Athridge v. Iglesias, Civil Action No. 89-1222 (HHG).

• Decision Date: 08 November 1996
• Docket Number: Civil Action No. 89-1222 (HHG).
• Citation: 950 F.Supp. 1187
• Parties: Thomas P. ATHRIDGE, et al., Plaintiffs, v. Jorge IGLESIAS, et al., Defendants.
• Court: U.S. District Court — District of Columbia

Page 1187

950 F.Supp. 1187

Thomas P. ATHRIDGE, et al., Plaintiffs, v. Jorge IGLESIAS, et al., Defendants.

Civil Action No. 89-1222 (HHG).

United States District Court, District of Columbia.

November 8, 1996.

William J. Rodgers, Charles B. Long, Collier, Shannon, Rill & Scott, Washington, D.C., for Plaintiffs.

Irving Starr, Richard Starr, Arlington, VA, Paul R. Pearson, Arthur, Pearson & Martin, Falls Church, VA, for Defendants.

OPINION

HAROLD H. GREENE, District Judge.

I. Factual Background

This case involves the tragic consequences of what apparently was a game of "chicken" engaged in by two teenagers. It arises out of an automobile accident that occurred on July 29, 1987 at approximately 1 p.m., in the 3100 block of Fessenden Street, N.W., Washington, D.C., when plaintiff Thomas P. Athridge ("Tommy") was struck by a vehicle driven by defendant Jorge Iglesias ("Jorge").¹ At the time of the accident, Tommy was 15 years and 11 months old, and defendant Jorge was a little over 16 years.

Defendant Jorge had borrowed his cousin's manual transmission Volkswagen Jetta from the cousin's residence on 3739 Cumberland St., N.W., and drove the car to Mazza Gallerie in Friendship Heights. Jorge's best friend, James Ko, was also in the car. Not only did defendant take the car without the permission of the owner, but he did not have, and had never had, either a driver's license or learner's permit. At Mazza Gallerie, Jorge and Ko met plaintiff, one John Bruce Thornburg, and several other individuals, and some of these individuals, including plaintiff, were driven by defendant to a pool party at Erin Rupp's house at 3108 Fessenden St., N.W.

After staying at Rupp's house for approximately one-half hour, where some of the young people were drinking alcohol, defendant left in the Jetta, with Ko in the passenger seat and Thornburg in the rear seat, driving up Fessenden Street toward Connecticut Avenue. As they were driving away, Thornburg informed the defendant that Tommy's books were in the back seat. Defendant thereupon turned around and returned towards Rupp's house, heading east on Fessenden Street. He halted at a stop sign on Fessenden Street at the intersection with 32nd Street. Several of the individuals at Rupp's house were, at that time, standing outside of the house near Rupp's driveway. This group was plainly visible from the stop sign and the vehicle was likewise visible to the individuals standing next to Rupp's driveway.

The distance between the stop sign, where defendant stopped, and Rupp's driveway is 440 feet. The 3100 block of Fessenden Street, N.W. is a residential street. It does not have sidewalks, crosswalks or any traffic lights. The speed limit on Fessenden Street in this area is 25 mph. The weather on July 29, 1987 was sunny and clear.

As defendant's car approached the area where the individuals were standing, plaintiff moved into the middle of the road and began waving his arms. Thornburg, an eyewitness sitting in the back seat of the Jetta, testified that plaintiff was holding his hands out "motioning [defendant] to stop the car." Defendant himself has conceded that plaintiff was asking him to stop, but defendant continued driving toward plaintiff, accelerating to a speed of approximately 40 mph. Plaintiff could see the car as it approached, but he nevertheless remained in the middle of the road.

At the last moment, Tommy attempted to jump out of the way to avoid impact, but at that same moment Iglesias unfortunately swerved in the same direction. Iglesias never applied the brakes at any time. After defendant's vehicle struck plaintiff and threw him up on the windshield, the vehicle swerved to the north side of Fessenden Street, ran onto the lawn of a house located there, struck a large rock, became airborne, and eventually landed in a ravine where it skidded to a stop into two trees.

The physical evidence and the testimony of an accident reconstruction expert, Montgomery County Police Officer Charles Simpson, shows that defendant did not attempt until after impact a "critical swerve" or "yaw" in an effort to avoid plaintiff.² This expert testimony stands unrebutted by other expert testimony.

Plaintiff's body impacted on almost the dead center of the vehicle — both the center of the roof above the windshield and the center of the hood of the vehicle. Based on the location of the head strike on the vehicle, an accident reconstruction expert was able to determine the speed at impact was 40-45 mph.

It is also significant that, according to the expert testimony of Officer Simpson, in the case of a "sudden stop," where an "unexpected event" materializes ahead of a driver, it takes 88 feet to halt a vehicle traveling 25 mph, allowing for 1.6 seconds reaction time; at 30 mph, it takes 113 feet to stop; at 35 mph, it takes 140.42 feet to stop; and at 40 mph, it takes 159 feet to stop. However, if the stop is not sudden, but the hazard is already visible in the road, the reaction time diminishes to half a second. The stopping distance then decreases to 48 feet at 25 mph and 64 feet for 30 mph. In the present case, the hazard was not completely unexpected. Tommy Athridge was plainly visible in the middle of the road. Accordingly, it is this Court's view that the defendant could have stopped in even shorter distances than those listed above.

Eyewitnesses John Bruce Thornburg and Manon Schmidtmam, both friends of the defendant, corroborated the testimony of plaintiff and the physical evidence that plaintiff was plainly visible in the middle of the street motioning defendant to stop. Schmidtmam testified that she saw the plaintiff in the middle of the street while defendant's car was still "[a]t the end of the block," near the intersection of a side street onto Fessenden, at least 200 feet away.

The testimony of James Ko, defendant's central witness, by contrast, was that defendant's vehicle was "two and a half to three car lengths" from plaintiff when plaintiff "stepped out" into the street. Ko also acknowledged, however, that he is not "very good with distances" in terms of feet, but that he is accurate at describing distances in terms of car lengths. However, Ko was quite inaccurate in describing various other distances in terms of car lengths. He estimated the distance from the stop sign at 32nd Street and Fessenden to the end of the 3100 block as "about twelve car lengths" — it is actually 677 feet — and estimated the distance from the stop sign to the point of impact as "about eight car lengths" — it is actually 417 feet. These distances would yield a "car length" of an enormous car: over 50 feet. The Court rejects the Ko testimony.³

Finally, defendant Jorge Iglesias testified that plaintiff was "somewhere around 30 feet, maybe" from the vehicle when defendant first saw him in the middle of the road. Even if the Court were to believe this statement, it would at best constitute an admission of negligent failure to keep a proper lookout. In any event, the Court finds credible the testimony of other witnesses that plaintiff was visible in the road at a much greater distance, and that defendant should have seen plaintiff at that distance.

II. Liability

Every person who drives on a public road in the District of Columbia is obliged to use ordinary care at all times to avoid striking other persons who may be using the roadway and to avoid placing himself or others in danger. Lyons v. Barrazotto, 667 A.2d 314, 321 (D.C.App.1995). This duty includes the duty to keep a proper lookout to observe traffic and other conditions which may confront the driver. Id. The Court concludes that defendant violated the duty of care to avoid colliding with plaintiff.

Defendant was also negligent when he operated at an excessive speed, approximately 40 mph, on a street in a residential neighborhood. The evidence shows that this excessive speed was a proximate cause of the collision with plaintiff. See WMATA v. Davis, 443 A.2d 45, 51 (D.C.App.1982) (en banc).

As noted, eyewitness testimony establishes that plaintiff was clearly visible to defendant at a much greater distance than the 30 feet at which defendant testified that he first saw plaintiff in the road. A driver who fails to see a pedestrian who is plainly there to be seen violates the duty of ordinary care. Lyons v. Barrazotto, 667 A.2d at 321. Moreover, defendant never attempted to apply the brakes or sound his horn. Indeed, he made no effort to avoid the accident until "the very last second" according to eyewitness testimony.

On the basis of the entire record, including the testimony of witnesses and the fact that defendant was driving without a license, the Court finds that defendant was negligent in violating the duty of care owed toward the plaintiff.

III. Contributory Negligence

Defendant asserts that plaintiff is barred from recovery because of his contributory negligence (which acts as an absolute bar to recovery in the District of Columbia). Felton v. Wagner, 512 A.2d 291, 296 (D.C.App.1986).

Although this is a close case, the Court concludes on the basis of the evidence that plaintiff was contributorily negligent. A reasonably prudent person would not stand in the middle of the road when an inexperienced driver is rapidly approaching in a vehicle. Rather, the prudent action would have been to wave the car down from the side of the road.

IV. Last Clear Chance

Despite his contributory negligence, a plaintiff may be permitted to recover under the last clear chance doctrine. Belton v. WMATA, 20 F.3d 1197, 1199 (D.C.Cir.1994). In order to recover under this doctrine, a plaintiff must prove that:

(1) ... the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) ... the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) ... the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of her...