Smith v. Executive Club, Ltd.

• Decision Date: 16 February 1983
• Docket Number: No. 80-758.,80-758.
• Citation: 458 A.2d 32
• Parties: Norman A. SMITH, Appellant, v. EXECUTIVE CLUB, LTD. and District of Columbia, Appellees.
• Court: D.C. Court of Appeals

458 A.2d 32

Norman A. SMITH, Appellant, v. EXECUTIVE CLUB, LTD. and District of Columbia, Appellees.

No. 80-758.

District of Columbia Court of Appeals.

Argued April 1, 1982.

Decided February 16, 1983.

COPYRIGHT MATERIAL OMITTED

Lawrence S. Lapidus, Washington, D.C., with whom Lawrence J. Sherman and Robert J. Sher, Washington, D.C., were on the brief, for appellant.

Joel M. Finkelstein, Washington, D.C., with whom Gary A. Stein, Washington, D.C., was on the brief, for appellee Executive Club.

William J. Earl, Asst. Corp. Counsel, Washington, D.C., with whom Judith W. Rogers, Corp. Counsel, and Charles L. Reischel, Asst. Corp. Counsel, Washington, D.C., were on the brief, for appellee District of Columbia.

Before NEWMAN, Chief Judge, and KERN and FERREN, Associate Judges.

KERN, Associate Judge:

Going to a party can sometimes be a trial. In this case, appellant's attendance at a party in a downtown bar and restaurant has resulted in three separate trials for him. The origin of litigation was an altercation which occurred in February 1976 when appellant and a group of friends he joined to celebrate the occasion of a tax refund apparently attempted to leave appellee's restaurant without paying the bar bill.¹ Upon moving toward the door to leave with the group, appellant was "grabbed" from behind by an unidentified person and, in twisting to get away, fell backward onto this person. This individual turned out to be a District of Columbia police officer.

At this point, the manager of appellee restaurant responded to what he believed to be a police officer in distress and pulled appellant up from the floor and held him in a choke hold for approximately 20 to 30 seconds. The police officer told the manager to release appellant, who was then arrested for disorderly conduct. Appellant and a co-worker in attendance at the party who had also been arrested were handcuffed and taken outside to the sidewalk where they waited to be placed in a police cruiser.² Appellant and his co-worker were subsequently taken to the Second District Police Headquarters. Appellant was released later that night, having been held in custody for two to three and one-half hours.

Appellant brought suit seeking damages against appellee restaurant for assault and battery by its manager, who was also a part-owner, and against appellee District of Columbia for false arrest and assault and battery by a police officer. The case went to trial on three separate occasions, once ending in a mistrial and twice resulting in verdicts for appellant but with strikingly different damage awards. The first trial resulted in a verdict for appellant against appellee restaurant on the assault and battery claim and a jury award of $25,000 compensatory damages and $35,000 punitive damages to appellant. The jury also returned a verdict for appellant against appellee the District of Columbia on the false arrest claim in the amount of $25,000 for compensatory damages.³

Both appellees moved for judgment notwithstanding the verdict, a new trial or for remittitur. On May 14, 1979, the trial court granted the defense motions for new trial on the ground, among others, that the verdict was unconscionable and denied their motions for judgment notwithstanding the verdict and remittitur. A second trial began on October 22, 1979, but ended in a mistrial on the following day.

A third trial again resulted in a verdict for appellant against both appellees. However, the damages awarded by the jury against appellee restaurant were $500 compensatory damages and $1,500 punitive damages on the assault and battery count. Further, the jury awarded no damages whatsoever against the District of Columbia on the false arrest count, although the verdict was entered in appellant's favor.

Appellant raises several challenges to these trial proceedings on appeal. As to the first trial, appellant claims that the trial court, in ordering a new trial, erroneously set aside the jury verdict in appellant's favor and urges that we reinstate the original jury verdict. Regarding the third trial, appellant alleges that the trial court erred in denying his motion for new trial based upon several contentions.

We conclude that the trial court, following the first trial, properly granted appellees' motion for new trial, and, therefore, we decline to reinstate the original jury verdict. However, we further conclude that the trial court committed reversible error during the third trial in admitting highly prejudicial and wholly collateral testimony against appellant, and thus find it necessary to remand for a new trial as to both appellees. It is unfortunate that this case must have yet another trial in light of its drawn out litigation history, but we find this to be the only adequate remedy which will ensure a fair and accurate jury verdict to both parties untainted by the harmful and inadmissible collateral evidence introduced during the third trial.

I.

In an opinion dated May 14, 1979, the first trial judge set aside the jury verdict in appellant's favor and granted appellees' motion for new trial on three separate grounds. First, as to appellee restaurant, the trial court concluded that it had erroneously submitted the issue of punitive damages to the jury, since appellant had failed to offer sufficient evidence "regarding participation in, authorization of, or ratification of the conduct of the corporation [restaurant]," and that "the jury had to speculate" on this point, citing Franklin Investment Co., Inc. v. Smith, D.C.App., 383 A.2d 355 (1978); and Woodward v. City Stores Co., D.C.App., 334 A.2d 189 (1975). (Record at 352.) Further, addressing punitive damages, the trial court stated that: "Whether the conduct of [the manager] was intentional, malicious, or willful under the circumstances of the altercation which resulted in the charge of assault and battery did not have a sufficient evidentiary base as well." Id.

Second, as to appellee District of Columbia, the trial court ruled that at trial it had erroneously denied the District's motion for a mistrial after appellant's counsel, during opening statement, mentioned that the disorderly conduct charge against appellant had been "dropped" by the government. There was a conference at the bench over this statement, and the trial judge, after argument by counsel, denied the District's motion for mistrial. However, in the post-trial order granting both appellees a new trial on all issues, the trial court stated:

The jury could well have believed that the dropping of the charge was evidence of lack of probable cause notwithstanding a minimal portion of the instructions to the contrary. Moreover, plaintiff's arguments that no testimony was adduced on the disposition of the charge, that the jury would not have been able to split its verdict, or that the jury would conclude that a suit for false arrest would in all likelihood not have been initiated had plaintiff been convicted of the charges are not well founded. Indeed, such an inflammatory statement, which could not have been admitted into evidence by plaintiff, could cause a jury, simply because of a lack of evidence on the issue, to conclude that there was no defense and defendant was thereby responsible. (Record at 352-53.)

Finally, and in our view most persuasively, the trial court based its order granting a new trial upon the finding that "the damages awarded by the jury in this case, based on the evidence, are shocking. Each award appears to be punitive in nature . . . the verdicts are clearly contrary to the weight of the evidence and must result from sympathy, passion, prejudice, or some other improper reason." (Record at 353.) The court had earlier cited Wingfield v. Peoples Drug Store, Inc., D.C.App., 379 A.2d 685 (1977); and Cox v. Pennsylvania R.R. Co., D.C.Mun. App., 120 A.2d 214 (1956), to support this ruling. Appellant now claims that the trial court erred in several respects in setting aside the jury verdict and ordering a new trial as to both appellees on all issues.

The decision to grant or deny a motion for a new trial is a matter within the discretion of the trial judge and is subject to reversal only for abuse. Murville v. Murville, D.C.App., 433 A.2d 1106, 1110 (1980); Desmond v. Robertson, D.C.App., 211 A.2d 775 (1965); accord, Jacobs v. Goodspeed, 180 Conn. 415, 429 A.2d 915 (Conn. 1980). After examining the trial court's rationale in setting aside the jury verdict and ordering a new trial, we conclude that the trial court did not abuse its discretion in granting a new trial to each appellee on all issues.

Initially, we disagree with the trial court's ruling that appellant had failed to offer sufficient evidence regarding participation in, or ratification of, the manager-owner's action by the corporation to justify the submission of the issue of punitive damages to the jury. Franklin Investment Co., Inc., v. Smith, supra at 358-59. This is not a case in which a security officer employed by a defendant corporation has assaulted a customer during an arrest, and the question becomes one of whether the defendant corporation ratified the employee-security officer's actions. Woodward v. City Stores, supra at 191. Here, the portion of the record supplied by appellant establishes that the restaurant manager was also 50% owner of the restaurant. (Supp. Record at 11-12.) This is a sufficient showing to meet the first requirement if the question of punitive damages is to reach the jury.

However, we conclude that the trial court did not abuse its discretion in finding that appellant had failed to satisfy the second condition necessary to a plaintiff's recovery of punitive damages against a defendant corporation; i.e., presenting evidence of actual malice, wanton conduct, or deliberate violence on the part of appellee's manager-owner. Franklin Investment Co. v. Smith, supra; Wanis v. Zwennes, D.C. App., 364 A.2d 1193 (1976). In addition, we point out that appellant has...