Gleason v. L. Frank Company, 7655.
| Decision Date | 13 November 1974 |
| Docket Number | No. 7655.,7655. |
| Citation | 328 A.2d 96 |
| Parties | Margaret L. GLEASON, Appellant, v. L. FRANK COMPANY, a corporation, Appellee. |
| Court | D.C. Court of Appeals |
Bernard J. Harig, Washington, D.C., for appellee.
Before REILLY, Chief Judge, and KERN and NEBEKER, Associate Judges.
This is an appeal by a plaintiff, who had sued a retail clothing company for damages resulting from bodily injuries incurred in stumbling and falling while shopping at one of the company's outlets. After a jury returned a verdict of $20,860 for the plaintiff the trial court, having entertained motions from both sides, granted defendant's motion for judgment notwithstanding the verdict, and denied plaintiff's motion to amend upward the $15,000 ad damnum clause in the complaint (the maximum amount asked by plaintiff). Both rulings are challenged in this appeal.
It appears from undisputed evidence in the record that the ground floor of the shop in which the injuries occurred — an F Street building previously occupied by a dissimilar enterprise — had been remodeled on a split level plan. The rear of the store where certain types of apparel were displayed and sold was a few inches higher than the selling area in the front, but accessible to customers by an open stairway consisting of one step. It was on this step that plaintiff, a woman in her early sixties, tripped. According to her own testimony, she failed to notice the step, as she was glancing at some articles on a rack while advancing from the front to the back of the store. She said it was the first time she had been in that shop.
In asserting that the accident was due to management negligence, plaintiff's counsel in his opening statement said that evidence would show that the floor plan violated a provision of the Building Code requiring that "no run of stairs" should have "less than two risers."1 Defendant's counsel thereupon moved for a directed verdict which was denied.
Plaintiff was then permitted to develop opinion testimony through an official of the municipal Building Division that the construction of the step in question did violate this regulation. The witness admitted, however, that his own department apparently had not thus interpreted the regulation. It had approved the blueprints of the floor plan and had issued a permit to the contractor.
At the conclusion of plaintiff's case, which also included her own testimony and that of the physician who treated her, defendant again moved for a directed verdict. This motion was denied, and defendant called witnesses to show that the location of the step was not obscured by merchandise displays but instead was marked by a conspicuous sign.
Obviously, in the circumstances of this case, the materiality of the Building Code to the proximate cause of the accident was questionable. Consequently, had the trial court deemed the plaintiff's evidence insufficient to permit the case to go to the jury on the question of liability, and granted defendant's motion for a directed verdict immediately after plaintiff had rested, this court might well have had difficulty in deeming such action error.
We do not reach this question, however, as the procedural rules for granting motions for directed verdicts at the close of a plaintiff's case and the granting of motions for judgment notwithstanding the verdict, differ in one crucial respect. We refer to Super.Ct.Civ.R. 50(a) and (b), the text of which — identical to the corresponding provisions of the Federal Rules of Civil Procedure — is as follows:
(a) Motion for Directed Verdict; When Made; Effect. A party who moves for a directed verdict at the close of the evidence offered by an opponent may offer evidence in the event that the motion is not granted, without having reserved the right so to do and to the same extent as if the motion had not been made. A motion for a directed verdict which is not granted is not a...
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ESTATE OF UNDERWOOD v. NATL. CREDIT UNION
...50(b), the Credit Union and West waived the right to move for a j.n.o.v. after the jury returned its verdict. See Gleason v. L. Frank Co., 328 A.2d 96, 98 (D.C. 1974) (defendant's failure to renew motion for directed verdict at close of all evidence precluded court from entertaining j.n.o.v......
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Howard University v. Best, 86-1062.
...to the sufficiency of her evidence. "[T]his court has placed a literal construction on the wording of Rule 50(b)." Gleason v. L. Frank Co., 328 A.2d 96, 98 (D.C.1974). The failure to move for a directed verdict "`precludes a party from questioning on appeal the sufficiency of the evidence.'......
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Weisman v. Middleton
...plaintiff's evidence if the defendant elects to offer testimony on his own behalf after denial of the motion. See Gleason v. L. Frank Co., D.C.App., 328 A.2d 96, 98 (1974); District of Columbia v. Hickey, D.C. Mun.App., 150 A.2d 463, 466 (1959). It also is true that the "`failure to interpo......
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Rich v. District of Columbia
...plaintiff's request. On remand, that question will be subject to consideration. See Super.Ct.Civ.R. 54(c); compare Gleason v. L. Frank Co., D.C. App., 328 A.2d 96, 98 (1974), with Randolph v. Franklin Investment Co., D.C.App., 398 A.2d 340, 350 (1979) (en 2. Indeed, it likely would have bee......