District of Columbia v. Davis, 11597.

• Decision Date: 19 May 1978
• Docket Number: No. 11597.,No. 11598.,11597.,11598.
• Citation: 386 A.2d 1195
• Parties: DISTRICT OF COLUMBIA et al., a Municipal Corporation, Appellants, v. Thomas E. DAVIS et al., Appellees. Thomas E. DAVIS et al., Appellees. v. DISTRICT OF COLUMBIA et al., a Municipal Corporation, Appellees.
• Court: D.C. Court of Appeals

386 A.2d 1195

DISTRICT OF COLUMBIA et al., a Municipal Corporation, Appellants, v. Thomas E. DAVIS et al., Appellees.

Thomas E. DAVIS et al., Appellees. v. DISTRICT OF COLUMBIA et al., a Municipal Corporation, Appellees.

No. 11597.

No. 11598.

District of Columbia Court of Appeals.

Argued November 21, 1977.

Decided May 19, 1978.

COPYRIGHT MATERIAL OMITTED

David P. Sutton, Asst. Corp. Counsel, Washington, D. C., with whom John R. Risher, Jr., Corp. Counsel, Louis P. Robbins, Principal Deputy Corp. Counsel and Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., were on the brief, for appellants in No. 11597 and appellees in No. 11598.

John Lodge Euler, Washington, D. C., with whom John Lewis Smith, III, Washington, D. C., was on the brief, for appellees in No. 11597 and appellants in No. 11598.

Before NEWMAN, Chief Judge, and HARRIS and MACK, Associate Judges.

MACK, Associate Judge:

We are faced with cross-appeals following two trials upon a complaint against the District of Columbia for personal injury growing out of the accidental discharge of a revolver of an off-duty policeman. We are asked to review the propriety of the trial court's action in 1) directing a verdict for the city on the ground that the plaintiff had failed to establish negligent police training and supervision on its part and in 2) refusing to direct a verdict for the city under the plaintiff's theory of respondeat superior.

These appeals arise in the following factual context. On June 22, 1973, in the early evening hours, Thomas Edward Davis was a part of a small social gathering of about four people at a residence in Northeast Washington. The group was joined by Edward Eugene Howard, a Metropolitan Police Officer. Shortly after entering the apartment Officer Howard was in the process of unholstering his regulation service revolver when the weapon discharged, striking Mr. Davis in the left thigh.

On May 12, 1975, Mr. Davis filed the instant action in Superior Court against Officer Howard and the District of Columbia. Count I of the complaint alleged negligence on the part of Officer Howard, and on the part of the District of Columbia under the doctrine of respondeat superior. Count II of the complaint charged the District of Columbia with having negligently failed to train, instruct, supervise and control the officer. A third count, asserted by Mr. Davis' wife for loss of consortium, was withdrawn when the wife died.

Trial commenced on May 17, 1976. At the close of the evidence the court granted the District of Columbia's motion for a directed verdict on the issue of its negligent supervision and training, on the ground that expert testimony was required regarding the adequacy of the police department's weapons training program. The court concluded that by not presenting such testimony, Mr. Davis had failed to establish a standard of care against which the jury could measure the actions of the corporate defendant. Thereafter, the case was submitted to the jury on the questions of Officer Howard's negligence in discharging the weapon, and the liability of the District of Columbia under the doctrine of respondeat superior. The jury's verdicts as to the District and the officer were irreconcilable, however. On Count I, the jury found in favor of Officer Howard, which implies a finding of no negligence. However, the jury also returned a verdict in favor of Mr. Davis against the District of Columbia, which strongly implies, because of the derivative nature of the respondeat superior relationship, that Howard was negligent. Because of this inconsistency, the court ultimately granted a new trial as to these issues only.

At the second trial, commencing on August 30, 1976, after denying the District of Columbia's motion for a directed verdict, the court instructed the jury to find as a matter of law that Officer Howard was acting within the scope of his employment when the weapon was discharged.¹ On September 7, 1976, the jury returned verdicts against both the city and the officer.² The District of Columbia appealed that judgment, and Mr. Davis cross-appealed the directed verdict in favor of the District at the first trial on the issue of negligent supervision and training. We affirm both judgments.

I.

The preliminary question which confronts us before we may turn to a consideration of the merits is whether Mr. Davis' cross-appeal is properly before us.

In this regard we note that Mr. Davis could not promptly appeal the directed verdict in favor of the District of Columbia on the issue of negligent supervision and training when granted because the court then granted a new trial. To be reviewable, a judgment or decree must not only be final but also complete, that is, final not only as to all parties, but as to the whole subject matter and all the causes of action involved. Hunter v. Federal Life Insurance Co., 103 F.2d 192 (8th Cir. 1939). Only after the second trial and the final judgment therein did there exist the requisite finality for appellate consideration. Although Mr. Davis did not specifically designate the record of the first trial pursuant to D.C.App.R. 10(b)(1), he did include the pertinent portions therefrom in his appendix. And when an appealable final judgment is entered, the appeal is generally held to bring up the entire record for review. Taylor v. Washington Terminal Co., 133 U.S.App.D.C. 110, 112, 409 F.2d 145, 147 (1969).

We conclude, therefore, that the issue of propriety of the directed verdict in favor of the District of Columbia in the first trial is properly before us.

II.

In taking this cross-appeal, Mr. Davis claims that at the first trial the court erred in not permitting the jury to consider the adequacy of the Police Department's training program with respect to the safe use of firearms. He contends that the following evidence supports his position.

Although Officer Howard is right-handed, when the shooting occurred he was wearing his service revolver in its holster on his left hip, tucked inside his pants with the handle and butt end facing forward. He had unfastened the holster's "keeper," the leather strap that snaps over the top of the holster to hold the revolver in place, and had pushed it behind the holster away from the weapon. Howard testified that he had grasped the handle of the weapon in order to draw it out of the holster when it discharged, although to the best of his knowledge his hand did not touch the trigger. None of the four other persons present in the room saw him begin to unholster the revolver.

Sergeant Robert D. Shupe of the Metropolitan Police Department, experienced in the handling and use of firearms and a supervisor of instructors at the departmental Training Academy, testified as to the comparative safety of a straight-draw and a cross-draw.³ He stated that a straight-draw is generally safer since the weapon comes out of the holster in a direct line with its target. In a cross-draw, on the other hand, the weapon generally moves across a wider area in the course of the draw. He further stated, however, that a cross-draw does not increase the risk of accidental discharge, nor is it inherently more dangerous than a straight-draw when properly executed.

With respect to the use of the keeper, Sergeant Shupe testified that it was the safer practice, in the sense of minimizing the risk of accidental cocking and discharge, to wear the keeper fastened at all times to hold the gun in place.

The evidence revealed further that Officer Howard was appointed to the Metropolitan Police Department in May of 1971, and attended the Department Training Academy a short time later for a period of approximately sixteen weeks. In addition to the basic skills of marksmanship he was taught the various parts of his revolver and how to load, clean and store it. He was issued a right-handed holster and instructed to wear it on his right side. However, he received no written material of any kind with respect to the safe use, handling, or operation of his weapon. And after graduation he received no follow-up training regarding weapon safety. Finally, there were no published Police Department orders, regulations, instructions or manuals regarding the safe handling or wearing of service revolvers.

Mr. Davis claims that these factors of the assertedly minimal character of weapons safety training, lack of articulated departmental standards on the subject, and the fact that Officer Howard carried his revolver in a potentially more dangerous position than that generally used, constitute sufficient evidence of the District of Columbia's negligent supervision and training to warrant the submission of that issue to the jury. He further contends that expert testimony would not have been required in order for the jury to be able to make such a determination.⁴

It is well established in this jurisdiction that the mere happening of an accident does not impose liability or reveal proof of negligence. Ruml v. Giant Food, Inc., D.C. App., 290 A.2d 571 (1972); Paylor v. Safeway Stores, Inc., D.C.App., 225 A.2d 312 (1967); Brown v. Alabama Foods, Inc., D.C. App., 190 A.2d 257 (1963). The burden is on the plaintiff to establish (1) a standard of care, and (2) that a violation of that standard was the proximate cause of the injury. Jones v. Safeway Stores, Inc., D.C.App., 314 A.2d 459 (1974).

With respect to establishing a standard of care, we conclude that the trial court did not err in deciding that expert testimony was required. Under the circumstances of this case, the questions of adequate weapons safety training and evaluation are technical questions not sufficiently within the common experience of jurors to obviate the need for expert testimony. See Marusa v. District of Columbia, (D.D.C. No. 1766-71, July 8, 1974).

Mr. Davis attempts to make the issue of negligent supervision and training appear to be an unlikely one for the use of expert testimony by characterizing it as simply a question of...