Wilson v. Good Humor Corp.

Decision Date26 March 1985
Docket NumberNo. 83-2333,83-2333
Citation244 U.S.App.D.C. 298,757 F.2d 1293
Parties, 1 Fed.R.Serv.3d 1104 Willis E. WILSON, Rep., Estate of Tomikia Wilson, et al., Appellants v. GOOD HUMOR CORPORATION and David A. Williams.
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (Civil Action No. 82-0440).

William N. Rogers, Shaffer & Rogers, Rockville, Md., for appellants.

Thomas M. Wochok, Washington, D.C., for appellee, Good Humor Corp.

Broughton M. Earnest, Easton, Md., for appellee, David Williams.

Before WALD, HARRY T. EDWARDS and BORK, Circuit Judges.

Opinion for the Court filed by Circuit Judge WALD.

Concurring Opinion filed by Circuit Judge BORK.

WALD, Circuit Judge:

This appeal involves a wrongful death action brought by Willis and Rosita Wilson against the Good Humor Corporation ("Good Humor") and David A. Williams for the death of their three-year old daughter Tomikia. Tomikia died from injuries sustained when she was struck by an automobile while attempting to cross the street in order to purchase ice cream from a Good Humor truck allegedly operated by Williams. At the close of the plaintiffs' case, the district court directed verdicts in favor of both Williams and Good Humor. The court ruled that the plaintiffs had not adequately identified Williams as the vendor involved in the accident and that they had failed to submit evidence upon which Good Humor could be held vicariously or directly liable for the acts or omissions of its vendor. We now affirm the directed verdict in favor of Williams. We conclude, however, that the plaintiffs presented sufficient evidence to permit a jury finding of liability on the part of Good Humor. We therefore reverse the district court's directed verdict in favor of Good Humor and remand for further proceedings consistent with this opinion.


Good Humor has been engaged in the street sale of ice cream products in the Washington metropolitan area for well over 35 years. Until 1980, Good Humor maintained a traditional employer-employee relationship with its salespeople: it owned and maintained its ice cream trucks and it employed drivers to vend its products. See Gammon Testimony, Transcript ("Tr."), Record ("R.") 101 at 4-8. During this period, Good Humor recognized that curbside sales of ice cream created special hazards for its customers, especially children. See id. at 24-25. Accordingly, the company conducted an extensive safety program that included on-site safety training, weekly safety bulletins, periodic slide shows, and the circulation of a general safety manual. See id. at 22A. Good Humor employees were admonished, among other things, to refrain from selling in locations which would require customers to cross busy roadways and, in any event, to assist children in crossing the street. See id.

Prior to the 1980 season, however, Good Humor substantially altered its business format and purported to establish its vendors as "independent contractors." Under this new modus operandi, vendors "purchased" their trucks from Good Humor, with the aid of Good Humor financing, and entered into a "vendor's agreement" authorizing them to sell Good Humor products which they bought wholesale from Good Humor. The vendors could sell ice cream at any price and at any location, they were not on the company payroll, and Good Humor did not supervise their day-to-day activities. See id. at 3-4, 9-10. 1 Good Humor scuttled its entire safety program when it adopted this independent contractor format. See id. at 22A.

On June 9, 1981, Williams purchased a Good Humor truck and entered into a vendor's agreement. See id. at 5. On June 29, 1981, a Good Humor vendor alleged to be the individual named in this lawsuit parked his Good Humor truck on the 4500 block of Benning Road in the northeast section of Washington--after dark at approximately 9:00 p.m.--and began to solicit customers by ringing the distinctive Good Humor jingle bells. See Thelma Hicks Testimony, Tr., R. 93 at 64. Benning Road is a heavily-trafficked thoroughfare, probably servicing more vehicles than any street in the neighborhood. See Patricia Hicks Testimony, id. at 91.

That evening, plaintiff Rosita Wilson and her daughter Tomikia were visiting Rosita's aunt, who lived across the street from the parked Good Humor truck. While Rosita Williams telephoned her husband, she left Tomikia in the care of two nieces. When the Good Humor vendor announced his arrival by ringing his distinctive bells, the nieces obtained ice cream money and proceeded across Benning Road. Unbeknownst to them, Tomikia followed, and, as she attempted to cross the street, several children apparently began shouting at her to return to the curb. When she tried to do so, she was struck by a car driven by Dominic Aluisi. See Thelma Hicks Testimony, Tr., R. 93 at 67-68. Shortly after a rescue squad took Tomikia to the hospital, Tomikia's grandfather, Samuel Barnhardt, arrived at the scene of the accident and questioned the driver of the Good Humor truck. At that time, the driver allegedly wrote his name, address and a Good Humor telephone number on a piece of paper and gave it to Barnhardt. See Barnhardt Testimony, id. at 119.

Tomikia died 11 days later.

On February 17, 1982, the plaintiffs brought a wrongful death action, see D.C.Code Sec. 16-2701, against Aluisi. After initial discovery, however, the plaintiffs amended their complaint to add counts against Williams and Good Humor. 2 Good Humor thereupon cross-claimed against Aluisi and Williams; Williams likewise cross-claimed against Aluisi. The plaintiffs eventually dismissed their claims against Aluisi, apparently because they believed that he could not be found negligent under the circumstances of the accident. See Tr R. 103 at 3-4 (plaintiffs' opening statement to the jury). Defendant Williams could not be located by any party prior to trial. He answered the complaint through counsel who stated that Williams was "without sufficient information to either admit or deny" the plaintiffs' allegation that he was the Good Humor vendor involved in the accident. See R. Item 87 at 2-3. Although there was a significant pretrial controversy over whether Williams was properly served, the district court ultimately ruled that service was proper. See Wilson v. Good Humor Corp., Civ. No. 82-0440, mem. op. at 2-4 (D.D.C. Sept. 3, 1983).

On November 22, 1983, the case against Williams and Good Humor went to trial. The plaintiffs sought to prove that Williams was liable for Tomikia's death under ordinary negligence principles. They sought recovery from Good Humor under theories of direct negligence and under several exceptions to the general rule that employers are not vicariously liable for the torts of their independent contractors. See Tr., R. 103 at 6-8, 10-11. At the close of the plaintiffs' case, both Williams and Good Humor moved for directed verdicts. The district court granted the motions from the bench, concluding that the plaintiffs had not presented sufficient evidence identifying the named defendant Williams as the ice cream vendor involved in Tomikia's death. See Tr., R. 100 at 2. The court dismissed the claim against Good Humor without prejudice, however, and granted the plaintiffs' motion to reopen with respect to Good Humor for the limited purpose "of proving that the David A. Williams who is a party to the vendor's agreement, who has any relationship whatsoever with Good Humor, is, in fact, ... the driver of the vehicle" involved in the accident. See id. at 4. After the plaintiffs rested their reopened case, the district court again directed a verdict in Good Humor's favor. The court concluded that Good Humor was insulated from all liability by the independent contractor rule, that the plaintiffs could not succeed under any exception to that rule, and that the plaintiffs had not offered sufficient evidence to establish liability under a theory that Good Humor negligently selects its vendors. See id. at 4-5. This appeal followed.


The district court concluded that the plaintiffs had not provided sufficient evidence to demonstrate that the David Williams named as a defendant was, in fact, the individual who parked a Good Humor truck on Benning Road the night of Tomikia's death. 3 On appeal, the plaintiffs assert that the directed verdict on the identification issue was improper and that the trial judge also abused his discretion by granting the plaintiffs' motion to reopen as to Good Humor, but denying the same motion as to Williams.

In order to survive a directed verdict motion on the identification issue under Rule 50 of the Federal Rules of Civil Procedure the plaintiffs must offer sufficient evidence to enable a reasonable juror to conclude that Williams was the Good Humor vendor involved in the accident. See, e.g., Klein v. District of Columbia, 409 F.2d 164, 167 (D.C.Cir.1969). As the Supreme Court has explained:

When the evidence is such that without weighing the credibility of the witnesses there can be but one reasonable conclusion as to the verdict, the Court should determine the proceeding by non-suit, directed verdict or otherwise in accordance with the applicable practice without submission to the jury, or by judgment notwithstanding the verdict. By such direction of the trial, the result is saved from the mischance of speculation over legally unfounded claims.

Brady v. Southern R.R. Co., 320 U.S. 476, 479-80, 64 S.Ct. 232, 234, 88 L.Ed. 239 (1943). The plaintiffs contend that the identification issue should have gone to the jury if there was any evidence from which a jury could find that the named defendant was the vendor involved in the accident. Federal courts, however, have decisively rejected this so-called scintilla rule in favor of the Brady standard. See 5A Moore's Federal Practice Sec. 50.02 at 24-32 (2d...

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