District of Columbia v. Cooper, 80-206.

• Decision Date: 11 May 1982
• Docket Number: No. 80-206.,80-206.
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Mary C. COOPER, Appellee.
• Court: D.C. Court of Appeals

445 A.2d 652

DISTRICT OF COLUMBIA, Appellant, v. Mary C. COOPER, Appellee.

No. 80-206.

District of Columbia Court of Appeals.

Argued En Banc September 28, 1981.

Decided May 11, 1982.

Leo N. Gorman, Asst. Corp. Counsel, with whom Judith W. Rogers, Corp. Counsel, David P. Sutton, Deputy Corp. Counsel at the time the case was briefed, and Thomas A. Medford, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellant.

Stephen J. Cribari, Arlington, Va., filed the petition for rehearing en banc, for appellee.

Before NEWMAN, Chief Judge, and KELLY, KERN, NEBEKER, HARRIS,^* MACK, FERREN, PRYOR and BELSON, Associate Judges.

PRYOR, Associate Judge:

This matter arose out of a personal injury action instituted by appellee, Mary Cooper, against the District of Columbia as the result of a fall she sustained on a walkway located within the confines of the Lorton Reformatory. A jury trial was had at which appellee posited that her fall and resultant injuries were proximately caused by the District's negligent failure to maintain the walkway in a reasonably safe condition. Following the denial of the District's motions for a directed verdict at the close of appellee's case, and again at the close of all the evidence, the case was submitted to the jury which returned a verdict of $30,000 in favor of appellee. Judgment was entered in accordance therewith. Appellant's subsequent motion for a judgment non obstante veredicto having been denied, this appeal was taken.¹ On appeal, we are presented with one question: whether there was sufficient evidence to support the jury's conclusion that the District of Columbia, by any negligent act or failure to act, proximately caused injury to appellee.² We find that the jury verdict is supported by sufficient evidence and therefore affirm.

I

At approximately 7:00 p. m. on March 9, 1977, Mary Cooper and a companion, Frances Fuller, arrived at the Lorton Reformatory for the purpose of visiting an inmate. Having been "processed" at the visitors' trailer, the two women emerged from the trailer onto a brick walkway. The walkway was the only route which led to the visitors' lounge. Cooper testified that she took approximately two steps along the walkway, "left level ground and went to unlevel ground." In doing so, she fell on a portion of the walkway where the bricks had been removed and replaced with material largely composed of dirt, sand, and little rocks. She landed on her knees striking her forehead on the sand compound. Appellee stated that the portion of the walkway which contained the sand was not equal in height to the level of the brick walkway, but was lower. Although she was not sure of the exact difference in elevation, she was positive that the sand base was lower than the bricks. When asked on cross-examination to give the specific dimensions, Cooper stated that there was a difference of an eighth of an inch in the surface level. Appellee saw no signs warning of the irregularity, nor was she given a verbal warning. Assisted by Fuller and Lieutenant James A. Meyer, a correctional supervisor at Lorton, who observed the fall, appellee got to her feet. At that time she declined Meyer's offer of medical assistance. She decided instead to proceed to the visitors' lounge. Once there, however, dizziness caused her to abbreviate her visit and return to the visitors' trailer. Appellee then attempted to get medical assistance but was informed that she could not be taken to the Reformatory infirmary at that time; she was advised to see her personal physician.

The testimony of Frances Fuller was substantially the same as appellee's. She testified that she almost tripped in the same area. She turned to warn appellee, only to see her fall. She added that no signs were posted, nor was she given any warning by any Lorton employee.

William Dawson, a bricklayer employed at Lorton, testified on behalf of the District. He recalled that in early March 1977, cold weather caused water underneath some of the bricks in the walkway to freeze and buckle in an area approximately four feet wide and six feet long. Dawson was called to repair the walkway but was unable to replace the bricks because the sub-zero temperature would cause the mortar to freeze before the bricks could be reset. As a temporary measure, he filled the area (where the bricks had been removed) with sand which he "tapped down" and leveled with the remaining bricks. He returned once a day to inspect the area and make sure that the sand was level with the adjacent bricks. Dawson testified that, in light of the inclement weather, this was one of the few things that could be done to make the walkway safe. He further testified that on the day of appellee's fall, he inspected the walkway at approximately 2:00 or 3:00 p. m. At that time, the sand was level with surrounding bricks.

Lieutenant James A. Meyer testified that while on duty at the walkway leading from the visitors' trailer to the prison, on March 7, 1977, he observed appellee and Fuller exit from the visitors' trailer at approximately 7:16 p. m. He observed appellee trip and fall, landing on her palms and knees. Meyer testified that he did not see appellee's head strike the ground. Upon witnessing the fall, Meyer rushed to appellee and assisted her to her feet. Once on her feet, she declined the medical treatment which was offered. After the lieutenant obtained the information needed for an accident report, appellee proceeded to the visiting hall. As she walked to the hall, Meyer observed nothing out of the ordinary. The witness also testified that, at the time of the fall, the sand in the area under repair was level with the surrounding bricks. It was illuminated by a light on a twelve foot pole.

Captain Joseph S. Mastin, the shift supervisor, was stationed with Lieutenant Meyer at the entrance to the visitors' lounge. Mastin did not observe appellee fall, nor did he converse with her. He did, however, observe appellee as she rose to her feet and moved to the visiting hall. He noticed nothing unusual as she did so. Mastin was also present when appellee left the institution. He testified that as Cooper was departing, he heard Sergeant Nelson offer her the same medical treatment which Meyer had previously offered. Again she declined. According to Mastin, approximately 150 to 200 people passed through the trailer (and over the walkway) on an average night during visiting hours.

Lastly, Sergeant Harold S. Nelson testified that he processed appellee into Lorton on that particular evening, but did not see her fall. Nelson did see her again at 9:00 p. m. at the close of visiting hours. At that time, he noticed that appellee was walking with an unusual gait. He made inquiry and upon being told by appellee that she had fallen, Nelson "insisted" that she see the medical technician who was on duty. She declined to do so, stating that her leg felt "all right" and that she would soak it when she got home.

Sergeant Nelson was charged with the responsibility of inspecting the visitors' trailer and gate area for safety and health violations. On the night of the accident, when Nelson came on duty, he noticed that some bricks in the walkway had been taken up and replaced with sand. He testified that the sand was "up to the surface of the remaining bricks and the borders and it was packed." At approximately 9:00 p. m., when visiting hours ended, it was his opinion that the walkway was in the same condition. If the sand was not level with the surrounding bricks, it would have been Nelson's responsibility to report that or prevent visitors from entering the institution until the walkway was properly repaired. Nelson estimated that 200 people were processed between 5:00 p. m. and 9:00 p. m. on March 9, 1977 at the checkpoint at which appellee was processed, and the same number entered the institution via the walkway on which she fell. The sergeant received no other accident report concerning the walkway during that time.

II

We start with the premise that the District is not an insurer of the safety of those who utilize its streets and sidewalks. It is, however, required to maintain the same in a reasonably safe condition. Washington Gas Light Co. v. Jones, D.C. App., 332 A.2d 358, 361 (1975); District of Columbia v. Williams, D.C.Mun.App., 46 A.2d 111, 112 (1946). The question of whether a walkway is reasonably safe is generally one for the jury. Only in extreme instances where no reasonable person could reach a verdict in favor of the plaintiff on the evidence presented, should a directed verdict be granted, Proctor v. District of Columbia, D.C.App., 273 A.2d 656, 659 (1971), and only in such cases is a judgment non obstante veredicto proper.³ For, jurors are the triers of fact and where there is evidence upon which reasonable persons might differ as to negligence and other elements of liability, those questions must be decided by the jury. Id.; Shewmaker v. Capital Transit Co., 79 U.S.App.D.C. 102, 103, 143 F.2d 142, 143 (1944).

The plaintiff has the burden of establishing that a violation of the reasonable standard of care is the proximate cause of the injury sustained. The mere happening of an accident does not meet this burden. See Jones v. Safeway Stores, Inc., D.C.App., 314 A.2d 459, 460 (1974). There must be evidence of the violation and injuries proximately caused thereby. However, "the law does not require proof of negligence to a certainty. Rather, the law requires only that the evidence, when viewed most favorably for the plaintiff, indicate a reasonable probability of negligence on the part of the defendant." Rich v. District of Columbia, D.C.App., 410 A.2d 528, 532 (1979) (citation omitted).

Viewing the evidence in the light most favorable to appellee, id., we find sufficient evidence on this record from which a reasonable person could conclude that the District failed to maintain the walkway in a reasonably safe condition and that its failure to do so...