*1 appellee to of Columbia court order with the terms of the Canadian comply defense Appellee’s only asserted
decree. decree. We invalidity prior
was the allow- had no notice
conclude presentation of evi- prepare him to the children regarding the needs of
dence care.3 ability provide for their
and his
Affirmed. COLUMBIA, Appellant,
DISTRICT OF
v. COOPER, Appellee.
Mary C.
No. 80-206. Appeals.
District of Columbia Court
Argued Sept. Banc 1981. En May
Decided pendente permanent, support, preclude appel- lite and judgment herein does not 3. Our courts. bringing for child District of Columbia action a future lant *2 injuries resultant proximately caused by negligent the District’s failure to main- tain walkway in a reasonably safe con- Following dition. of denial the Dis- trict’s for a motions directed verdict at the close of appellee’s again and at close of all the the case was sub- jury mitted to the which returned verdict $30,000 of of appellee. Judgment in favor was entered in Ap- accordance therewith. pellant’s subsequent a judgment motion for non having denied, obstante veredicto been this appeal appeal, was taken.1 On we are Gorman, Counsel, Leo N. Corp. Asst. with presented question: one with whether there Rogers, Corp. Counsel, whom W. Judith was sufficient evidence to Sutton, Deputy David P. Counsel Corp. at jury’s conclusion that the of Colum- briefed, the time the case was and Thomas bia, by any negligent act, act or failure to Counsel, Medford, A. Corp. Asst. Wash- proximately injury appellee.2 We ington, C., brief, D. were on the for appel- jury find supported verdict is by lant. sufficient evidence and therefore affirm. Cribari, Va., Stephen Arlington, J. filed I petition banc, rehearing ap- en for At approximately p. 7:00 m. on March pellee. 1977, Mary Cooper and companion, Fran- NEWMAN, Judge, Before Chief Fuller, ces arrived at the Lorton Reforma-
KELLY, KERN, NEBEKER, HARRIS,* tory for the purpose of an inmate. MACK, FERREN, BELSON, PRYOR and Having “processed” been at visitors’ Associate Judges. trailer, emerged the two women from the trailer onto a brick walkway. walkway
PRYOR, Judge: was the route which led to the visitors’ This matter arose out personal injury lounge. Cooper of a ap- testified that took by appellee, Mary Cooper, action instituted proximately steps two along walkway, against the District of Columbia as the re- “left ground level and went to unlevel so, ground.” sult of a fall a walkway doing portion she sustained on on a she fell walkway located within confines the Lorton where the bricks had been Reformatory. replaced trial was had at removed and largely material dirt, appellee posited composed which her fall and little rocks. * given litigants. potential appear HARRISwas a member of the That we argument. closely concept court at the time en banc He divided on such a fundamental February 5, retired on 1982. does not the need it. lessen to confront initially 1. This case was heard division of Appellant assuming arguen- asserts also rendered, court. The which appellee’s do that evidence was sufficient to (No. 80-206, Cooper, District of v. Columbia dangerous establish the existence of a condi- 2, 1981), June later and the vacated matter walkway, appellee tion on the Lorton failed to presented to the full court. actual establish that the District had or con- dissent, expressed, view has knowledge sufficiently of the defect structive questions presented case are not of appellee’s give fall to the District a advance of importance sufficient the en banc warrant proper within to take reasonable time which vantage point attention of this court. From the We reach the corrective action. do not however, judges attorneys, of trial there is argument it is conceded the trict’s notice since importance providing guide, considerable as best knowledge District had of the defect and actual can, problem to a which is recur- we perceived took what it as reasonable corrective cases, ring, significant many outcome action. likely to be the basis for advice which weather, striking her fore- landed on her knees inclement this was one of She stat- compound. Appellee on the sand head things the few be done to make portion ed that the walkway safe. He further equal height not contained the sand was fall, that on the he in- the brick but was to the level of spected 2:00 Although she was not sure lower. time, p. 3:00 m. At that sand was *3 elevation, posi- she was exact difference in surrounding level with bricks. than the tive that the sand base was lower Meyer Lieutenant James A. testified that asked on cross-examination bricks. When leading while at duty walkway dimensions, Cooper stat- give specific to prison, the visitors’ trailer to the on March eighth ed that there was a difference of an 7, 1977, appellee exit he observed and Fuller Appellee inch in the surface level. of an approximately at from the visitors’ trailer warning irregularity, signs saw no p. appellee trip 7:16 m. He observed given warning. was she a verbal As- nor fall, landing palms Mey- on her and knees. by sisted Fuller and Lieutenant James A. er testified that he did not see Lorton, supervisor at Meyer, a correctional Upon witnessing ground. head strike the fall, to her appellee got who observed the fall, Meyer appellee rushed to and as- Meyer’s feet. At time she declined feet, her sisted her to her feet. Once on she decided offer medical assistance. She proceed lounge. the visitors’ declined the medical treatment which was instead there, however, dizziness caused her to Once offered. After the lieutenant obtained the abbreviate her visit and return to the visi- report, an accident information needed for Appellee attempted tors’ trailer. then appellee visiting hall. proceeded to As get medical assistance but was informed hall, Meyer she walked to the observed that she could not be taken the Reforma- nothing ordinary. out of the witness time; tory infirmary at that she was ad- that, fall, also testified at the time of the personal physician. to see her vised repair the sand in the area under was level with the illumi- surrounding bricks. of Frances Fuller was sub- light pole. nated twelve foot stantially appellee’s. testi- the same She tripped that she almost in the same fied Mastín, Captain Joseph super- the shift S. appellee, area. turned to warn She visor, with Lieutenant Meyer was stationed signs her fall. added that no see She lounge. at the entrance to the visitors’ warning by posted, given any nor was she fall, appellee Mastín did not observe nor did employee. Lorton did, however, he converse with her. He Dawson, bricklayer employed William appellee observe as she rose to feet and Lorton, testified on behalf of the Dis- moved to the He noticed hall. 1977, early trict. He recalled that in March nothing Mastín was unusual as she did so. water underneath cold weather present also when left the institu- to freeze some of bricks Cooper tion. He testified that as was de- approximately four and buckle in an area parting, Sergeant he heard Nelson offer her long. Dawson was feet wide and six feet Meyer the same medical treatment which but was un- repair called to had she declined. previously Again offered. replace able to the bricks because sub- Mastín, According 150 to zero would cause the mortar to temperature (and people through 200 the trailer passed the bricks could be reset. As freeze before average night over on an walkway) measure, temporary he filled the area during visiting hours. (where removed) with the bricks had been Lastly, Sergeant Harold S. Nelson testi- “tapped sand which he down” and leveled appellee into Lorton processed fied that he remaining with the bricks. He returned evening, but did not see particular on that make inspect once a the area and again p. her fall. Nelson did see her at 9:00 adja- that the sand was level with the sure that, visiting hours. At that light Dawson testified m. at the close of cent bricks.
655 time, he could reach a in favor walking plain- noticed that verdict presented, with an He tiff on the gait. inquiry unusual made should a directed upon being granted, that she verdict be Proctor v. Dis- by appellee told fallen, D.C.App., trict of 273 A.2d Nelson that she see the “insisted” (1971), such cases is a judg- duty. medical technician was on who She proper.3 For, ment non obstante veredicto so, stating leg declined to do that her felt jurors fact are the triers of and where there right” “all soak it when and that she would persons is evidence which reasonable got home. might differ as to and other charged with Sergeant Nelson was liability, questions elements of those must responsibility inspecting visitors’ Id.; decided Shewmaker v. gate safety trailer and and health area for Co., Capital U.S.App.D.C. Transit accident, night violations. On the (1944). 143 F.2d duty, when he Nelson came on noticed that *4 has the walkway plaintiff some bricks the had been taken burden of establishing up that a of the reasona replaced with sand. He testified violation ble proximate standard of care is the that the sand to the surface cause “up was of injury the sustained. The mere happen remaining bricks and the borders and it was ing of an not meet accident does this bur packed.” m., p. At 9:00 Stores, Inc., den. Safeway See Jones v. ended, visiting when it was his opin- hours 459, D.C.App., (1974). 314 A.2d 460 There ion that the was in the walkway same con- must inju be evidence of the violation and dition. If the not level sand was with the proximately thereby. However, ries caused bricks, surrounding it would have been Nel- require proof “the law does negli not of report son’s responsibility prevent gence Rather, to a certainty. the law re entering visitors from the institution until quires evidence, only that the when viewed the walkway properly repaired. Nel- most favorably plaintiff, for the indicate a son people proc- estimated that 200 negligence reasonable probability on the essed between m. p. p. 5:00 and 9:00 m. on part of the Rich defendant.” v. District of 9, March checkpoint 1977 at the at which Columbia, D.C.App., 410 A.2d 532 processed, and the same num- (1979) (citation omitted). ber entered the institution via the walkway sergeant on which she fell. The received no Viewing the evidence in the light other report concerning accident the walk- id., most favorable to appellee, we find suf way during that time. ficient evidence on this record from which a person
reasonable conclude could the District failed to the walkway maintain in a II reasonably safe and that condition its fail We the premise start with ure to proximately appellee’s do so caused the District is not an insurer of the safety injuries. of those who utilize streets and side is, however, required walks. Relying to maintain primarily on Proctor v. District reasonably Columbia, the same appellant in a safe supra, argues condition. Jones, Washington Co. v. Light appellee’s Gas D.C. go evidence was insufficient to App., (1975); Proctor, 332 A.2d the the jury. plaintiff, 361 District of while en Williams, Columbia v. D.C.Mun.App., neighborhood 46 route home from a store at (1946). question m., p. about 10:00 stubbed her toe on what walkway reasonably whether a is safe she “protruding described as a brick” in a sidewalk, generally jury. Only one for brick ground, the ex and fell to the frac- treme turing instances no reasonable person By measuring where arm. the distance Indeed, kept gence, proximate ques- must in mind be that it is cause will not “[i]t jury." the unusual case in which one conclusion tions of fact for Rich v. District of reasonably D.C.App., (1979). could be drawn from the 410 A.2d negligence, contributory negli- and in which plaintiff fingers the two walk from brick sand
between in the ele- up depict change, held difference path, with minor elevation rea- tripped of brick over which she vation these person find that condi- sonable surrounding bricks, trial court de- toto, tions, were sufficient warrant one-quarter inch termined that there was a warning to visitors. Absent the some court exam- difference. On those facts this same, person could find that reasonable evidence whether there was sufficient ined to exercise reasonable failed presented a factual to be to raise injuries. thereby appellee’s care and only evidence Inasmuch as the Moreover, case unlike the Proctor where was a negligence plaintiff offered height protruding brick not a inch, we one-quarter of an protruding brick factual for the contested issue de- judge with the trial that “no reason- agreed cide, persons here could differ as reasonable differ the condi- regarding able men [could] walkway when ap- to the condition of the plain- the surface at the point tion of pellee fell. To rebut the testimo- at 658 tripped fell.” Id. tiff said level below ny that of sand was Thus, con- (footnote omitted). taking into brick, the level of District offered testi- pedes- with which frequency sideration the Lorton who stated mony employees eleva- areas witness minor trians in urban compound with the the sand was even sidewalks, failure plaintiff’s tions in before, during, and after other than to offer Testimony fell. hours brick, and the height protruding *5 however, presented, indicating was also we af- protrusion, nature of that minor decision, concluding people had stepped the trial court’s firmed area, could thereby creating a matter of law that the evidence the across sand-filled finding negligence. not a depression indication that a some had Thus, was jury formed. the entitled to by in this argues analogy that Appellant this consider resolve contested issue of case, one-eighth irregularity was the inch4 i.e., the the walkway condition of verdict or fact — likewise so trivial a directed when fell. veredicto should judgment non obstante persuaded not granted. been We are have people As reasonable could differ on the since, argument in the instant by this us, error for record before it was not the mere is not a the evidence the jury court submit the case to trial in elevation of bricks minor differential the judgment deny appellant’s motion for sidewalk, area of known in a brick but an obstante non veredicto. jury in a where the irregularity Affirmed. temporary reasonably could infer that the was predominantly area of trav- there was no alternate route FERREN, Judge, with whom way, el, was under where remedial action NEWMAN, Judge, joins, concurring: Chief ef- warning or to that without notice fully I concur PRYOR’s Thus, which was question the fect. emphasize the court but write to one was multi- presented jury to the in this case point. therefore to the trial faceted and dissimilar our dissenting Central thesis of legal of the court’s treatment Proctor understanding their colleagues is tex city a single protruding a brick on effect of temporary walkway. They ture of the repair the sidewalk. Given fact that work it as or “compound” “aggre visitors to characterize a way, required was under point Although appellee Cooper the trial. on cross- Indeed the District refused to accept appellee’s regarding in surfaces was characterization examination that difference Rather, inch, walkway. one-eighth an measure- the condition trict Dis- this estimated continually given description there asserted ment—unlike plaintiff the focal difference elevation whatsoever. in Proctor —did not become * gate compound “gravel imagination, or even compound, can it be said that that, (one implying panel’s prior judge dissenting) a hard surface as a matter of decision law, exceptional a impor- involved negligence. ap cannot manifest While tance or was not in with conformance pellant herself referred to “little rocks” only court’s decisions—the reasons for sand,” “gravel and stuff that was in the banc granting rehearing en under our government’s witness every one of the own 40(c).3 Rule es, including bricklayer and correctional officers, exclusively it as a characterized five Apparently, judges concluded that area, 24-square-foot high, filled with judges wrong two reached the conclu- government “sand” one witness (although concluding upon facts of sion in record Thus, there). also referred to “rubbish” evidence of neg- that there insufficient as a testimony open taken whole is ligence permit go the case to the reasonable inference that the area primarily en If this is stuff of which banc cases made, was sand and that filled the surface then I are shudder for future of soft, given government litigants regular the hapless in our cases regularly witnesses that the area had to be who wait while all members must tamped give priority en banc down. follows that court these cases.4 find reasonably negligence, likely backlog It seems that our will be person who must walk from a brick surface Hence, for the us indefinite future. primarily easily to one filled with sand taking on banc cases unnecessary en footing trip against could lose her serves to exacerbate this situation. There brick at the end. in-depth have two of our studies work- load. KERN, Judge, dissenting: Planning subcommittee of the Judicial my view the issue raised supported Committee by consultants from appeal which en merits banc consideration the Center for Courts National State con- why judges in the world all nine of this appel- cluded in 1979 that an intermediate confronting average lapse late court should be established court— of more months date than 15 between the *6 trict of Columbia—a recommendation esti- $700,000 of the of filing appeals of and the date their annually mated to add at least disposition1 consider de- budget. and then the District of Columbia Such an —should By logic, cide this case. no stretch of financial seems now additional burden un- * NEBEKER, Judge example, every coming impor- for with ref- is of states case before us vital Sergeant particular erence to of Harold S. tance to those involved in that shift, beginning he Nelson: “At the of his panel it be heard or en whether banc. gravel noticed the area filled with com- pound. ‘up to the He testified it was rehearing petition en 3. The banc cited remaining surface of the bricks and the borders Columbia, Washington D.C.App., v. District of ” packed.’ (emphasis and it was Post at 661 (1981), 1362 case 429 A.2d as the which “is in added). Actually, Sergeant Nelson testified panel’s direct conflict” with the decision in the time, I follows: “At that had noticed There, instant case. we confronted the issue of up bricks had been out of taken —that proper potential of a what constituted notice up replaced and sand had against pursuant appli- claim the District to the remaining and the surface of the bricks statutory statute —a of construc- cable packed.” borders and it was 1979 [Nov. significance ap- tion of which has troubled the transcript (emphasis added).] at 65 jurisdiction pellate courts in for a number years. of Report 1. 1980 Annual of District of Columbia aspect of dealt The other that case with the Courts, Report, at 35. The 1981 Annual issued proximate vel non existence of cause whereas printer, as this went contained sufficiency case the instant concerns of gloomy page 24 time is news negligence. of now months and more than 16 between notice decision. Appeals of 4. District of Columbia Court Inter- (1978). Operating nal Procedures VII.-I. denigrate importance I of do not mean parties; the case to the then each and 658 those who utilize its safety in its insurer of the of by the District
likely to be borne sidewalks, Washington Gas Also, streets prospect fiscal straits. present Jones, 332 A.2d Light D.C.App., v.Co. yet another court in the backlog J., (1975) (Harris, dissenting), and is not 361 unlikely gal- judicial system seems trict’s imperfections in its minor responsible for creation citizen for the vanize much v. Proctor District streets and sidewalks. such court. 659 D.C.App., Committee, Study The D.C. Bar’s Court Williams, (1971); v. Columbia Committee, Horsky deems the so-called (1946). The D.C.Mun.App., 46 A.2d disposition of average time for 15-month whether majority correctly also states that and recom- appeals as “intolerable” our maintained in a particular area has been take 24 this court mended in 1981 that generally is one reasonably safe condition steps, e.g., procedural specific personnel no reasonable for the jury, judges of senior more extensive use person a verdict in favor of could reach cases. in certain reducing panels the size of presented, should a plaintiff on the evidence have never been recommendations Such Proctor, supra granted. directed verdict be out apparently slipped upon and have acted in such cases that a at 659. is Indeed, the use of the court’s focus. proper. veredicto judgment non obstante severely judges continues to four senior foundation exactly legal such a It was on Internal fact that our despite limited reversed and direct- that the division earlier I.-F. mandates their Operating Procedures judgment for the enter ed the trial court to of the court “whenever the business use the division held majority District. The requires.” slight a defect so that the evidence disclosed a member one who was not As evidence, as a of all the company that in the rehearing the against I original panel voted law, negligence could not be matter of rehearing to and I deem the case en banc majori- then that the apparent found. It is I dissent improvidently granted. have been result on the simply desires a different ty overturning panel’s decision from the Thus, majori- accepted law. agreed and judi- of scarce expenditure protest and I major policy shift in ty opinion institutes no a case such as this. cial resources on that stated the law of division, the law and but rather retains whom NEBEKER, Judge, with principles. reemphasizes BELSON, joins, dissent Judge, the court’s unanimous determina- Given * ing: I repudiated, is not to be tion Proctor appears in the dissent my The basis for we how dismay share Kern’s over vacated opinion which was majority division energy consume this court’s resources and appen- it as an publication. I attach before a “multi- simply change through a result *7 dix.1 656). (ante at facts view of the faceted” seem, our practice, to have violated holding We majority properly The bases for (Rule 40(c))2 providing rule en banc is not an premise that the District on the colleague specially concurring has belat- 1. the New York Our A recent news account in 5. edly soft surface. judges a new issue—hard or Fed- created how senior in the Times recounted eral Courts—with part played question in the case adequate support has no Such staff— until now. Federal bench after “continue to serve on the judicial age using reaching ... their retirement 40(c) D.C.App.R. states: 2. heavy experience in the workload to reduce EN REHEARING HEARING OR Times, WHEN 1981 at 55. courts.” N.Y. Oct. majority of WILL BE ORDERED. BANC Horsky recommends this The Committee regular judges active service are in the may who practice. this court emulate proceeding appeal or other that an order * by en banc. the court heard or reheard a member of the HARRISwas rehearing hearing not favored is original majority Such a or in this division and concurred (1) except ordinarily be ordered will not prior court and his retirement from the dissent to by neces- full court is February when consideration on rehearing such majority simply when a We are to asked reverse the judgment of wants a different result that reached the trial court one two grounds. of by through a application First, appellant division appellee asserts that failed same law. to adduce substantial evidence demonstrat- injuries that her were proximately the en Since banc chose to reem- majority by any negligent or to act failure act phasize rather repudiate than the Proctor part Secondly, ap- District. rule, here) (unlike I observe that a pellant assuming appellee’s asserts that evi- genuine issue of material fact exists in a dence was sufficient to establish the exist- injury general sidewalk case of type, of a dangerous ence condition on the Lorton the jury required, ap- should be under an walkway, appellee failed to establish that instruction, propriate decide whether the District had actual or constructive imperfection is minor so relieve knowledge sufficiently of the defect in ad- liability. District of Columbia of an Such of appellee’s give vance fall to a instruction was not order instant reasonable time within which to cor- take case since it was clear as a matter of law Finding rective action.1 no reasonable imperfection the claimed was too mi- juror could conclude from the evidence ad- nor give liability. rise to at negli- duced trial that the District was holding very in this case is narrow. gent, we reverse. It is limited to a showing of “an area of The facts undisputed. are approxi- At irregularity known . .. mately p. 7:00 m. on Mary March where there was no alternate route of trav- Cooper companion, Fuller, and a Frances el, way, where remedial action was under arrived at the Lorton Reformatory for the warning without notice ef- purpose an being inmate. After (Ante 656). fect. ...” at Why such facility, admitted to the the two women case appropriate grist our en banc emerged from the trailer visitors’ onto a escapes mill me. which leads to the visitors’ lounge. Cooper testified that she ap- took APPENDIX TO DISSENT proximately steps then two “left level ground ground.” went unlevel She NEBEKER, Judge: fell portion on a This matter out personal injury arose of a walkway where the re- bricks had been against action instituted placed by aggregate compound an District Columbia her following fall on dirt, packed gravel. Cooper land- pathway at the Lorton Reformatory. At knees, ed hands and and testified jury, appellee trial before a posited that her ground. that her forehead hit the Other fall subsequent injuries proxi- the aggregate indicated that mately caused negligent District’s compound was either level with or one- failure to maintain the in a rea- eighth abutting inch lower than the bricks. safe sonably Following condition. denial crucial in this case is wheth- the District’s motion for a directed verdict er there was sufficient evidence at the close of appellee’s and then issue; trict’s create again of all close otherwise, stated whether reasonable was submitted A verdict case juror could conclude from the evidence $30,000 in favor of was re- *8 negligent. the District was Appellant’s ensuing turned. motion for judgment having non obstante veredicto The District is not an insurer of the safe- denied, sidewalks, been appeal ty this was taken. those on streets sary uniformity argu- to secure or maintain of its 1. There is no merit the District’s notice decisions, admission, (2) proceeding By or when the in- District ment. had actual question exceptional importance. knowledge per- a volves took of the defect and what it ceived reasonable corrective action. 660
fer,
if,
go
jury;
should
to the
on
the case
hand,
the other
no reasonable man could
the same
to maintain
though
required
it is
plaintiff,
reach a verdict in favor of the
Proctor v.
reasonably
in
safe condition.
granted;
a mere
the motion should be
Columbia,
A.2d
D.C.App., 273
sufficient;
scintilla of evidence is not
v.
656,
of Columbia
(1971); District
659
any
whether there is
evi-
question is not
111, 112
Williams, D.C.Mun.App., 46 A.2d
dence,
any upon
whether
there is
(1946).
proceed
find
jury
properly
which a
can
particular
a
area
question
whether
party upon
verdict for the
whom
a
reasonably
has
maintained in a
safe
proof
imposed;
the burden
onus of
generally
jury.
one for the
condition is
plaintiff to establish the
being upon the
instances,
Only
where no rea-
exceptional
alleged, if the evi-
negligence
injury
in fa-
person
sonable
could reach a verdict
either
adequately
dence fails
plaintiff
present-
vor of the
on the evidence
granted.
be
element
the motion should
ed,
granted,
should a directed verdict
(footnote
103,
143
143 F.2d at
at
[Id.
659,
Proctor, supra
at
in such cases
omitted).]
judgment
prop-
is a
non obstante veredicto
er.
time
approach, supported
Adopting
fact,
Jurors are the triers of
and where
court,
of this
we
again by
decisions
upon
jury
a
can
there is
evidence
and instead look
broad rules of thumb
avoid
properly proceed to reach a verdict for the
specific
to the
left
plaintiff,
must be
record.
659;
Capital
Id. at
v.
Shewmaker
of reasonable
Because the determination
102, 103,
Co., U.S.App.D.C.
Transit
79
143
factual circumstanc-
depends many
care
142,
(1944).
143
F.2d
denying
es,
rules
may
courts
not establish
all
must
imply
This does not
cases
of deter-
function
jury
its traditional
judge,
The trial
go
jury,
of course.
132,
Klein,
at
409
supra
mining negligence.
thumb,
avoiding
while
broad rules of
167; see,
Turner v. District of
e.g.,
F.2d
specific
evidence in
must examine
Columbia,
Sergeant Harold S. Nelson also testified trict. Proctor explicitly declined estab- on the District. the behalf of On lish arbitrary an negligence determinant assigned question, he height the or depth of city defects in side- responsibilities His in- checkpoint. included walks. Id. We are disposed also not area spection “safety of the and health establish such determinant, and thus we shift, At the beginning violations.” of his look the panorama full he the area filled with the had noticed case at bar. gravel He compound. testified that it Appellee companion testified that her the “up remaining to the surface of the bricks evening first, of the accident left the trailer packed.” and it was Fur- and the borders three or four her. steps in front of As ther, the was in walkway he testified trailer, appellee emerged from accord- the this same condition almost two hours after testimony, her she some of saw that appellee’s fall. walkway the bricks in the taken had been the Accepting contention that up. took one down steps She or two from area was an inch “depressed” eighth the trailer onto the then of an walkway, and she bricks, steps along abutting took two more the of the see part below the we do not walkway where the bricks remained. She juror could how a reasonable conclude portion testified that she then fell the walkway the of the condition constituted walkway of the where the had been bricks part Ap- the of the District. replaced with the aggregate material. She nevertheless, pellee, argues that the condi- portion walkway testified that the repair area in toto tion of the constitutes gravel than filled was “lower” negligence. points She to the size portion walkway where bricks 6'), repair (4' by change lighting, area Appellee remained. estimated that variety sup- in walkway and the surface to portion gravel of the walkway was “[a]bout port her claim. bricks, eighth an of an inch” lower than involving slight But this is a case such a though she was not sure of the exact differ- depth or height variation in that it must be ence elevation. persons said that reasonable would not dif- Appellee’s companion that she testified Proctor, supra change fer. See 659. The tripped almost over the area. same She walking ap- in lighting and surface which turned, however, to appellee, only warn pellee significant her fall, alleges are due to her hitting see head the ce- “[h]er emerging light of a companion ment.” The trailer and testified posted, signs given nor light was she flat floor artificial thrown warning by any employee. Lorton lamp upon the brick pathway. electric bricklayer testified on behalf of the hardly These are conditions attributable District that he performed repair work negligent repair are nor walkway days on the a few before and had they dangerous require apparently so as to inspected very it that He testi- afternoon. fact, appellee warning. In admitted he compound’s fied that checked the level repair she area in the saw the daily, if the area needed additional descending hap- onto it. before The mere added it tamped he “and down it accident pening impose of an does not liabil- kept it with the level of the bricks.” proof Dis- ity negligence. or reveal See A. supervisor, Mey- James A correctional Davis, D.C.App., trict of Columbia v. er, trip that he appellee observed (1978), and cases cited agreed that walkway. He and fall there. fell, hitting out her hands as she put sum, testimony indicated that knees; ground both hands and re- every precaution trict had taken in its strike her he indicated did not Further, pair walkway. of the brick grav- According to his testimony, head. daily bricklayer checked for variations fell el area they when repaired apparent. level the brick. them became *10 ground ground and went to unlevel there tending to show that the no evidence light the most favorable to When viewed in surface was “unlevel” temporary sidewalk a de- the evidence here discloses appellee, was, it ac- any respect in other than that the company of all slight fect so that appellee, one-eighth of an inch cording to law, negligence as a matter of than the surface of the sidewalk lower remanded and be found. The case is cannot part. was a There was of which it judg- judge is directed to enter the trial that its use other visitors appellant. ment for had rendered the sur- appellee’s fall Reversed. appellant took unsafe. The fact that face BELSON, Judge, with whom temporary having precaution NEBEKER, Judge, joins, dissent- inspected once ev- portion of the sidewalk ing: retamp surface would ery day, and join dissent, Judge I Nebeker’s does not at all necessary, it was whenever puzzlement also share Kern’s over temporary portion show why this case was reheard en banc. at the time uneven or unsafe sidewalk was proper seems to me that the course for the Indeed, the sidewalk fall. court at this time is not issue ruling day, the same accord- inspected earlier banc, stating en but rather to issue an order witnesses, and appellant’s to one of that rehearing granted improv- en banc was produced No evidence good found in order. idently. This is so not because such contrary. appellee suggested justified reconsideration cannot be under evidentiary basis What then is the provisions 40(c), of our Rule but also permit majority would which the en banc majority because the decision of the Prepara- appellee to stand? the verdict for original demonstrably correct. division basis, majority tory identifying made in points I will not belabor Proctor v. District of opinion distinguishes original or in the Judge Nebeker’s dissent D.C.App., 273 there- opinion appended majority division’s (1971), held that evidence where it was However, points might a few additional to. jury to a go negligence was insufficient majority demonstrating assist pro- one brick when it established up- basis for explicate any fails to above the sur- of an inch quarter truded a appel- in favor of holding verdict The en banc of a brick sidewalk. face shown, was not suffi- will be there lee. As majority then states: to warrant cient evidence neg- the evidence of the instant [I]n the case before the placing mere minor differential ligence is not a sidewalk, temporary with a deal here We in a brick side- the elevation of bricks four feet wide in area walk, irregularity of known but an area the usual long, replacing which was six feet jury reasonably in a where warmer area until in that brick surface temporary could infer that resurfacing with permit would weather sand, where predominantly area was side- portion of the temporary brick. travel, route of was no alternate there was, plaintiff/appellee, according to walk way, was under remedial action dirt, and little sand compound made of warning to that any notice or without defendant/appel- rocks. Witnesses effect. [Ante 656.] in the walk- placing sand lant reasoning, it is majority’s analyzing specify were not asked they way, the area of to remember important coarse or fine. the sand was whether instant case irregularity” “known the effect evidence to contains no record made, sidewalk, ac- temporary itself a so was loose or its surface material was that the of a combination plaintiff, cording pedestrian such cause a coarse as to dirt, which had not rocks and footing. little to lose plaintiff/appellee unsafe or be at all shown to level itself been that she “left appellee testified While ac- walking. supports suggestion depression defective for The “remedial that “a *11 was underway, tion” which was not a short- supposition is at had formed.” This odds repair any term to defect attempt with appellee’s even modest assertion of a sidewalk, rather was the temporary one-eighth inch variation. longer-term effort to replace temporary it majority opinion Thus is clear that the permanent si,dewalk a brick sidewalk with identify fails to record evidence which when warmer weather came. There was no person a reasonable could that conclude showing anything defective or unsafe District had to failed maintain the temporary about the which sidewalk needed reasonably in a that safe condition and its Thus, to be remedied. there was no show- to proximately appel- failure do so warning. of a need for a or notice injuries. lee’s brought circumstances majority goes on state to “Given trial, light out at considered in the most fact repair that work under way, to appellee, favorable fail show that required visitors to walk from the brick any there was condition existence at the path, a sand with minor eleva- fall appellee’s appel- time about which a change, person tion find reasonable lant was obliged warn pedestrians. conditions, toto, these were suffi- Thus, negligence there was failing cient warning to warrant some visi- Unfortunately, warn. per- fact is that tors.” fact Passing by Ante at 656. sons fall in often the absence of temporary portion the sidewalk anyone’s part. far as So the evidence of fairly cannot “sand referred as a shows, record is what happened here. path,” we must once ask appel- more what respectfully I dissent. lee warning. had shown that warranted a Was it that sidewalk led onto sand,
composition rock and dirt sidewalk?
Certainly ease, that cannot be the since it is practice public space common
Washington Metropolitan area to have adjoin
brick or hard walkways other surface compounds
walks made of including rock or signs places,
dirt.1 No mark such and none are needed. In the Matter of A. Richard SIRACUSA,
The only evidentiary Appellant. other basis that majority opinion refers to in No. 80-923. conclusion that verdict for justified by the evidence comes near the Appeals. District of Columbia Court of end of its it al- notes that Submitted March 1982. though employees May Decided 1982. temporary “even sidewalk was before, brick walkway during, and after fell,” hours on the ante testimony there other “approximately people
indicated that area, stepped
had across the sand-filled
thereby creating some de- indication that a
pression Ante at formed.”
(emphasis supplied). No
any temporary who saw side- witness
walk fall at or about the time The answer the same if the concluded for there was no as to wheth- that, contrary plaintiffs/appellee’s er sand fine testimo- used was or coarse whether ny, entirely consistency. temporary sidewalk was made it was loose or cohesive in