Sinai v. Polinger Company

• Decision Date: 30 August 1985
• Docket Number: No. 82-1139.,82-1139.
• Citation: 498 A.2d 520
• Parties: Kavoos SINAI and Maliheh Sinai, Appellants, v. POLINGER COMPANY and Park Southern Company, Appellees.
• Court: D.C. Court of Appeals

Page 520

498 A.2d 520

Kavoos SINAI and Maliheh Sinai, Appellants, v. POLINGER COMPANY and Park Southern Company, Appellees.

No. 82-1139.

District of Columbia Court of Appeals.

Argued April 26, 1984.

Decided August 30, 1985.

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Sherman L. Cohn, Washington, D.C., with whom Steven M. Paysner, Washington, D.C., was on brief, for appellants.

Austin F. Canfield, Jr., Washington, D.C., for appellees. Willard E. Johnson also entered an appearance.

Before NEBEKER, MACK and BELSON, Associate Judges.

MACK, Associate Judge:

This is a negligence action arising out of an attack on Dr. Kavoos Sinai by a co-tenant in an apartment building in which Dr. Sinai leased office space. Sinai and his wife, Maliheh Sinai, appeal from a jury verdict for defendants-appellees Park Southern Co. and Polinger Co., respectively the owner and manager of the building. The Sinais assign as error, first, the trial court's instructions on assumption of risk, contributory negligence and the standard of care required of the defendants, and second, the admission into evidence of certain photographic and testimonial evidence. Finding no error, we affirm.

I.

Kavoos Sinai, a physician, leased office space at the Park Southern Apartments in the District in 1975. On December 2, 1977, as he was entering the building from its parking lot, he was accosted by a man he did not recognize, who cursed him and slapped him. This man was Willard Johnson, a tenant at the Park Southern. Following this encounter, which lasted approximately three minutes, Johnson proceeded out to the parking lot. Sinai went directly to the apartment's management office and related what had happened to the three employees on duty, and the employees told him that they would call the police. Sinai then went back to the parking lot, according to his testimony in order to obtain some information on his assailant's identity to give to the police when they arrived. From the parking lot entrance he observed Johnson entering a parked car but could not see the car's license plate. He therefore went out into the parking lot, stood in front of Johnson's car, and started to record the license number. Johnson thereupon exited the car with a gun, and fired one shot, which missed Sinai. Sinai reacted by grabbing Johnson and pushing him to the ground, holding him there for approximately five minutes. He testified that he could not control the hand in which Johnson held the gun, however, and he therefore released Johnson and attempted to escape. Johnson immediately fired the gun twice, hitting Sinai, who fell to the ground. Johnson then approached Sinai and fired three additional shots, striking him as he lay on the ground. Sinai suffered severe permanent injuries from this attack.

Sinai and his wife filed this action against Johnson, Polinger Co., and Park Southern Apartments. A default judgment was entered against Johnson, and the jury assessed damages against him in the amount of $1.5 million. Johnson is not a party to this appeal.

The Sinais' theory of liability as to Park Southern and the Polinger Co. was that these defendants were aware that Johnson posed a risk of harm to other tenants in the building, yet had failed either to evict him or to warn other tenants of the danger. The Sinais presented evidence that Johnson repeatedly complained to the apartment management that unidentified tenants were watching him, harassing him, leaving packages in the hall and in the parking lot in an attempt to "trap" him into stealing them, and that other tenants had tried to run him over in the parking lot. In addition, the management was aware that on one occasion Johnson had fired several shots from his balcony into the parking lot, and that on a second occasion he had threatened another tenant with a gun. Following the latter event, the police were called, and Johnson admitted having a gun. The resident manager of the Park Southern also questioned Johnson about the gun, and in addition warned the complaining tenant that Johnson was "off" and that the tenant should avoid getting into a hostile situation with him.

The defendants contended that Johnson's attack on Sinai was not foreseeable, and that in any event Sinai was contributorily negligent and/or assumed the risk by following Johnson to the parking lot instead of waiting for the police, by taking the license number down from an unprotected position in front of Johnson's car, by attempting to disarm Johnson following the first shot rather than escaping, and by failing to hold Johnson until help arrived. The jury was instructed on contributory negligence and on assumption of risk, and returned a general verdict in favor of the defendants.¹

II.

A. Assumption of Risk

The Sinais contend that there was no evidence upon which the jury could have based a finding that Dr. Sinai "assumed the risk" of injury in his encounter with Willard Johnson, and we agree. Nevertheless, on this record — where the propriety of giving a contributory negligence instruction is not challenged, where the defenses of assumption of risk and contributory negligence substantially overlap, and where the assumption of risk instruction actually given was little more than a second instruction on contributory negligence² — we can find no reversible error.

The defenses of contributory negligence and assumption of risk may be viewed as "intersecting circles, with a considerable area in common." W. PROSSER & W. KEETON, LAW OF TORTS § 68, at 481 (5th ed. 1984). In evaluating the propriety of a contributory negligence instruction, the trial court must focus upon the objective reasonableness of the plaintiff's conduct, and must determine whether the defendant has presented evidence that the plaintiff's behavior in encountering the risk departed from the standard of care that is to be expected of the reasonable person in the plaintiff's position. The plaintiff's departure from the normal standard of conduct (his "fault") deprives him of the right to assert that the defendant was also at fault. A contributory negligence instruction is appropriate only if the defense has borne its burden to put forth some evidence upon which a jury could find that the plaintiff, by encountering the risk created by the defendant's breach of duty, departed from an objective standard of reasonable care. As noted, the Sinais do not question the propriety of a contributory negligence instruction based on the evidence put forth by the defendants.

Assumption of risk as a bar to recovery stands on a different theoretical footing, however. The plaintiff is not barred from recovering damages because of his "fault." Rather, the plaintiff must subjectively know of the existence of the risk and appreciate its unreasonable character. RESTATEMENT (SECOND) OF TORTS § 496D (1965).³ Because he elects to proceed in the face of a known danger, the plaintiff is regarded as having consciously relieved the defendant of any duty which he otherwise owed the plaintiff. Being under no duty, the defendant may not be charged with negligence. Thus assumption of risk, strictly speaking, bars an action under a theory of "waiver" or "consent," rather than fault.

Appellees argued in the trial court that Sinai assumed the risk of his injuries by following Johnson out of the parking lot, by tackling Johnson once the first shot was fired, and then by failing to subdue him before attempting to flee. We agree with appellants that under the hornbook definition of assumption of risk, by none of these actions could Sinai in any sense be said to have "assumed the risk" of being shot five times by Johnson. Although Sinai did assume the risk of an altercation, and perhaps of a fistfight between the two men, the gun that Johnson pulled out of his car introduced a "new element" into the situation, see W. PROSSER & W. KEETON, supra § 68, at 489. Sinai had no knowledge that Johnson was armed, and therefore cannot be said to have assumed the risk of a gunfight. This new element escalated the conflict, transforming it from one whose risks were more or less known into one whose potentialities Sinai could in no way have anticipated.⁴

Appellees further contend that once Sinai had knowledge that Johnson was armed — i.e., after the first shot was fired — he "assumed the risk" of harm by charging Johnson and failing to render him unconscious before fleeing. A plaintiff may not be said to have assumed a risk, however, where

the defendant's tortious conduct has forced upon him a choice of courses of conduct, which leaves him no reasonable alternative to taking his chances. A defendant who, by his own wrong, has compelled the plaintiff to choose between two evils cannot be permitted to say that the plaintiff is barred from recovery because he has made the choice.

RESTATEMENT, supra § 496E comment c (cited with approval in Kanelos v. Kettler, 132 U.S.App.D.C. 133, 137, 406 F.2d 951, 955 (1968)); see Martin v. George Hyman Construction Co., 395 A.2d 63, 72 (D.C. 1978) ("the risk is not assumed where the conduct of the defendant has left [the plaintiff] with no reasonable alternative'" [citation omitted]); Dougherty v. Chas. H. Tompkins Co., 99 U.S.App.D.C. 348, 350, 240 F.2d 34, 36 (1957).

Thus, none of Sinai's actions fall within the traditional definition of assumption of risk. Nevertheless, in cases in which the defendant may assert that the plaintiff's actions were negligent — in other words, that he was unreasonable in encountering a known risk or a risk of which he should have been aware⁵ — the defenses of contributory negligence and assumption of risk are often used interchangeably. Where the plaintiff is charged with having contributed to his injury by unreasonably encountering a risk,⁶ as the authors of the Restatement have observed, "[o]rdinarily it makes no difference which the defense is called." RESTATEMENT, supra § 496A comment d. According to the Restatement, "[t]he great majority of the cases involving assumption...