Imogene Williams v. United States Elevator Corporation and Elcon Enterprises, Inc.

920 F.2d 1019, 287 U.S. App. D.C. 225, 1990 U.S. App. LEXIS 21296, 1990 WL 198213

• Court: Court of Appeals for the D.C. Circuit
• Decided: December 11, 1990
• Docket: 89-7180
• Status: Published

Opinions

Opinion for the Court filed by Circuit Judge SENTELLE.

Separate dissenting opinion filed by Circuit Judge EDWARDS.

SENTELLE, Circuit Judge:

This appeal arises from a jury verdict rendered against appellant Imogene Williams (“Williams” or “appellant”) in a diversity action brought against appellees United States Elevator Corporation (“USEC”) and Eicon Enterprises, Inc. (“Ei-con”) for physical and emotional damages appellant allegedly suffered as a result of being trapped in a malfunctioning elevator. On appeal, Williams raises issues based exclusively on her assertion that the district court erred in instructing the jury that psychological effects must be the result of physical injury in order to support a recovery of damages for negligent infliction of emotional distress.

Despite an intervening change irt the governing law of the District of Columbia abandoning the requirement that emotional distress must be traceable to physical injury in order to be compensable, we affirm the jury’s verdict, as any error in the instruction was harmless.

I. BackgROund

Appellant appeals from an adverse verdict in a personal injury action against the elevator manufacturer, USEC, and the maintenance contractor, Eicon.¹ The action alleged that, as a result of an incident occurring on May 13, 1986 at the Department of Labor, appellant suffered past, present, and future medical expenses, lost wages, mental anguish, fright and emotional distress, pain, suffering, and severe personal injuries.

According to appellant’s testimony, she arrived at work on the date in question, parked her car on a lower level of an employee parking garage, entered an elevator, and pressed “3” for the third floor. When the elevator arrived at that floor, its doors failed to open. Appellant was unable to open the door by pressing the “door open” button so she attempted to call for help by means of an emergency telephone installed in the elevator. Though unsuccessful in her attempts to reach emergency personnel, she reached her supervisor. The elevator suddenly fell while appellant was talking to her supervisor and came to an abrupt halt at the plaza level of the building. The elevator doors again failed to open and the elevator rose to the fifth floor, stopped, then fell back to the plaza level. According to her testimony, appellant was trapped alone in the elevator for approximately forty minutes while the elevator continued to rise and fall at erratic speeds. She offered evidence of physical injuries and medical treatment. Appellees, by cross-examination and counter-evidence, contested virtually every material element of appellant’s factual case.

At the close of all evidence and after hearing defense motions, the district court submitted the case to the jury on theories of strict liability, implied warranty of fitness, and negligence in design against USEC, and on a theory of negligence in maintenance against Eicon. The court submitted to the jury a verdict sheet requesting special verdicts in the form of answers to the following questions:

1. Is United States Elevator Corp. strictly liable for the injuries plaintiff suffered?

2. Did United States Elevator Corp. breach its implied warranty of fitness for a particular purpose with respect to elevator 20?

3. Was United States Elevator Corp. negligent in its design of elevator 20?

4. Is Eicon Enterprises, Inc. negligent in its maintenance of elevator 20?

5. Is Eicon Enterprises, Inc. liable for negligent infliction of emotional distress?

If you find U.S. Elevator Corp. liable for the injuries which plaintiff sustained, what is the amount of damages to which she is entitled?

If you find Eicon Enterprises, Inc. liable for the injuries which plaintiff sustained, what is the amount of damages to which she is entitled? ²

After approximately ninety minutes of deliberations, the jury propounded the following written question to the court: “Do the psychological effects (damages-potential compensation) have to be the result of (related) physical injury? (Question based on Judge’s Instructions.)” J.A. at 372-73. Over appellant’s objections, the district court responded with the following answer: “I am applying a decision of our court of appeals back in 1966, which said that the question to be found in that ease was whether appellant’s alleged psychiatric disorders are a proximate result of the physical injuries sustained by her. Does that answer your question?” J.A. at 375-76. The jury, apparently failing to understand the judge’s answer, asked the judge to repeat his statement. The judge then stated: “In other words, your question is: Do the psychological effects have to be the result of physical injury, and the answer is: Yes.” J.A. at 376. Shortly thereafter, the jury returned a verdict in favor of USEC and Eicon on all counts.

Appellant moved for a new trial, contending that the jury instruction concerning the relationship necessary between psychological effects and physical injury was erroneous. By orders dated June 28 and June 30, 1989, the district court denied the motion and reaffirmed its conclusion that “the District of Columbia ... does not allow recovery for negligently inflicted emotional distress absent a causal relationship between some physical injury and that emotional distress.” J.A. at 18.

Appellant bases her present appeal on whether the district court erred in its instruction on recovery for negligently inflicted emotional distress.

il. Analysis

A. The Instruction Given

The original instruction on the emotional damage issue consisted of the following:

You are instructed that there can be no recovery for negligently caused emotional distress, mental consequence or disturbance unless it is a result of a physical injury. The accompanying physical injury need not be substantial to support recovery or [sic] negligently caused emotional distress. Any physical injury will be sufficient to support a claim for negligently caused emotional distress.

J.A. at 370. As noted above, the trial court offered additional instructions consistent with the original in response to a jury inquiry.

The parties devoted significant portions of their original briefs to arguing whether a causal relationship between physical injury and psychological distress is required in order to recover for negligent infliction of emotional distress. Appellant urged this Court to reject any such requirement, arguing that numerous cases support the proposition that emotional distress need only be accompanied by physical injury in order to recover. See, e.g., Perry v. Capital Traction Co., 32 F.2d 938 (D.C.Cir.), cert. denied, 280 U.S. 577, 50 S.Ct. 31, 74 L.Ed. 627 (1929) (requiring only accompanying physical injury for emotional damages recovery); Waldon v. Covington, 415 A.2d 1070, 1076 n. 20 (D.C.App.1980) (same).

Appellees, on the other hand, cited a long list of decisions requiring a causal relationship between emotional distress and physical injury in order for the emotional distress to be compensable. See, e.g., Kropinski v. World Plan Executive Council-U.S., 853 F.2d 948, 952-53 (D.C.Cir.1988) (requiring causal relationship between emotional distress and physical injury); Gilper v. Kiamesha Concord, Inc., 302 A.2d 740, (D.C.App.1973) (emotional distress must be traceable to substantial physical injury); Harrison v. Canada Dry Corp., 245 A.2d 642 (D.C.App.1968) (requiring causal relationship).

After briefing in this appeal was completed, the District of Columbia Court of Appeals issued an en banc opinion directly addressing the issue of whether emotional damages need to flow from negligently inflicted physical damages in order to be compensable. Williams v. Baker, 572 A.2d 1062 (D.C.App.1990). Williams v. Baker involved a mother’s claim of negligent infliction of emotional distress against a doctor who had incorrectly diagnosed her son’s medical condition. The false diagnosis resulted in physical harm to the son, but caused no such harm to the mother. A panel of the District of Columbia Court of Appeals affirmed the trial court’s grant of summary judgment in favor of the defendants. 540 A.2d 449 (D.C.App.1988).

The court then granted en banc review, and affirmed the panel decision, but did so on a new rationale, abandoning the requirement of a causal relationship between the physical injury and the emotional distress, and holding:

If the plaintiff was in the zone of physical danger and was caused by defendant’s negligence to fear for his or her own safety, the plaintiff may recover for negligent infliction of serious emotional distress and any resultant physical injury, regardless of whether plaintiff experienced a physical impact as a direct result of defendant’s negligence.

572 A.2d at 1067 (emphasis added).

As the present case arose under the district court’s diversity jurisdiction, 28 U.S.C. § 1332, the law of the District of Columbia governs. “Although the Rules of Decision Act, and hence Erie Railroad v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938), do not strictly apply with respect to D.C. law, we apply D.C.’s substantive law analogously for reasons of uniformity and respect for the D.C. Court of Appeals.” Schleier v. Kaiser Foundation Health Plan of Mid-Atlantic States, Inc., 876 F.2d 174, 180 (D.C.Cir.1989) (citing Anchorage-Hynning & Co. v. Moringiello, 697 F.2d 356, 360-61 (D.C.Cir.1983)). Thus, following the District of Columbia Court of Appeals’ en banc decision, it is clear that a causal relationship between the emotional distress and physical injury is no longer required in the District of Columbia to recover for negligent infliction of emotional distress. In light of that change in governing law, the district court’s instruction requiring a causal relationship between the appellant’s physical and emotional injuries is erroneous. Ordinarily, we would make a determination as to the retroactive applicability of Williams v. Baker;3 however, in the present case, we need make no such determination. Regardless of retroactivity, the alleged error in the jury instructions was harmless and does not require us to remand this case for a new trial.

B. The Impact of the Error

Once we have found the existence of an error, we must then determine whether that error is of such significance as to require a remand of the case for retrial. This court has indicated that “[t]he standard for determining when an error in a jury instruction requires reversal is the general standard for determining harmless error after objection.” United States v. Lemire, 720 F.2d 1327, 1339 n. 16 (D.C.Cir.1983), cert. denied, 467 U.S. 1226, 104 S.Ct. 2678, 81 L.Ed.2d 874 (1984) (citations omitted). Under Fed.R.Civ.P. 61, an error requires reversal only if we conclude that the faulty jury instruction “affect[ed] the substantial rights of the parties.⁴ The Supreme Court has stated that “if one cannot say, with fair assurance, ... that the judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.” Kotteakos v. United States, 328 U.S. 750, 765, 66 S.Ct. 1239, 1248, 90 L.Ed. 1557 (1946). The proper inquiry is “whether the error itself had substantial influence. If so, or if one is left in grave doubt, the [verdict] cannot stand.” Id. This inquiry “involves an assessment of the likelihood that the error affected the outcome of the case.” Jordan v. Medley, 711 F.2d 211, 218 (D.C.Cir.1983) (citations omitted).

We are well aware that the circuits are divided on the appropriate standard of review to apply in gauging the effect of an error in a civil case.⁵ In the Jordan case we noted that the Supreme Court in Kot-teakos, a criminal case, “acknowledge^] that although the ‘substantial rights’ test applies to both civil and criminal eases, that ‘does not mean that the same criteria shall always be applied’ to those separate categories.” Jordan, 711 F.2d at 219 n. 6 (quoting Kotteakos, 328 U.S. at 762, 66 S.Ct. at 1246-47). In so doing, we noted the language of 28 U.S.C. § 2111 (1976), which requires a court on appeal or on a writ of certiorari to “give judgment after an examination of the record without regard to errors or defects which do not affect the substantial rights of the parties.” The “substantial rights” language is the same phrase construed by the Supreme Court in Kotteakos under section 269 of the Judicial Code (then 28 U.S.C. § 391). The present statute, in common with the statute construed in Kotteakos, expresses no distinction between civil and criminal cases. Cf. Kotteakos, 328 U.S. at 762, 66 S.Ct. at 1246 (“[t]he statute in terms makes no distinction between civil and criminal causes”).

Whatever difference may be appropriate in specific cases with reference to the criteria to be applied under the Kotteakos standard, we have in the past applied the Kotteakos standard to civil cases and do so today. See Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 844 (D.C.Cir.1981), cert. denied, 455 U.S. 994, 102 S.Ct. 1622, 71 L.Ed.2d 855 (1982). Applying that standard to the present case, we conclude there is no way in which the trial court’s error could have affected the substantial rights of the parties. Although the subsequent decision in Williams v. Baker specifically negated the causal connection between the physical and emotional damages charged by the district court, errors in jury instructions may be ignored “if the erroneous instruction went to an issue that is immaterial in the light of the jury’s verdict.” See 11 WRIGHT & Miller, Federal Practice and Procedure, § 2885 at 290-91 (1973). In the present appeal, the erroneous jury instruction is irrelevant to the outcome of the case. From our examination of the special verdicts returned by the jury, it is clear that the jury found appellees USEC and Eicon entirely free of any negligence in the design or the maintenance of the elevator. See J.A. at 377. To each of the district court’s queries regarding the negligence of the appellees in the design or maintenance of the elevator, the jury replied “No.” Id. In addition, the court asked the jury “[i]s Eicon Enterprises, Incorporated, liable for negligent infliction of emotional distress?” Id. To this question the jury also replied “No.” Id. Under Williams v. Baker, recovery may be obtained for negligent infliction of emotional distress and physical injury if the “defendant’s negligence” caused a plaintiff in the zone of physical danger to fear for her own life or safety. Obviously, a plaintiff must first establish that the defendant was negligent in order to recover for any inflicted emotional distress. This was a burden appellant failed to meet. The erroneous jury charge could not in any way affect the jury’s determination of negligence on the part of the appellees as it dealt only with the issue of damages. Thus, the charge could not have risen to the level of harmful error.

Because the district court carefully employed a verdict form requiring special verdicts on the questions of negligence and damages, it is easy to ascertain that the erroneous damages instruction could not have influenced the negligence verdict. In instructing the jury on the negligence issues, the- district judge defined negligence as “the failure to exercise ordinary care” or “doing something a person using ordinary care would not do or not doing something a person using ordinary care would do.” J.A. 361. While he expanded on the standards of care and other matters relevant to the instructed definition of negligence, his instructions on the negligence issues do not involve damages matters. The portion of the charge subsequently rendered erroneous by changes in District of Columbia law went only to damages, to matters inquired of by the special verdict issues listed under number “5” on the verdict form. In examining the court’s instructions, we “presume[ ] the jurors, conscious of the gravity of their task, attend closely the particular language of the trial court’s instructions ... and strive to understand, make sense of, and follow the instructions given.” Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 1976 n. 9, 85 L.Ed.2d 344 (1985) (emphasis added).⁶ This treatment of jury responsiveness to instruction has been described by the Supreme Court as “the almost invariable assumption of the law.” Richardson v. Marsh, 481 U.S. 200, 206, 107 S.Ct. 1702, 1707, 95 L.Ed.2d 176 (1987). In the present ease, the jurors could not have answered the negligence issues in the negative as they did unless they found no failure of the standard of reasonable care. As they found no such failure, the amount of damages was immaterial. To reverse the district court, we would be forced to assume that the jurors disregarded their instructions and decided the negligence issues in the negative only because they thought no damages were involved. To so hold would be to ignore the approach deemed an “almost invariable assumption” by the highest court — something we are not at liberty to do even if we wished.⁷

Although appellant argues that we should attach sufficient importance to the question asked by the jury to reverse, we cannot agree. The jury’s question to the court regarding the necessity of tracing emotional distress to a negligently caused physical injury fails to convince us that the error was harmful. The jury’s question to the district court concerned the causation requirement in the recovery of emotional damages. Specifically: “Do the psychological effects (damages-potential compensation) have to be the result of (related) physical injury?” J.A. at 375. Although the court’s response was incorrect in light of the intervening change in the law, the question did not deal in any way with the finding of negligence, but only went to the issue of damages. Thus, the judge’s response could not have misled the jury with respect to its finding of negligence. Because appellant was unable to establish negligence, her action for recovery of negligent infliction of emotional damages cannot survive as a matter of law. Williams v. Baker, 572 A.2d at 1067 (requiring negligent conduct on part of defendant for recovery of emotional distress damages). Consequently, the district court’s erroneous response to the jury’s inquiry is immaterial in light of the jury’s specific finding of no negligence on the part of appellees. Thus, we affirm the judgment of the district court.

1 . A third defendant, GAL Manufacturing Corporation, which provided certain component parts for the elevator, was dismissed from the lawsuit by voluntary consent.

2 . Joint Appendix ("J.A.") at 377. We note that our determination of the exact form of the verdict, as well as other factual predicates for this opinion, was hampered by the parties’ submission of a two-volume appendix containing neither a table of contents nor an index. As the component parts of the appendix are not arranged in chronological order, and as the first volume contains pages numbered 1-555 and the second pages numbered 379-693, the Court has been forced to review the original record, an expenditure of time and effort which should not have been necessary.

3 . See, e.g., Mendes v. Johnson, 389 A.2d 781 (1978) (discussing factors to be considered in applying decision retroactively).

4 . Although Fed.R.Civ.P. 61, by its own terms, applies only to district courts, "it is well settled that the appellate courts should act in accordance with the salutary policy embodied in Rule 61.” McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554, 104 S.Ct. 845, 849, 78 L.Ed.2d 663 (1984).

5 . Compare U.S. Industries, Inc. v. Touche Ross & Co., 854 F.2d 1223, 1252-53 & n. 39 (10th Cir.1988) (standard of review for harmless error in civil case "is whether the substantial rights of the parties were more probably than not unaffected by the error"); Smith v. Chesapeake & Ohio Ry. Co., 778 F.2d 384, 389 (7th Cir.1985) (same); McIlroy v. Dittmer, 732 F.2d 98, 105 (8th Cir.1984) (same), and Haddad v. Lockheed California Corp., 720 F.2d 1454, 1459 (9th Cir.1983) (same), with Aetna Casualty and Sur. Co. v. Gosdin, 803 F.2d 1153, 1159 (11th Cir.1986) ("in civil cases courts should apply the same standard as announced in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946), a criminal case”), and McQueeney v. Wilmington Trust Co., 779 F.2d 916, 924-27 (3rd Cir.1985) (standard of review for harmless error same for both criminal and civil cases, i.e., errors "are not harmless unless it is ‘highly probable’ that they did not affect a party's substantial rights”).

6 . The language deleted from the above quotation specified the application of the presumption to "a criminal case.” Since the presumption is deemed adequate to protect the important rights at stake in criminal cases, we think it follows that it must be adequate in the lesser burdened context of a civil jury trial.

7 . To conclude, as our dissenting colleague does, that the jury colloquy with the court refutes "the usual presumption that juries follow their instructions,” dissent at 1028, requires us not only to ignore this "almost invariable assumption" on the basis of a tenuous interpretation of an ambiguous question, but also to assume that the jury answered the special verdict form falsely. Were we to adopt our colleague’s view, the value in the submission of special verdicts would be greatly diminished and our understanding of the esteem to be afforded jury verdicts much compromised.