Morgan v. District Columbia, 79-588.

Citation449 A.2d 1102
Decision Date31 August 1982
Docket NumberNo. 79-588.,79-588.
PartiesGarnett P. MORGAN, et al., Appellants, v. DISTRICT OF COLUMBIA, Appellee.
CourtCourt of Appeals of Columbia District

Harlow R. Case, Washington, D. C., with whom Jack H. Olender, Washington, D. C., was on the brief, for appellants.

Edward E. Schwab, Asst. Corp. Counsel, Washington, D. C., with whom Judith W. Rogers, Corp. Counsel, Richard W. Barton, Deputy Corp. Counsel, Washington, D. C., at the time the brief was filed, and Martin L. Grossman, Asst. Corp. Counsel, Washington, D. C., were on the brief, for appellee.

Before MACK and FERREN, Associate Judges, and GALLAGHER, Associate Judge, Retired.*

FERREN, Associate Judge:

Two major questions are presented in this action for negligence and wrongful death attributable to a police officer's killing and wounding members of his family with his service revolver: (1) whether the trial court erred in granting the defense motion for judgment notwithstanding the verdict (judgment n. o. v.) on the ground that the plaintiff-appellants failed to establish the applicable standard of care; and (2) whether the trial court erred in granting the defense motion to reduce the wrongful death judgment on the ground that a widow's pension was not a collateral source. We conclude that the trial court erred in granting both motions; we therefore reverse.

I.

Plaintiffs Garnett Pinkney Morgan, John Keith Morgan, Mary Pinkney, and Joseph Pinkney each sued the District of Columbia, the Chief of the Metropolitan Police Department, Lieutenant John R. Bowles, Jr., and Officer John Morgan, Jr. for negligence proximately causing specified injuries to them. Garnett Morgan and John Keith Morgan sought damages for physical injuries, medical expenses, loss of earnings, and loss of future earnings. Mary Pinkney and Joseph Pinkney asserted negligent infliction of emotional distress. Mary Pinkney also sued as the personal representative of the estate of Elton Pinkney for wrongful death.

Before trial, plaintiffs voluntarily dismissed their actions against all defendants except the District of Columbia.

At trial, the plaintiffs presented the following evidence. Garnett Morgan testified that she married John Morgan, Jr. (Morgan) in 1966. Morgan was an officer with the Metropolitan Police Department, and Garnett Morgan was a speech pathologist. The couple had two children, John Keith and Lamont.

Garnett Morgan testified that in July 1974 John Morgan beat her, causing bruising of her eye and swelling on one side of her face. In August 1974 John Morgan threatened his wife with a gun. Garnett Morgan described this event as follows:

It was about a month later, during August, when he came in early one morning. The kids and I were asleep, and he snatched me up out of the bed by my nightgown, and he put the gun to my head and told me that if I didn't leave within the next couple of days, that he would kill me; and after doing that, he sat in the chair in the bedroom, still having the gun, and eventually dozed off. Once he dozed off, I got both kids together, and left the house and went to my mother's.

When Garnett Morgan reached her parents' home, she called Seventh District Headquarters, to which Officer Morgan was assigned. She spoke with Captain Francis J. Tiernan, her husband's captain. Garnett Morgan testified that she informed Tiernan of the July beating and of that morning's gun threat:

I explained to him [Tiernan] what had happened that night with him [John Morgan] putting the gun to my head and threatening to kill me, and I explained everything to him. I explained to him about my eye having been injured not long before that, that he had beaten me, and that I was afraid and that I had left and I was at my mother's . . . .

* * * * * *

. . . I . . . explained to Captain Tiernan that I was afraid for my life, I was afraid that he really would kill me, and I asked him if he would make him just stay away from me.

Garnett Morgan testified that Captain Tiernan replied, "I can't put a man out of his house, . . . [but] I will talk with him." Tiernan called back later that evening and said that he had talked with John Morgan and thought it might be best if the couple separated. Garnett Morgan and the children stayed at her parents' home for a few days and then one day, after Captain Tiernan had advised her that Officer Morgan was at work, she moved their belongings from the marital home to an apartment.

On the afternoon of November 7, 1974, John Morgan arrived at his wife's apartment and threatened to force his way inside. Garnett Morgan let him in but suggested that he leave immediately. John Morgan grabbed her and choked her into unconsciousness. When she regained consciousness several hours later, she found herself alone on the bed with her hands and feet tied and her mouth gagged. Although she succeeded in freeing herself, John Morgan heard her movements and returned to the bedroom.

John Morgan forced his wife into his car and drove her around Prince Georges County and Southeast Washington. When a park police cruiser pulled him over for running a red light, Morgan told his wife that if she said anything he would kill both her and the officer. He unsnapped his holster. The officer gave Morgan a ticket and drove away. John Morgan then drove to a park, where he threatened Garnett Morgan, "If I kill you here, no one would ever find you," and unsuccessfully attempted to drag her out of the car.

Garnett Morgan testified that at last her husband drove to her parents' home. The Morgan children were there, and John Morgan began to put coats on the children, preparing to take them with him. When Garnett Morgan objected, he said, "I'm taking the children with me, and if you say one word, I'll kill your father where he's sitting." As soon as John Morgan left with the children, his wife broke down and called the police. Two uniformed District of Columbia police officers responded to the call. When Garnett Morgan described the events of that day, the officers called for an official from the precinct to which John Morgan was assigned.

Lieutenant John R. Bowles, Jr. arrived at the Pinkney house, and Garnett Morgan described to him the July beating, the August gun threat, and the threats and injuries of that day. Lieutenant Bowles told the other officers that he could handle the situation and they could leave. He then asked Garnett Morgan for a written statement. While she dictated a statement to her brother, Joseph Pinkney, Lieutenant Bowles called John Morgan at home and asked him to report to the precinct. Morgan called back and said that he was going to bring the children to the Pinkney home before reporting in.

Garnett Morgan testified that when her husband drove up, Lieutenant Bowles went outside to meet him. John Morgan carried two-year-old Lamont to the house; four-year-old John Keith and Lieutenant Bowles followed behind. As they walked into the house, Garnett Morgan stood up and walked toward the children. John Morgan said, "I told you so," pulled his revolver from underneath his jacket, and shot her twice.

Joseph Pinkney testified that immediately after shooting Garnett Morgan, her husband turned and shot Lieutenant Bowles. (John Keith had been hit by one of the shots aimed at his mother.) Joseph Pinkney took cover behind the kitchen door and asked John Morgan several times to drop the gun. Joseph Pinkney testified that as he spoke, his father, Elton Pinkney, descended the stairs. John Morgan shot Elton Pinkney (his father-in-law). Joseph Pinkney fled the house.

Mary Pinkney, Garnett Morgan's mother, testified that she was out of John Morgan's sight behind a room divider during the shooting but that afterwards Morgan discovered her there. He put the gun to her back and shoved her out of the door with his son Lamont. The police found them hiding in the cellar well.

Elton Pinkney died. Garnett Morgan, John Keith Morgan, and Lieutenant Bowles were wounded. John Morgan surrendered to the police and was subsequently convicted of first degree murder and two counts of assault with intent to kill while armed. This court affirmed his convictions. Morgan v. United States, D.C.App., 363 A.2d 999 (1976), cert. denied, 431 U.S. 919, 97 S.Ct. 2187, 53 L.Ed.2d 231 (1977).

Captain Tiernan testified at trial that "general orders" require him, as precinct captain, to conduct an investigation when anyone — including a police officer's spouse — reports a threatened, improper use of an officer's service revolver. In such circumstances, Tiernan must obtain written statements from everyone concerned and submit a report and recommendation to his superior officers. Tiernan admitted that Garnett Morgan informed him in August 1974 that John Morgan had beaten her, but denied she told him that Morgan had threatened her with a gun.

At the close of the plaintiffs' case,1 the court granted a directed verdict for the defense against Mary Pinkney and Joseph Pinkney with respect to their claims for negligent infliction of emotional distress. The court also granted a directed verdict for the District of Columbia with respect to the alleged negligence of Lieutenant Bowles on the scene. The court, however, denied the District's motion for directed verdict premised on an argument that expert testimony was required to establish the standard of care for control and supervision of police officers.

The defense recalled Garnett Morgan and Joseph Pinkney, questioned Garnett Morgan as to whether there were violent episodes in her marriage before 1974 and examined Pinkney about the details of the shootings. The defense also called two new witnesses, Lieutenant Bowles and Lieutenant Bruce H. Swank. Lieutenant Swank testified that he had been John Morgan's commanding officer for two years, and that Garnett Morgan had called him several times with complaints that her husband had beaten her. Lieutenant Bowles' testimony...

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