LYONS v. BARRAZOTTO

• Decision Date: 31 October 1995
• Docket Number: No. 92-CV-966,92-CV-966
• Citation: 667 A.2d 314
• Parties: Richard LYONS, Appellant, v. Richard BARRAZOTTO, Appellee.
• Court: D.C. Court of Appeals

667 A.2d 314

Richard LYONS, Appellant, v. Richard BARRAZOTTO, Appellee.

No. 92-CV-966.

District of Columbia Court of Appeals.

Argued May 11, 1994.

Decided October 31, 1995.

APPEAL FROM THE SUPERIOR COURT, DISTRICT OF COLUMBIA, MICHAEL L. RANKIN, J.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

THIS PAGE CONTAINED HEADNOTES AND HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.

Steven D. Campen with whom Steven Plaisted, Rockville, MD, was on the brief, for appellant.

David B. Stratton, Washington, DC, for appellee.

Before WAGNER, Chief Judge, and FERREN and SCHWELB, Associate Judges. ^*.

Judge WAGNER was an Associate Judge at the time of argument. Her status changed to Chief Judge on June 14, 1994.

WAGNER, Chief Judge:

Appellant, Richard Lyons, appeals from an order of the trial court granting the motion of appellee, Richard Barrazotto, to set aside a jury verdict of $250,000 in favor of Lyons and granting a new trial in an automobile negligence case. In granting Barrazotto's motion, the trial court concluded that: (1) Lyons failed to establish a prima facie case of negligence; (2) Lyons is barred from recovery because of his own contributory negligence; and alternatively, (3) the verdict was against the clear weight of the evidence, thereby warranting a new trial, particularly considering the weakness of the evidence of proximate cause and the improvident admission of certain medical reports. On appeal, Lyons challenges the trial court's ruling. We hold that, viewing the evidence in the light most favorable to Lyons, the evidence was sufficient to establish a prima facie case of negligence and to defeat a claim of contributory negligence. Therefore, the trial court erred in granting a judgment notwithstanding the verdict. We further hold that the trial court abused its discretion in granting Barrazotto's motion for a new trial.

I. Factual Background

Lyons filed a complaint for damages alleging that he had sustained injuries as a result of Barrazotto's negligent operation of his minivan which struck Lyons.¹ The claim arises out of events which occurred on April 10, 1989 in an alleyway located in the area between 13th and 14th Streets and F and G Streets in Northwest Washington. At that time, Lyons was employed at a construction site of a building under construction which faced F Street. Behind the building was a large alley which ran parallel to F Street. The large alley could be accessed through a smaller alley which ran between two buildings and opened onto G Street at one end and intersected the large alley in a T formation. There were usually about 125 workers at the construction site each day, and therefore, a significant number of pedestrians moving in the alleyway. There were approximately 120 people on the job site on the day of the accident.

According to Lyons, on the morning of the accident, he was returning to the construction site carrying food and beverages for some of the crew in a large cardboard box, which was about two feet by sixteen or eighteen inches tall. He walked through the smaller alley, which was used by vehicles and pedestrians associated with the construction project or by others making deliveries to the commercial businesses abutting both alleys. Barrazotto and his sons owned the Clement's Pastry Shop, which faced 14th Street on the western side of the alley. Lyons testified that he saw the minivan, which later hit him, drive into the alley and pass him on the left. The van then turned in front of Lyons, which caused Lyons to pause and notice Keith Byron, the job superintendent. Lyons walked over and spoke to Byron after waiting briefly to get his attention. He then looked to the right and saw the van just "sitting" about eight feet away. Before crossing the larger alley in a diagonal line headed toward the door of the job site, Lyons looked both ways and saw nothing coming. Lyons took at least four steps before he heard someone shout "look out." Knowing the prospects for something falling at a construction site, Lyons squatted and turned to the left toward the only direction from which traffic could enter the alley. He explained that he looked left instead of right at this point because the van to his right was parked, and there were no reverse lights or other signal from the vehicle indicating that it was about to back up.

According to Lyons, Barrazotto backed up his vehicle and struck Lyons on the elbow,lifting him up and causing Lyons to stumble before he caught his balance. The impact of the blow drove Lyons' arm and shoulder up into his neck area. Lyons caught himself, bent down on one knee, and checked to see whether the coffee had spilled in the box. Despite the impact, Lyons did not drop the box. Mr. Byron helped Lyons up and asked if he was okay. Lyons responded that his "funny bone" felt funny. Barrazotto slowly backed the van back further, rolled down the window, and said "I'm sorry, I didn't see you, are you okay." Lyons replied that he was not sure and that he was going to take the food upstairs. When Lyons returned to the alley to talk to Barrazotto and Byron, whom he had seen talking to each other from the 10th floor, both men were gone.

Lyons testified that he worked the rest of the day, although he could not perform his regular job because of pain, numbness, and weakness in his arm. On his way home, he went to see Dr. Edward Fisher at Hadley Hospital. Dr. Fisher, who is Board certified in the field of general and traumatic surgery, qualified as an expert witness in his specialties without objection. Dr. Fisher testified that he examined Lyons that evening and found tenderness in his neck, upper back, right shoulder and right elbow, and numbness in his right hand. It was Dr. Fisher's opinion at that time that Lyons suffered "a contusion or a bruise to the elbow and shoulder area and indirectly, to the neck area or the trapezius muscle." He treated Lyons with ultrasound to the neck, shoulder and elbow area.²

Lyons testified that he returned to work the next day because he needed the money and anticipated that his foreman would allow him to perform light duties until he recovered. Instead, he was assigned to do his regular job, but assistants were available to help. He completed the week, but he did not return to work thereafter because he experienced muscle spasms, and Dr. Fisher had advised him not to work at that time. Dr. Fisher treated Lyons about twenty times from the date of the accident until August 8, 1989.³ According to Dr. Fisher, Lyons had an electromyography (EMG), which Dr. Fisher described as an objective test which measures nerve conduction across a muscle. The test showed that Lyons had ulnar nerve entrapment across the right elbow joint. Dr. Fisher testified that, to a reasonable degree of medical certainty, the impact of the accident, as described by Lyons, caused Lyons' injuries. Because Lyons continued to complain of pain, Dr. Fisher referred him to Dr. Chidambaram, a neurologist. Prior to Lyons' departure from the Washington area, Dr. Fisher suggested that Lyons obtain an opinion about surgical options.

Lyons moved to Tulsa, Oklahoma with his wife, and for a short time, he was enrolled at Oral Roberts University.⁴ While at the university, he enrolled in a golf course for which he received a grade of "D." Lyons explained at trial that he passed a written examination for the course for people with disabilities. In Oklahoma, Lyons saw a neurological surgeon, Dr. Ralph Richter, who performed various tests including a magnetic resonance imaging scan (MRI). Because the pain had not subsided, Lyons began treatment with Dr. Richter. Dr. Richter recommended surgery which would have entailed removal of the first right rib to relieve the nerve compression and pain.

Dr. Fisher saw Lyons again on May 14, 1991 and found that his condition had worsened. Between that date and the time of trial, Dr. Fisher saw Lyons seven moretimes. Dr. Fisher testified that upon examination he found Lyons' hand to be swollen, a condition which Dr. Fisher attributed to the accident. He also testified that surgical procedures could reduce the level of pain and disability which Lyons suffered, but it would not restore him completely to normal.

Barrazotto called two medical expert witnesses, Dr. Major Gladden, a board certified orthopaedic surgeon, and Dr. Donald Cooney, a board certified neurosurgeon. Dr. Gladden examined Lyons and found no objective evidence of abnormality in his arm, elbow, shoulder, or neck. Dr. Cooney found that Lyons had "no objective neurological findings." Both of Barrazotto's experts were of the opinion that, giving appellant the benefit of the doubt regarding his chronic and persistent pain, they would not rule out some psychological explanation for his complaints.

II. Motion for Judgment Notwithstanding the Verdict

Appellant argues that the trial court erred in granting Barrazotto's motion for judgment notwithstanding the verdict. He contends that although the trial court recognized the appropriate standard for consideration of the motion, it failed to apply it properly. It is Barrazotto's position that the trial court properly granted the motion because no reasonable juror could find by a preponderance of the evidence that he was negligent and that Lyons was not contributorily negligent.

A. Standard of Review

A judgment notwithstanding the verdict is appropriate only in extreme cases, where "no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor of that party." Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C. 1986) (citing District of Columbia v. Cooper, 445 A.2d 652, 655 (D.C. 1982) (en banc)); Lewis v. Washington Metro. Area Transit Auth., 463 A.2d 666, 669 (D.C. 1983). We have emphasized frequently that when there is some...