. 1947) (“Possession of the technical right[-of-way] to

precedence does not justify negligent insistence upon it.”). 15

15 The relevant standard civil jury instruction adequately conveys the above- outlined principles:

Before attempting to cross a street, it is a pedestrian’s duty to make reasonable observations to learn the traffic conditions confronting him or her, and try to make a sensible decision whether it is reasonably safe to attempt the crossing. [The law does not regulate the specific observations he or she should make, and what he or she should do for his or her own safety, while crossing the street. The law does, however, place upon the pedestrian the continuing duty to exercise ordinary care to avoid an accident.] 28

In sum, we hold that a pedestrian has a duty to act reasonably, even when he

or she has the right-of-way while crossing at an unsignalized intersection or while

using a crosswalk. A pedestrian must exercise reasonable care, and a contributory

negligence instruction is not warranted merely because a pedestrian did not use the

greatest of care. Rather, a pedestrian acts reasonably when his or her conduct

comports with the statutory and regulatory right-of-way obligations required of both

pedestrians and drivers. If a pedestrian’s conduct comports with such obligations, a

contributory negligence instruction will usually not be warranted. However, because

a right-of-way does not excuse the obligation to act with reasonable care under the

circumstances, a contributory negligence instruction may be justified when conduct

could be found to deviate from what was reasonable, taking account of all the facts,

including expectations based on the parties’ right-of-way obligations.

B. Mr. Mina was not contributorily negligent.

The Asals argue that Mr. Mina’s conduct raised a factual issue concerning

whether he was contributorily negligent. Reviewing the evidence in the light most

Standardized Civil Jury Instructions, No. 7.13 (“Pedestrian’s Duty When Crossing Streets”). 29

favorable to the Asals, we conclude that there was no legally sufficient evidentiary

basis for a reasonable jury to find that Mr. Mina’s conduct did not meet the

applicable standard of care. See Evans-Reid, 930 A.2d at 936. We thus affirm the

trial court’s decision to direct a verdict on the issue of contributory negligence.

Typically, negligence and contributory negligence are questions of fact for the

jury. Washington v. A&H Garcias Trash Hauling Co., 584 A.2d 544, 545 (D.C.

1990). However, in the exceptional case, the evidence may be “so clear and

unambiguous that contributory negligence should be found as a matter of law.” Id.

at 547. The converse also holds, i.e., that the evidence may be so clear that

contributory negligence should be negated as a matter of law. When there is “but

one reasonable inference which may be drawn from undisputed facts,” negligence

and contributory negligence “pass from the realm of fact to one of law.” Aqui v.

Isaac, 342 A.2d 370, 372 (D.C. 1975) (per curiam).

The Asals argue that while crossing the street, Mr. Mina “failed to maintain a

proper lookout” because, after making eye contact with Ms. Rigney, he turned his

head away from the northbound traffic (i.e., the direction from which Mr. Asal was

coming) and toward the southbound traffic, and he therefore “failed to observe

oncoming traffic as he continued to cross the street.” This characterization of the 30

evidence is undisputed. The question, however, is whether Mr. Mina’s failure to

continue observing northbound traffic could support an inference that his conduct

failed to meet the required standard of care. We see no error in the trial court’s

conclusion that it could not.

The evidence demonstrates that Mr. Mina waited at the southeast corner of a

marked unsignalized crosswalk for cars to stop before attempting to cross. When

Ms. Rigney, driving northbound in the middle lane (the direction of traffic closest to

Mr. Mina), stopped to allow Mr. Mina to pass, the two made eye contact, and Mr.

Mina smiled and waved before he proceeded to cross. After ensuring that Ms.

Rigney had stopped to allow him passage, Mr. Mina began crossing and then looked

in the opposite direction, toward the southbound lanes, for oncoming traffic. He

looked northbound again after passing Ms. Rigney’s car, at which point Mr. Asal

struck him.

Mr. Mina reasonably conducted himself under the assumption, grounded on

statutory and regulatory requirements, that other drivers would fulfill the rights and

duties pertaining to his right-of-way. By looking first toward the northbound traffic

closest to him, and then turning to look toward the southbound traffic in the farther

lanes, Mr. Mina was not derelict in his duty – warranting a contributory negligence 31

instruction. Section 50-2201.28(a-1) of the D.C. Code requires a driver to stop

whenever he or she approaches in an adjacent lane or from behind another vehicle

that is stopped “at a marked crosswalk at an unsignalized intersection,” thus giving

the right-of-way to pedestrians and ensuring their safety. See also 18 DCMR

§ 2221.5. Because Mr. Mina confirmed that Ms. Rigney had stopped, he could

reasonably assume that other cars driving northbound in the other lanes would also

stop to allow him to pass, as required by § 50-2201.28(a-1). He was walking at a

normal pace, using reasonable surveillance – looking both ways – to observe traffic,

and not otherwise distracted from his goal of crossing the street. In sum, Mr. Mina

was where he had a right to be and used reasonable efforts to safely cross the street.

See Griffith, 29 F.2d at 438.

That Mr. Mina could have kept his eyes toward the northbound traffic (and

thus seen Mr. Asal’s car), waited longer to look at the southbound traffic, walked

slower, or exhibited even greater care in passing across the northbound lanes of

traffic does not create a factual dispute as to whether Mr. Mina’s conduct was

reasonable. While such conduct may reflect the greatest of care and might have

prevented or mitigated the effects of the collision, that is not the required standard.

Mr. Mina’s conduct need only have been reasonable. See Long, 125 A.2d at 687

(finding no contributory negligence as a matter of law even though the vehicle “was 32

there to be seen”); Miller, 109 F.2d at 677-78 (affirming that pedestrian was

“required to use only reasonable care,” even though it was possible that “the greatest

of care on [the pedestrian’s] part might have prevented the accident”).

We conclude that there was but one reasonable inference to be drawn from

these facts. There was no legally sufficient evidentiary basis for a reasonable jury

to find that Mr. Mina’s conduct breached his duty of care. Therefore, the evidence

was clear and unambiguous such that contributory negligence was negated as a

matter of law. We find no error in the trial court’s directed verdict in Mr. Mina’s

favor on that issue.

IV. Non-Economic Damages

We are not persuaded by the Asals’ argument that the $275,000 jury award

for non-economic damages in the survival action was excessive and should be

reversed. The Asals argue that there was no evidence that Mr. Mina experienced

any pain and suffering, signaled by an audible indication (e.g., yelling or moaning),

in the approximately one-and-a-half seconds between the time Mr. Mina first turned

his attention toward Mr. Asal’s vehicle and when he lost consciousness, thus 33

warranting a lower damages award. We disagree that the jury award should be

reversed.

We review for abuse of discretion the trial court’s grant or denial of a motion

for remittitur or new trial for excessiveness of verdict. See Louison v. Crockett, 546

A.2d 400, 403 (D.C. 1988). The scope of this review is “especially narrow” because

“the trial court’s unique opportunity to consider the evidence in the context of a

living trial coalesces with the deference given to the jury’s determination of such

matters of fact as the weight of the evidence.” Campbell-Crane & Assocs., Inc. v.

Stamenkovic, 44 A.3d 924, 945 (D.C. 2012) (quoting NCRIC, Inc. v. Columbia

Hosp. for Women Med. Ctr., Inc., 957 A.2d 890, 902 (D.C. 2008) (internal quotation

marks omitted)). “When a party moves to strike a verdict as excessive, the trial court

must consider whether that verdict resulted from passion, prejudice, mistake,

oversight, or consideration of improper elements.” Id. (quoting Moss v.

Stockard, 580 A.2d 1011, 1013 (D.C. 1990) (internal quotation marks omitted)).

In a survival action, circumstantial evidence is sufficient to support an award

for the decedent’s pain and suffering. See Doe v. Binker, 492 A.2d 857, 861 (D.C.

1985). Such circumstantial evidence can include inferences drawn from the nature

of decedent’s injuries, eyewitness testimony about the moments before and after the 34

injuries, and medical expert testimony. See District of Columbia v. Hawkins, 782

A.2d 293, 304-05 (D.C. 2001); Doe, 492 A.2d at 861. For example, death by

“drowning or burning” permits “an inference of conscious pain and suffering.” Doe,

492 A.2d at 861. In Doe, a survival action arising from a fatal automobile collision,

this court affirmed a non-economic damages award of $200,000 and concluded that

“substantial circumstantial evidence . . . on the issue of pain and suffering” supported

the award, specifically testimony from eyewitnesses regarding the moments before

and after the collision and from a doctor regarding the cause of the decedent’s death.

Id. In Hawkins, another fatal automobile collision case in which the decedent was

ejected from her vehicle, landed on concrete, and severed her spinal cord, the

decedent experienced pain and suffering for only a few seconds. 782 A.2d at 298,

304-05. There, we affirmed an award of $350,000 in non-economic damages based

on the testimony of a medical expert regarding the nature of the decedent’s injuries

and the fact that she would have experienced pain for less than a minute, as well as

the testimony of an eyewitness who described the decedent as being in “a lot of

pain.” Id. at 304-05.

Here, there is substantial circumstantial evidence, similar to the evidence

presented in Doe, to sustain the non-economic damages award. Testimony from

both Mr. Asal and Ms. Rigney, as well as the video footage, conveyed the collision 35

in graphic detail. Dr. Davitt, present near the scene, saw the aftermath of the

collision and described Mr. Mina as bleeding, unconscious, and unarousable. Dr.

Sarani, Mr. Mina’s treating physician at the emergency room, testified about the

gravity of Mr. Mina’s injuries, the exhaustive medical procedures that were

attempted to revive him, and the cause of his death. 16 The Asals presented no

contrary evidence, instead arguing that there was no evidence that Mr. Mina

experienced conscious pain and suffering after hitting Mr. Asal’s windshield. In

light of substantial evidence that Mr. Mina was grievously injured immediately upon

being thrown by the impact with the vehicle, as well as inferences drawn from the

circumstantial evidence of the nature of Mr. Mina’s injuries, we cannot conclude

that the $275,000 award resulted from “passion, prejudice, mistake, oversight, or

consideration of improper elements” such that it was excessive, Stamenkovic, 44

A.3d at 945 (citation omitted), particularly because it falls within the range of awards

previously affirmed by this court in evaluating similar circumstantial evidence.

16 The Asals argue that Dr. Sarani’s testimony concerning Mr. Mina’s injuries and the attempted medical procedures unduly prejudiced the jury, and that this testimony was unnecessary given the parties’ stipulations concerning the medical procedures and the amount of medical bills. They imply that the trial court improperly admitted his testimony over objection. First, appellants do not argue that the trial court abused its discretion in permitting the testimony of Dr. Sarani, and therefore that issue is not before us. Second, testimony by doctors concerning the cause of death constitutes “circumstantial evidence . . . on the issue of pain and suffering.” Doe, 492 A.2d at 861. Therefore, such evidence was properly before the jury to consider in determining an award of non-economic damages. 36

Because we conclude that the evidence was sufficient to sustain the non-economic

damages award, we also conclude that the trial court did not abuse its discretion in

denying the Asals’ motion for remittitur or for a new trial based on excessive verdict.

V. Judgment of Condemnation

Nationwide asserts that the trial court erred in granting the Estate’s motion for

judgment of condemnation. It argues that the Policy’s benefits are not attachable

because they are not property of the Asals, specifically in that the benefits are not yet

due because the Asals have not fully complied with a condition precedent to payment:

the Policy’s cooperation clause. We conclude first that an injured party who is

successful in an underlying suit may garnish the benefits of the judgment debtor’s

insurance policy through a writ of attachment. Second, the failure to comply with a

cooperation clause, if adequately raised and supported by evidence, serves as an

affirmative defense to liability; compliance with a cooperation clause is not, however,

a condition precedent to garnishment. For these reasons, we find that the trial court

did not abuse its discretion in granting the Estate’s motion for a judgment of

condemnation. 37

A. Writ of Attachment

In the post-judgment context, a writ of attachment is a means of enforcing a

judgment, allowing a judgment creditor “easy access to a debtor’s assets,” John C.

Flood of Md., Inc. v. Brighthaupt, 122 A.3d 937, 941-42 (D.C. 2015), i.e., “goods,

chattels, and credits,” D.C. Code § 16-544 (2012 Repl.). A judgment creditor can

also reach a debtor’s assets that are held by a third party, e.g., “in the hands of a

garnishee.” D.C. Code § 16-546 (2012 Repl.); see also Consumers United Ins. Co.

v. Smith, 644 A.2d 1328, 1351-52 (D.C. 1994). “Service of the writ on the garnishee

creates a valid lien in favor of the judgment creditor on the debtor’s property held

by the garnishee.” Smith, 644 A.2d at 1352. Obtaining that property, however,

requires the judgment creditor and garnishee to comply with certain procedures. Id.

The judgment creditor can recover only by the same right and to the same

extent as the judgment debtor because the creditor merely steps into the shoes of the

debtor. See, e.g., Smith, 644 A.2d at 1356 & n.34; 38 C.J.S. Garnishment § 120

(2020) (“Generally, in garnishment proceedings, an insured’s judgment creditor

may only collect from the insurer if the insured could have enforced the policy.”);

cf. Med. Mut. Liab. Ins. Soc. of Md. v. Davis, 883 A.2d 158, 161-62 (Md. 2005)

(same, analyzing Maryland law). Thus, attachment reaches only the debtor’s 38

property held by the garnishee at the time the writ is served. See Smith, 644 A.2d at

1356. A post-judgment writ of attachment will issue even though a trial court “has

not previously decided the ownership of the asset in question, given that ownership

of the property could promptly be questioned in any case involving a third party.”

Brighthaupt, 122 A.3d at 942 (discussing the implications of a writ of attachment as

applied to assets that were fraudulently conveyed to a third party).

Following service of the writ on the garnishee and receipt of a garnishee’s

answers to the interrogatories accompanying the writ, the judgment creditor may

obtain the judgment debtor’s property held by the garnishee by requesting

condemnation by the trial court. See Smith, 644 A.2d at 1352; Super. Ct. Civ. R.

69-I(e). This process also allows the garnishee to contest the judgment debtor’s

ownership of the property, and it allows the garnishee to defend against the

attachment by filing an answer. See Brighthaupt, 122 A.3d at 942 (citing D.C. Code

§ 16-551 (2012 Repl.)); Super. Ct. Civ. R. 69-I(d). In reviewing the trial court’s

exercise of its discretion in granting a motion for judgment of condemnation, a

“critical factor” for this court to consider is “whether the garnishee was in fact

indebted to the judgment debtor or possessed any property belonging to the debtor.”

Wrecking Corp. of Am., Va., Inc. v. Jersey Welding Supply, Inc., 463 A.2d 678, 680

(D.C. 1983). 39

“The decision to enter a judgment of condemnation, however, lies in the

discretion of the trial court, and is therefore reviewable for abuse of that discretion.”

Id. (citations omitted). 17

B. Insurance Policies

Nationwide argues that the Estate is prohibited from using a writ of attachment

to obtain the Asals’ insurance proceeds because the Policy’s benefits are not the

Asals’ property. We disagree. We affirm here what has already been implied by

our prior decisions: as a general matter, the benefits of an insured’s insurance policy

can be garnished through a writ of attachment. See Peterson v. Gov’t Emps. Ins.

Co., 434 A.2d 1389, 1391 (D.C. 1981); Coleman v. Aetna Ins. Co, 309 A.2d 306,

307 (D.C. 1973).

When a party has been found liable for personal injuries arising out of an auto

collision, this court has not questioned the validity of a writ of attachment to seek

17 Although Nationwide argues that a de novo standard of review applies (pointing to cases not applicable to the writ of attachment or garnishment context), Wrecking Corporation of America held unequivocally that this court reviews a trial court’s decision to enter a judgment of condemnation for abuse of discretion. 463 A.2d at 680. 40

the benefits of that party’s insurance policy. For example, in Peterson, a pedestrian-

vehicle collision case, the plaintiffs obtained a judgment in a suit for injuries, and

they subsequently secured a writ of attachment against the driver’s automobile

insurance policy carrier (GEICO) “alleging indebtedness for the amount of the

judgment under [the] automobile liability insurance policy.” 434 A.2d. at 1389. In

the garnishment action, this court reversed the trial court’s grant of a motion for

directed verdict in favor of GEICO, holding that the plaintiffs made out a prima facie

case of the insurer’s liability, which was not defeated by the plaintiffs’ failure to

introduce the insurance policy itself into evidence. Id. at 1389-91. 18 Implicit in that

holding is that the judgment creditors (the pedestrians) were permitted to use a writ

of attachment to garnish the benefits of the insurance policy owned by the judgment

18 The court found that the plaintiff proved a prima facie case of GEICO’s liability under the insurance policy because the facts demonstrated:

(1) that GEICO issued an automobile liability insurance policy to [the defendant-driver]; (2) that the policy was in effect at the time of the automobile collision; (3) that GEICO assigned a claim number to the incident and undertook the defense of the insured in the Superior Court; and (4) that the judgment entered against the insured was within the liability limits of the insurance policy’s coverage. Appellant also proved the judgment against the insured.

Peterson, 434 A.2d. at 1390-91. 41

debtor (the driver). Similarly, in Coleman, a contested garnishment, this court did

not question that the appellant-pedestrian had filed “a writ of attachment . . . against

credits of the defendants [bus driver and his employer, who had struck them,] in the

hands of . . . Aetna Insurance Co. (Aetna-garnishee), their insurer,” 309 A.2d at 307,

though it affirmed the trial court’s judgment in favor of the insurer on other

grounds. 19 Id. at 308.

We find Peninsula Insurance Co. v. Houser, 238 A.2d 95 (Md. 1968), relied

upon by the trial court, to be particularly persuasive. In Houser, the plaintiff-

passenger, who was injured in an auto collision and obtained a judgment against the

driver, brought a writ of attachment against the driver’s insurer and won a judgment

of condemnation. Id. at 96-97. The Maryland Court of Appeals affirmed that a writ

of attachment was the proper mechanism for the plaintiff-passenger to garnish the

benefits of the driver’s insurance policy. Id. at 97-98. The court noted that “[a]

respectable majority of jurisdictions permit garnishment of an insurer by an injured

person to compel payment of his judgment.” Id. at 97 (citing Appleman, Insurance

19 The court held that the defendants (insured by Aetna) breached the cooperation clause of the insurance policy by failing to appear at a deposition and at trial; therefore, Aetna could deny coverage under the policy, defeating the garnishment claim. Coleman, 309 A.2d. at 308. 42

Law and Practice § 4838 & n.34 (1942), and Restatement of Judgments § 111 cmt b

(1942)). In an attachment case, the “general rule” is:

[T]he right of the attaching creditor to recover against the garnishee depends upon the subsisting rights between the garnishee and the debtor in the attachment, and the test of the garnishee’s liability is that he has funds, property, or credits in his hands belonging to the debtor for which the latter would have the right to sue; the [creditor] is subrogated, as against the garnishee, to the rights of the debtor, and can recover only by the same right and to the same extent as the debtor might recover if he were suing the garnishee. In other words, the [judgment creditor’s] right to recover under the attachment in this case depends upon and is controlled by the question of whether or not her judgment debtor . . . could successfully maintain a suit against the [garnishee].

Id. at 98 (quoting U.S. Fid. & Guaranty Co. v. Williams, 129 A. 660, 664 (Md.

1925)).

Here, Nationwide argues that the benefits of an insurance policy are not goods,

chattel, or credits that are subject to a post-judgment writ of attachment. Nationwide

contends that Houser is inapplicable because it interprets the Maryland rules

regarding garnishment, “which are broader than the District of Columbia’s statute

governing” garnishment. The only distinction identified by Nationwide is that the

Maryland statute expressly permits “the attachment of credits that have not matured,

while District of Columbia does not.” The Houser decision, however, did not turn 43

on whether the benefits of an insurance policy were attachable as an “unmatured

credit” (such that they may fall within Maryland’s attachment statute and not the

District’s). Rather, the court in Houser stated that attachment was the proper

mechanism because the judgment creditor’s “right to recover under the attachment

in this case depends upon and is controlled by the question of whether or not her

judgment debtor, [the insured], could successfully maintain a suit against the

[garnishee, the insurer].” 238 A.2d at 98 (quoting Williams, 129 A. at 664 (quotation

marks omitted)). 20

Consistent with Peterson, Coleman, and Houser, we hold that the benefits of

an insurance policy may be garnished through a writ of attachment. Upon entry of

20 Moreover, we are unconvinced by Nationwide’s attempt to distinguish between the law of the District and Maryland. It is true that the language of the two statutes differ. Compare D.C. Code § 16-544 (“An attachment may be levied upon the judgment debtor’s goods, chattels, and credits.”), with Houser, 238 A.2d at 97 (“Md. Rule G45[a] provides that ‘(a)ny property, including a credit which has not matured * * * in the hands of another, may be attached’”); and Md. Code Ann., Cts. & Jud. Proc. § 3-305 (West 2020) (“An attachment may be issued against any property or credit, matured or unmatured, which belong to a debtor.”). Under Maryland law, “matured debt” refers to a sum that is certain and due, while “unmatured debt” refers to property or credit in which the sum is certain, but the time for payment has not yet occurred. Consol. Const. Servs., Inc. v. Simpson, 813 A.2d 260, 269 (Md. 2002). This court has held that a writ of attachment “will reach sums which the garnishee unconditionally owes to the debtor at the time the writ is served but which the garnishee has not yet posted to the debtor’s account.” Smith, 644 A.2d at 1356 n.34. Thus, it appears that the District’s attachment statute also reaches an amount that is clearly due, though on a date that has not yet occurred – similar to the unmatured credits identified in Maryland’s statute. 44

judgment against an insured party, the insured party’s status changes to that of

judgment debtor and its insurer’s status changes to that of garnishee, such that the

benefits of the insurance policy may be eligible for attachment and garnishment.

Therefore, the prevailing party, i.e., the judgment creditor, is entitled to recover with

an attachment to the same extent to which the judgment debtor could maintain a suit

against the garnishee.

Other authorities support our conclusion that the benefits of an insurance

policy are subject to a writ of attachment and garnishment. See 38 C.J.S.

Garnishment § 120 (“The general rules as to the garnishability of property have been

applied to various types of insurance policies.”); 6 Am. Jur. 2d Attachment &

Garnishment § 135 (2020) (“As a general rule, the right of an insured against

an insurance company under a policy of insurance on property is subject

to attachment or garnishment at the suit of creditors of the insured . . . .”); id. § 134

(2020) (“A traditional garnishment . . . against an insurer . . . assists in the recovery

of an existing judgment. The only question in a traditional garnishment is whether

the insurer-garnishee furnished coverage under the insurance policy. If so, a

garnisher may garnish that coverage to pay for the underlying judgment already

determined in a separate proceeding.” (footnotes omitted)). 45

Here, we conclude that Nationwide sits in the same position as Peninsula

Insurance in Houser, in that Nationwide indemnified the Asals against liability: it

agreed to “pay damages for bodily injury . . . for which [the Asals] became legally

responsible because of an auto accident.” Upon the trial court’s entry of judgment

on November 15, 2017, the Asals became legally responsible to the Estate because

of an auto accident; thus, the Estate became a judgment creditor under the Policy

and was entitled to recover under the Policy by the same right and to the same extent

as the Asals. Therefore, the Estate was entitled to use a writ of attachment to garnish

the benefits of the Asals’ Policy with Nationwide.

C. Cooperation Clause

Nationwide also argues that the proceeds of the Policy were not due and owing

to the Asals, and therefore not attachable, because the Asals have not yet fully

complied with the terms of the Policy’s cooperation clause – and, in fact, cannot

fully comply until the entirety of this litigation has run its course. We disagree, and

we find no authority to support Nationwide’s position.

Contractual rights that become due only upon the passage of time or upon the

happening of a certain condition, i.e., contingent debts, are not subject to 46

garnishment. See Shpritz v. District of Columbia, 393 A.2d 68, 70 (D.C. 1978);

Cummings Gen. Tire Co. v. Volpe Const. Co., 230 A.2d 712, 713 (D.C. Cir. 1967)

(“The rule is well settled that money payable upon a contingency or condition is not

subject to garnishment until the contingency has happened or the condition has been

fulfilled.” (citation omitted)). But such a contingency must be understood in context:

The possibility that a future state of things may arise before the day of payment which will create a defense against the recovery of the debt, which circumstances, however, may never arise, does not render the debt contingent. Thus, a debt is due and garnishable even though it potentially may be defeated by a condition subsequent, whereas a debt is not garnishable where it does not arise until the occurrence of a condition precedent.

38 C.J.S. Garnishment § 101 (2020). This court has consistently held that, under the

District’s law, failure to comply with a non-cooperation clause acts as an affirmative

defense to garnishment. See, e.g., Nationwide Mut. Ins. Co. v. Burka, 134 A.2d 89,

91 (D.C. 1957) (“The defense of lack of cooperation is an affirmative one and [an]

insurer in asserting it has the burden of proceeding.”). As such, an insured’s breach

of a non-cooperation clause operates as a defense against garnishment, enabling an

insurer to deny coverage under its policy. See Peterson, 434 A.2d at 1391

(“However, once the plaintiff proves a prima facie case, or the defendant admits all

the facts necessary to establish the case, the burden shifts to the defendant to prove

affirmative defenses such as forfeiture of the policy or breach of some contract 47

provisions by the plaintiff.”); Coleman, 309 A.2d at 308 (affirming denial of

coverage under insurance policy in garnishment action because insurer proved that

insured breached cooperation clause).

In Nationwide Mutual Insurance Co. v. Thomas, 306 F.2d 767, 769 (D.C. Cir.

1962) (per curiam), the court affirmed that Nationwide Mutual Insurance was

required to pay the benefits of an insured’s policy to a judgment creditor in a

garnishment proceeding, for the reasons stated by the trial court. The trial court

began with the premise that the plaintiffs “may only recover from Nationwide, the

garnishee, if [the defendant-policyholder] can recover from Nationwide, as they –

the plaintiffs – stand in the shoes of the policyholder and enjoy no better rights than

he does.” Thomas v. Otis, 199 F. Supp. 1, 3 (D.D.C 1961), aff'd sub

nom. Nationwide Mut. Ins. Co. v. Thomas, 306 F.2d 767 (D.C. Cir. 1962) (per

curiam). The trial court reasoned that the defendant’s “violation in a substantial

manner” of the insurance policy’s cooperation clause may “be prejudicial in effect

to the insurer” such that it “relieves the latter of all liability.” 199 F. Supp. at 3.

While the court concluded that the defendant had indeed violated the cooperation 48

clause, it ruled that Nationwide had waived the defense by appealing the judgment

on its merits without reserving any rights to the defense. Id. at 3-4. 21

Pursuant to Part E of the Policy, Nationwide may deny coverage “if failure to

comply with the [cooperation clause] is prejudicial to [it].” Thus, the cooperation

clause may bar the Estate from recovering the benefits of the Asals’ Policy if

Nationwide can prove that the Asals breached the Policy’s cooperation clause in a

21 It may be that a choice-of-law analysis requires that this question be answered by application of Virginia law. Nationwide delivered the Policy to the Asals in Virginia for a vehicle they owned in Virginia, and therefore Virginia law may govern interpretations of the Policy. See Vaughn v. Nationwide Mut. Ins. Co., 702 A.2d 198, 200-04 (D.C. 1997) (applying Maryland law – pursuant to the District’s choice-of-law analysis – to interpret benefits of automobile liability policy that covered vehicle and policyholder residing in Maryland, even though the underlying collision occurred in the District). In such a circumstance, however, we find Virginia law to be consistent with that of the District.

Under Virginia law, an insurer bears the burden of establishing “the affirmative defense of non-cooperation,” and the insurer must prove that the failure to cooperate “prejudiced the insurer in the defense of an action for damages arising from the insured’s operation of a motor vehicle.” State Farm Mut. Auto. Ins. Co. v. Porter, 272 S.E.2d 196, 199 (Va. 1980); see also Erie Ins. Exch. v. Meeks, 288 S.E.2d 454, 456-57 (Va. 1982); RML Corp. v. Assurance Co. of Am., 60 Va. Cir. 269, 2002 WL 32075213, at *2 (Va. Cir. Ct. Oct. 25, 2002). Thus, as under District of Columbia law, Virginia law recognizes non-cooperation as an affirmative defense. By contrast, Virginia courts have characterized other types of contract provisions – including “giving of notice of the accident,” “giving of notice of suit,” and “forwarding of suit papers” – as “conditions precedent” to coverage under a policy, requiring substantial compliance by the insured prior to triggering the insurer’s obligation to defend. Meeks, 288 S.E.2d at 456-57. 49

way that was prejudicial to Nationwide. The cooperation clause is not a condition

precedent that requires compliance prior to filing a writ of attachment to garnish the

Policy’s benefits; rather, it serves as a mechanism for Nationwide to affirmatively

defend against liability. Moreover, Nationwide must establish prejudice. We find

no merit to Nationwide’s argument that the Policy’s benefits can only be attached

once Nationwide is able to assess the Asals’ cooperation at the end of the underlying

suit, after any and all appeals have run their course. Here, Nationwide has neither

alleged nor provided evidence of any alleged non-cooperation by the Asals, let alone

any prejudice stemming from that non-cooperation. Therefore, Nationwide failed to

plead an affirmative defense that would establish a bar to the Estate’s recovery

pursuant to the judgment of condemnation. 22

Because the record is devoid of any evidence of the Asals’ non-cooperation

that prejudiced Nationwide, we find no abuse of discretion by the trial court in ruling

in favor of the Estate on its garnishment claim.

22 Nationwide also argues that Part F of the Policy, prohibiting the Asals from bringing any legal action against Nationwide “until there has been full compliance with all the terms,” prohibits the Estate from garnishing the Policy’s benefits. They argue that at the time the Estate served the writ, “the Asals could not maintain an action against Nationwide, because the ongoing litigation precluded full compliance with the terms of the Asals’ policy.” This argument fails for the same reasons discussed above. 50

VI. Conclusion

For the reasons discussed, the trial court’s judgment is hereby affirmed.

So ordered.

THOMPSON, Associate Judge, dissenting in part: As described in the opinion

for the court, at the close of the defense case in this matter, the trial court announced

that it would not give a contributory negligence instruction and then directed a verdict

in favor of the plaintiff Estate, reasoning that a pedestrian “has a right to assume that

the vehicle . . . is going to stop because that’s the law.” Defendants/appellants, the

Asals, contend that the trial court erred in failing to submit to the jury the issue of

decedent George Mina’s contributory negligence. I agree that this was an issue for

the jury. I respectfully dissent from the majority opinion insofar as it holds that no

reasonable juror could have concluded that Mr. Mina was contributorily negligent.

The majority opinion acknowledges that the law in our jurisdiction is that a

pedestrian “has a duty to exercise reasonable care for the protection of his or her own

safety[,]” Lyons, 667 A.2d at 322, even when the pedestrian has the right-of-way,

which Mr. Mina indisputably had when he crossed Wisconsin Avenue in the 51

crosswalk at its unsignaled intersection with Veazey Street. Supra at 3. My

colleagues in the majority also say that they “reject” the Estate’s argument that a

pedestrian, once legally crossing within the crosswalk, has “no duty to continually

observe for traffic which was legally required to stop in advance of the crosswalk.”

Supra at 16. They nevertheless conclude that the trial court did not err in directing a

verdict in favor of Mr. Mina’s Estate. They do so even though it is undisputed (and

the jury could have found from the video evidence) that Mr. Mina turned his head

away from oncoming traffic in the innermost northbound traffic lane he was about to

cross, and looked instead toward traffic approaching in the more distant southbound

lanes.

The court arrives at its conclusion in part by relying on D.C. Code ⸹ 50-

2201.28(a-1), which requires a driver to stop whenever he or she approaches in an

adjacent lane, or from behind, another vehicle that is stopped “at a marked crosswalk

at an unsignalized intersection,” and which thereby gives the right-of-way to

pedestrians. The court concludes that this provision, which is implicated by the

situation Mr. Asal faced as he approached the intersection involved here, 23 “informs

Mr. Asal testified, however, that from his “low” vehicle he did not see Mr. 23

Mina or any pedestrian in the intersection, and further testified that he thought at the time that the vehicle in the lane to his right (driven by a Ms. Rigney) was slowing to execute a right turn rather than stopped to allow a pedestrian to cross (though he acknowledged that video footage shows that Ms. Rigney’s car had in fact stopped). 52

whether [a pedestrian’s] conduct [in a particular case] is reasonable.” The court also

relies on the “general proposition” that a pedestrian in a crosswalk may rely on the

expectation of lawful conduct by drivers and need not anticipate or act in such a way

that assumes wrongful conduct of others. Supra at 17. For that proposition, the

court relies on Stager v. Schneider, 494 A.2d 1307, 1311 (D.C. 1985) (“[A] plaintiff

is not bound to anticipate negligent conduct on the part of others[,]” but rather “may

assume that others will fulfill their duties.”), and Griffith v. Slaybaugh, 29 F.2d 437,

438 (D.C. Cir. 1928) (stating that a pedestrian with the right-of-way has a “right to

presume that he can pass over in safety”).

Notably, however, Stager, as well as the only other opinion I have been able

to find from our jurisdiction that articulates the proposition about “assum[ing] that

others will fulfill their duties,” involved the plaintiff’s reliance on a professional to

perform his or her professional obligations, rather than a pedestrian’s reliance on a

driver’s adherence to traffic rules. The issue in Stager was whether a patient could

rely on the radiologist who interpreted her pre-operative chest x-ray to inform her of

the lung abnormality shown on the x-ray, or whether instead, in order not to be

contributorily negligent, the patient had a duty to call and obtain the x-ray result. Id.

at 1311. This court answered that the patient could rely on the radiologist, explaining

first that “[a] reasonable person need not go through life timidly, seeking to guard 53

against that which is only remotely probable and not to be feared except by the overly

cautious.” Id. We refused to “transfer[] [the duty] from the health professional to

the patient[,]” and we cited the “ordinar[y]” rule that “a patient can rely on a doctor’s

informing her if the results of a test are positive.” Id. at 1311-12. We also noted that

the patient, who had a family history of lung cancer, had previously had annual x-

rays and “was always informed of the results of these x-rays[.]” Id. at 1311.

This court’s reasoning was similar in Bell v. Jones, 523 A.2d 982 (D.C. 1986).

In that case the plaintiff architect and his company had engaged a professional

engineer/surveyor to prepare a plat showing the property lines of a plot on which

plaintiffs planned to construct townhouses. Id. at 997. The issue was whether the

plaintiffs could rely on the surveyor to show precise angle measurements on the plat.

Id. We reasoned that the architect was not bound to anticipate negligence on the part

of the professional surveyor, but could reasonably assume that the surveyor would

fulfill his duties, including the duty to exercise reasonable care in certifying the angle

measurements. Id. I do not believe that either Bell or Stager, with their focus on

professional duty, is helpful in resolving the present case.

As noted, the majority opinion also cites the D.C. Circuit’s 1928 opinion in

Griffith for what my colleagues refer to as its “clear expression of the law” regarding 54

pedestrian right-of-way: that “the one first entering [a street intersection] has the

right to presume that he can pass over in safety and is not required to exercise

continuous and extra observation to avoid vehicles using such street.” Griffith, 29

F.2d at 438 (quoting Riddel v. Lyon, 213 P. 487, 489 (Wash. 1923)). 24 Actually, the

Griffith court referred to the rule it articulated as “a clear expression of the law as

announced in many cases touching the right of way of pedestrians at crossings

controlled either by a traffic officer or signals.” 29 F.2d at 438 (italics added).

Griffith itself involved a signalized crosswalk under the direction of a traffic officer

and addressed the issue of whether the pedestrian had a right-of-way to complete his

street crossing once the signal changed. See 29 F.2d at 439. The facts of Riddel, the

24 Of the D.C. Circuit opinions cited in the majority opinion, Griffith appears to be the only one that applied an unqualified “general proposition” about a pedestrian’s entitlement to assume that drivers will obey the law in the situation it described. The other cited D.C. Circuit opinions did not do so. In American Ice Co. v. Moorehead, 66 F.2d 792 (D.C. Cir 1933), the D.C. Circuit approved an instruction that “in effect told the jury that, notwithstanding the obligation imposed by the traffic regulation upon the driver of an automobile to be watchful in avoiding injury to pedestrians lawfully using a street intersection, if the pedestrian was himself guilty of any act of negligence -- which the court was careful to tell the jury was the omission to do anything which a reasonable person, guided by those ordinary considerations which regulate human conduct, would do in the circumstances -- such act of negligence would defeat a recovery.” Id. at 793-94. In Miller v. Clark, 109 F.2d 677 (D.C. Cir. 1940), the D.C. Circuit affirmed the trial court’s denial of a motion for a directed verdict on the issue of a pedestrian’s contributory negligence because “reasonable care did not necessarily require [the pedestrian], before or after entering the crosswalk, to look again up [the street] on the chance that a negligent driver might approach swiftly and without warning from around the corner.” Id. at 678 (italics added). 55

1923 Supreme Court of Washington opinion on which Griffith relied, are remarkably

similar. See 213 P. at 488. Neither Griffith nor Riddel, says anything about a

pedestrian’s duty to look out for traffic mid-crossing when (as was the case here)

there is no traffic signal or traffic officer. 25 For these reasons, Griffith is not binding

in the present case, and neither Griffith nor Riddel is apposite.

In addition, Riddel provides weak support at best for affirming the directed

verdict in this case, because its persuasive force has been significantly diminished

by several later rulings of the Washington Supreme Court. For example, in Shasky

v. Burden, 470 P.2d 544 (Wash. 1970), the Supreme Court of Washington held that

“there was substantial evidence requiring the court to submit to the jury the issue of

plaintiff’s contributory negligence” where the plaintiff pedestrian, who was struck

by a vehicle in a crosswalk, had “walked rapidly with her head turned away from

25 Moreover, as recognized in Long v. Mercer, 125 A.2d 685 (D.C. 1956), even with respect to a signalized crosswalk, Griffith did not foreclose a finding of pedestrian contributory negligence as a matter of law. See 125 A.2d at 686-87 (reasoning that although the pedestrian, who had not finished crossing at a signalized intersection when the traffic light “changed to red against her,” had the right-of-way, “watchfulness in several directions was required of plaintiff for her own safety[,]” such that the trial court did not err in denying directed verdicts; stating that it was “rather plainly a question of fact” whether the plaintiff pedestrian’s negligence was a contributing factor to the accident). 56

oncoming traffic and made no attempt whatever to see if any vehicles were

approaching the crosswalk on that dark, rainy night.” Id. at 547. The court stated,

Strong as the protection afforded by the crosswalk may be and however unlikely that a pedestrian struck in a crosswalk would be contributorily negligent, there nevertheless remains in the law a legal possibility that a pedestrian, . . . struck by a vehicle while in a marked crosswalk, may have been contributorily negligent. If there is evidence to support the issue, the court must submit the issue of contributory negligence to the jury.

Id. at 548. Similarly, in Oberlander v. Cox, 449 P.2d 388 (Wash. 1969), the

Washington court considered the evidence that the plaintiff pedestrian, crossing the

street during a storm and driving rain, “walked rapidly, but, having looked once, did

not look either way again until she was struck by defendants’ car.” 449 P.2d at 389.

The court held that the evidence “suppl[ied] some substantial evidence from which

a jury could infer contributory negligence[,]” such that the issue should go to the

jury. Id. at 391; see also Clements v. Blue Cross of Wash. & Alaska, Inc. 682 P.2d

942, 948 (Wash. 1984) (“There was substantial evidence presented to support

defendants’ position that Clements should have known to look for oncoming traffic

even though she was legally in the crosswalk. It was error to refuse to instruct the

jury on contributory negligence and [instead] to direct a verdict on liability.”). 57

The law as it has evolved in Washington State after Riddel appears to state

“[t]he generally accepted” and “quite universal” rule: “that a pedestrian’s failure to

keep a constant lookout, or to look again after having determined that he can safely

cross ahead of approaching traffic, is not contributory negligence as a matter of law

but it is a question for a jury whether he was in the exercise of ordinary care for his

own safety.” Moran v. Gatz, 62 N.E.2d 443, 446 (Ill. 1945) (collecting cases).

In the present case, my colleagues in the majority conclude that there was no

legally sufficient evidentiary basis for a reasonable jury to find that Mr. Mina was

contributorily negligent. I conclude to the contrary that there was sufficient evidence

in this case for the issue of contributory negligence to be “one for the jury.” Id.

First, it was undisputed that Mr. Mina worked in the same block (the 4200

block of Wisconsin Avenue) where the accident occurred. This suggests that he may

have been familiar with the practices of drivers at the crosswalk, including whether

they reliably stop for pedestrians in the crosswalk. Therefore, one piece of evidence

that might have been notable to the jury is the evidence that, before beginning to

cross the street, Mr. Mina looked to his left and made eye contact with Ms. Rigney,

who brought her car to a stop in the traffic lane closest to him, and only thereafter

proceeded to cross. This was “some evidence” from which the jury could infer that 58

Mr. Mina understood that vehicles approaching the intersection might not stop for

him despite their legal duty to do so. 26 Abebe v. Benitez, 667 A.2d 834, 836 (D.C.

1995) (per curiam) (“As long as there is some evidence from which jurors could find

that the party has met its burden, a trial judge must not grant a directed verdict.”).

Second, Mr. Asal testified that he knew the area near the intersection well

because he passed through it every day driving to his job at a restaurant located

approximately four blocks away. He further testified that, in his experience, many

cars make a right turn at the intersection in question in order to park in the rear of a

restaurant located there. He testified that most drivers “make a right [turn] from the

middle [northbound] lane” because there is usually a “bus stop[ping at the bus stop]

or a bike” in the right lane. Mr. Asal also told the jury that he thought that Ms.

Rigney’s car was slowing to turn, and that her car “blocked his view of the

pedestrian.” Had jurors credited Mr. Asal’s testimony about practices at the

intersection in question, that might have influenced their determination about

whether Mr. Mina “should have known” of a need for “increased vigilance” at the

Veazey Street crosswalk, and about whether he breached his duty to exercise such

vigilance by looking away from the traffic in the innermost northbound lane as he

26 See D.C. Code ⸹ 50-2201.28(a) (“The driver of a vehicle shall stop and remain stopped to allow a pedestrian to cross within any marked crosswalk . . . .”). 59

was about to cross that lane. Clements, 682 P.2d at 948.

Third, jurors could have evaluated the foregoing evidence in light of their

experience. A Washington Post article from October 1988 reported that during an

hour-long observation period, “[n]ot one car” stopped at the crosswalk at 16th and

Fuller Streets, N.W., to let pedestrians cross. It further reported that “[t]his familiar

routine occurs daily around the District[.]” 27 An article and video posted online

nearly thirty years later (in 2016) suggest that the problem may have persisted around

the time of the incident involved in this case: the video captured what happened when

a police officer posing as a pedestrian tried to cross 14th Street near U Street, N.W.

The article reported that when a black car approached the officer standing in the

crosswalk, the black car “bl[e]w past him.” 28 Jurors may have had their own

experiences with or knowledge of similar occurrences, perhaps causing them to

understand that, in the District of Columbia, incidents of drivers not stopping at

27 See Kristin Eddy, PEDESTRIANS BEWARE D.C. DRIVERS FAIL TO YIELD TO CROSSWALKS, LAW, The Washington Post (Oct. 11, 1988), https://www.washingtonpost.com/archive/local/1988/10/11/pedestrians-beware-dc- drivers-fail-to-yield-to-crosswalks-law/ae0925ad-d741-40e4-a451-05a7fb8a69a3/ https://perma.cc/LUR9-G9L5 (last visited March 12, 2021). 28 See Dan Taylor, Here’s Why It’s a Bad Idea to Blow Through a Crosswalk in DC [VIDEO], Crime & Safety (Apr. 26, 2016, 4:03 PM), https://patch.com/district-columbia/washingtondc/heres-why-its-bad-idea-blow- through-crosswalk-dc-video https://perma.cc/SDC6-EQME (last visited March 12, 2021). 60

crosswalks to yield the right of way to pedestrians may be expected. Such incidents

are not merely “remotely probable[,]” Stager, 494 A.2d at 1311, and jurors’

experience and knowledge regarding the same might have informed their judgment

as to whether Mr. Mina acted reasonably in assuming, contrary to (possible) common

experience, that any vehicle in the innermost northbound lane would stop at the

crosswalk just because its driver saw the vehicle in the adjacent lane slowing to a

stop. This discussion shows why it was a jury question whether Mr. Mina’s looking

away from oncoming traffic in the lane he was about to cross satisfied his obligation

to exercise reasonable care for the protection of his safety. Jurors might reasonably

have disagreed with the reasoning of my colleagues that once Mr. Mina confirmed

that Ms. Rigney had stopped, he could “reasonably assume that other cars driving

northbound in the other lanes would . . . stop to allow him to pass, as required by

§ 50-2201.28(a-1).” 29 Supra at 31.

To be clear, I agree that Mr. Asal had a legal duty to stop regardless of any

assumption that the vehicle to his right (Ms. Rigney’s car) was stopping or slowing

29 Cf. Wood v. Bellingham, 813 P.2d 142, 145-46 (Wash. Ct. App. 1991) (reasoning that where the plaintiff pedestrian, who failed to make eye contact with the driver who subsequently hit her, “exercised her right of way as if it were absolute[,]” “a jury could reasonably conclude that [her] action in assuming the vehicle had stopped for her and proceeding to cross . . . without heeding the driver’s apparent inattention constituted a failure to exercise due care[,]” and thus that “the trial court did not err in submitting the issue to the jury”). 61

to execute a turn; the consequence of his failure to do so was tragic and is horrific to

watch on the surveillance video that captured the accident. But the evidence and

considerations I have described are relevant to whether Mr. Mina exercised

reasonable care for the protection of his safety by omitting to do something “which a

reasonable person, guided by those ordinary considerations which regulate human

conduct, would do in the circumstances.” American Ice Co., 66 F.2d at 793-94. The

issue “was for consideration by the factfinder.” Lyons, 667 A.2d at 323.