District of Columbia v. Moreno, 92-CV-1569.

• Decision Date: 08 September 1994
• Docket Number: No. 92-CV-1569.,92-CV-1569.
• Citation: 647 A.2d 396
• Parties: DISTRICT OF COLUMBIA, Appellant, v. Victor MORENO, Appellee.
• Court: D.C. Court of Appeals

647 A.2d 396

DISTRICT OF COLUMBIA, Appellant, v. Victor MORENO, Appellee.

No. 92-CV-1569.

District of Columbia Court of Appeals.

Argued May 26, 1994.

Decided September 8, 1994.

Karen L. McDonald, Asst. Corp. Counsel, with whom John Payton, Corp. Counsel at the time the brief was filed, and Charles L. Reischel, Deputy Corp. Counsel, were on the brief, for appellant.

W. Gary Kohlman, Washington, DC, for appellee.

Before STEADMAN and KING, Associate Judges, and GALLAGHER, Senior Judge.

GALLAGHER, Senior Judge:

Appellee Victor Moreno, an inmate of the District of Columbia's maximum security prison at Lorton, Virginia, was assaulted by several people (presumably other prisoners). He received multiple stab wounds to his back and legs which required surgery, the removal of a kidney and extended hospitalization. On July 30, 1990, appellee brought a negligence action against the District of Columbia. He sought $250,000 in compensatory damages and $250,000 in punitive damages.

At trial, appellee relied upon the testimony of an expert to establish the District's departure from the standard of care. The District of Columbia moved for a directed verdict arguing that the appellee had failed to produce sufficient evidence to establish a claim of negligence. Specifically, the District argued that the appellee had not established a standard of care that the District could be held to have violated. The motion for directed verdict was denied. The District renewed the motion for a directed verdict upon the close of all the evidence. This motion was also denied.

The jury returned a verdict for appellee and awarded Moreno $750,000 in damages. The District moved for a judgment notwithstanding the verdict, or in the alternative, for remittitur or a new trial. These motions were denied. The District of Columbia appeals the judgment entered by the Superior Court, and the court's refusal to grant the judgment notwithstanding the verdict, or in the alternative a new trial. On appeal the District argues that appellee's evidence was insufficient to prove negligence because the appellee through its expert failed to establish a standard of care by which the jury might have determined negligence.

I.

In 1988, Victor Moreno was housed in Cell-block 2 of the Maximum Security Facility at Lorton Prison. He had been an inmate at the facility since 1983. Cellblock 2 contained four tiers (upper and lower left and right tiers) of twenty-five single inmate cells. Moreno was in cell 25 of the upper right tier, the cell farthest from the control tower that separates the tiers.

On July 13, 1988, at approximately 9:00 p.m., the guards conducted a "count" of Cellblock 2. During the "count" all inmates are required to return to their cells, the cell doors are locked and one of the two guards walks the tier to ensure that the proper inmates are present and in their cells. If an inmate is missing the count is suspended until the missing inmate is located. The officer who is walking down the tier manually checks the cell doors to see if they are locked. Once the count is completed the second guard (at the control box) locks the controls for that tier and the two guards move to the next tier to conduct the count there.

On the night in question, July 13, 1988, Officers Pulley and Smith conducted the count on the upper right tier where Moreno was housed. Moreno testified that after the count his cell door opened automatically. Moreno entered the tier, looked down the tier, and saw a correctional officer at the control panel. He started walking down the tier and when he was halfway down the tier the officer left the panel box. Moreno proceeded up the tier and was handed a phone by another inmate, who informed him that it was "phone time." Moreno walked to a friend's cell and asked if the friend needed any calls made and then placed a call for the friend. On his way back to his cell, after relaying the outcome of the phone call to his friend, Moreno felt a sharp pain in his back. Moreno turned around and saw three masked individuals with knives. He tried to fight them off and received three additional stab wounds all to his legs.

Moreno returned to his cell bleeding, grabbed a blanket from his cell, wrapped it around the wound in his back and then proceeded to the entrance of the tier. Moreno banged on the door and an officer appeared. Upon returning with assistance, several guards removed Moreno. He was first taken to the infirmary, then to Dewitt Army Hospital, and ultimately to D.C. General Hospital. At D.C. General, Moreno underwent surgery that included the removal of a kidney.

Moreno's expert, Dr. E. Eugene Miller, testified that the American Correctional Association standards provide national guidelines for prison administration. Dr. Miller testified that the District fell below the standard of care in four areas: (1) the adequacy and/or proper maintenance of the cell locking system; (2) inmate control of the telephone; (3) failure to control inmates' possession of contraband; and (4) the regulation of inmate movement. Specifically regarding inmates' possession of contraband, Dr. Miller testified about the prison's shakedown policy. A shakedown is when the prison officials search a group of cells for contraband. According to Dr. Miller, these shakedowns should be random and unannounced. However, Dr. Miller testified that the shakedowns at Lorton only occurred during shift changes and thus the inmates would know when a shakedown would occur. The only randomness in Lorton's procedure was which cell groups were to be searched. Dr. Miller testified that the searches should be unannounced and irregularly timed, not just unannounced as at Lorton.

Mr. Gary Hilton, the assistant commissioner of the New Jersey Department of Corrections, testified as a penological expert for the District. He disagreed with Dr. Miller on whether the District had breached the standard of care to Moreno in any of the four areas — cell locking system, inmate control of the telephone, possession of contraband, and inmate movement. Mr. Hilton testified that the District's actions were appropriate and within national norms and practices. Specifically in regard to shakedowns he testified that because the cell groups are randomly searched the standard of care was not breached.

The jury determined that the District was negligent and awarded Moreno $750,000.00. The District moved for a judgment notwithstanding the verdict or, in the alternative, for remittitur or a new trial, claiming the award was excessive. The trial judge denied these motions. The District appeals the jury's verdict and the denial of the judgment notwithstanding the verdict. The District argues the following on appeal:

1. That Dr. Miller's testimony failed to provide the jury with specific standards and how the district violated these standards for all four alleged violations of the standard of care — the locking mechanism, inmate control of the telephones, control of contraband, and control of inmate movement;

2. That even if the standard of care was established by the expert the control of contraband is immune to tort liability since the prison's decision to conduct shakedowns at shift time is a discretionary decision that does not constitute a waiver of sovereign immunity; and

3. The trial court erred in refusing to give an assumption of risk instruction in addition to the contributory negligence instruction.

II.

Penal authorities at Lorton "are under a duty to protect and safeguard the prisoners entrusted to their custody." Haith v. District of Columbia, 526 A.2d 17, 19 (D.C.1987). However, many prisoners are dangerous individuals and a penal facility, such as Lorton, is often not risk-free. Id. "Thus when a prisoner is assaulted by some of his fellow prisoners, the District is not ipso facto liable for his injuries. The injured inmate must show that the District breached its duty to protect him from harm, and that his injuries were a proximate result of that breach." Id.

"The question of whether prison officials acted reasonably to secure the safety of an inmate is not one within the realm of the everyday experiences of a lay person." Hughes v. District of Columbia, 425 A.2d 1299, 1303 (D.C.1981). Thus, this court has concluded that

The reasonably prudent juror cannot be expected to appreciate the ramifications of prison security as well as the parallel considerations involving the safekeeping of prisoners, and therefore, whether, under given circumstances, reasonable care was exercised.... Thus, expert testimony or supporting evidence is necessary to establish that standard.

District of Columbia v. Carmichael, 577 A.2d 312, 314 (D.C.1990) (quoting Hughes, supra, 425 A.2d at 1303).

"When an expert's testimony is required, the expert must articulate and refer to a standard of care by which the defendant's actions can be measured." Carmichael, supra, 577 A.2d at 314; accord, Toy v. District of Columbia, 549 A.2d 1, 6 (D.C.1988); District of Columbia v. Peters, 527 A.2d 1269, 1273 (D.C.1987); Hughes, supra, 425 A.2d at 1303; District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C.1978). In speaking of prison negligence cases, this court has stated:

The failure to prove a standard of care is fatal because, in order to recover damages for negligence, "the plaintiff must prove that the defendant deviated from the applicable standard of care." Toy, supra, 549 A.2d at 6; accord, Hughes, supra, 425 A.2d at 1303 (plaintiff "must show . . . that what occurred in the case at bar was a negligent deviation from the demonstrated acceptable standard"). If the standard itself is not proven, then a deviation from that standard is incapable of proof.

Carmichael, supra, 577 A.2d at 314.

III.

Given the facts of this case and the claim of negligence, expert testimony was essential. "Where expert testimony is necessary, however, it is not sufficient if it consists merely of the expert's opinion as to what he or she...