District of Columbia v. Carlson, 01-CV-24.

• Decision Date: 21 March 2002
• Docket Number: No. 01-CV-24.,01-CV-24.
• Citation: 793 A.2d 1285
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Gilman R. CARLSON, Jr., et ux., Appellees.
• Court: D.C. Court of Appeals

793 A.2d 1285

DISTRICT OF COLUMBIA, Appellant, v. Gilman R. CARLSON, Jr., et ux., Appellees.

No. 01-CV-24.

District of Columbia Court of Appeals.

Argued October 11, 2001.

Decided March 21, 2002.

James C. McKay, Jr., Assistant Corporation Counsel, with whom Robert R. Rigsby, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellant.

Jacob A. Stein, with whom Richard A. Bussey, Washington, DC, was on the brief, for appellees.

Before TERRY, FARRELL, and GLICKMAN, Associate Judges.

TERRY, Associate Judge:

A car driven by Alfred Poe struck and injured a pedestrian, Gilman Carlson, at the intersection of Sixth Street and Independence Avenue, Southwest, directly in front of the National Air and Space Museum. At the time of the accident, the traffic signals at the intersection were not operating. A jury found that the District of Columbia was negligent in failing either to maintain the signal or to provide alternative traffic control devices, and that its negligence was a proximate cause of the accident. The District appeals, arguing that the non-functioning traffic signal was not a cause-in-fact of the accident, and that, even if it was, the actions of Mr. Poe were an unforeseeable superseding cause that relieves the District of any liability. We affirm.

I

On the morning of July 13, 1995, an employee of D & F Construction Company ("D & F") cut an electric utility line with a backhoe while replacing a storm drainpipe at Madison Drive and Ninth Street, Northwest, a few blocks away from the site of the accident. The line was owned by Potomac Electric Power Company ("Pepco"). Byers Engineering Company ("Byers") had been responsible for marking the location of utility lines so that a contractor doing work would not interfere with those lines, but on that day there were no markings at the worksite. As a result of the damage to the power line, many of the traffic lights in the vicinity, including the light at Sixth Street and Independence Avenue, lost electricity and ceased to function. The District responded to several reports of non-functioning traffic lights, one of which was at Seventh Street and Independence Avenue, but it did not respond to, or repair, the traffic light at Sixth Street until after the accident that gave rise to this case.

At around 4:45 p.m., Alfred Poe was driving east on Independence Avenue in the far left lane. The weather was clear and sunny. Mr. Poe stopped for a red traffic light at Seventh Street with no car ahead of him. When the light changed, however, a black car pulled into his lane from the right, directly in front of him. Mr. Poe traveled about five to ten feet behind the black car at about thirty miles per hour for approximately ten seconds, from Seventh Street to Sixth Street, before he applied his brakes. Unaware that the was near an intersection, Mr. Poe swerved to avoid hitting the black car, and as he did so, he looked in the rear view mirror to see if there was another car behind him. When the turned his attention back to the road, Mr. Carlson, who was crossing the street in the crosswalk at the intersection, was immediately in front of his car, and Mr. Poe could not avoid hitting him. Mr. Carlson was severely injured. He and his wife sued Mr. Poe, the District, Byers, D & F, Pepco, and United Services Automobile Association, Mr. Carlson's underinsured motorist insurance carrier. Each defendant filed cross-claims against some or all of the other defendants.

At trial, Mr. Carlson maintained that the District was negligent in failing either to repair the traffic light or to place alternative traffic control devices, such as cones or a portable stop sign, at the intersection. He presented the testimony of John Callow, an expert on the subject of traffic engineering. Mr. Callow testified that the volume of traffic at Sixth Street and Independence Avenue required operational traffic control signals and that the absence of a signal "increases the probability of conflicts."¹ Mr. Callow also testified that, according to national standards, the District should have placed cones or a portable stop sign at the intersection, or assigned a police officer there to direct traffic, if it was aware of a problem with the traffic light.

The District did not dispute Mr. Callow's testimony, but asserted that the inoperative status of the traffic light was not a cause of the accident. The District relied on the testimony of Mr. Poe, both in his deposition and in court, that he could not see the traffic signals at Sixth Street. Mr. Poe stated that his view of the traffic signals, which were located on poles on either side of the street, was obstructed by the black car in front of him. Because he was so focused on the black car, he said, he did not notice the non-functioning traffic light.

At the close of all the evidence, the District moved for judgment as a matter of law, but the court reserved ruling on the motion. The jury then returned a verdict for the Carlsons, finding that both Mr. Poe and the District were negligent and that their negligent actions were proximate causes of the accident.² After the verdict, the District moved again for judgment as a matter of law or, in the alternative, for a new trial. The court denied the motion in a written order, stating, "[T]here was clearly evidence in the record from which jurors could logically conclude that, despite the earlier occurrences which were not District-caused, the negligence of the District, after notice was given of the traffic signal outage, was a substantial factor in plaintiff's injuries." Final judgment was then entered in favor of the Carlsons against Poe and the District, and in favor of D & F and Byers on the Carlsons' claims against them. From that judgment, which also resolved all the cross-claims, only the District appeals.

II

Questions of proximate cause are usually questions of fact. In particular:

Automobile collisions at street intersections nearly always present questions of fact. The credibility of witnesses must be passed on, conflicting testimony must be weighed, and inferences must be drawn. From this conflict and uncertainty the trier of facts, whether judge or jury, must determine the ultimate facts of the case. Only in exceptional cases will questions of negligence, contributory negligence, and proximate cause pass from the realm of fact to one of law.

Shu v. Basinger, 57 A.2d 295, 295-296 (D.C.1948); accord, e.g., Washington Metropolitan Area Transit Authority v. Jones, 443 A.2d 45, 50 (D.C.1982) (en banc)

("It is only in a case where the facts are undisputed and, considering every legitimate inference, only one conclusion may be drawn, that the trial court may rule as a matter of law on . . . proximate cause" (citations omitted)).

Proximate cause has two components: "cause-in-fact" and a "policy element" which limits a defendant's liability when the chain of events leading to the plaintiff's injury is unforeseeable or "highly extraordinary in retrospect." Lacy v. District of Columbia, 424 A.2d 317, 320-321 (D.C.1980) (citation omitted). The District argues that the trial court should have granted judgment in its favor because the Carlsons failed to prove either cause-in-fact or foreseeability. We disagree.

A. Cause-in-fact

This court has adopted the "substantial factor" test set out in the Restatement of Torts for determining whether a negligent act or omission is the cause-infact of a plaintiff's injury. Lacy, 424 A.2d at 321; see Graham v. Roberts, 142 U.S.App. D.C. 305, 308 n. 3, 441 F.2d 995, 998 n. 3 (1970)

. The Restatement says that "[t]he actor's negligent conduct is a legal cause of harm to another if . . . his conduct is a substantial factor in bringing about the harm. . . ." RESTATEMENT (SECOND) OF TORTS § 431 (1965).

The District argues that the evidence at trial showed conclusively that the non-functioning traffic light was not a "substantial factor" in the accident because Mr. Poe would have hit Mr. Carlson even if the light had been functioning or alternative traffic control devices had been present. Because Mr. Poe's view was obstructed by the black car, says the District, his attention was focused on that car, and he was looking in the rear view mirror for several seconds as he swerved into the next lane (where he struck Mr. Carlson) to avoid the black car.

Mr. Poe's testimony, however, was inconsistent on the question of whether his view was obstructed. Although Mr. Poe testified unequivocally in his deposition, which was read to the jury, that the black car obstructed his view of the traffic signals, what he said in his deposition was undermined by his testimony in the court-room. First, he stated in court that his view of the road was not obstructed when he stopped at the previous traffic light at Seventh Street. Thus it is possible—i.e., the jury could reasonably have found— that Mr. Poe would have seen a functioning traffic light or an alternative control device (a portable stop sign or orange cones in the road, for example) at Sixth Street, as he was traveling from Seventh to Sixth, if such a device had been present. Second, on cross-examination by counsel for Byers, Mr. Poe said that his view was not completely obstructed, and he admitted that there was nothing to obstruct his view of Mr. Carlson as he was crossing the street. Finally, on cross-examination by Carlson's counsel, Mr. Poe initially said (contrary to his deposition) that the black car did not physically obstruct his view of the traffic lights. After an objection to the form of the question, Mr. Poe answered again, but reversed himself and stated that his view was obstructed. The pertinent testimony was as follows:

Q. The car that was traveling in front of you was directly in front of you in your lane?

A. Yes.

Q. So, that car in front of you in your lane didn't physically block your ability to see the traffic lights on Independence Avenue, had they been lit?

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