*1 depositor’s to the the insurer as successor subject superior
rights should not be
equities could not doctrine which bank depositor. to defeat a suit
have raised here, spelled out in
Relevant the UCC has conflicting resolved views as to the
detail and depository which a bank
circumstances under depositor held liable to its in cases
should be forgeries. supra. note 3 The relative See
certainty provided thus should not be dis- amorphous balancing equi-
carded for an where, by express agreement, an insurer
ties squarely depositor’s shoes.
stands reasons, first
For the above we answer the question negative.10
certified hereby copy to transmit a
Clerk is directed opinion
of this States Court of United
Appeals for the District of Columbia Circuit parties.
and to the ordered.
So COLUMBIA, Appellant,
DISTRICT OF BANKS, Appellee.
Ferdinand
No. 92-CV-928. Appeals.
District of Columbia Court
Argued May Aug.
Decided personal property, assigna- and from direction of the freer torts to real or law has been Baker, frauds, deceits, supra, wrongs whereby bility of choses in action.” and other diminished, estate, explain: personal, injured, went on to F.2d at 691. That case real or (quoting damaged. 4 John N. Id. at 691-92 things pass All in action which survive and (5th Jurisprudence § 1275 ed. Equity Pomeroy, personal representatives a decedent Hence, 1941)). general assign- rule allows assets, or as liabilities creditor as continue event, appel- ment most tort claims. In against or, representatives debt- of a decedent assign- dispute validity of the lee does not general assignable. All which are in thus ment here. survive, with the do not thus but which die debtor, person are not of the creditor or of question in the classes, 10. Since we answer the first assignable. The first of these accord- longer negative, appears second prevailing throughout to the doctrine pending States, to be "determinative of the cause arising from United includes all claims certifying required by D.C.Code such court” express implied, with certain well- contract ll-723(a) do not reach it. exceptions; and we therefore defined and those *2 Counsel, Schwab, Corp. E. Asst. Edward Corp. Payton, Counsel whom John filed, Charles L. time the brief was Counsel, Reischel, Washington, Deputy Corp. DC, appellant. on the brief for were DC, Saulter, Washington, Benjamin F. appellee. FARRELL, SCHWELB and
Before PRYOR, Judges, Senior Associate Judge.
SCHWELB, instruction, however, Judge: contrary but on the ef- Associate fectively invited it. We therefore conclude $360,000 juryA awarded Ferdinand Banks erroneous, although the instruction was against personal the District of Columbia for n plain there was no error. Because the injuries suffered Banks when ear was gent supervision finding supports alone *3 struck a stolen automobile which was verdict,1 because, view, and in our none of being operated by seventeen-year-old Antho- justifies the District’s other contentions re- ny capture by In Webb. order elude versal, judgment we affirm the without Metropolitan officers of the Police reaching the substantial and difficult issues (MPD), Department recklessly Webb drove relating to Banks’ claim in Count I of high speed. eventually and at a rate of He in the conduct of the through lights ran several red and crashed concurring opinion But see the Fae- into Banks’ automobile. rell, post, addressing issues. Banks claimed on two different but related grounds responsible that the District was injuries. complaint, In Count I of his he I. alleged Hyder grossly that Peter Officer was negligent conducting in in the chase and THE EVIDENCE failing to and terminate A The Pursuit. pursuant
was therefore hable to him II, § 1-1212 In D.C.Code Count 13, 1989, February employee On Banks asserted that Melvin L. Congress reported United States that her supervised negligent Scott Am black 1986 Pontiac Grand had been sto- response specific interrogato- In manner. parking Congressional len from the lot in propounded ries to them in the form Washington, southwest D.C. The automobile trial, jurors at the conclusion of the found tags. had New York [Hyder] grossly that “the officer” was following day, Alphonso On Officer gent “high speed and that the chase” patrolling McAllister was a scout car negligent District “was School, High area Wilson which is located conducting pursuit.” officer Streets, Chesapeake at 40th and At N.W. The District filed a motion for p.m., about 1:00 McAllister a car Officer saw or, notwithstanding the verdict in the alter tags cruising York with New the Wilson native, judge for a new trial. The denied the High speed. area at a normal rate of School opinion motion a written memorandum dispatcher, requesting McAllister radioed his and order. Banks v. District of tags,” she “run the and learned (Super.Ct.D.C.1992) Daily Wash.L.Rptr. reported By automobile had been stolen. I). (Ban appeal, the On ks time, Am, who driver Grand the evidence was insuf contends that Webb, proved Anthony later had left prove Hyder ficient a matter of law radioed other the area. Officer McAllister in negligent, judge was units to be on the lookout for the automobile. jury incorrectly structed the both with re later, car Moments McAllister saw stolen spect claim and with again point able to reach within claim, negligent respect supervision apparently three of it. Webb saw blocks and that the made several erroneous action, McAllister, however, and took evasive evidentiary rulings. and other him. and McAllister lost agree with the District that the trial We spotted by The stolen Grand Am was soon judge incorrectly instructed the Willis, David had monitored the plaintiff required only ordinary Officer who to show By transmission. the time Willis had negligence, gross negligence, rather than radio around, however, prevail supervision Webb order to turned his vehicle thereafter, object Shortly claim. The him. Officer District did not had eluded discern, grossly negligent pursuit, damages 1. So far as we can Banks' to those caused contrary. resulting negligent supervision from are identical the District has not asserted the Testimony. Expert Hyder driving the on Ne- C. saw Webb vehicle Hyder Military Road. Avenue near braska Robert J. DiGrazia plaintiff called Webb, him, sight of attempted to follow lost vari- expert DiGrazia has held witness. again Military him Road and then saw enforcement, the most positions in law ous Street, pass other zig-zagging to near 27th of Mont- of Police which was Chief recent of emergency equip- on his testi- Maryland. turned DiGrazia County, ears. gomery through care applicable to follow Webb standard ment and continued fied that terminating is established police pursuits streets Rock Creek Park on several 301.3, by plans lesson Order MPD General Travelling east on Missouri Ave- the area. regu- training, a traffic MPD used in School, Elementary Brightwood past nue excerpts chiefly He relied lation. Street, running right on turned 13th Webb *4 Order, the Order and described the General Heading he made light red the turn. pertinent part as follows: in speeds estimated at on 13th Street at south hour,2 fifty per went eighty miles Webb pursuit or- it states Under vehicle fights at through successive Colorado red der: ultimately Kennedy He
Avenue and Street. ap- police pursuit is to object vehicle, which travel- Banks’ causing broadsided un- prehend a law violator without ling Kennedy on Street. Banks suffered east involved necessary peril to members injuries. flee on attempted property of citizens. persons serious Webb or and the foot, alley apprehended him in an Hyder says: And the next one near crash site. that unnec- it becomes evident Whenever injury citi- damage or
essary property department may of the zens or members the Pursuit. Supervision B. The pur- pursuit, result from vehicular patrol supervisor Sergeant Scott was the immediately discontinued. suit shall be Hyder, February 1981. Officers policy procedure it pursuit And then in and under his com- McAllister and Willis were says: Scott was his scout car at the mand. initiated, compli- pursuits, once Vehicle from the time Officer Second District station order, provisions shall of this ance with the cruising first near McAllister saw Webb Wil- with the fol- be conducted in accordance chase, High until the end of the son School is that lowing procedures, and one them Hyder Scott when Officer arrested Webb. authority control and coordinate during listened to the radio transmissions Com- pursuit in the Watch shall vested and the accident scene period this went to Division. mander Communications shortly after Webb’s arrest. termi- talks about the And another section Sergeant had the supervisor, As a Scott nation. authority Hyder to termi- to order Officer immediately, and immediate- Members will testified, however, pursuit.
nate the Scott underlined, pursuit, discontinue He moni- that he saw need intervene. Division notify the Communications transmissions, and he believed tored all radio words, exist, in other whenever conditions Hyder Hyder was calm and that Officer conditions, roadway pavement or weather under control. The weath- conditions, considerations, had the situation vehic- rush hour preclude pursuit, for it er did not congestion, conditions pedestrian traffic ular and chase, day, vehicle, sunny and the roads speed was a clear speed of the po- me, handling Offi- dry. believed that were Scott mechanical excuse vehicle, reliable offi- of the violation Hyder, experienced cer lice seriousness force, offense, ve- twenty such that further years on the or becomes cer with reasonable lead a hicular assess the situation himself. cruising speeds. police pursuit, became aware of the 2. Before he operated at normal had the stolen vehicle Webb person to believe unnecessary proper- part Hyder, and on the correctness ty damage injury citizens or per- incorrectness of the department may members of result. mitting to find police general basis of a violation of the opinion, DiGrazia testified that in his standing order alone. Because we are com- standards were violated in this case Offi- pelled to affirm the on the basis of Hyder’s cer failure to terminate the jury’s negligent as to Banks’ su- Anthony Webb. He opined further claim, however, pervision we do not reach the proximate failure was the cause of relating issues Hyder’s alleged gross neg- injuries. that, Banks’ DiGrazia also stated ligence. opinion, Sergeant Scott violated the Gen- by failing eral Order to direct Officer Employee District of Columbia Non- to terminate the Liability precludes Act the District from as expert The District’s serting governmental witness was Glenn R. the defense of immuni Murphy, qualified who expert ty as an cases opera from the management law enforcement tion training employee, a District scope within the and in pursuits. Murphy employment, testified that his or her of a vehicle owned under a applicable standard of care through- or controlled the District. 1- D.C.Code *5 States, (1992).3 out the police United officers pro have a Section 1-1212 further duty vides, or responsibility pursue Mur- felons. that “in the case of a claim phy pursuit defined a activity as an operation out of the emergency of an occurs after an attempted officer has stop emergency vehicle on an run the District automobile turning emergency shall gross negligence.” be hable It equipment sirens), (lights and undisputed and after the is operated cruiser driver has stop refused to attempted Hyder and has during pursuit Officer of Webb police. to elude According Murphy, emergency was “an vehicle emergency on an 1-1211(4). actual § this ease continued for run.” less See D.C.Code than a mile. He testified that reason- charging jury, While judge the trial ably prudent officer would have pursued defined, between, and differentiated gross circumstances, Webb under the and that Of- negligence ordinary negligence. In con- Hyder ficer did not violate the MPD General 1-1212, formity correctly with he instruct- Order or the nationally accepted standard of that, jury ed the in connection with the chase care. itself, required Banks was to show that Offi- Hyder cer grossly negligent. re-With
II. spect negligent supervision claim, how- ever, judge jurors told the “negli- THE NEGLIGENT SUPERVISION gent supervision, goes ordinary negli- ISSUE added). gence.” (Emphasis He then defined Requirement A The Negligence. ordinary Gross negligence as Banks, noted, ordinary as we have failure to exercise asked that care. Thus, liability imposed against negligence doing be something per- the District on a separate ordinary two son theories. first in who uses care His claim wouldn’t do or doing Hyder’s alleged gross something person using volved Officer a negli ordi- gence nary care of Webb. The would do. second alleged was based on Detective Scott’s ordi jurors unambiguously were thus told nary negligence the chase. that the District could be liable on a court, In parties gent supervision have focused theory if represen- even primarily sufficiency insufficiency tative of the District was found to have been gross negligence evidence to show grossly negligent. noted, 3. Unless otherwise all further references edition. to the District of Columbia Code are to the 1992 Scott, error, gross negligence, geant rather than
The District contends that this was contrary to the statute and erroneous.4 agree. in this case was and we Banks’ claims emergency operation of arose “out of the run,” emergency on an within
vehicle
Error.
B. Plain Error and Invited
pur-
s
meaning
§of
1-1212.
It was
District, however,
objected
never
activity
prototypical
suit Webb—the
instruction,
express any
nor did
to this
alleged
applies
§ 1-1212
Scott is
which
—that
directly or indi
with
either
dissatisfaction
negligent maimer.
supervised in
to have
contrary, at
conclusion of
rectly. On the
terms, §
unambiguous
1-1212 was de-
By its
Corporation
judge’s charge, the Assistant
pur-
signed to limit the District’s
her dissatisfaction
Counsel reiterated
which
suit cases to those situations
judge’s
representative of the District was
of a viola
on the basis
negligent.
generally
See
Faerell’s
order,
pp. 975-
general
see
tion of MPD’s
concurring opinion, post at 983.
say a
about
supra,
did not
word
but she
negligent supervision claim.
surely
incongruous,
light of
It
gross negli-
statutory requirement
Moreover,
effectively
the District
invited
injured
gence,
suggest
plaintiff
sole-
negligent supervision as
to treat
ordinary
by a
negligence
result of
ordinary negligence rather
than
requiring
against
supervisor can recover
the District.
gross negligence.
Prior
requires
showing of
plainly
The statute
Counsel
charge,
Corporation
the Assistant
acting for the
negligence
someone
Proposed
to the court “Defendant’s
tendered
supervisor’s
treat a
District. To
Form,”
inquired of
would have
Verdict
which
the con-
as sufficient would “cut
I
in relation to Count
*6
significantly
cept
cripple
too fine and could
flee-
grossly negligent
in
“was
expressly incorporated in the
the limitation
felon,”
ing
have
as to Count
but would
asked
immunity
governmental
District’s waiver of
super-
negligent
II
the District “was
(1987).”
provided for
1-1212
in D.C.Code
(Emphasis add-
vision of its
officers.”
Columbia,
Abney
A.2d
v. District
580
ed).5
of
(D.C.1990).
1086,
As
in Ab-
1041
we noted
Superior
Rules
Rule 51 of the
Court’s
immunity
ney,
...
of
are
“generally
waivers
provides
pertinent part
in
of Civil Procedure
narrowly.”
to be read
Id. We therefore
that
judge’s instruction to
conclude that the trial
giving
party may assign as error the
negligent
to
jury,
[n]o
the effect
Banks’
by prov-
give
to
an instruction unless
out
or the failure
supervision claim could be made
party objects thereto before the
part of
negligence Ser-
decide,
objection,”
required by
opin-
grounds
Su-
Although
of the
4.
we
in Part II.B. of this
added).
text,
ion,
(Emphasis
plain
per.Ct.Civ.R.
See
error or invited
51.
that there was
error,
infra,
our conclusion in Part II.A.
necessary
is
to
instruction was erroneous
v.
on Sebastian District
The District’s reliance
case,
part
disposition of
thus
of our
our
Columbia,
958,
(D.C.
& n. 2
A.2d
636
of
holding
dictum.
our conclu-
rather than
Absent
1994)
unavailing.
not
Sebastian did
is likewise
gross negligence requirement of
sion that the
object
to a
instruction at
a failure to
involve
negligent supervision
applies
§ 1-1212
all,
opinion
of the
no discussion
and the
contains
count,
required to
the issue
we would be
address
consequences
or of the “dis-
of such a failure
would be shielded from lia-
whether
objection
must
with which such
tinctness]”
bility
public duty doctrine.
that count
on
Sebastian,
Moreover,
be made.
H.D.,
See Part
infra.
and,
noted in that
appellee
as we
was the
on
properly
the decision
court could
affirm
this
objected
contends that it
sufficient-
below, provid-
grounds
or considered
not raised
by arguing,
support
of its
to the instruction
verdict,
procedural unfairness vis-a-
ed
there was no
the action was
motion for a directed
(citing
appellant.
Id.
v. District
argu-
vis
public duty
Sheetz
This
barred
doctrine.
of
515,
(D.C.1993)).
Columbia,
n.
ment,
519
5
nothing
629 A.2d
do with the de-
had
to
Here,
con-
appellant, and the
District is the
gree
negligence required
to make out
of
claim,
in Sebastian do
plainly
which were decisive
siderations
gent supervision
and counsel
failed-
apply.
distinctly
objected
to and the
the matter
"state
verdict, stating
Joyner
retires
consider its
dist
chase. The District insists that
inctly[6]
decided,
objected
wrongly
people
matter
to and the
and reasonable
grounds
objection.
might
differ on that score.8
Given
simi
cases, however,
larity
judgment
two
language of
recognizes
the Rule
no ex
Banks’ favor is not the stuff of which
exception
plicit
proscription.
to its
We
finding
“miscarriage
justice”
of
of
is made.
judgment
reverse a
an incor
the basis of
Moreover,
for the reasons
stated
instruction, notwithstanding
rect
the lack of a
concurring opinion,
agree that
we
Farrell’s
objection, only
appar
sufficient
it is
“where
(in
“plain”
the error
the sense
ent
the face of
the record that miscar
“obvious”).
“clear” or
v.
See United States
justice
riage of
has
v.
occurred.” Weisman
—Olano,
1770,
U.S. -,-,
113 S.Ct.
Middleton,
(D.C.1978)
996,
390 A.2d
1000
1777,
979 circumstances, question of or- Evidentiary Sufficiency. C. supervis- in part dinary negligence on Scott’s argues “Sergeant The District that ordering in not its ing pursuit, and termi- (or grossly negligent neg even Scott was jury. nation, left properly was to Cf. stop ligent) failing in to to intercede Wash.L.Rptr. Daily at Joyner, supra, 109 point pursuit.” The have a reasonably jury could find that (impartial gross negligence, although, light of to in a failure to terminate officer’s any objec judge’s instruction and the lack of gross negligence on constituted similar chase thereto, tion not decide we need and do part). question. that Insofar as the District claims to the evidence was insufficient show that Duty D. Doctrine. Public part, on Scott’s we are court, In the the District con trial compelled disagree. to tended, remarkably, liability that was barred judge, The trial who was on the doctrine, regard in “public duty” both vantage point superior scene and whose was Sergeant Hyder’s pursuit as to to Officer ours, rejected argument explicitly supervision of it. No distinction was Scott’s denying post-trial his opinion the District’s claims asserted as between Banks’ two I, Daily supra, motions. See Banks applicability that doctrine. relation to the Moreover, in Wash.L.Rptr. at 1610. review cases, including Citing a number of our War ing grant the trial court’s refusal ren v. District of we District’s motion for n.o.v. must (D.C.1981)(en banc), argued the District that light the evidence in the most favorable view subject acts it for the was Etheredge Banks. Colum duty only plain employees if the owed bia, (D.C.1993). 635 A.2d It is special duty person tiff that was case, only in the unusual in which one individual, liability if there that was reasonably drawn conclusion could public general duty at duty evidence, may properly the court any duty large. The District insisted grant Id. such motion. chase, conducting had Officer monitoring had Sergeant or that Scott present In the Scott was large and not to public was owed kept developments in the abreast of the Banks, therefore Mr. and that they He chase as unfolded. knew Webb not be liable. could held offense, suspected property not a of a against impartial jury person. crime An position problem with District’s reasonably find that Scott also knew or that, adopted, court is trial should have known that the was be- contemplates That statute nullify 1-1212. very high speeds conducted at residen- shall be liable District of Columbia early city, tial after- fleeing areas it was injured pursuit of a person daylight, speeding noon in broad injury is result of the wrongdoer if that *8 passed by elementary school at a the gross negligence. vehicles stat- Under District’s ute, expected the could to be can duty time when school be be not to the Moreover, open. injured in such a only persons there was evidence that be owed persons recklessly high speed such pursuit, drove and at and the identities of Webb the advance. only he aware that the officers known to when cannot be duty persons, him; no to such the If District owed were reason- the any rights on § his 1-1212 not confer ably that induced reck- then would the conclude, judge emphatically and anyone. The trial at the We under lessness wheel. City gence applies. Gauvin by sponte, standard the sua whether the Dis- raised court Cf. 1, (1982) Haven, 3 sovereign discretionary 445 A.2d immunity 187 Conn. the New trict's immunity (ordinarily, governmental must be af quasi-legislative acts of its officials could be here, pleadings firmatively asserted in the defendant's presented see waived. No such issue parties opposing concurring post apprise the court and opinion, "to Farrell’s bound, prevent and to concealment just any to be tried other liti- the issues the District is and gant underway.”) Porter, be, trial is In issues until the would 629, see United States emerge (D.C.1992), present until the issue its counsel's n. appealed this court. improvident concession Melton, dence, in In re rejected posi- adopted by initial this court correctly the District’s banc). (D.C.1991) (en tion, apparently and the District has aban- 597 A.2d admissible, if not appeal. depositions doned it on were thus asserted, then at for the truth of the matter contend, however, The District does upon which DiGrazia least to show the basis standard, 1-1212, § with its The District reached his conclusions. negligent supervision apply does not entitled to an instruction well have been (but then) claim, public duty then only for depositions could be considered protects the District from doctrine purpose, request no for such that limited respect to II. That is a far more Count limiting instruction was made the trial proposition than one reasonable which circumstances, the ad- court.11 Under the District asserted in the trial court. We depositions does not warrant mission of held, however, negligent super- have judgment. reversal “arising opera- vision claim is one out of’ the emergency emergen- vehicle on an tion Hospital B. The Records. run, cy and that the stan- accident, apply 1-1212 does to it. Accord- Following dard Banks was ingly, purely hypo- Hospital we need not decide patient Washington at the Center whether, in thetical the absence of hospital his for ten weeks. He testified that statute, negligent supervision $154,338.64. claim received in The bill was bill was against the District based on objection. evidence without failure to terminate the Scott’s hospitalized again on four sub- Banks was duty public barred doctrine. during following year sequent occasions $115,000.00. totalling His and incurred bills
III.
relating to these
bills and medical records
over
admissions were received
evidence
OTHER ISSUES
objection. The District contends
defense
briefly
other conten-
We deal
with three
expert testimony to
that Banks offered no
appeal.
raised
the District on this
tions
being treated dur-
prove that the conditions
ing
hospitalizations were caused
his later
Depositions.
A Banks’ Use of
accident,
were
and that
the records
During
testimony
plaintiffs
ex
therefore inadmissible.
witness,
DiGrazia,
pert
Robert
Banks’ coun
object,
for the District failed to
Counsel
admitted,
introduced,
judge
sel
and the trial
questioned
about
when Banks
depositions
several officers involved in
During
hospitalizations.
subsequent
his
depo
summarized the
DiGrazia
testimony,
he stated the amount
course
reading them to the
sitions rather than
the condi-
hospital
of each
bill and described
The District contends that
verbatim.
No
tions for which he had been treated.
admitted,
depositions
improperly
claim
were
interposed that the evidence was
claim was
“officer,
none of the officers was an
irrelevant,
prejudicial
proba-
than
or more
director,
oppo
managing agent”
party
of a
tive,
any
reason.
or inadmissible for
other
nent,
82(a)(2),
Super.Ct.Civ.R.
see
subsequent objection to the
The District’s
showing was made that
of the officers
containing
records
essential-
admission of the
testify
person.
was not available
resembled a demand
the same information
deciding,
Dis-
Assuming, without
that the
the barn door after the
lock
objection,10
preserved
and that the
trict
*9
fled.
horses had
depositions
inadmissible as substantive
were
may very
be correct
its
The District
well
evidence,
that sworn testimo-
we are satisfied
laid to
that no sufficient foundation was
view
“reasonably re-
ny by the officers would be
documentary
the relevance of the
particular
establish
upon by experts in the
field.”
lied
objected. By
the time
Rules of Evi-
evidence to which
See Rule 703 of the Federal
Melton,
Banks,
supra,
inquiring as follows negligence: Foreman Forewoman would, however, helpful, 12. It have been 9 Cf. Wright Charles Miller, R. A. & Arthur I, identify inquiry in Count officer as at 507 & Procedure, Practice Federal name, being inquiry (1971 whom the by made jury] Supp.1994) [to & ("A role in a material the existence of should not assume controversy is so ... evidence fact unless the heading in a In criminal "Murder” reach but that reasonable men could conclusive surely *10 form not be taken as mean- verdict conclusion”). one judge that the the defendant to be believed guilty of murder. allegation you plaintiffs 49(a) 1. How do special permits Rule submission grossly negligent District of Columbia was fact, juries on issues of interrogatories to fleeing the felon? presents a mixed if an issue plaintiff- For: the may if the be submitted of fact and law defendant_ the legal standards jury is instructed as to the you plaintiff, District of If find for the is the special applied; the form of the to be legal negligence proximate gross the Columbia’s to mislead or should be such as not issues accident? cause of the jury. confuse the No Yes omitted). original; footnotes (Emphasis in repeated two-step format The District Scott, with which we analysis the Given negligent supervision count relation to the concur, leap in the trial verdict questions and then concluded 3 and gross negligence and form from proposed form as follows: directly damages, without supervision your to Nos. and above If answers cause, is somewhat proximate reference “no,” you If stop are here. answered problematical. “yes” please 2 or answer the to Nos. were, appropriately jurors following: occasions on the issue instructed on several amount, any, you if do award 5. What judge proximate cause. Just before damages? plaintiff for his jury, form to the he explained the verdict proposal consistent with plaintiff The District’s the burden was on stated that evidence, have by preponderance court’s instructions and would of the prove, neg- negligence gross presented by the ver- problems that the defendant’s avoided proximate cause of acci- ligence was the proposed by plaintiff and used dict form discussing Shortly the verdict after dent. judge. form, again proximate judge focused Superior Rules of Rule 49 of the Court’s jurors if explained He cause. Procedure, identical to its fed- Civil which is negligent or they that the District was found judge counterpart, authorizes the trial eral plaintiff “the re- grossly negligent, then only special verdict require to return damages which portion of the cover accompanied general verdict or to return from the defendant’s proximately resulted interrogatories. Accurate answer[s] negligence.”15 special impartial phrasing of the verdict and proxi- although conclude that We therefore impor- interrogatories or of the specifically mentioned mate cause was not explained in tant. As the court Scott form, appreciable there is the verdict (4th Co., 327 F.2d Cir. Isbrandtsen jurors believed that possibility that 1964), proving plaintiff prevail without has in the use of trial court discretion [a] evidence that the Dis- preponderance of the is not special and this discretion verdicts wrongful proximately caused trict’s conduct respect such the decision with limited to injuries. Accordingly, although some of beyond to the form of the use but extends phrasing form was infelici- interrogatories deci- once such submitted tous,16 constitute error its use did not war- Although the court is vested sion is made. ranting judgment. reversal as to the form with a wide discretion interrogatories, all mate- substance IV. be covered rial factual issues should CONCLUSION questions submitted. The number reasons, foregoing For the issues, they present the case form of hereby appealed from is
fairly, resting in the sound are matters Generally, judge. of the trial discretion Affirmed. candidly jury, with re- objection judge’s repeated 16. The advised
15. There was no negligence form, negligence gard allusions to that "I'm still not satis- to the verdict alternative, conclusion, elaboration on without further but the trial is at the fied with required kind of which fighting.” I'm tired particular situation under discussion. *11 length FARRELL, concurring: judge quoted at from Judge, 301. The trial Associate Order, the cir the General which describes agree I with the court that the evidence an should termi cumstances in which officer so, sufficient, my barely though was view jury: pursuit, then told the nate a vehicle and jury negligence permit to a find to “Now, you foregoing ... find that the Scott,1 part Sergeant of ... violated ... Order has been General ap- plain analysis under error the erroneous ... you gross negligence then plication simple negligence of a standard a appropriate to return enough it would be conduct is not to warrant Scott’s is incom My plaintiff.” the This instruction analysis, differs for reversal.2 majority’s holding Abney the I add this enough patible from with our (D.C.1990), 1036, 1041 opinion. brief A.2d “serves the the same General Order First, my convinces review of the record operating purpose of internal manual” and an reasonably juror me that no rational “purport implicate the District’s does Hyder have found that Officer was § immunity” in 1- governmental waiver conducting On the chase. words, “provide[s] it offi 1212—in other here, negli finding gross facts presented a they guidance per should by cials with how gence marked “a wanton — action ... or disregard others in form those mandated statute [an reckless duties State, offender],” Boyer regulation regulation” 323 Md. is not itself (1991) obliterate may support find whose violation itself — would statutory negligence distinction between negligence. negligence, gross let alone gross negligence critical to limited waiver jury A have told the proper instruction would § immunity in D.C.Code guidance heed of the that a failure to (1987) § Bear in mind that 18 DCMR 2002 consider, general order was factor it could exempts police conducting a vehicle officer Hyder but that whether determination per ig from the se unlawfulness of grossly negligent made con must be lights noring stop signs “[e]x- red or sidering totality of the circumstances. prima speed ceed[ing] the limit....” facie Nevertheless, indicated, agree as I therefore, Hypothetical ordinary negligence, government’s challenge failure the ordi- necessarily mean that the officer id,., nary negligence as to acts, re “privileged” without due sponsorship of that instruc- gard and the Scott —indeed attendant circumstances judg- they safety risk created It unable reverse the for the of others. tion —leaves us ment, finding gross negligence given sufficiency follows that of the evidence of my required part. recklessness the statute must simple negligence Scott’s But aggrava demand some additional feature of reasoning I somewhat here well. differs as, example, ignoring radio that, read, tion —such agree properly court with the supervising of one’s ter command officer to 1-1212 limits District’s minate the chase —that no one has identified case either of record. supervising pursuing officer or of an officer police station. Second, submitting the error in reasoning expansive most natural count as to Officer operation phrase “a claim out compounded jury by an erroneous emergency emergency of an vehicle on to find instruction which allowed added) (emphasis run” is that embraces Hyder grossly negligent upon based a find- more, participating in the the conduct of officer ing, he had Met- without violated chase, or as immediate ropolitan Department Police General Order whether driver Scott, disposition barely agree say I so I also with the court’s because 2. ante, (Hyder) twenty years’ experience on beginning officer "Other Issues” force, thought police implausibly car, Hyder, the driver was in position to whether terminate best *12 984 But, recognized not Id. Other courts as well have
supervisor. since the sovereign immunity pro- that when aims to object ordinary negligence as standard discretionary judgments, jurisdic- tect it is a officer, analysis our is tional suit that cannot be waived. bar to governed by plain principles, error which Comm’rs, E.g., County Board 764 Pickle v. any require at the outset error be of “ 262, (Wyo.1988). case P.2d 264 But this “plain.” is synonymous ‘Plain’ with ‘clear’ ” discretionary “quasi- involves of no issue or, equivalently, United v. ‘obvious.’ States decisions,” legislative policy — McKethean Olano, U.S. -,-, 1770, 113 S.Ct. 708, (D.C.1991), WMATA, 588 A.2d 713-14 1777, meaning 123 L.Ed.2d The 508 legislature has nor is it a case where the including of “a claim as con- out of’ sovereign altogether waiving refrained operator others an duct besides of immunity respect to claims of the tort “obvious,” emergency vehicle is not such present Stein v. type. Southeastern Cf. government can excused for hav- not Michigan Family Planning Project, 432 indeed, having sponsored ing argued it— (1989) 198, 76, Mich. 438 N.W.2d contrary meaning the trial court. —before (“[F]ailure immunity plead sovereign will provision limiting the District’s The a waiver because ‘failure constitute (for “arising operation an claims out of of plead ... a cause the defense cannot create vehicle”) emergency qualifies the antecedent ’ ” (cita- of action none where existed before governmental immunity for waiver of claims added). omitted; emphasis legisla- tion injury wrongful of caused act of having ture suit acts or allowed for these employee “occurring result of 1-1212, sovereign § immu- omissions in “the operation by employee such ... of a jurisdictional nity bringing doctrine’s bar (em- ... ...” vehicle owned suit,” Powell v. District added). phasis regulation, implementing (D.C.1992), implicated A.2d is not 2002.4, likewise DCMR states why in this and I see reason provisions [exempting “[t]he this section government attorney’s assert the failure to emergency driver of an vehicle’ from ‘[t]he negligence standard as to the regulations] traffic shall not certain relieve supervisor should not be treated like emergency driver of an authorized vehi- party preserving an other default of a duty regard cle from the to drive with due issue. safety ...” persons (emphasis all added). And, indicated, the District’s at-
torneys this shared limited view the stat-
ute’s reach the trial court. As could not trial
have been “obvious” to the that an employee super- under the included a statute OF COLUMBIA PRESER DISTRICT driver, as well as the I do not how visor see LEAGUE, Petitioner VATION reverse on of an we can the basis jointly give. parties urged him to agree
Finally, I court that is with the AND DEPARTMENT OF CONSUMER legal AFFAIRS, give where we not a case effect REGULATORY Respondent. attorney’s government to a failure assert immunity. aspect sovereign Our state Corporation, Intervenor. Scoville Street ment in District Columbia v. North Wash No. 93-AA-198. Inc., 143, 148 ington Neighbors, n. 7 (D.C.1976), sovereign immunity is “since Appeals. District of Columbia Court issue, jurisdictional appellate court Argued March 1994. obliged on its own to consider even motion Aug. 22, Decided be,” need made context Sept. As Amended determining governmental whether certain “discretionary” or acts were “ministerial”— immunity sovereign District’s “sur-
viv[ing]” for the former not the latter.