Banks v. District of Columbia

• Decision Date: 14 December 1988
• Docket Number: No. 86-1129.,86-1129.
• Citation: 551 A.2d 1304
• Parties: Joyce M. BANKS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.
• Court: D.C. Court of Appeals

551 A.2d 1304

Joyce M. BANKS, Appellant, v. DISTRICT OF COLUMBIA, Appellee.

No. 86-1129.

District of Columbia Court of Appeals.

Argued September 19, 1988.

Decided December 14, 1988.

Neil Intrater, Washington, D.C., for appellant.

Susan S. McDonald, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for appellee.

Before STEADMAN and SCHWELB, Associate Judges, and GALLAGHER, Senior Judge.

STEADMAN, Associate Judge:

After spending the evening visiting with a friend and other guests, appellant Banks fell and was injured while descending a common stairway in an apartment house owned by appellee District of Columbia. The stairway was unlighted and lacking in secure handrails in violation of District of Columbia Housing Regulations. 56 DCRR §§ 2409, 2508 (1979), 14 DCMR §§ 505.1, 708.3, 708.11 (1986). A jury by special verdict found the District to have been negligent, but denied recovery on the ground of Banks' contributory negligence.

On appeal, Banks makes two principal arguments. First, she claims the right to a new trial because of the violation by counsel for the District of the court's in limine order precluding reference to Banks' alleged history of alcoholism. Second, she asserts that the jury instructions failed to adequately distinguish contributory negligence from assumption of risk. We affirm.

I. In Limine Order Violation¹

"In this jurisdiction it is settled beyond question that the granting or refusal of a new trial is not subject to reversal, save when a clear abuse of discretion is shown." Bedell v. Inver Housing, Inc., 506 A.2d 202, 207 (D.C. 1986) (citing Hoover v. Babcock, 53 A.2d 591 (D.C. 1947) (footnote omitted)). It is the trial court which is in the best position to assess the potential for prejudice resulting from trial errors. Therefore, while mindful that allusion to the subject of an in limine order may well be prejudicial, we will defer to the trial court's determination as to whether prejudice resulted in fact unless that ruling constitutes an abuse of discretion. Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 794, 174 Cal.Rptr. 348, 372 (1981) (since trial court in best position to evaluate effect of in limine order violation, its determination may be disturbed on appeal only if "patently wrong"); Tate v. Gray, 292 So.2d 618, 619 (Fla. 1974) (no abuse of discretion found when trial judge denied motion for mistrial where in limine order had been violated).

Here the court issued an in limine order² precluding defense counsel from referring to or asking questions regarding Banks' alleged history of alcoholism, stating that "before such evidence comes in you should come up to the bench and alert the court that you intend to move in that direction." In granting the motion, the court distinguished evidence relating to alcohol consumption on the evening in question,³ which was clearly admissible since highly relevant to the contributory negligence issue, from the matter of appellant's alleged history of alcoholism, noting that this topic inhered great potential for prejudice.

Seeking clarification of the court's order, counsel for the District inquired about the admissibility of "treatment reflected in the hospital records" and was told in response "there has been a limine matter raised to that. When the time comes and before the jury gets any evidence of the record we can go into all of this." The "treatment" referred to concerned a prescription for libriurn, a drug used to combat delirium tremens, a side effect associated with alcohol withdrawal.⁴ Nevertheless, in cross-examining Ms. Banks, counsel asked, "Is it not true that you were treated for delirium tremens?" Appellant's objection was promptly sustained, and the jury twice instructed to disregard the question. Appellant moved for a default judgment, which was denied, and that counsel be held in contempt of court, which the trial judge took under advisement.⁵ Appellant points as well to two other occasions, one prior to the above violation, and one subsequent, where counsel for the District gave indication that he might be venturing into the prohibited subject area. In both instances objection was made before the jury heard questioning or testimony violative of the order, but Banks argues that the cumulative effect of these events was to alert the jury that it might be deprived of significant information.

It is, of course, not true that so long as a jury hears only prohibited questions and not prohibited answers, prejudice has necessarily been precluded. Indeed, the mere propounding of an improper question, and the making of an objection, injects into the trial a potential for prejudice. However, it is for the trial court to determine, within the sound exercise of its discretion, whether prejudice resulted in fact. This was a key issue of inquiry (as is often the case in a new trial determination) and it was squarely determined against appellant. Here the trial court specifically found that "plaintiff was not prejudiced in her right to a fair trial by the actions of defense counsel. . . ."⁶ We think it unwarranted to trammel the trial court's normal standard of sound discretion in new trial rulings by imposing a special "clear and convincing evidence" requirement for in limine violations alone.⁷

Here, the District's opening and closing statements were free of reference to any issue of chronic alcoholism. See Reidelberger v. Highland Body Shop, Inc., 79 Ill. App.3d 1138, 1145, 35 Ill.Dec. 413, 417, 399 N.E.2d 247, 251 (1979) (noting in reversing new trial order that prohibited subject area was not alluded to in closing argument), aff'd, 83 Ill.2d 545, 48 Ill.Dec. 237, 416 N.E.2d 268 (1981). Furthermore, in keeping with the in limine order, medical records referring to the librium treatment were withheld from the jury. There was but a single question put suggestive of a possible chronic alcoholism problem, which was immediately followed by a corrective instruction. See Weeda v. District of Columbia, 521 A.2d 1156, 1163 (D.C. 1987) (jurors presumed to have understood and followed the court's instructions); Olsen v. French, 456 A.2d 869 (Me. 1983) (since it must be presumed jury followed judge's instructions to disregard question violative of in limine order, refusal to order mistrial sua sponte not abuse of discretion). Under the circumstances, we cannot say that the trial court abused its discretion in not granting a new trial.⁸

II. Contributory Negligence

In attempting to establish Banks' contributory negligence, the District argued as a relevant fact Banks' failure to ask that the door of the apartment she had just left be held open so as to cast light upon the stairs.⁹ Banks in effect argued at trial and before us that consideration of this fact as bearing on contributory negligence was improper and that the jury should have been so instructed. More generally, as we understand it, Banks argues that she had the absolute right to use the stairs in the condition she found them, relying on our decision in Scoggins v. Jude, 419 A.2d 999 (D.C. 1980). This argument misreads that decision.

In Scoggins, we rejected the use of an assumption of risk defense¹⁰ where a tenant remains on leased premises where Housing Regulation violations exist, and the parties are in agreement that that principle is applicable here.¹¹ Likewise, the parties are in agreement that the defense of contributory negligence is available as a defense, since requiring users of leased premises to act reasonably is in no way inconsistent with the policy underlying the housing regulations. See Scoggins v. Jude, supra, 419 A.2d at 1005; District of Columbia v. Mitchell, 533 A.2d 629, 643 (D.C. 1987) (contributory negligence will be a defense if tenant, knowing of a danger, unreasonably uses the premises).

The discrepancy between the parties turns on the proper means of defining contributory negligence in Housing Regulation violation cases. The trial court here, noting our endorsement of the Restatement's contributory negligence analysis, incorporated the language of the Restatement's definition of that concept,¹² quoted in Scoggins, into its instructions to the jury. Appellant contends that the trial court erred in including that portion of the Restatement definition which provides in relevant part that the plaintiff's contributory negligence may be "an intentional and unreasonable exposure of himself to danger created by the defendant's negligence, of which danger the plaintiff knows or has reason to know. . . ."

It is true on the facts here that it would be impermissible as a matter of law to have allowed the jury to use the mere fact that Ms. Banks opted to descend the staircase— rather than, for example, remain in her friend's apartment for the night—as foreclosing her action for negligence.¹³ However, this is not to say that the jury could not consider whether the manner in which she encountered the danger was reasonable.¹⁴

Scoggins adopted the Restatement's analytical distinction between reasonable and unreasonable action in the face of a known risk, characterizing the latter as a form of contributory negligence. Scoggins v. Jude, supra, 419 A.2d at 1004. Scoggins held that as a matter of law the fact that the tenant and guest knowingly exposed themselves to danger by moving furniture under a leaking ceiling could not be characterized as unreasonable. Id. at 1005. In holding, however, that a contributory negligence instruction was warranted as to the tenant's conduct in exacerbating the danger by hanging plants from the already-impaired ceiling, we noted that:

If there is sufficient evidence tending to show a tenant (or a tenant's guest), by act or omission, unreasonably increased the exposure he or she otherwise would have had to danger created by a landlord's failure to comply with the Housing Regulations, the jury should be allowed to consider whether there...