Newell v. District of Columbia

• Decision Date: 24 November 1999
• Docket Number: No. 93-CV-425.,93-CV-425.
• Citation: 741 A.2d 28
• Parties: Andrew NEWELL, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.
• Court: D.C. Court of Appeals

741 A.2d 28

Andrew NEWELL, et al., Appellants, v. DISTRICT OF COLUMBIA, et al., Appellees.

No. 93-CV-425.

District of Columbia Court of Appeals.

Argued May 4, 1999.

Decided November 24, 1999.

Joan Harvill for appellants.

James C. McKay, Jr., Assistant Corporation Counsel, with whom Jo Anne Robinson, Principal Deputy Corporation Counsel and Charles L. Reischel, Deputy Corporation Counsel, were on the brief, for appellees.

Before STEADMAN, FARRELL and REID, Associate Judges.

REID, Associate Judge.

As a result of appellant Betty Newell's February 1989 fall on an icy sidewalk in front of a District of Columbia Public School where she worked, she and her husband, appellant Andrew Newell, filed a wrongful death, survival, and negligence action on April 20, 1990 against appellees, the District of Columbia and several public school employees, alleging, inter alia, that their negligence was the proximate cause of the pre-birth injury to and death of their infant son, Andrew Newell, III, as well as Mrs. Newell's injury and Mr. Newell's loss of consortium. Before the civil action was filed, Mrs. Newell lodged a workers' compensation claim for disability benefits with the Department of Employment Services ("DOES"). On August 14, 1992, a final compensation order was issued, by the Deputy Director for Labor Standards, affirming the hearing officer's recommended award of disability income benefits as well as medical expenses relating to the 1989 fall.

Appellants then dismissed Mrs. Newell's negligence and Mr. Newell's loss of consortium claims in the civil action, and moved for partial summary judgment on their wrongful death and survival actions, on the grounds of res judicata, issue preclusion, and collateral estoppel, as to certain facts relating to Mrs. Newell's injury, including its cause. The motion was denied and the case proceeded to trial. The jury found in favor of the District on the issue of negligence and the proximate cause of the injury to and death of Andrew Newell, III. Subsequently, the trial court denied appellants' motion for a new trial, and/or judgment notwithstanding the verdict.

On appeal, appellants contend, inter alia, that the trial court erred by (1) denying their motion for a new trial or judgment notwithstanding the verdict; (2) refusing to instruct the jury that the District's violation of its "snow and ice emergency regulations ... constituted evidence of negligence"; and (3) denying their pre-trial motion for partial summary judgment based on the factual findings in Mrs. Newell's workers' compensation proceeding. Finding no trial court error or abuse of discretion, we affirm.

FACTUAL SUMMARY

The record on appeal reveals the following facts. On February 6 or 7, 1989, Mrs. Newell, a 42 year old secretary at Ballou High School who was then 19 weeks pregnant, reported to work. The weather was bad due to sleeting. Mrs. Newell remained in her car until the sleeting stopped. As Mrs. Newell exited her car and began walking towards the school door, she slipped and fell on an untreated icy sidewalk. After the fall, she noticed that her undergarments were wet either from a bladder discharge or leaking amniotic fluid. Despite the persistent wetness, she continued to work until February 14, 1989, when her water broke while she was at work. Later on the day that her water broke, Mrs. Newell's husband took her to the doctor's office. Dr. Elise Smith diagnosed the wetness as leaking amniotic fluid. Due to the leaking amniotic fluid, Mrs. Newell was hospitalized from February 14, 1989 until April 29, 1989. On April 26th she gave birth to a premature child at 29 weeks. The child had complications and died 12 hours after birth.

At trial on their wrongful death and survival actions, the Newells argued, inter alia, that the District's negligence in failing to clear off or treat the sidewalks in accordance with its Snow Emergency Operations Plan for D.C. Public Schools, led to her fall and the injury which resulted in the wrongful death of Andrew Newell, III. In particular, the Newells argued that it was Mrs. Newell's fall on February 6, 1989, in front of Ballou High School, which caused her amniotic fluid to begin leaking and led to Andrew Newell's infection and premature birth.¹

To counter the Newells' assertions, the District presented evidence which showed that prior to her 1989 fall, Mrs. Newell had had a number of unsuccessful pregnancies: "two of which ... resulted in spontaneous abortion or late miscarriage, one of which was a term delivery, and one pregnancy that resulted in premature rupture of membranes and subsequent premature delivery prior to this pregnancy." Further, Dr. Jeffrey King testified that "[Mrs. Newell's] pregnancy was complicated obviously by her advanced age. It was complicated by her history of having undergone premature rupture of membranes in a prior pregnancy." In addition, Dr. King testified that a rupture of membranes, as confirmed by Dr. Smith during Mrs. Newell's February 14, 1989 doctor's visit, caused the "gush of amnio [fluid]" and continual leakage. Dr. King also testified that the spontaneous rupture of membranes, in his opinion, led to Andrew Newell, III's premature birth and death, and that Mrs. Newell's fall on February 6, 1989, was not of sufficient force to rupture her membranes. Beyond this, Dr. King testified that since Mrs. Newell had had a previous miscarriage due to ruptured membranes she was at a risk "may be two to two-and-a-half times as great" as having subsequent miscarriages due to ruptured membranes. In addition, one of the District's defenses appeared to be that Mrs. Newell was contributorily negligent or assumed the risk of getting out of her car when sleet was on the ground because she knew it was dangerous to be on the street in such weather.

The jury was presented with a general verdict form. On December 11, 1992, the jury found in favor of the District. On December 19, 1992, the Newells filed a motion for a new trial and/or judgment notwithstanding the verdict. On March 5, 1993, the motion was denied and appellants timely appealed.

ANALYSIS

Denial of "motion for new trial and/or judgment notwithstanding the verdict"

The Newells contend that the trial court erred by not granting their motion for judgment notwithstanding the verdict since they had "met their burden of proof on every element of negligence," and because the trial court committed reversible error by giving instructions to the jury which imputed the contributory negligence and assumption of risk of the mother to the infant. "Generally, a motion for judgment after trial and verdict is granted only in `extreme cases.'" United Mine Workers of America, Int'l Union v. Moore, 717 A.2d 332, 337 (D.C.1998) (quoting Daka, Inc. v. Breiner, 711 A.2d 86, 96 (D.C.1998) (citation and internal quotations omitted)). "`We review the denial of such a motion deferentially. Reversal is warranted only if no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict for that party.'" Id. (quoting Daka, supra.711 A.2d at 96 (citation and internal quotations omitted)). See also Oxendine v. Merrell Dow Pharmaceuticals, Inc., 506 A.2d 1100, 1103 (D.C.1986)

. We review the trial courts denial of a motion for new trial "only for abuse of discretion." Id. "To grant a motion for a new trial, the trial court must find that the verdict is against the weight of the evidence, or that there would be a miscarriage of justice if the verdict is allowed to stand." United Mine Workers, supra, 717 A.2d at 337 (citing Gebremdhin v. Avis Rent-A-Car Sys., Inc., 689 A.2d 1202, 1204 (D.C.1997)).

"[V]iewing the evidence in this case in the light most favorable to the prevailing party," we conclude that a reasonable juror could find for the District. The evidence at trial showed that Mrs. Newell had a history of miscarriages, and thus, a reasonable juror could find that the premature birth and the death of Andrew Newell, III was caused by factors other than Mrs. Newell's slip and fall on February 6, 1989.

The Newells challenge the trial court's judgment, first, by arguing that a miscarriage of justice resulted when the trial court refused to give jury instruction 5-15² which, at the time of trial, stated that where a parent and child assert separate causes of action, "contributory negligence on the parent's part alone prevents only the parent's recovery, and not that of the child." They contend that the trial court had an obligation to read jury instruction 5-15 since Andrew Newell, III was a "viable child" because he was born alive after his injury in the womb, and thus, he had a separate cause of action from his mother. Therefore, his mother's contributory negligence may not be imputed to him. The District argues that Andrew Newell, III was not a "viable child" at the time of injury and that the trial court did not err in refusing to give instruction 5-15. Moreover, the District maintains, the Newells are estopped from challenging on appeal the trial court's instruction on contributory negligence and assumption of risk because "they did not seek special verdicts on the issues of contributory negligence and assumption of risk."

We turn first to the District's argument that the Newells are estopped from challenging the trial court's instruction on contributory negligence and assumption of risk because they did not request special verdicts on those issues. After the trial judge gave final instructions to the jury, he informed counsel for both parties: "We're going to have to get a verdict form together. I thought we had it." Counsel for the District responded: "Your Honor, I did submit one yesterday that I thought the Court was going to use." Plaintiffs' counsel said: "I submitted one this morning, Your Honor." The trial judge replied that the form submitted by plaintiffs' counsel "had too much in it" and defense counsel's "[didn't] have enough." Each counse...