Ceco Corp. v. Coleman

• Decision Date: 27 January 1982
• Docket Number: No. 80-483.,80-483.
• Citation: 441 A.2d 940
• Parties: CECO CORPORATION, Appellant, v. Norman D. COLEMAN, Appellee.
• Court: D.C. Court of Appeals

Page 940

441 A.2d 940

CECO CORPORATION, Appellant, v. Norman D. COLEMAN, Appellee.

No. 80-483.

District of Columbia Court of Appeals.

Argued March 10, 1981.

Decided January 27, 1982.

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Richard W. Galiher, Washington, D. C., with whom Richard W. Galiher, Jr., Washington, D. C., was on the briefs, for appellant.

Wayne M. Mansulla, Washington, D. C., with whom Kevin B. Byrd and Robert A. Taylor, Jr., Washington, D. C., were on the brief, for appellee.

Before HARRIS and FERREN, Associate Judges, and GALLAGHER, Associate Judge, Retired.

GALLAGHER, Associate Judge, Retired:

On April 17, 1975, appellee Norman Coleman (Coleman), then a construction worker, was injured while working on the erection of the East Wing of the National Gallery of Act. As a consequence of his job-related injury, Coleman was paid workers' compensation benefits by his employer, the Charles H. Tompkins Company (Tompkins), the general contractor for the East Wing construction project. Coleman later brought suit against appellant, Ceco Corporation (Ceco), a subcontractor on the East Wing job, alleging that it and its employees had negligently caused or contributed to his injury. After trial, a jury awarded Coleman $150,000, judgment was entered thereon, and Ceco appealed.

Three main issues are presented by this appeal. First, Ceco contends that it was entitled to a directed verdict because the evidence established that it was the negligence of Tompkins, Coleman's employer, which proximately caused his injury. Second, Ceco contests several instructions given to the jury. Finally, Ceco argues that it was entitled to a credit of one-half of the verdict in light of the trial court's post-verdict determination that Tompkins, Coleman's employer, was concurrently negligent. We affirm.

I.

Ceco was employed by Tompkins to provide shoring and support for overhead concrete floors to be installed by Tompkins, and was also required to remove its bracing (a process called "stripping") once the concrete had hardened. On the day before the accident, Ceco had commenced stripping an area but, unable to complete the operation before the day's end, had allegedly left considerable debris on the floor as well as pieces of shoring stuck to the ceiling. Early the next day, Tompkins sent several of its employees, including appellee Coleman, into this area to partially reshore the ceiling, as Tompkins wished to roll several heavy concrete buggies over the floor overhead. While the workmen were reinstalling socalled Ellis jacks, some of the material stuck to the ceiling suddenly came loose. Coleman sustained a compound fracture of the left leg when he tripped over debris on the floor in his attempt to escape a falling beam.

Extensive evidence was presented by both parties in an effort to establish liability for the accident. Coleman's evidence showed that Ceco had suspended its stripping operations without removing debris from the floor and remnants of shoring material from the ceiling, and had left the site without roping off the area or posting warning signs; safety experts testified that these actions violated applicable safety codes. Ceco, for its part, conceded that it had left material suspended from the ceiling but sought to prove that the material was securely adhered to the ceiling surface and posed no danger of falling, and that, in any event, the floor area immediately below the suspended material was cordoned off with a rope. Ceco denied, however, that it had left the debris on the floor over which Coleman had tripped, suggesting through its witnesses that the floor debris in fact belonged to Tompkins. Ceco sought to explain any failure to clear the area by presenting evidence that Tompkins' rushed reshoring operation had prevented Ceco from reentering the area to complete its job. Finally, Ceco argued that the proximate cause of the accident was Tompkins' negligence in failing itself to clear the floor area before beginning work and in disturbing the ceiling braces while installing the Ellis jacks. Ceco now renews the latter argument on appeal, contending that it was error for the trial court to have denied its motion for a directed verdict on the question of the proximate cause of Coleman's injury.

In acting on a defendant's motion for a directed verdict, the trial court must view the evidence in the light most favorable to the plaintiff, and may only take the case from the jury if no reasonable man could find the defendant liable. Courtney v. Giant Food, Inc., D.C.App., 221 A.2d 92, 93 (1966). In reviewing the trial court's denial of the motion, we are governed by the same standard. Gaither v. District of Columbia, D.C.App., 333 A.2d 57, 59 (1975). See Order of Ahepa v. Travel Consultants, Inc., D.C.App., 367 A.2d 119, 125 (1976), cert. dismissed, 434 U.S. 802, 98 S.Ct. 30, 54 L.Ed.2d 60 (1977). Where the evidence is such that reasonable men could differ as to negligence and causation, the question of liability is properly put before the jury. See Baker v. D. C. Transit System, Inc., D.C.App., 248 A.2d 829, 831 (1966).

We are satisfied that the evidence, viewed in the light most favorable to appellee Coleman, permitted the jury reasonably to infer that Ceco had left the site in disarray and without adequate warning or barrier posted, and that these acts of negligence proximately caused Coleman's injury. "Proximate cause is . . . a test of whether the injury is the natural and probable consequence of the negligence or wrongful act and ought to be foreseen in light of the circumstances." Spar v. Obwoya, D.C.App., 369 A.2d 173, 178 (1977); see Wagshal v. District of Columbia, D.C.App., 216 A.2d 172, 175 (1966). The negligent act of a third party will operate as a superseding cause of the plaintiff's harm only where the original actor should not have anticipated that act. Sears, Roebuck & Co. v. Donovan, D.C.App., 137 A.2d 716, 719 (1958); Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 392, 563 F.2d 462, 479 (1977), reinstated after rehearing, 188 U.S.App.D.C. 384, 580 F.2d 647 (1978) (en bane); Restatement (Second) of Torts § 447 (1965). Here, Coleman presented evidence that Ceco did not rope off the area in question or post warning signs. Indeed, the only witness for Ceco to contradict this evidence testified only that the area immediately under the suspended ceiling material was roped off; he expressly denied that the pile of debris over which Coleman tripped was inside the rope barrier. A Tompkins' construction superintendent also testified that he had gotten express assurances from a Ceco representative that the shoring material adhered to the ceiling did not pose a hazard.¹ If believed, this evidence would support the view leads jury's inference that Ceco should have anticipated that employees of Tompkins or some other contractor might enter the area and face the risk of being injured due to the hazardous condition of the floor and ceiling. It was not necessary for the jury to conclude that Tompkins was innocent of all wrongdoing in order for it to find Ceco liable; indeed, the jury could well have agreed with Ceco that Tompkins had been negligent, yet declined to find that Ceco should not have foreseen that negligence. See Rieser, supra at 392-93 & nn. 93-95, 563 F.2d at 479-80 & nn. 93-95. In short, on the facts of this case, the trial judge properly submitted the question of causation to the jury.

II.

Ceco's second contention is that the trial judge's charge to the jury was erroneous in three particulars: first, in instructing the jury that violation of a safety statute or regulation was negligence as a matter of law; second, in instructing on concurrent causation; and third, in charging the jury that it could award Coleman damages for any temporary or permanent disfigurement or deformity. We hold that Ceco's failure to comply with Super.Ct.Civ.R. 51 prevents us from noticing any error in giving the negligence per se concurrent causation instructions. Furthermore, while there are certain deficiencies in the record, our review leads us to conclude that any error in that regard was harmless.²

a. Negligence per se

The "general rule" in this jurisdiction is that "where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law." Richardson v. Gregory, 108 U.S.App.D.C. 263, 266, 281 F.2d 626, 629 (1960) (emphasis added). See generally W. Prosser, The Law of Torts § 36 (4th ed. 1971); 2 F. Harper & F. James, The Law of Torts § 17.6 (1956). If a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard, the jury is properly instructed, upon proper request of the party, that the violation is evidence of negligence, but not negligence as a matter of law. See Hecht Co. v. McLaughlin, 93 U.S.App.D.C. 382, 385-86, 214 F.2d 212, 215-16 (1954). See also Karlow v. Fitzgerald, 110 U.S.App.D.C. 9, 13, 288 F.2d 411, 415 (1961); Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 392, 282 F.2d 943, 950 (1960).

In this case, the trial court instructed the jury that a District of Columbia safety statute³ and certain regulations of the Occupational Safety and Health Administration (OSHA)⁴ fixed the duty of care owed by one in Ceco's circumstances, and that the violation of either the statute or the regulation by Ceco was negligence as a matter of law. The court's charge was taken verbatim from Standardized Jury Instruction No. 60. See Young Lawyers Section of the Bar Association of the District of Columbia, Standardized Jury Instructions for the District of Columbia p. 46 (1968 rev. ed.) [hereinafter cited as 1968 Jury...