Stevens v. Hall, 12428.

• Decision Date: 06 September 1978
• Docket Number: No. 12428.,12428.
• Citation: 391 A.2d 792
• Parties: Patrick D. STEVENS et al., Appellants, v. Carroll J. HALL et al., Appellees.
• Court: D.C. Court of Appeals

391 A.2d 792

Patrick D. STEVENS et al., Appellants, v. Carroll J. HALL et al., Appellees.

No. 12428.

District of Columbia Court of Appeals.

Argued February 9, 1978.

Decided September 6, 1978.

Jerome E. Murphy, Washington, D. C., for appellants.

Donald P. Maiberger, Washington, D. C., for appellee Joe Roy Blakney.

Harvey M. Katz, Washington, D. C., for appellee Carroll J. Hall.

Before HARRIS and FERREN, Associate Judges, and GOODRICH, Associate Judge, Superior Court of the District of Columbia.^*

FERREN, Associate Judge:

In this negligence action, appellants seek damages for an injury to 14-year-old Patrick Stevens. They claim that appellees Carroll J. Hall and Joe Roy Blakney struck him with their motorcycles during a hit-and-run accident in front of the Stevens family home on Ontario Road, N.W. on August 24, 1975. The motions judge granted both appellees' motions for summary judgment. Appellants seek review of these rulings. We affirm summary judgment for appellee Blakney; the record establishes that he was not involved in the accident. We reverse and remand as to appellee Hall.

I.

Witnesses testified that Patrick Stevens, who was playing with a neighbor at approximately 10:30 p. m., ran into the street from between two parked cars. He was struck by a blue motorcycle, running without a headlight. Witnesses also testified that a red or green motorcycle with its headlight on had preceded the blue motorcycle down the street. One of the witnesses, 15-year-old Pierre Whitney, chased after the two motorcycles and managed to copy down the license number of one of them, which had stopped at a nearby traffic light. Whitney told investigating police officers that he had written down the license number of the blue cycle; but, when the police located its owner, Joe Roy Blakney, they found that the vehicle was green. Appellee Blakney told police that he had been riding his motorcycle in the neighborhood with an acquaintance Carroll J. Hall (the other appellee); that they had visited a friend, Ms. Beatrice Poindexter, on Ontario Road; that because Hall had had some problems starting his cycle when they left Ms. Poindexter's house, Blakney had been running some distance ahead of Hall as they rode their cycles up Ontario Road toward Kalorama Road; that while Blakney was stopped at the first traffic light he had encountered after turning onto Kalorama, Hall had run the red light at that intersection; and, finally, that when they both stopped at a traffic light some blocks later, he recalled Hall's asking him, "Did you see that kid?"

Appellee Hall, who owned a blue motorcycle, confirmed to police that he had been riding in the neighborhood with Blakney on the evening in question, and that because he had to roll his vehicle downhill to jumpstart it, he had been some distance behind Blakney as they rode up Ontario toward Kalorama. Hall claimed, however, that he had turned on his light when he turned his cycle around; and he denied any knowledge of hitting a child on Ontario. The police charged Hall with reckless driving and leaving the scene of an accident. He entered a guilty plea to the latter charge; the first charge was dismissed.

II.

Defendant-appellees' motions for summary judgment rested on separate grounds. Mr. Blakney argued, first, that despite the initial confusion caused by witness Pierre Whitney's statement to police (that he wrote down the license number of the blue motorcycle), there could be no question that it was Hall's cycle, not Blakney's, that struck Patrick Stevens. Second, Blakney contended there was no evidence that he had been involved in a race or any other joint venture with Hall which, under the laws of this jurisdiction, might make him a joint tortfeasor should Hall be held responsible for the accident. We consider both points to be well taken.

Although "[t]he function of the court on a summary judgment motion `is limited to ascertaining whether any factual issue pertinent to the controversy exists,'" Weiss v. Kay Jewelry Stores, Inc., 152 U.S. App.D.C. 350, 352-53, 470 F.2d 1259, 1261-63 (1972) (footnote omitted), and "doubts as to the existence of a genuine issue of a material fact must be resolved against the party moving for summary judgment," Dewey v. Clark, 86 U.S.App.D.C. 137, 143, 180 F.2d 766, 772 (1950); Edwards v. Mazor Masterpieces, Inc., 111 U.S.App.D.C. 202, 295 F.2d 547 (1961), a motion for summary judgment cannot be defeated automatically by reference to a factual dispute in the pleadings. Affidavits and other evidence of record must be considered. Wright & Miller, Federal Practice and Procedure: Civil § 2712. We believe it is clear from the record here that the motions judge was correct: there is no genuine issue of material fact that could lead to a conclusion that appellee Blakney ran down Patrick Stevens.

First, the witnesses unanimously testified that Patrick Stevens was struck by a blue motorcycle; Blakney's cycle was green. Second, all witnesses testified that the youth was struck by the second cycle. Both Blakney and Hall stated that Hall had had difficulty starting his motorcycle and, as a consequence, was running behind Blakney as they rode along Ontario Road. Furthermore, Blakney's statement is undisputed: while he was stopped for the first traffic light after turning from Ontario onto Kalorama, Hall rode through it. Thus, there is no room for dispute over the order in which the motorcycles of Blakney and Hall passed the scene of the accident on Ontario, or over the conclusion that Blakney's cycle, as the first one to pass the Stevens home, did not strike Patrick Stevens.¹

Nor do we find in the record of complaint, answers, interrogatories, affidavits, and depositions any indication that appellee Blakney was engaged in a race or a joint venture with Hall which could serve as a basis for attributing Hall's actions to Blakney for purposes of assessing negligence. In reaching this conclusion, we need not assess the vitality in this jurisdiction of the view adopted elsewhere that all who engage in a race with motor vehicles on a public road are liable for an injury sustained as a result by a third party. See, e. g., Haddock v. Stewart, 232 Md. 139, 192 A.2d 105 (1963). We find nothing in the record indicating either directly or circumstantially that Blakney and Hall had explicitly or implicitly agreed to engage in a contest of speed when they left Ms. Poindexter's house or, indeed, at any point while they were riding together that evening. Testimony by some witnesses that the cycles were ping "fast" is not in itself sufficient to give rise to an inference of racing, even though it might be probative of the liability of a particular driver for any accident which he could be shown to have proximately caused. "Speeding and racing are not concomitant acts, and proof of speeding alone did not prove a race. The gist of racing is competition and the facts must support an inference of some agreement to race." Finn v. Morgan, 46 A.D.2d 229, 362 N.Y.S.2d 292, 298 (1974) (quoted in Walker v. Hall, 34 Md.App. 571, 369 A.2d 105, 112 (1977)).

In the absence of a "genuine issue as to any material fact," defendant-appellee Blakney was entitled to summary judgment, pursuant to Super.Ct.Civ.R. 56.

III.

Appellee Hall's motion for summary judgment was based upon the assumption, solely for the sake of argument, that Hall was operating his vehicle in a negligent fashion. He contends, nevertheless, that the accident was proximately caused by Patrick Stevens' running into the street from between two parked cars without first looking for oncoming traffic and, further, that Hall did not have a "last clear chance" to avoid the collision.

In support of this assertion, appellee Hall argues that (1) the child's violation of traffic regulations constituted contributory negligence per se and, in any event, (2) on the basis of undisputed facts in the record, the motions judge had to find the child contributorily negligent as a matter of law.

As to the first argument, we note that the United States Court of Appeals for the District of Columbia Circuit, in developing the law of negligence for this jurisdiction, has rejected automatic application of the negligence per se rule. See Whetzel v. Jess Fisher Management Co., 108 U.S.App.D.C. 385, 388-90, 282 F.2d 943, 946-48 (1960); Peigh v. Baltimore & O. R. Co., 92 U.S.App. D.C. 198, 200, 204 F.2d 391, 393 (1953). The court, rather, has limited the per se rule to situations in which the violation of a statute or regulation has frustrated its protective purpose. "Violation of a regulation does not, ipso facto, give rise to civil liability unless the regulation is one designed to prevent the sort of harm to the individual relying on it which has in fact occurred." Id. Thus, in the Peigh case, in which plaintiff's automobile collided with a boxcar allegedly parked in violation of a regulation limiting the length of time that railroad cars could be parked on a street, the court held that the per se rule should not be applied for plaintiff's benefit. Because the purpose of the railroad regulation was to expedite traffic and encourage commerce, not to protect approaching motorists, the alleged violation, if proved, could at most be evidence of negligence, not negligence per se. On the other hand, if the jury were to find that the plaintiff had been violating certain motor vehicle regulations, his actions, under the circumstances, would have amounted to contributory negligence per se, since those regulations were designed to prevent the very kind of accident that occurred.²

Even though the per se rule, limited by the "statutory purpose" gloss, has retained its validity, the courts of this jurisdiction have been wary of extending it to minors. In Herrell v. Pimsler, 307 F.Supp. 1166 (D.D.C.1969), an eleven-year-old boy on a bicycle was struck by an automobile. Defendant claimed that the boy was chargeable with per se contributory negligence because ...