District of Columbia v. Bethel, 88-1045

• Decision Date: 05 January 1990
• Docket Number: 88-1626.,No. 88-1045,88-1045
• Citation: 567 A.2d 1331
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Daniel BETHEL, Appellee.
• Court: D.C. Court of Appeals

567 A.2d 1331

DISTRICT OF COLUMBIA, Appellant, v. Daniel BETHEL, Appellee.

Nos. 88-1045, 88-1626.

District of Columbia Court of Appeals.

Argued October 4, 1989.

Decided January 5, 1990.

Edward E. Schwab, Asst. Corp. Counsel, with whom Frederick D. Cooke, Jr., Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, Washington, D.C., were on the brief, for appellant.

Samuel M. Shapiro, with whom Cassandra P. Hicks, Rockville, Md., was on the brief, for appellee.

Before STEADMAN, SCHWELB, and FARRELL, Associate Judges.

SCHWELB, Associate Judge:

The District of Columbia appeals on several grounds from a million dollar judgment entered upon a jury verdict in favor of Daniel Bethel, an inmate at the Central Facility at Lorton prison. Finding no error, we affirm.

I

Bethel was severely injured when he was stabbed by another inmate, Carter, with a "shank."¹ Bethel was asleep in his dormitory at the time of the stabbing, which apparently resulted from a relatively minor incident between Carter and Bethel two days earlier. On that occasion, Bethel had stood up for an older inmate who was working in the prison bathhouse with him and who had refused to give Carter an extra portion of soap. There was, at most, a minor skirmish between Bethel and Carter, and a correctional officer who was present took no action.

At trial, Bethel asserted that the District had negligently caused Bethel's injuries by failing to control inmate movement, by allowing inmates to have authority over other inmates, by failing to control inmates' access to weapons, by failing to provide proper supervision of inmates by officers, by unreasonably delaying its response to an emergency, and by operating an overcrowded facility. Both parties presented expert testimony. James Murphy, Bethel's expert penologist, testified that the District had failed to adhere to the applicable standard of care in each of these six respects. The District's expert, James Black, concurred in many but not all of Mr. Murphy's major conclusions.

II

The District claims that Bethel did not establish the proper standard of care. It contends that Mr. Murphy based his testimony largely on the American Correctional Association's Standards for Adult Correctional Institutions (2d ed. 1981), and asserts that "ACA standards are not negligence standards." The District does not, however, challenge Mr. Murphy's expertise. Rather, it contends in effect that his testimony was legally insufficient because, according to the District, he relied on improper materials to guide his expert opinion. The District cites no authority in support of its contention that a qualified expert's opinion can be undermined in this way. In general, although an opinion rises no higher than the level of the evidence and the logic on which it is predicated, it is for the jury, with the assistance of vigorous cross-examination, to measure the worth of the opinion. United States v. Hill, 62 F.2d 1022, 1025 (8th Cir. 1933); see also Singer Co. v. E.I. du Pont de Nemours & Co., 579 F.2d 433, 442-43 (8th Cir. 1978).²

In any event, in reaching his conclusion that the District had violated the applicable standard of care, Mr. Murphy relied not only on the ACA standards, but also on the District's policies and procedures and on his own considerable experience in the field of penology. Bethel never argued, nor did the judge instruct the jury, that violation of an ACA standard was negligence per se, and there is no contention that the charge to the jury was improper.

In Rivers v. State, 142 Misc.2d 563, 537 N.Y.S.2d 968, 970 (Ct.Cl. 1989), relied on by the District, the court described the ACA standards as "normative goals to be striven for, not the prevailing medical standards of any given community." The court held in Rivers that medical malpractice could not be established by simply introducing, in lieu of expert medical testimony, an ACA standard requiring the forwarding of medical records to a physician who operates on the inmate at a facility outside the prison. Rivers has no application to the present case, in which expert testimony was introduced and the plaintiff relied on far more than the bare ACA standards. We therefore find the District's argument based on Rivers unpersuasive.

III

The District contends that the ACA standards are inconsistent with the consent decree in Twelve John Does v. District of Columbia, No. 80-2136 (D.D.C. April 28, 1982). This was a settlement of constitutional and related claims brought in a class action against the District by a number of prisoners at the Lorton facility. Bethel was confined at Lorton when the suit was filed, and was thus a member of the plaintiff class.

No argument was made to the trial court about the Twelve John Does decree. Indeed, the decree was mentioned once by the District at trial, at which time Bethel's counsel interposed no objection, but argued that its use by the District would open the door to other evidence about it, a contention with which the judge agreed. Apparently for tactical reasons, the District never again brought up the decree in the trial court. Nevertheless, on appeal, the District filed an appendix of materials from the Twelve John Does case and now contends that we should rely on it in order to hold that Bethel has not established the proper standard of care.

Absent manifest injustice, a litigant may not assert one theory at trial and another on appeal. D.D. v. M.T., 550 A.2d 37, 48 (D.C. 1988); Hackes v. Hackes, 446 A.2d 396, 398 (D.C. 1982). "Questions not properly raised and preserved during the proceedings under examination, and points not asserted with sufficient precision to indicate distinctly the party's thesis, will normally be spurned on appeal." Miller v. Avirom, 127 U.S.App.D.C. 367, 369-70, 384 F.2d 319, 321-22 (1967); D.D., supra, 550 A.2d at 48. In the present case, consideration of the Twelve John Does litigation after Bethel was precluded from making an appropriate record with respect to it in the trial court would be patently unfair to him. Accordingly, we decline the District's invitation to venture outside the trial record and consider facts and contentions never presented to the trial judge.

IV

Relying on District of Columbia v. White, 442 A.2d 159, 165-66 (D.C. 1982), the District argues that the plaintiff failed to prove the applicable standard of care with respect to several of the theories on which he predicated his claim of liability. See also Murphy v. United States, 209 U.S. App.D.C. 382, 391, 653 F.2d 637, 646 (1981). The District goes on to argue that "a new trial must be granted if any of plaintiff's several theories of liability was improperly presented to the jury, because one cannot determine on which of the theories the jury relied in reaching its verdict." The District did not request that the trial judge proceed by special verdict or interrogatories to the jury, nor did it take any other steps in the trial court to avoid the problem of which it now complains.

We need not decide, however, whether the District's silence below forecloses the contention which it now presents on appeal. Mr. Murphy's testimony, when viewed, as it must be, in the light most favorable to Bethel,³ supports the claim that the District violated the applicable standard of care in each of the enumerated respects. Mr. Black's testimony substantially corroborates Mr. Murphy's on several issues. We are satisfied that none of Bethel's theories was improperly presented to the jury.

There is no question that some of the theories of negligence on which Bethel relies present complex issues relating to proper prison administration. One, in particular, merits additional discussion. The District argues that ACA Standard 2-4205, which proposes that prisons adopt written policies and procedures providing that "no inmate or group of inmates is given control or authority over other inmates," was intended to address such serious problems as arming "trusties" and using them to guard other inmates at penal facilities.⁴ Standard 2-4205, the District therefore insists, cannot properly be utilized as a predicate for a finding that it was negligent in allowing Bethel to supervise other prisoners with respect to such comparatively mundane activities as dispensing soap.

There was testimony in this record, however, from which the jury could conclude that the control and authority given to Bethel were quite substantial. Bethel swore in his answers to interrogatories, which were read into the record, in part, by counsel for the District, that he made all the decisions in the bathhouse. He also testified that

there's no place in Lorton that police run. That job is given to the inmates. That job was given to me. It was my responsibility to make sure that everything in the bathhouse was done.

Bethel also claimed that he had possession of the key to the bathhouse and opened and closed the facility without staff supervision.

James Murphy, the plaintiff's expert witness, testified in response to a hypothetical question that it was not proper penological practice to assign such authority to an inmate. James Black, the District's expert, agreed. Given the testimony as to the extensive authority which was said to have been given to Bethel and the opinions of both expert witnesses, we cannot agree with the District that the evidence on this issue was insufficient to go to the jury.

We emphasize, however, that we base our conclusion to this effect solely on the present record, as developed in this litigation by Bethel and the District. Lest our opinion be misunderstood, we do not adopt or articulate any general rule, and especially no rule conclusive on other litigants on a different record, that it constitutes negligence per se to permit one prisoner to exercise any incidental control over what another prisoner may receive. Nothing in this opinion should be construed, for example, to suggest that it would...