Fisher v. Best

• Decision Date: 17 July 1995
• Docket Number: No. 93-CV-1486.,93-CV-1486.
• Citation: 661 A.2d 1095
• Parties: Laura Ann FISHER, et al., Appellants, v. Kevin C. BEST, et al., Appellees.
• Court: D.C. Court of Appeals

661 A.2d 1095

Laura Ann FISHER, et al., Appellants, v. Kevin C. BEST, et al., Appellees.

No. 93-CV-1486.

District of Columbia Court of Appeals.

Submitted December 8, 1994.

Decided July 17, 1995.

Harold E. Jordan, Washington, DC, for appellants.

Peter A. Chapin, Washington, DC, for appellees.

Before FERREN and SCHWELB, Associate Judges, and KERN,^* Senior Judge.

SCHWELB, Associate Judge:

This personal injury case arises out of a rear-end collision involving two automobiles. The front vehicle was operated by plaintiff Kevin C. Best, an officer of the Metropolitan Police Department. Best's passengers and co-plaintiffs were his mother, Louberta R. Best, and his then-fiancee, Sherry A. Stinson. The rear car was operated by defendant Laura Ann Fisher and registered in the name of Ms. Fisher's father and co-defendant, Ronald K. Fisher.

The controversy went to trial twice. At the conclusion of the first trial, the jury returned a verdict in favor of the Fishers. The plaintiffs filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. The judge granted the motion for a new trial. At the second trial, a jury found in favor of the plaintiffs and awarded Ms. Stinson $40,000, Officer Best $10,000, and Mrs. Best $10,000. On appeal, Ms. Fisher's sole contention is that the trial judge abused his discretion in granting the motion for a new trial. We disagree and affirm.

I.

The accident to which this litigation relates took place on June 10, 1989 in the 2800 block of Massachusetts Avenue, N.W., near the entrance to the Rock Creek Parkway. It is undisputed that Officer Best suddenly stopped or slowed down in order to avoid a collision with a vehicle in front of him and that Ms. Fisher struck him in the rear, "totalling" the Fisher car and causing heavy damage to the Best vehicle.

The three plaintiffs provided consistent testimony. None of them was aware of Ms. Fisher's vehicle prior to the collision. Officer Best testified that he had come to rest some three feet behind the car in front of him and that Ms. Fisher's automobile struck him hard in the rear some fifteen to twenty seconds later.

There was substantial testimony, not contradicted during the defense case, to the effect that Ms. Fisher admitted fault on the scene. When the principals got out of their respective vehicles, Ms. Fisher said "don't hit me" to Officer Best; Mrs. Best reassured her that her son was a police officer and would not harm her. According to Mrs. Best, Ms. Fisher stated that "she was looking in the mirror and when she got up she was too close that she couldn't stop." Ms. Stinson testified that Ms. Fisher said that

she was on her way to work and that she was running a little late and that she had taken her eyes off the road and was looking somewhere and that when she looked back it was too late for her to stop.

At the hospital to which all four principals were taken, a police officer who investigated the accident gave Ms. Fisher a ticket for "following too close." Ms. Fisher signed the ticket and paid the $25 fine.

Ms. Fisher was called as an adverse witness by the plaintiffs, and she also testified as the sole witness for the defense. The gravamen of her testimony was as follows:

Mr. Best had switched lanes in front of me and we were slowing down preparing to come to a stop at the right lane ahead or to slow down for the traffic ahead. At that point I was going about 15 miles an hour and I had put my clutch in because I had a manual transmission and I was braking. And I put my car into second gear because the traffic ahead of him had continued to— or it started to move through and turned into the parkway. And he had, you know, previously braked also, as I was. And then he continued to go. And he slammed on his brakes, I slammed mine, and we had a collision.

Although, during two stints on the witness stand, Ms. Fisher could have contested the plaintiffs' allegation that she had admitted taking her eyes off the road and conceded fault, she never did so. Ms. Fisher testified during the case for the plaintiffs that she did not take her eyes off the road, but the following colloquy ensued:

Q Isn't it a fact, Ms. Fisher, you told both ladies that—

A That isn't true.

Q Let me finish the question and you can answer, okay.

Is it not a fact that you told both ladies that you looked in the mirror and took your eyes off the road and all of a sudden this accident happened?

A I had to look in my mirror.

Q You had no reason to look in your rear view mirror?

A No, I didn't.

If the record on this point merited clarification, none was provided during the defense case, and the testimony as to Ms. Fisher's admission of fault was never really denied.¹

II.

The jury, as we have noted, returned a verdict at the first trial in favor of Ms. Fisher and against all three plaintiffs. The plaintiffs filed post-trial motions and, on November 15, 1991, the judge issued a comprehensive oral opinion from the bench and ordered a new trial. The judge noted that in some sixty trials on his civil calendar over a period of approximately two years, he had not set aside a single jury verdict. He recognized that such an action should be taken "very very sparingly," but he explained that the court had the authority to set aside a verdict which was against the great weight of the evidence. The judge observed that Mrs. Best and Ms. Stinson were passengers who "were not guilty sic of any contributory negligence," and that therefore the only possible basis for the verdict was a finding that Ms. Fisher was not negligent. Such a finding, according to the judge, was "against the great weight of the evidence," because Ms. Fisher had presented no testimony tending to show that she had exercised due care. The judge stated, in pertinent part, as follows:

Now, the stopping suddenly of the first car may give rise to contributory negligence on the part of that driver, perhaps so. The fact that one is following another car and it suddenly stops and, boom, you plow into them I think, absent any other explanation, and there was none here, seems to me to indicate that the great weight of the evidence supports the conclusion that this driver, Ms. Fisher, was simply following too closely, which was negligent, and that her negligence was a proximate cause of this collision.

* * * * * *

Now, how the jury got derailed on this one I do not know. It may be, as I said, that they misunderstood the concept of contributory negligence.

* * * * * *

There is another component of this which I think may have affected things, and that is that in this particular trial counsel for the defendants had a very appealing kind of low-key, ingratiating style, and counsel for the plaintiffs, for whatever reason, was rather heavy-handed and a little abrasive particularly in his cross-examination of the defendant. I think that because she was sort of a nice, appealing young woman and it looked like plaintiffs' counsel was bearing down on her a little hard, I think some of that may have influenced the result.

The defendant filed a premature notice of appeal from the order granting a new trial, but that appeal was dismissed by stipulation.² After the plaintiffs prevailed at the second trial, the defendants filed the present ripe and timely appeal.³

III.

Rule 59(a)(1) of the Superior Court's Civil Rules provides that the court may grant a new trial "for any of the reasons for which new trials have heretofore been granted in actions at law in the courts of the United States or of the District of Columbia." Trial judges have traditionally had "the power and duty to grant a new trial if the verdicts were against the clear weight of the evidence, or if for any reason or combination of reasons justice would miscarry if they were allowed to stand." Eastern Air Lines, Inc. v. Union Trust Co., 99 U.S.App.D.C. 205, 210, 239 F.2d 25, 30 (1956) (emphasis added), cert. denied, 353 U.S. 942, 77 S.Ct. 816, 1 L.Ed.2d 760 (1957). Accordingly, "the trial court must exercise its discretion in ruling on a motion for a new trial when it is claimed that the verdict is against the weight of the evidence." Johnson v. Bernard, 388 A.2d 490, 491 (D.C.1978).

The trial court's discretion in ruling on a motion for a new trial is broad. Mozie v. Sears Roebuck and Co., 623 A.2d 607, 614 (D.C.1993). An order granting such a motion is reviewable only for abuse. Desmond, supra note 3, 211 A.2d at 776. The trial judge's latitude in passing upon a motion for a new trial is greater than that accorded to an appellate court. Tihay v. Aurora City Lines, 79 Ill.App.2d 107, 223 N.E.2d 171, 174 (1967); see 66 C.J.S. New Trial § 201, at 497 & n. 71 (1950 & Supp.1994).⁴

As the judge explicitly noted in delivering his oral decision, a trial court should exercise great restraint in setting aside the verdict of a jury. It is important to recognize, however, that ordering a new trial is quite different from entering judgment notwithstanding the verdict. In Etheredge v. District of Columbia, 635 A.2d 908 (D.C. 1993), we recently explained that the judge may not inject his own views of the credibility of witnesses in acting on a motion for judgment n.o.v., but that

the judge was not considering a motion for a new trial; on such a motion, the trial judge need not view the evidence in the light most favorable to the non-moving party. Indeed, the judge can, in effect, be the "thirteenth juror," he may "weigh evidence, disbelieve witnesses, and grant a new trial even when there is substantial evidence to sustain the verdict." Slatton v. Martin K. Eby Constr. Co., Inc., 506 F.2d 505, 508 n. 4 (8th Cir.1974) (citations omitted), cert. denied, 421 U.S. 931, 95 S.Ct. 1657, 44 L.Ed.2d 88 (1975).

Id. at 917 n. 11. Further,

it is the duty of the judge to set aside the verdict and grant a new trial, if he is of the opinion that the verdict is against the clear weight of the evidence, or is based upon evidence which is false, or will

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