Nordstrom v. District of Columbia

• Decision Date: 30 January 1963
• Docket Number: Civ. A. No. 3608-59.
• Citation: 213 F. Supp. 315
• Parties: Pauline NORDSTROM and Charles Nordstrom, Plaintiffs, v. DISTRICT OF COLUMBIA and Sinclair Refining Company, Defendants.
• Court: U.S. District Court — District of Columbia

213 F. Supp. 315

Pauline NORDSTROM and Charles Nordstrom, Plaintiffs, v. DISTRICT OF COLUMBIA and Sinclair Refining Company, Defendants.

Civ. A. No. 3608-59.

United States District Court District of Columbia.

January 30, 1963.

Lawrence J. Simmons, Washington, D. C., for plaintiffs.

Chester H. Gray, Corp. Counsel, and John A. Earnest and William R. Kearney, Asst. Corp. Counsel, Washington, D. C., for defendant District of Columbia.

Edward C. Donahue, Washington, D. C., for defendant Sinclair Refining Co.

HOLTZOFF, District Judge.

This case is now before the Court for an adjudication of a cross-claim for indemnity interposed by the defendant District of Columbia against its co-defendant Sinclair Refining Company. The action was brought by a woman and her husband against both defendants, to recover damages for personal injuries sustained by her as a result of a fall on a public highway. The District of Columbia filed a cross-claim for indemnity against its co-defendant. It was agreed that the cross-claim should be determined as a matter of law by the Court after the jury returned a verdict on the issues raised by the complaint and answer. A verdict was rendered in favor of the plaintiffs against both defendants.

The following facts are uncontroverted. The plaintiff Pauline Nordstrom was walking in a northerly direction on the sidewalk in the 200 block of 5th Street, Northeast, in Washington, D. C. A public elementary school of the District of Columbia, known as Peabody School, is located in that block. A driveway leading to the rear entrance of the school building was cut across the sidewalk. The driveway had a slight incline in order to merge into the street pavement at the curb. When the female plaintiff reached this point, she found her progress blocked by a truck of the defendant Sinclair Refining Company, which had been backed by its driver into the driveway and parked in a manner to occupy the entire width of the sidewalk, except for a distance of two to three feet adjoining the curb. The truck was delivering oil to a private dwelling which adjoined the school. In order to proceed the plaintiff found it necessary to walk around the front of the truck, and had to step down to the part of the driveway immediately adjacent to the curb. She stumbled and fell over a hole in the driveway, sustaining the injuries of which she complains. The undisputed testimony is that the hole was one to one-and-a-half inches deep and three or four inches wide, and had existed for several years.

The District of Columbia was deemed liable on the ground that it was guilty of a breach of its duty to keep the public highways of the city in a reasonably safe condition, and failed to repair a substantial defect after having had constructive notice, District of Columbia v. Woodbury, 136 U.S. 450, 463, 10 S.Ct. 990, 34 L.Ed. 472; Elliott v. District of Columbia, 82 U.S.App.D.C. 64, 160 F.2d 386. In this instance, the hole in the sidewalk was not a mere minor depression or a minute deviation from the level of the street, but manifestly constituted a serious danger and hazard. The existence of this condition for several years was much more than sufficient to give constructive notice to the District of Columbia. Ordinarily, several months, or at times even a few weeks, would be enough for this purpose.

The co-defendant, Sinclair Refining Company, was held liable on the following basis. Its truck was parked on the sidewalk in violation of traffic regulations. This unlawful obstruction interfered with the passage of pedestrians and compelled them to go around the truck in order to pass. While so doing the pedestrian was injured by a fall on a defective part of the pavement, something that would not have happened if she had been able to continue walking along her direct route. Consequently the creation of the obstruction as a result of the illegal parking, constituted one of the proximate causes of the pedestrian's injuries. Hartford v. Silverman, 109 Cal. App. 587, 293 P. 660; Shafir v. Sieben (Mo.), 233 S.W. 419, 424, 17 A.L.R. 637; Mecchi v. Lyon Van & Storage Co., 38 Cal.App.2d 674, 102 P.2d 422, 429; Garibaldi et al. v. O'Connor, 210 Ill. 284, 71 N.E. 379, 66 L.R.A. 73.¹

In passing on the cross-claim it is necessary to distinguish between contribution and indemnity. The former apportions damages as between joint tort-feasors on an equal basis in proportion to their number. If contribution is permitted, any one of them who pays more than his share of the damages, is entitled to be reimbursed proportionately by his fellow tort-feasors. On the other hand, indemnity is a right to complete reimbursement on the part of one tort-feasor as against another for the entire amount that the former has been compelled to pay. It is based on a contractual obligation implied in law or a quasi-contract. The rigid doctrine of the common law which barred contribution as between joint tort-feasors, has been abandoned or at least modified in a number of progressive jurisdictions. Thus in the District of Columbia Circuit, the old rule was discarded and a doctrine providing for contribution between joint tort-feasors was adopted by judicial decisions, George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219.

In discussing the subject of indemnity, it seems desirable to classify joint tort-feasors into several categories. First, in some instances joint tort-feasors commit one act of negligence in concert. Naturally, no right of indemnity exists as among them. The second class comprises situations in which the joint tort-feasors are guilty of separate tortious acts, either simultaneously or in chronological sequence, the several acts in combination constituting proximate causes and leading to the plaintiff's injuries. This class may, in turn, be subdivided into two groups: cases in which the negligence of each tort-feasor equally contributes to the final result, where also there is no basis or reason for indemnity; and, second, cases in which the negligence of one tort-feasor is primary or active, and that of the other is secondary or passive. It has been held that under such circumstances the latter is entitled to indemnity from the former.

This doctrine was formulated as follows in McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 328, 107 N.E.2d 463, 471:

"Where several tort-feasors are involved an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. The actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act."

To the same effect are Coates v. Potomac Electric Power Co. (D.C.), 96 F.Supp. 1019; and Aetna Casualty and Surety Co. v. Porter (D.C.), 181 F.Supp. 81.

Still a third category comprehends situations in which one person vicariously answers for the negligence of another. Common instances of this type are cases of a master responding for...