District of Columbia v. Freeman

• Decision Date: 15 May 1984
• Docket Number: No. 82-1380.,82-1380.
• Citation: 477 A.2d 713
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Consuella FREEMAN, for herself and as guardian of Ronald Smith, Appellee.
• Court: D.C. Court of Appeals

Page 713

477 A.2d 713

DISTRICT OF COLUMBIA, Appellant, v. Consuella FREEMAN, for herself and as guardian of Ronald Smith, Appellee.

No. 82-1380.

District of Columbia Court of Appeals.

Argued October 25, 1983.

Decided May 15, 1984.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D.C., with whom Judith W.

Rogers, Corp. Counsel, Washington, D.C., at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the briefs, for appellant. William J. Earl, Jr., Asst. Corp. Counsel, Washington, D.C., also entered an appearance for appellant.

Gerald P. Greiman, Washington, D.C., with whom Edward Greensfelder, Jr., and Marc D. Joseph, Washington, D.C., were on the brief, for appellee.

Before KERN, MACK and PRYOR, Associate Judges.

PRYOR, Associate Judge:

On April 10, 1979, six year old Ronald Smith was struck — while walking in a crosswalk — by a car driven by David Tapscott. In a subsequent action for damages, the District of Columbia was joined as a party defendant.¹ This appeal stems from the jury's finding, by general verdict, in favor of Ronald's mother, the appellee, against the District. Two theories of liability were considered by the jury: (1) The absence of a sign warning of the approaching crosswalk was alleged to ahve proximately caused Ronald's injuries. (2) The District's knowing failure to install appropriate traffic signals — in addition to or instead of the crosswalk — at a hazardous intersection allegedly was the proximate cause of Ronald's injuries.

We hold that appellee's proof was insufficient to allow submission of these theories to the jury. The trial court, therefore, erred in denying the District's timely motions for directed verdict and judgment n.o.v. We reverse.

I-A.

Ronald Smith and his brother, Andre, were returning home from school on the afternoon of April 10. The weather was sunny and dry. Traveling west, the brothers crossed the north-south Kenilworth Avenue expressway via a pedestrian bridge, which traversed the expressway near Douglas Street. The bridge was authorized for construction in 1956, and it deposited pedestrians on the west side of Kenilworth Avenue on a traffic island situated between the expressway and an access road, which branched off from the expressway. A crosswalk was painted across the access road.² A warning sign, which normally stood approximately two hundred feet before the crosswalk, had been down for over a year prior to the accident.³

As Ronald and Andre entered the crosswalk, they saw a car approaching from the expressway. Andre continued across, but Ronald returned to the traffic island at the base of the pedestrian bridge. The car, driven by Larry Philpott, stopped at the crosswalk in the left (east) lane. Andre called for Ronald to cross. The testimony conflicted as to whether Philpott waved Ronald across.⁴ In any event, Ronald ran into the crosswalk, past Philpott's car, and was struck by David Tapscott's car.

Tapscott testified that he was a resident of the neighborhood, and therefore had used the access road countless times. He was aware that children frequented the area,⁵ and knew that a pedestrian bridge and crosswalk controlled the traffic at Douglas Street. Tapscott recalled that he had pulled off the expressway, onto the access road, and had observed that Philpott's car was stopped at the crosswalk.⁶ He claimed that he had stopped behind Philpott's car, in the left lane, and then had pulled around to the right in order to proceed through the intersection. As he entered the crosswalk his vehicle struck Ronald, who had darted in front from the left. Tapscott claimed that, although he was driving very slowly, he did not see Ronald until it was too late.⁷

Additional eyewitness testimony was offered at trial. Ronald's brother, Andre, agreed that Tapscott's car had pulled around from behind Philpott before entering the crosswalk. Denise Butler, a passenger in Tapscott's car, also corroborated Tapscott's story. Larry Philpott testified that he saw Tapscott's car exit from the expressway at a speed of thirty-five to forty miles per hour; he also recalled that Tapscott was in the left lane. The only entirely contrary testimony was provided by Larry's brother, Caesar, a passenger in the Philpott car,⁸ who said that he saw Tapscott exit the expressway, on the right, and that Tapscott did not stop or slow down prior to entering the crosswalk.

Ronald's injuries, a fractured right femur and minor abrasions, were consistent with testimony that Tapscott was driving slowly through the crosswalk. The impact did not push Ronald from the crosswalk, and no tire marks evidenced a sudden stop from a high speed.

B.

The District conceded that its failure to restore the downed warning sign was negligent; the question was whether appellee's evidence, as recounted above, was sufficient to sustain a jury's reasonable conclusion that the negligence proximately caused Ronald's injuries. The trial court's ruling notwithstanding, we think that appellee did not establish proximate cause. The theory of liability stemming from the missing warning sign should not have been sent to the jury.

The court correctly instructed the jury that proximate cause is established

when it appears from a preponderance of the evidence that the act or omission played a substantial part in bringing about the injuries or damages. Moreover, it must be shown that the injury or damage was either a direct result or a reasonably probable consequence of the act or omission.

See Standardized Civil Jury Instructions for the District of Columbia, No. 5.11 (Rev. ed. 1981). Proximate cause encompasses both foreseeability of injury, District of Columbia v. Cassidy, 465 A.2d 395, 399 (D.C.1983); Rieser v. District of Columbia, 183 U.S.App.D.C. 375, 392, 563 F.2d 462, 479 (1977), modified on other grounds, 188 U.S.App.D.C. 384, 580 F.2d 647 (1978), and the decision that liability will not attach unless the breach of duty has a substantial and direct causal link to the plaintiff's injury. Lacy v. District of Columbia, 424 A.2d 317, 319 (D.C.1980); District of Columbia v. North Washington Neighbors, 367 A.2d 143, 149 (D.C. 1976), cert. denied, 434 U.S. 823, 98 S.Ct. 68, 54 L.Ed.2d 80 (1977).⁹ Normally, the existence of proximate cause is a question of fact for the jury. McCoy v. Quadrangle Development Corp., 470 A.2d 1256, 1259 (D.C.1983); Spain v. McNeal, 337 A.2d 507, 509-10 (D.C.1975). The question becomes one of law, however, when the evidence adduced at trial will not support a rational finding of proximate cause. District of Columbia v. Cassidy, supra, 465 A.2d at 397-98. Such was the case here.

Appellee's evidence, viewed in its most favorable light, simply could not allow the jury to conclude reasonably that the warning sign's absence played a central role in the incident.¹⁰ No evidence hinted that Tapscott was unfamiliar with the general area or did not know of the cross-walk's existence. In fact, there was uncontradicted testimony to the contrary. No evidence suggested that Tapscott's view of the crosswalk was blocked, or that he was otherwise distracted. Again, the manifest weight of the evidence opposed such a finding. The day was bright, the pavement was dry, and Tapscott testified that as soon as he exited the expressway, he saw Philpott's car stopped ahead at the intersection. The evidence established neither the apparent need for an early warning, nor that the absence of a warning caused Tapscott to hit Ronald. In this situation, proximate cause was lacking as a matter of law. See Atkinson v. County of Oneida, 59 N.Y.2d 840, 842, 464 N.Y.S.2d 747, 748, 451 N.E.2d 494, 495 (1983) (absence of warning lights and sign not proximate cause of crash because driver familiar with intersection); Mitchell v. Poullard, 422 So.2d 713, 715 (La.App.1982) (when both drivers familiar with intersection, failure to post signs not cause of collision); Munson v. State, 96 Idaho 529, 531-32, 531 P.2d 1174, 1176-77 (1975) (failure to erect highway construction warning signs not cause of collision when visibility unhindered, pavement dry, and signs would not "have provided more notice of the blocked highway than did the obvious blockage itself."); cf. Bradwell v. Illinois Central Gulf R.R. Co., 562 F.2d 561, 563 (8th Cir.1977) (motorist familiar with railroad crossing; jury reasonably found driver's negligence proximate cause of collision, rather than railroad's failure to erect warning sign). The cases cited by appellee do not persuade us to the contrary.¹¹

This case is distinguishable from Wagshal v. District of Columbia, 216 A.2d 172 (D.C.1966). In Wagshal, two vehicles collided at an intersection which was normally controlled by a stop sign. The District had received notification, prior to the collision, that the stop sign was missing. Id. at 173. In affirming the judgment against the District, the court concluded that a jury could have reasonably found that the "collision was the natural and probable consequence of the failure to repair the stop sign." Id. at 175 (citing Johnston v. City of East Moline, 338 Ill.App. 220, 87 N.E.2d 22 (1949) (damaged traffic light), aff'd, 405 Ill. 460, 91 N.E.2d 401 (1950)).

We think that Wagshal's holding is best understood in light of what purpose the stop sign would have served if it had not been missing at the time of the collision. The stop sign, referred to by the court as a "traffic control device" (emphasis added), would have placed approaching motorists under a legal duty to stop at the intersection. It was in this sense that the stop sign controlled traffic. This being the case, the court could conclude logically that the sign's absence was a substantial factor leading drivers to continue unimpeded through the intersection and hence, causing the collision. Compare Reidling v. Wickes Lumber & Building Supply, 471 S.W.2d 319, 321 (Ky.1971) (downed stop sign not proximate cause of crash because driver had...