Dist. of Columbia v. Shannon

• Decision Date: 26 June 1997
• Docket Number: No. 95-CV-471.,95-CV-471.
• Citation: 696 A.2d 1359
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Janie SHANNON, Appellee.
• Court: D.C. Court of Appeals

696 A.2d 1359

DISTRICT OF COLUMBIA, Appellant, v. Janie SHANNON, Appellee.

No. 95-CV-471.

District of Columbia Court of Appeals.

Argued April 3, 1997.

Decided June 26, 1997.

Martin B. White, 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 appellant.

David P. Sutton, Washington, DC, with whom Steven M. Cooper and Douglas J. Adams, Silver Spring, MD, were on the brief, for appellee.

Before FERREN, STEADMAN, and KING, Associate Judges.

FERREN, Associate Judge:

A jury awarded Janie Shannon, individually and as next friend of her minor daughter, Terra Hughes, $550,000 to compensate her for the loss of Hughes' thumb after it was severed in an accident on a playground slide maintained by the District. On appeal, the District argues that (1) Shannon failed to establish that the District violated the appropriate standard of care, and that (2) the trial court erred by denying the District's request for special interrogatories to establish the liability of joint tortfeasors who previously had settled with Shannon, and thereby erroneously denied the District an opportunity to reduce its liability to a pro rata share of the jury's award. We affirm.

I.

On October 13, 1989, Terra Hughes and several other children were playing on the playground at the James Creek Dwellings, a townhouse development owned by the District of Columbia Department of Assisted Housing. The playground equipment included a sliding board, which consisted of a metal slide with two hollow metal pipes as siderails. The slide in question came as a kit from the Miracle Lawn Company (Miracle) in 1981 or 1982 and was assembled and installed by Oaklawn Development Co. (Oaklawn) in 1982. Although Miracle, the manufacturer, specified that the ends of the pipes should remain closed with end-caps provided by Miracle, the ends of the pipes on the side were open. Hughes caught her thumb in one of the pipes and her thumb was ripped out of her hand. Attempts to reattach the thumb failed, leaving Hughes without a functioning thumb.

Janie Shannon, individually and as Hughes' mother and next friend, brought suit against the District, Miracle, and Oaklawn. In addition, Miracle and Oaklawn filed crossclaims against the District. The District did not file any crossclaim. On January 5, 1994, approximately four months before trial, Shannon settled with Miracle and Oaklawn for $80,000 and $20,000, respectively, and continued to litigate only against the District. Miracle and Oaklawn dismissed their crossclaims against the District. The settlement contained no stipulation as to Miracle's or Oaklawn's negligence.

At trial, Shannon testified about the accident and called two doctors to testify about Hughes' treatment and the extent of her injuries. Shannon also called a vocational training expert to testify about Hughes' lost earning power as a result of her injury.

To demonstrate the existence of a dangerous condition and the District's negligence, Shannon called Elsworth T. Olds, a licensed private investigator. Olds had investigated the accident scene for Shannon five days after the accident occurred and photographed the equipment. Olds described the holes as having rust around the edges and inside. The photographs were admitted in evidence and went to the jury. Olds also reported that a handrailing was missing, so that a child sitting on the slide would grab the metal-pipe siderail, rather than the handrail. Olds testified that the holes were an inch in diameter — large enough for Olds to stick in his little finger.

Shannon also called two District employees, Joseph Hall and Margaret Williams, as witnesses. At the time of the accident, Hall worked as a maintenance mechanic at James Creek. Hall's duty included daily property inspections, which included frequent inspections of the playground area. Initially, Hall did not remember seeing the holes. Shannon refreshed his memory with his deposition testimony, in which he stated he had seen the holes. Hall repeated that he did not specifically remember seeing the holes, but that he did not think they were dangerous and therefore may have seen them but not noticed them. Williams then testified that she had been property manager at the time of the accident and that her duties included inspecting the property frequently — including the playground — for safety hazards. Williams denied seeking the holes or any other defect in the slide before the accident and further denied ever being informed about them by the maintenance staff.

Shannon also called Paul Hogan as an expert on playground safety. Hogan testified that there were national standards for the maintenance of playgrounds and playground equipment, that these standards required all pipes with open ends to be capped, and that a maintainer of playgrounds had a duty to inspect the playground regularly for hazardous conditions. As proof of these national standards, Hogan cited the Consumer Product Safety Commission (CPSC) Handbook. The District objected, arguing that the CPSC Handbook did not constitute a national standard and that it had not been adopted in the District as the standard of care owed by maintainers of playgrounds. Agreeing with the District, the court ruled that Hogan had failed to show that there was any national or District standard of care specifically directed at playground maintainers at the time of the accident. The court, however, did allow Hogan to testify — as an expert on playground safety — as to whether the open pipe constituted a dangerous condition that a reasonably prudent person, exercising reasonable care, should have known was dangerous.

The court revisited the standard of care later, conducting an extensive voir dire of Hogan away from the jury as to the existence of any standard of manufacture, installation, or maintenance during the relevant time period. After hearing argument from both sides, the court again concluded that Hogan had not established the existence of any specific standard applicable to the District, but that he could testify as an expert on whether a reasonably prudent person would have recognized the holes as a dangerous condition. Hogan then testified that each hole was a defect and that the District had been negligent, since anyone familiar with children would known they have a tendency to stick their fingers in openings and could therefore injure themselves in such a hole. Hogan also attempted to testify that the District should have inspected the slide regularly for just such defects, but the court sustained the District's objection that the testimony was merely Hogan's personal opinion, not a reflection of any industry standard.

At the end of the trial, the court conferred with counsel for both parties on appropriate jury instructions. The District asked the court to submit special interrogatories to the jury regarding the negligence of Miracle and Oaklawn so that the District could establish Miracle's and Oaklawn's liability and — if they were found liable (along with the District) — claim pro rata credits for the settlements of those two parties with Shannon. Shannon objected that the District had not raised the issue in a timely manner and thus had prevented her from arguing to the jury that the District had been solely responsible for the accident. The court, without explaining its reasoning, denied the District's request.

The court instructed the jury as to both the reasonable care standard and the special duty owed to children. See Standardized Civil Jury Instructions for the District of Columbia, Nos. 5-1, 5-6, 5-7 (1981). The jury returned a verdict in favor of Shannon for $550,000. After the verdict, the District filed a written motion for judgment notwithstanding the verdict or a new trial, and for a remittitur. The District also requested pro rata credits, equaling a two-thirds reduction, based on the negligence of Miracle and of Oaklawn, respectively. The court denied the motion. The court concluded that Hogan's testimony, while not establishing a standard of care for professional playground operators in the District, was relevant to the general duty to exercise reasonable care and that the question of reasonable care had been properly submitted to the jury. The court also concluded that the District's failure to file a crossclaim against Miracle or Oaklawn barred the submission of special interrogatories for purposes of establishing pro rata credits for their negligence. This appeal followed.

II.

On appeal, the District makes four principal arguments: (1) the evidence failed to prove that the District knew about, or had constructive knowledge of, the holes; (2) a reasonable person who noticed the open holes in the siderails would not have recognized that they created a dangerous condition requiring repair; (3) Shannon failed to show that the District had a special duty of care derived from national standards in the CPSC Handbook or elsewhere applicable to operators of housing projects; and (4) the trial court erred by refusing to submit the special interrogatories about Miracle's and Oaklawn's negligence to the jury and, as a consequence, denying the District the opportunity to establish its right to pro rata credits for Miracle's and Oaklawn's settlements with Shannon.

A.

On review of the District's motion for judgment notwithstanding the verdict, we will reverse the trial court's denial of the motion only if no reasonable juror could have decided for the plaintiff. See District of Columbia v. Cooper, 445 A.2d 652, 655 (D.C. 1982) (en banc). The District's first contention, that the evidence was insufficient for the jury to find that the District had actual or constructive knowledge of the holes, is entirely without merit. Hall and Williams both testified that they conducted regular inspections of the slide, and Hall testified that although he...