Whitt v. American Property Construction, P.C.
157 A.3d 196
D.C.2017Background
- Whitt operated a second-floor hair salon accessed primarily via a narrow 7th Street alley adjacent to a multi-year construction project by Washington Gas, APC (general contractor), 660 Penn, and Stanton.
- Construction allegedly blocked or impeded alley access (boom-lift crane, mini-loader, road signs, port‑a‑potty, stacked bricks, taped-off periods), causing loss of customers and approximately $265,000 in claimed damages; Whitt ultimately closed the salon.
- Whitt sued for tortious interference with business relations, negligence, IIED, and trespass (trespass later dismissed; she settled with 660 Penn and Stanton).
- On the first day of trial, the court (Judge Nash) refused Whitt’s proposed jury instruction on intent (arguing actual intent required), disqualified one of her attorneys (Werner) as a necessary witness for preparing a 2014 income summary, and dismissed the negligence claim under the economic loss doctrine.
- At the close of Whitt’s case, the court granted directed verdicts for Washington Gas on tortious interference and IIED (finding no proof Washington Gas or its agents committed the acts) and limited APC liability to four specific items (boom-lift, mini‑loader, port‑a‑potty, road signs); the jury returned no on APC’s claims.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper definition of "intent" for tortious interference | Intent includes actual purpose OR knowledge that interference is certain or substantially certain to result (Restatement §8A/§766) | Plaintiff must show defendants acted with actual purpose to harm business | Reversed trial court: jury should be instructed that intent includes knowledge that interference is certain or substantially certain; new trial on interference claim required |
| Application of economic loss doctrine to negligence claim | Whitt seeks economic losses from prolonged construction directly affecting entrance; defendants had obligations (permits) implicating her economic expectancies | Aguilar bars recovery of purely economic losses absent a special relationship | Reversed dismissal: court finds a special relationship here (permit terms, prolonged direct impact) — negligence claim may proceed for economic damages; emotional‑distress damages under negligence remain barred |
| Disqualification of attorney Werner | Werner argues summary admissible without her testimony; disqualification unnecessary | Defense entitled to call Werner as witness about preparation of crucial income summary; Rule 3.7 disqualifies an advocate who is a necessary witness | Affirmed: trial court did not abuse discretion; Werner a necessary witness so disqualification proper (though different proof at retrial may avoid disqualification) |
| Directed verdicts and agency (independent contractor vs. agent) | Whitt: evidence supports jury determination that Washington Gas and APC had right to control subcontractors (thus agency), making them liable for subcontractor acts | Defendants: insufficient evidence tying Washington Gas/APC to specific acts; subcontractors were independent | Reversed in part: factual determinations about agency were for the jury; directed verdict for Washington Gas on interference was error; APC limitation to four items also erroneous for retrial (though IIED verdicts affirmed) |
Key Cases Cited
- Newmyer v. Sidwell Friends Sch., 128 A.3d 1023 (D.C. 2015) (articulates elements of tortious interference and IIED standards)
- Aguilar v. RP MRP Wash. Harbour, LLC, 98 A.3d 979 (D.C. 2014) (adopts economic loss doctrine barring pure economic-loss negligence claims absent special relationship)
- Hedgepeth v. Whitman Walker Clinic, 22 A.3d 789 (D.C. 2011) (discusses special‑relationship analysis for duty in negligent infliction of emotional distress and similar contexts)
- NCRIC, Inc. v. Columbia Hosp. for Women Med. Ctr., 957 A.2d 890 (D.C. 2008) (standard for reviewing denial of jury instructions)
- Judah v. Reiner, 744 A.3d 1037 (D.C. 2000) (agency liability principles distinguishing agents from independent contractors)