Queen v. Washington Metropolitan Area Transit Authority, 87-7095

• Citation: 268 U.S. App. D.C. 480,842 F.2d 476
• Decision Date: 25 March 1988
• Docket Number: No. 87-7095,87-7095
• Parties: , 25 Fed. R. Evid. Serv. 107 Ivar J. QUEEN, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

Page 476

842 F.2d 476

268 U.S.App.D.C. 480, 25 Fed. R. Evid. Serv. 107

Ivar J. QUEEN, Appellant, v. WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY.

No. 87-7095.

United States Court of Appeals District of Columbia Circuit.

Argued Feb. 5, 1988.

Decided March 25, 1988.

Appeal from the United States District Court for the District of Columbia D.C. Civil Action No. 86-00080.

Patrick M. Regan, with whom Marc Fiedler, Washington, D.C., was on the brief for appellant. William P. Lightfoot, Washington, D.C., also entered an appearance for appellant.

John G. Elligers, with whom Sara L. Lister, Mark R. Pohl and Gerard J. Stief, Washington, D.C., were on the brief for appellee. Richard W. Beebe, Washington, D.C., also entered an appearance for appellee.

Before WALD, Chief Judge, STARR, Circuit Judge, and MacKINNON, Senior Circuit Judge.

Opinion for the Court filed by Chief Judge WALD.

WALD, Chief Judge:

On January 10, 1985, as he was heading home from a morning of shopping, Ivar Queen, a resident of Washington, D.C., was run over by a city transit bus. Both of his legs were fractured. Queen brought suit in federal district court against the Washington Metropolitan Area Transit Authority ("WMATA"), contending that WMATA's bus driver had negligently operated the bus that struck him. The jury, however, returned a general verdict for WMATA. In this appeal, Queen challenges the district court's instructions to the jury, as well as the refusal to exclude a fact witness from the courtroom and the admission of an expert witness' testimony. Although Queen does identify shortcomings in two rulings, we conclude that neither constituted reversible error. We therefore affirm.

I. BACKGROUND

The accident occurred shortly after noon near a bus stop at the intersection of 34th Street and Benning Road in northeast Washington. Queen was a passenger on one of WMATA's X-4 buses that pulled into the bus stop. Immediately ahead in the right lane adjacent to the bus stop was an X-2 bus. Queen planned to transfer to the X-2 bus to take him home. He disembarked through the rear door of the X-4, and ran until he was alongside the right side of the X-2 bus, which had closed its doors and begun to move out of the bus stop. Queen yelled at the bus driver to stop, and while running along the side of the bus, pounded the side of the bus with his left hand, in an attempt to attract the attention of the driver. Moments later, Queen either fell or was knocked beneath the X-2 bus, and its rear wheels ran over his legs below the knees. ¹

On January 13, 1986, Queen brought suit against WMATA in federal district court, contending that the driver of the X-2 bus, Charleen Jenkins, had operated it in a negligent manner and that her negligence was the proximate cause of the accident. Trial was held in May 1987 and lasted five days.

Queen's theory of WMATA's liability at trial turned on the fact that the X-2 bus that ran over him was an "articulated" coach: a species of bus with a front section (the "tractor"), a rear section (the "trailer"), and a connecting middle bellows (the "fifth wheel") which appears to be about three feet wide and is largely composed of a rubber-impregnated canvas material that folds like the pleated bellows of an accordion. See Plaintiff's Exhibits 3J and 3L. At 55 feet in length, articulated buses are 15 feet longer than WMATA's regular buses. Queen's contention was that because an articulated bus pivots not on its rear wheels, but on its middle ones, the rear wheels tend to swing out in the opposite direction from the one in which the front WMATA countered that Queen had not been knocked down by the rear of the bus swinging over the curb, a phenomenon it sought to prove could not take place. Rather, WMATA contended that Queen had either been struck by the middle accordion section of the bus coming into contact with his outstretched left arm, or that Queen had slipped and fallen beneath the bus, which was traveling only about 3 miles per hour at the time of the accident. It maintained that Queen was responsible for the accident, since he had been running on the curb alongside the bus with his arm extended into the street, and that Queen, in conversations with Jenkins immediately after the accident and with another driver months later, admitted that he had slipped and fallen and that the accident was his fault. The district judge gave assumption of risk and contributory negligence instructions to the jury.

wheels are steered. In this instance, Queen alleged, as the bus turned left to leave the bus stop, the rear wheels had swung to the right, and the right side of the bus just above the rear wheels had swung over the curb and struck Queen's left shoulder and arm, knocking him to the ground under the bus. Additionally, Queen argued that Jenkins had not properly looked out her right-side window before leaving the bus stop; if she had, she would have spotted Queen and stopped the bus before it ran over him.

The jury returned a general verdict for WMATA. In this appeal, Queen challenges (1) the wording of the assumption of risk instruction given by the trial judge; (2) the fact that the judge gave a contributory negligence instruction at all; (3) the judge's refusal to submit a proposed instruction that would limit Queen's contributory negligence exposure; and (4) the judge's refusal to adopt Queen's proposed last-clear-chance instruction. He also argues two additional causes of reversible error: allowing bus operator Jenkins to be present in the courtroom prior to the giving of her own testimony, and allowing another WMATA employee to testify in what Queen asserts was an expert witness capacity despite the transit authority's failure to identify the employee as an expert witness in pretrial interrogatories.

II. THE CHALLENGED INSTRUCTIONS

A. The Assumption of the Risk and Contributory Negligence Instructions

Under District of Columbia law, the doctrine of assumption of risk "operates only when the party actually knows the full scope and magnitude of the danger and thereafter voluntarily exposes himself to it." Stager v. Schneider, 494 A.2d 1307, 1311 (D.C.1985) (citation omitted; emphasis added). By contrast, the doctrine of contributory negligence operates as a defense "when a party knows or by the exercise of ordinary care should have known a particular fact or circumstance." Id. (emphasis in original).

The district judge in this case submitted to the jury both an assumption of risk and a contributory negligence instruction. The assumption of risk instruction allowed the jury to find that Queen assumed the risk of injury if it determined, among other things, "that plaintiff knew or should have known of the existence of a dangerous situation." ² The gravamen of Queen's challenge to this instruction is that it erroneously permitted the jury to find assumption of risk by imputing to him This critique is clearly correct. The phrase "should have known" is, as Stager teaches, a classic element of a contributory negligence instruction, not an assumption of risk one, for it necessarily invites juries to impute knowledge to the plaintiff based not upon his actual or constructive knowledge, but upon that of the ordinary person. District of Columbia law has consistently regarded such departures from the requirement of actual knowledge as patently impermissible. ³ WMATA justifies the assumption of risk instruction on the grounds that it tracks the model Superior Court civil instruction. This, however, is not an adequate reason for departing from D.C. law, and indeed, the District of Columbia Court of Appeals has recently criticized the model instruction formulation as defective, precisely because it invites application of a reasonable man standard, not "the subjective standard of true assumption of risk." See Sinai v. Polinger Co., 498 A.2d 520, 526 & n. 10; see also id. at 526 n. 8 ("plaintiff's 'failure to exercise due care either to discover or to understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence' ") (quoting Restatement (Second) or Torts Sec. 496D, comment b).

                knowledge of the hazards his behavior entailed, without requiring that the jury find he in fact knew "the full scope and magnitude of the danger."   Stager, 494 A.2d at 1311
                

Unhappily for Queen, District of Columbia law also teaches that faulty assumption of risk instructions do not necessarily constitute reversible error. Only nonprejudicial error occurs when, as here, the defective assumption of risk instruction does no more than effectively replicate a legally correct contributory negligence instruction also given to the jury. The District of Columbia Court of Appeals recently dealt with this overlap in Sinai, where a tenant sued a landlord for providing inadequate protection against an assault committed by another tenant, and the landlord countered by alleging that the tenant had courted the danger by confronting the assailant rather than awaiting the arrival of the police. As in this case, the trial court in Sinai issued an instruction styled as an assumption of risk instruction which, however, charged the plaintiff with knowledge he "knew or should have known." Id. at 524. The court found the inclusion of contributory negligence language in the assumption of risk instruction not to be reversible error, stating:

in light of the focus of the assumption of risk instruction here on the reasonableness of the plaintiff's conduct rather than upon his conscious assent to encounter a known risk, it is unlikely that the jury could have interpreted the instruction as anything more than a repetition of the previously given contributory negligence instruction.

Id. at 527.

The same reasoning applies here. We are unable to discern any damage the faulty assumption of risk instruction could have inflicted upon Queen. The contributory negligence instruction given at trial was a standard instruction, inquiring...