Clark v. District of Columbia

Decision Date18 September 1997
Docket NumberNo. 95-CV-142.,95-CV-142.
Citation708 A.2d 632
PartiesFrankie CLARK, Appellant, v. DISTRICT OF COLUMBIA, et al., Appellees.
CourtD.C. Court of Appeals

Morgan Hallmon, Bethesda, MD, for appellant.

James C. McKay, Jr., Assistant Corporation Counsel, with whom Charles F.C. Ruff, Corporation Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellees.

Before TERRY, STEADMAN and FARRELL, Associate Judges.

STEADMAN, Associate Judge:

This case arises from the suicide of appellant Frankie Clark's fourteen-year-old son K.F. that occurred while K.F. was in the custody of the appellee District of Columbia at the Receiving Home for Children ("Receiving Home"). Following a two-week jury trial, the trial court granted the District's motion for directed verdict on appellant's negligence claim. Because appellant failed to prove a violation of the requisite national standard of care, we affirm.


K.F. was a mildly retarded young man who had a long history of behavioral problems, institutionalization and unfulfilled suicide threats. On the morning of January 12, 1993, he was in disciplinary lock-down at the Receiving Home for fighting.1 K.F. was upset about being in lock-down and requested a hearing to contest his lock-down status. At about 9:30 a.m., a hearing was held where K.F. repeatedly cursed the hearing officer. After the hearing concluded, K.F. told a member of the staff that he was going to kill himself, and tied a sheet around his neck. K.F. also threw a chair into a glass partition which caused the partition to shatter. Following this outburst, K.F. was restrained by Receiving Home personnel and forcibly returned to his room while he continued to threaten to kill himself.

In response to these threats, K.F.'s room was swept and stripped of all items except for the bed spring. At this time K.F. was wearing only a pair of boxer shorts. At about 10:00 a.m., an art therapist visited K.F. in his room, and he again threatened to kill himself saying he would eat glass. The art therapist then placed K.F. on "Greenline" warning suicide monitoring status. The art therapist subsequently discussed the situation with the resident psychiatrist who agreed that Greenline warning status was appropriate.

Under the Suicide Prevention Plan then in effect at the Receiving Home there were three levels of suicide monitoring or "Greenline status": warning, watch and alert. Greenline warning status was the least restrictive level and was appropriate for residents who had a previous Greenline or psychiatric history but were manifesting no current suicidal ideations or gestures. Greenline warning status required that the resident be kept in a room and observed four times an hour at staggered intervals. The next level, Greenline watch status, was appropriate for residents who had made current suicide threats. Under Greenline watch, the resident was to be kept in the line of sight of a staff member at all times. The third and highest level, Greenline alert, was for residents who had recently made a suicide gesture or attempt. Under Greenline alert, a staff member was required to remain in close physical proximity to the resident and keep the resident in line of sight at all times. K.F. was thus placed on the lowest level of suicide monitoring and was supposed to be kept in his room and subjected to random checks four times an hour.

The Greenline observation form completed for K.F. that day indicates that he was checked at regular fifteen minute intervals from 10:00 a.m. until 12:45 p.m. During this time K.F. was observed kicking the door of his room, eating lunch, tearing up paper plates, and jumping on his bed. At 12:52 p.m. a staff member discovered K.F. hanging by the elastic waistband of his boxer shorts from a bar on the window of his room. K.F. was removed from the bar and taken to the hospital where he died the next day.

Appellant brought this suit under the wrongful death and survival statutes, and argued that the District was negligent because it violated the Suicide Prevention Plan by placing K.F. on Greenline warning instead of Greenline watch status as required by K.F.'s suicide threats and gesture.2 At the close of the plaintiff's case, and again at the close of all the evidence, the District moved for directed verdict on the grounds that the plaintiff had failed to prove the requisite standard of care. The District argued that because the Suicide Prevention Plan was an unpublished internal guideline it could not serve as the standard of care in a negligence action. It also argued that the testimony of appellant's expert witness was legally insufficient because it was not based on a published national standard of care and consisted merely of his own personal opinion. The trial court rejected these two arguments, but granted the motion for directed verdict on the grounds that the appellant had failed to prove that K.F.'s suicide attempt proximately caused his death, and that appellant's expert, who was the director of the unit regulating juvenile detention facilities in New Jersey, was not professionally qualified to dispute the medical and clinical judgment of the Receiving Home's psychiatrist that K.F. be placed on Greenline warning status. This appeal followed.


Appellant's primary contention on appeal is that the trial court erred in granting a directed verdict on the above-mentioned grounds. We need not decide whether the trial court erred in ruling on these bases; the directed verdict was correct in any event because, as the District presses on appeal, appellant's expert failed to provide sufficient testimony that the District violated a national standard of care. See Sebastian v. District of Columbia, 636 A.2d 958, 959-60 n. 2 (D.C. 1994) ("we may affirm the judgment of the trial court for reasons other than those upon which it relied").

"The plaintiff in a negligence action bears the burden of proof on three issues: the applicable standard of care, a deviation from that standard by the defendant, and a causal relationship between that deviation and the plaintiff's injury." Messina v. District of Columbia, 663 A.2d 535, 537 (D.C. 1995); Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988). "While expert testimony regarding the appropriate standard of care is not necessary for acts within the realm of common knowledge and everyday experience, a plaintiff must put on expert testimony to establish what that standard of care is if the subject in question is so distinctly related to some science, profession or occupation as to be beyond the ken of the average layperson." Messina, supra, 663 A.2d at 538 (citation omitted). We have repeatedly held that the standard of care owed by the District of Columbia to persons in its custody is a matter beyond the ken of the average juror that requires expert testimony. See District of Columbia v. Moreno, 647 A.2d 396, 398-99 (D.C.1994); District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C.1990); Toy, supra, 549 A.2d at 7; Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C.1981). See also Psychiatric Inst. of Washington v. Allen, 509 A.2d 619, 624 (D.C.1986) (noting use of expert testimony to prove standard of care in case where a thirteen-year-old patient committed suicide in a private psychiatric hospital). Thus, expert testimony was required here.

In the context of actions against the District by persons in its custodial care, we have been demanding in requiring proof of a national standard of care. See Moreno, supra, 647 A.2d at 400; Carmichael, supra, 577 A.2d at 315; Toy, supra, 549 A.2d at 7-8. See also Messina, supra, 663 A.2d at 539 ("We conclude that the expert's testimony... failed to establish any national standard of care; therefore plaintiff did not present a prima facie case of negligence."). "Where expert testimony is necessary ... it is not sufficient if it consists merely of the expert's opinion as to what he or she would do under similar circumstances." Messina, supra, 663 A.2d at 538. Nor is it enough for the expert simply to declare that the District violated the national standard of care. "Rather, the expert must clearly articulate and reference a standard of care by which the defendant's actions can be measured." Id. (emphasis added). Thus the expert must clearly relate the standard of care to the practices in fact generally followed by other comparable governmental facilities or to some standard nationally recognized by such units. If the expert fails to do so, a directed verdict for the defendant is properly granted. See Toy, supra, 549 A.2d at 7-8 (noting that plaintiff's expert in suicide case "did not provide any basis for his opinion that national standards required the District to have oxygen and other emergency equipment available"); Carmichael, supra, 577 A.2d at 315 (indicating that "critically absent from the expert's testimony was any statement, for example, that a certain percentage of comparable facilities did have metal detectors, and that these metal detectors were customarily in service over certain periods of time"); Moreno, supra, 647 A.2d at 400 (noting that plaintiff's expert failed to "make any comparisons to other similar facilities").

Here appellant's expert, Joseph DeJames, recited the facts surrounding K.F.'s death and concluded that the employees of the Receiving Home had violated the Suicide Prevention Plan by placing K.F. on Greenline warning rather than Greenline watch. DeJames also asserted that the District violated "the applicable standard of care" by placing K.F. on Greenline warning rather than on Greenline watch. However, Mr. DeJames never testified with any specificity that the standard of care he had in mind was used by other facilities comparable to the Receiving Home or based on some nationally recognized standard.3 Mr. DeJames' testimony was similar to that...

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