District of Columbia v. Mitchell

that. majority’s enlight- one at Given hold the evidence to be sufficient in each willingness as, states. See agree by case, indeed, many ened to that sex acts have States, of the ob- Ford v. United prostitutes purposes were the A.2d (D.C.1985). actions, 1139-40 inexplicably served then hold proof concerning that absent further fee the majority has de- Given now prostitute presumed must be to of- have stroyed the method of enforc- observation gift gratification. fered sex as of so To do statute, is that it it understandable under facts of these cases is to affect expert’s testimony of in holds the use ignorance of profes- “the world’s oldest case, the Blair probative any “not of to be sion.” already fact that had not material do oth- established other evidence.” To from Furthermore, majority departs insufficiency-of-the- erwise would make the says it understandable when holding of evidence bootless. prove “the must substance government exchange the defendant between majority agrees testimony The that this must at person” and that “there another proves prostitute behavior of a and even communication, ver- of a least be evidence prostitute.” in that the woman “was fact nonverbal, the defendant or between bal 626.) prosti- know that a Now we {Ante person proof and some the other provides sex body tute her for for a fee. communication is with- the contents of that expert precisely That is what the testified do proscription of the statute.” Nor in the “trying —that the conduct she was showed further statement I understand the date,” get meaning sex “[h]ave lies in the communication illegality “the money.” Why apparent then is it not itself, up to it.” leading not in conduct prostitute acting prosti- as a the woman—a face fly squarely These comments seeking sex tute —was to “have for mon- language the statute its 1981 with not, says ey.” majority but the wit- pro- The statute does not amendments. doing. opined ness is what she was engage acts or “offering scribe sexual testimony patently “adequate” to His fee,” as person contacts with another prove the fee element. At least do not That quoted suggest. comments would expert testimony subject hold that concept is contained the definition always is inadmissible. itself, “prostitution” which includes I vote to affirm the convictions. pay also “of- only engaging sex fering engage” such acts. What enticing, “inviting, is or proscribes

statute pur- addressing for the

persuading, or ... prostitution.” proscribed And the

pose of include, among things, “re- other

acts stop passers-

peatedly attempting to ... COLUMBIA, stop “attempting Appellant, or motor vehicles” by,” OF DISTRICT interfering free “repeatedly with the v. persons.” of other passage MITCHELL, Appellee. Bobby Lee proscribed require None of these acts MITCHELL, Appellant, Bobby Lee Indeed, they are at all. communication makes standing alone. all lawful What under the statute is whether them unlawful COLUMBIA, Appellee. OF DISTRICT of ... of- purpose they are done “for 84-1299, 84-1471. Nos. Thus, in” sex for fering engage pay. acts the intent proscribed is Appeals. Court Columbia non. them vel done that makes lawful are Argued 1985. Nov. familiar intent —a proof is of unlawful It Nov. 1987. Decided law—that must requirement of the And un- a conviction. presented sustain proof intent principles, familiar

der I would invariably circumstantial.

almost Nettler, Corp. B.

Richard Asst. Counsel argument, at the Inez time with whom Reid, Smith Corp. Counsel at time the filed, Suda, Principal brief was John H. Corp. Deputy at the time the Counsel brief filed, Reischel, Deputy L. Charles argument Prager, missing witness on Counsel, Lutz on Mitchell’s and Alexander Corp. D.C., III; (3) refusing in Counsel, erred Corp. Washington, count court Asst. cross-ap- brief, District and correctional em- appellant, allow medical were personal testify their pellee. ployees (a) knowledge, respectively, of Mitchell’s S. Shapiro, David M. with whom Samuel (b) (count II) and of in- medical condition Rockville, Hicks, and Cassandra P. Greene (count III), because mate control at Lorton brief, cross- Md., appellee, on the erroneously that the Dis- the court ruled appellant. pre- required list them trict was witnesses; (4) expert trial statement FERREN, BELSON, and Before refusing court abused discretion its STEADMAN, Judges. Associate request for a contin- grant the District’s FERREN, Judge: Associate ill became uance when material witness shortly before trial. Mitchell, at Lorton Bobby Lee an inmate damages for Reformatory, sued to recover cross-appeal, In his Mitchell asserts the injuries allegedly by the District caused (1) granting judg- erred trial court negligence unrelated in three Columbia’s (2) rejecting II ment n.o.v. count (1) July em- occurrences: 28-3302(b) argument that D.C. Code § allegedly failed a ventila- ployees to secure (1987 protection Supp.) equal violates ceiling, dormitory in Lorton tion cover process in the due guarantee inherent causing it to fall on Mitchell’s neck amendment, in of the fifth clause (count I complaint); shoulders against on judgments limits interest allegedly proper provide District failed to providing for interest District to while 4% following surgery treatment Mitchell’s judg- prevailing on all other at the rate II); (count ruptured a May 1980 for hernia ments. (3) allegedly supervise District the failed III; as I and We affirm to counts at and control inmates the Lorton Central trial and remand for a new on reverse Facility, resulting in an assault on inmate’s II; and we the trial court’s count affirm (count III). in June 1982 In June Mitchell of Mitchell’s motion for interest at denial 1984, seven-day trial, re- jury after a the rate 4%. prevailing instead three turned verdicts for Mitchell on all $300,000 I, $150,- totaling counts —count I. 000; II, III, $50,000; count and count $100,000. I Count ap- District have Both the and Mitchell 1979, 2, cover July fell On a ventilation

pealed from the trial court’s order of Au- ceiling as he was from the on Mitchell 22, 1984, (1) gust the Dis- which denied dormitory while leaning a desk in his over judgments n.o.v. on trict’s motion Thomas Eld- talking another inmate. with III; (2) granted District’s counts I and inmate, er, an had heard a “ventilation also II; judgment motion for n.o.v. on count and fall, on,” seen cover fan kick the ventilation (3) Mitchell’s for assessment denied motion look out. The yelled to Mitchell to and prevail- judgment on the at the interest on Mitchell nonetheless struck cover instead of rate 4%. fell to Mitchell neck and shoulders. (1) floor; him to the Lorton other inmates took appeal, On the District contends: transported to Infirmary. counts He was then entitled to a trial on District is new (and Hospital treatment. judgment I II if the D.C. General and III on count neck, shoulders, sustained) court testified that his is not Mitchell n.o.v. cause; since had to hurt jury proximate and back continued misinstructed the on him. He said he refusing grant cover struck the court erred ventilation neg- longer play sports, could work requests (a) contributory no District’s long up for ligence assumption repair shop, or sit and of risk instructions furniture I, (b) periods instruction of time. cautionary count pain Count II had had leg severe in his stiffness Eugene Miller, penologist, and ankle. E. Wholly unrelated the ventilation cover acknowledged testified for Mitchell. He incident, swelling developed Mitchell reformatory that the complied with its his abdominal area led to a hernia procedures, shakedowns, own including operation Hospital at D.C. General in 1980. weapon and that no institution could be complains Mitchell about the medical ser- nonetheless, opined, free. But he operation, vices he received after this when reformatory provide did not developed an infection at incision custody care and because it failed ade- site. periodic The infection was treated quately supervise the inmates. antibiotics, cleaning, compresses and hot April but did heal. In doctors at D.C. exploratory General recommended II. scheduled, surgery. Although surgery appeal, right On the District asserts performed. Robb, was never David Dr. (except to a new trial on all count II counts expert whom the court certified as in if j.n.o.v.) we sustain the because the trial medicine, family testified for Mitchell that proximate court jury misinstructed the “the level of care the compe- was below Specifically, cause. claims expected

tence that in a could be situation “inevitably court confused” the like this.” gave three inconsistent instructions on Count III cause, proximate two of which were incom patible Columbia, Lacy v. District approximately On June 10:45 (D.C.1980). 424 A.2d says, The District a.m., Moore, inmate, Henry alleg- another specifically, more the court should edly pipe assaulted Mitchell with lead cause, have proximate defined in accord while Mitchell stood in an area outside the ance proposed by with the instructions Mitchell, both dormitory. According to he had parties, to include the factor” seen “substantial pouring Moore coffee out another applied test and should have this test to all pot inmate’s coffee that morning earlier replies three counts.1 Mitchell and had told Moore not to so. do Mitchell preserve wrist, thumb, District failed to issue for ribs, struck on his appeal; Super.Ct.Civ.R. leg, well as on his left 51 bars the Dis which was broken trict, during says, he it raise the incident. He treated because failed to was Hospital weeks, specific objection, D.C. General for either or after three and before the instructed, a placed leg jury cast was on six his for months. was to the court’s instruc that, incident, Mitchell proximate testified tions on since the he cause.2 parties proposed jury dangerous Similarly, 1. Both had submitted in suit of the condition. on using language. II, structions "substantial factor" jury count the court told the it could find the Columbia, Lacy In accordance with v. District negligent injuries District if Mitchell "suffered of (D.C.1980), Jury 424 A.2d 317 standardized Civil damages or as result of the District's failure to' a Columbia, Instructions the District of No. provide adequate necessary and treatment and (revised 1981), provides part: 5-11 ed. in "An ...,’’ care and it could find for District if damage injury proxi or is said to have proximate Mitchell’s “was the refusal cause of act, act, mately by caused an failure to or a injury." jury his court The instructed on appears whenever it act or omission ... however, III, conformity Lacy count in with and played bringing part a substantial about the 5-11, "injury an standardized instruction that or injury damage.” added.) (Emphasis or damage proximately is have been caused said to instructing jury sepa- Before on three appears an act or a failure to act whenever it counts, generally rate the court instructed on preponderance from a of the act or the evidence proximate appears cause: from "Whenever it a bringing played part omission a substantial preponderance of the that the act or evidence (Emphasis injury damage." about the or add- played part bringing omission a about the ed.) injury damage, proximate or ... cause.” that’s jury The court instructed on then count I. Super.Ct.Civ.R. provides 2. in the relevant instruction, general its Consistent with the court part: jury told that it could a verdict for return party may assign giving No as of error the or Mr. responsible if it Mitchell found that the District was give creating failure to he [or instruction unless condition injury proximate objects jury and that Mitchell’s was a re- thereto before the retires to she] Now, says the District the reason

A. you in is you’re in the condition that are The court and counsel did not discuss you refused to take the that because during proximate cause their initial collo- you spoke treatment. And I to in refer- Immediately be- quy jury instructions. ence to this about what we call contrib- to the fore the court read instructions negligence assumption risk. utory or of however, objected “as to jury, the District injured Any person time is in- any departures proposed jury from our contributory negligence or be- their own replied, structions.” The court “[TJhat’s he they a known risk that cause assume read the After the court had automatic.” assume, they recover didn’t have to can’t jury, he counsel instructions to the asked happens for what somebody from else they any objection. had The District’s So, necessary Bobby Lee them. “No renew replied, counsel new ones. We neg- prove Mitchell that the District was prior.” all the ligent, negli- and result of that as a Later, retired, jury jury after the damaged. And gence, injured he was or asking sent the a note count court whether is on proof the burden of the District suit, malpractice negligence, II “a or was negligence prove contributory or as- informed that it both.” The court counsel sumption just isn't risk. It sufficient II proposed jury inform the count prove negligence. prove You must negligence claim then to he negligence, that as a result of that negligence reinstruct the elements of a damage suffered some or risk. action, course, including proximate contrib- thing assumption The same utory negligence, injury. District contributory negligence. It isn’t risk and give counsel will the four clarified: “[Y]ou just prove by sufficient that the points gave The you yesterday.” he preponderance of the evidence that “Yes,” replied add- court both counsel assumed risk or that was contribu- objection.” ed that had “no prove torily negligent. He must also reinstructed, part, court then proximate as a cause that result of follows: assumption Now, recover, in order to this is what condition, there risk it contributed to Bobby by pre- Lee Mitchell must show a contribution as a result was substantial ponderance of the evidence: That that —that was substantial contribution knowledge District of Columbia had [Emphasis to his condition. added.] the medical or health need that he care had resumed delibera- After had; two, that the District of Columbia tions, among there a discussion had a opportunity provide during and counsel which counsel court care; medical needed treatment and objected the District reinstruction. three, they that failed it and provide to questioned court’s reference to Counsel the they necessary provide adequate failed to in the contrib- “substantial contribution” pro- They treatment and care. failed to negligence portion of utory his reinstruc- necessary vide and treatment adequate “You if I’m replied, The court tell me tion. finally, very and And is care. and this accordingly." wrong and I’ll act is, important as each one a result that as it, and then provide of their failure to he suffered Court counsel discussed Lacy injuries damages, length required Bobby or and Lee whether “substantial that damages language proximate in- injuries Mitchell suffered as factor” in a cause initially on its the The court focused result of District of Columbia’s struction. require Lacy adequate neces- did not reference provide failure to and belief that defining proxi- sary the a “substantial factor” treatment and care. Those are to concurrent things four that he mate cause unless causes must show. verdict, objection. stating distinctly grounds mat- of his [or her] consider its the objects ter to and the [or she] recognized that, at issue.3 The court then Then I would re- [Mitchell’s Counsel]: contributory negligence was an is- spectfully submit Court had II, proximate sue count cause in- done properly and it should be left exact- respect negligence struction with both ly where it is now. contributory and negligence should be con- exactly The Court: That’s what I’m sistent. The court remarked to counsel for going do, sir. you’re saying District: “If I say didn’t Both replied, you.” counsel then “Thank thing negli-

the same with reference to gence contributory negligence], ... [and B. then I you want make that known so appeal, On the District has en I can say thing.” the same sure and larged original objection. its The District “No, replied, Counsel for the it’s District complains proximate now cause my you not say recollection that didn’t relating instructions to all three counts thing.” (Counsel mistaken; same was nei- were erroneous because omitted refer original ther II count instruction on ence require to the factor” “substantial proximate cause, reinstruction, nor District, however, Lacy. ment of The has “substantial,” did the court use word preserved not appeal. this issue for broader except proximate with reference cause trial, retired, At before the jury District part rein- objected generally to deviation from its struction.) objection, rather, Counsel’s proposed and, instructions; after the rein- that although the court included a cor- II, struction on objected count rect prox- “substantial factor” definition of specifically to the court’s use of “substan imate cause within the reinstruction on con- tial” in proximity close to the definition of tributory negligence, court had failed contributory negligence. general The ob proximate to stress separate cause is a jection Super.CtCiv.R. 51, satisfy did not concept. counsel, said Accordingly, there supra purpose challeng note for the danger was a that the would believe a proximate cause instructions on greater degree negligence by Mitchell appeal, “distinctly for it did not state required support the District’s de- objected] matter to which District] [the negligence fense of contributory than was grounds objection.” and the [the] required for Mitchell to sustain its claim of reinstruction, objection specific to the while negligence against the District. enough, preserve did not the issue now

Counsel for then Mitchell stated: before us because it is not the error cited appeal. Court, May please so that clear, record very, very as I under- Coleman, Corp. Ceco A.2d said, just stand what counsel has he is (D.C.1982), that the failure we held saying you did not use the word comply Super.Ct.Civ.R. prevented negligence “substantial” both the noticing any us from error in the trial the contributory negligence assump- court’s instruction at issue. We said that equally. saying tion risk cases He is “purpose give is to this rule the trial way juxtaposed that it’s to con- judge and, opportunity to reconsider tributory negligence assumption of necessary, proposed correct his [or her] objects risk is what he to. (citations charge.” omitted). Id. at 947 “ That’s the sub- Counsel]: Objections [Government ‘sufficiently specific must be my objection. stance of bring precise into focus the nature of the alleged (quoting The Court: Okay. error.’” Id. Palmer v. explains interpretation why This 1. 3. the court The court said it had done so because there language omitted "substantial factor" from the were concurrent causes in count III. The court I, proximate give on did cause instruction count the ceil not instruc- vent, count, give perhaps where tion on the court declined to that so the court rea- contributory negligence instruction. soned that causes The court the concurrent were Moore's did, however, alleged alleged use "substantial factor” in its in attack and the District’s failure III, supervise Supra, struction on count the assault. note and control.

637 477, 109, 119, the contrib- proximate cause definition into 63 S.Ct. Hoffman, 318 U.S. (1943)). negligence utory the Dis instruction. 87 L.Ed. 645 Neither ob general objection specific nor its trict’s Finally, trial court at time also this of “sub placement to the the term jection why it had “substan- expressly stated used proximity in to the contrib stantial” close III, in language count tial factor” negligence ap utory instruction sufficed 3. that Supra, in count I. note Even with present, prise the court of District’s for the remained opening, counsel District time objection raised for the first broader Lacy as to the issue now advanced silent appeal: “inevitably con on that the court virtually this invited appeal. In view of on gave incon jury fused” the when three if opportunity for de novo reinstruction proximate cause— sistent instructions on rely necessary, properly the District cannot mentioning while one “substantial factor” light original, general objection. In on its (citing Rogers did not. id. v. two See colloquy, no subsequent perceive of the Coopera Northern Rio Arriba Electric gen- miscarriage deeming in justice tive, Inc., (10th Cir. 580 F.2d objection eral waived. 1978)). opportu- ample District had Because the We in Ceco that we have also noted in- nity ask of all three for correction error for the “on occasion considered raised not, and, any did structions at trial but appeal apparent first time on ‘it is where event, in instruc- because the differences record ‘miscar from the of the that a fac[e] “miscarriage jus- slight, no tions ” justice’ A.2d riage of has occurred.’ has tice" occurred.4 Middleton, (quoting at 947 Weisman (D.C.1978)). A.2d We do not III. this case. In the first believe is such a court contends the trial The District also place, although the trial court did use refusing grant request its erred charge in the count term “substantial” on contributory negli- jury on instructions contributory negligence part III and in the I, gence assumption risk on count II, of the on no one— reinstruction count falling District ventilation cover. The emphasized court or term to counsel— argues juror could have a reasonable jury. indicated its confusion rea- found that Mitchell failed to exercise malpractice by sending note on issue (1) he care when leaned over sonable jury presumably to the court. The at a time desk under the ventilation cover perceived have done the same it had prop- he the cover not been when knew proximate instructional differences as to or, any event, erly re-installed cause. the existence of he failed Furthermore, opportu- ample counsel had dangerous condition. nity to obtain desired reinstruction failed to do so. the court Counsel and A. implications Lacy, discussed Lorton, Facility at inmates In the Central time, pages pages first of tran- over The ventilation are housed in dormitories. script after court had reinstructed along the dorm ran covers Mitchell’s It absolutely count II. clear from walkway ceiling above the center of the most the court—which was discussion that located The desk was beds. between solicitous the District’s concerns—would in the middle two beds between jury a time on have reinstructed the second dorm. II if had re- count the District’s counsel in- that ventila- proximate cause Mitchell testified knew called error during shake- themselves, down in contrast with the tion covers were taken structions replaced were not incorporation of a and that the bolts expressed concern about downs trial, rower, specific objection issue is implicitly appealed, as if the 4. Even has measure, of our and remand protective to rein- now moot in view reversal the court’s refusal II. nar- for a new trial on count struct count II in accord with counsel’s they “I properly. were not suffi- Officer knew Cook testified for the District. He cient, “squad was the assigned officer” to why complaining. that’s I was I Mitchell’s dormitory. responsible He was reported them to the officials that were moving residents, assuring dorms there don’t know whether [the clean, conducting “shakedowns,” up bolts sufficient there.” When were] maintaining calling manage- security, and asked if he had cover known ventilation brought ment “certain about items ... to might dangerous, replied, be Mitchell “I my attention.” He he clarified that was possibility being knew all them has a responsible only cleaning, not mainte- dangerous. you But once live around nance, performed “manage- something that, you like ... see them ment.” he “re- But stressed that he was that, hanging you just go like don’t around sponsible calling maintenance, telling every day get and duck them. You lax to facility management,” and that 90% point [fell], just that it so if it falls ain’t time he be to would the one receive inmate accident, you expect you.” don’t it to fall complaints and call them in. Ventilator complained Mitchell testified he had problems, added, that always he about to turned to management. the ventilators Officer Cook on over several occasions before the He accident. spoken Cook further testified that he had Elder, also testified that Thomas another with Mitchell two after had weeks Mitchell inmate, given had Mitchell an administra- hospital following come back from Mitchell, tive form which as dorm accident. He had had asked Mitchell what passed representative, had to Cook. happened, and Mitchell had described Mitchell had Cook, said Cook told Mitchell he According incident. to Mitchell had explained would turn form over to the mainte- man,

nance but that Cook also had told espe- how the residents are the dorm stop storing cially Mitchell inmates should Woody, they make shoots ... they their (commonly homemade wine called and stick buckets [wine] up shoots in this duct. He said “shoots”) up in the vent ducts. Mitchell [Mitchell] [Woody] that he taken a loose had duct also testified that maintenance men had put in, to his shoots and when he rein- system worked on the and ventilation had it, three, only put put stalled he four particular removed that cover he had after bolts in. I said he back ... didn’t [Cook] complained Cook, to Officer but before the turn He know it could loose? [Mitchell] only accident. Mitchell maintained that are, yes, you they said but know how three screws had held cover to the they quick easy had have a access ceiling July him before it struck 1979. got ripe, so this duct when it’s it’s Elder, Thomas a resident of the dormito- be taken out of there. ry, complained testified that he had Cook also that Mitchell had he testified said ceiling ventilation covers to Lieutenant Woody would like to sue but “residents Krause, Haywood early and to Mr. and that money.” don’t have Cook maintained in June 1979 he adminis- had submitted an complained neither nor had Elder Mitchell remedy procedure form trative which was problem about the the accident vent before Haywood. delivered Lieutenant Elder given and that no one had Cook an adminis- also had noted that the vent ducts indicating procedure trative form there was June,” “near cleaned the end before something wrong with vents accident, Mitchell’s the mainte- but form, dormitory. said, goes Such a grate put nance had men back directly ,the su- to the administrator or to he had two screws. Elder stressed bypasses “It perintendent. the officer complained going get someone people the maintenance all below them.” hurt, up “just left them there Ordinarily, prepares a resident the form repairs like that” and no had been further squad pass go asks for a officer date July Building. made before to the Administration Mitchell up pass” “call Mitchell’s accident. had not asked Cook for a

639 re- testimony as to whether Mitchell had testified that purpose. for that Cook cover, there ported dorm the loose ventilation regular of Mitchell’s last shakedown the vent to believe Mitchell participated, he a for the which was basis removed, “ap- injury had occurred risk of attributable covers were had assumed the “May or June”— a month”—in proximately do so. to his failure to 2, July 1979 accident. before contentions, evaluating we In these B. pursuant to stat begin the fact “Assumption of risk is an available ute, (1987 Supp.), 24-442 D.C. Code § voluntarily has plaintiff defense when Department of Correc District of Columbia Jude, Scoggins risk.” v. incurred a known “responsible safekeeping, for the tions is (D.C.1980) (citing 999, 419 A.2d 1004 Re instruction, care, discipline” protection, 496E, com § (Second) of ToRts it, statement housed at Lorton. As we see of inmates omitted). (1965); other citations ment a. recognizes duty implicitly the statute “voluntarily.” Id. “If a key word is circumstances, care under the tenant, example, has no reasonable al general the same common law standard we remaining premises, on the he ternative to alleged negli ly apply in all contexts of said, fairness, to have or she cannot be 1005 gence. Scoggins, 419 A.2d at E.g., voluntary decision to encounter the made a tenant); (landlord v. MacNa Morrison housing there.” risk code [of violations] 555, (D.C.1979) mara, (profes 407 A.2d 560 commonly, Most this defense “means Id. System, negligence); sional Transit D.C. risk; voluntary exposure to a reasonable (D.C. 402, 254 A.2d 403 Carney, Inc. v. game, e.g., attendance at a baseball where 1969)(bus accident). nothing in see We sharply balls are hit into the stands.” Id. statute—certainly specifics—that no could (citation omitted). se, give negligence per rise to a claim cf. contrast, contributory negligence is (housing 1003 5 Scoggins, 419 A.2d at n. conduct,” i.e., “unreasonable “conduct violations), let alone to a claim that code ‘which falls below standard to which injury falls responsibility entire for an plaintiff conform should for his [or her] wilfull, an inmate’s on the District absent protection’ and contributes to the own wanton, reckless conduct. Martin v. Cf. plaintiff’s injury.” (quoting Restate- Id. Co., 395 George Hyman Construction 463 When a situ- § (Second) ment of ToRts (industrial regu (D.C.1978) safety A.2d 63 “voluntary expo- ation be considered a scheme). is no Consequently, there latory risk,” id., thereby unreasonable sure an contentions to the District’s theoretical bar merging principal elements of each de- that, alleged, the District was on the facts fense, arbitrarily classify hybrid, and, event, Mitchell negligent risk-taking, to unreasonable reference contribu- the risk and/or was had assumed type contributory negligence. Id. as a torily negligent. determining The standard whether required on either defense is is instruction C. juror reasonably could conclude whether negli- contributorily plaintiff was first focus— As to the District’s voluntarily a reason- gent or had assumed desk, knowing leaning Mitchell’s over the Merzell, risk. 117 A.2d able See Lewis v. the ventilator cover above (D.C.1955). instruction. no basis for either —we see inmate prison dormitory Mitchell’s lot as a trial explained counsel to the has' analogous that of a tenant who why instructions court he believed both remaining on alternative to “no reasonable (1) admitted le- appropriate: Mitchell 419 A.2d premises,” Scoggins, aning over the desk under the ventilation carrier who passenger on a common or to a cover, loose admittedly knew was “confined and cannot avail con- dangerous; [himself] this was unreasonable self-protection.” opportunities for contributory neg- normal thus evidence of duct and Kotzebue, P.2d conflicting City ligence. Because there was Wilson (Alaska 1981). injury. As the District’s coun- cause Scoggins, 419 A.2d at 1005- observed, sel himself 06; Mitchell was in a accord, Roberts, Dollard v. 130 N.Y. “trapped situation.” (1891) (tenant’s 29 N.E. 104 child not contributorily negligent walking Accordingly, confine because Mitchell’s through hallway common ceiling under she dormitory voluntary, ment in the was not knew to be defective since it was he voluntarily could not be said to have means of apartment). access to her assumed a risk ventilation cover would fall on him. 419 A.2d Scoggins, See do any by We not hold that action juror reasonably at 1004. Nor could a con prisoner per is se reasonable. We have leaning clude that Mitchell’s conduct in said on another party occasion that when a talking over a desk and to another inmate having duty negligent- reasonable care unreasonable, contributorily and thus ly injury, causes may he or she defend on negligent, simply because the desk was ground contributory negligence if located under a ventilation cover Mitchell tending there is evidence to show that the knew was loose. Mitchell’s actions must party, “by omission, other act or unreason- “trapped be viewed in the context of his ably exposure increased the he or she oth- Although he large situation.” lived in a danger erwise would have had to created” room, others; dormitory so did 45 freedom by party. the first Scoggins, 419 A.2d at Moreover, of movement was limited. reasoning might apply, 1005. This ex- obliged residents were to live and function ample, placed had Mitchell up “shoots” beds, desks, configuration ceiling way vents or in other active- furnishings prison other authori ly precarious contributed to the condition designed ties and enforced. There is no record, however, of the vent covers. The record anything evidence that Mitchell had actively shows no evidence that Mitchell desk, to do with the location of the or that aggravated danger. created or place, could have moved it to a safer prison expected authorities in D. provided mates not to use the facilities District, however, presented a sec- Finally, there. there is no evidence that a ond reason for a defense ventilation cover had instruction based ever fallen before unreasonably, “unreasonably Mitchell’s accident. Not on an “omission” that in- therefore, testified, “you get injury: as Mitchell creased" risk of Mitchell’s his al- you lax expect you.” leged ... don’t it to fall failure to the loose ventilation Although cover. the District characterized sum, the inmates must accommodate alleged assumption failure both as an themselves physical constraints contributory negligence, of risk and as prison place upon which the authorities defense, already explained have if prison them. Because dormitory residents any, properly contributory negli- is one for arranging have no choice in their environ- gence. ment, it is occupy reasonable for them to spaces the limited to which are con- (1) fined and to provided. use the facilities context, Again, beginning we note the Thus, sitting while Mitchell’s at the desk duty. with the District’s Prison authorities under may the loose ventilation have cover statutory responsibility have a to exercise been unreasonable when in iso- viewed assuring reasonable care in safe conditions lation, it was reasonable when viewed as prison Supra, dormitories. Part III. B. part way by of a of life dictated the author- depends upon “What the dan- special ities context of a dor- gerousness activity of the involved. The novel; mitory. This conclusion is not it is greater danger, greater the care ruling akin to our that a tenant live Carney, which must be exercised.” normally premises housing plagued by (citation omitted). A.2d at 403 being code violations without held account- (or potentially dangerous of the able as- One risk) sumption manage- those code volations conditions that the Lorton portion of a in landlord retains control is the regularly must address ment tenant, lawfully by such continuing premises to obtain contra used efforts mates’ dormitories. hallway, hide it in their room or and to as control of a common band regu this, conducts management Knowing physical “for the landlord will be liable Cook testified Officer lar “shakedowns.” ... by harm caused condition that, regular shakedown part of the of reason if the landlord the exercise prison inspectors remove procedure, care could have: discovered able indeed, “any place ventilation in covers— risk condition and the unreasonable look could be removed”—to a vent where therein; (2) made the condition volved (home contraband, especially “shoots” for safe.” Restatement (Second) PROPERTY of wine). prison administration made (1977); ac 17.3 § (Landlord Tenant) and therefore, by experience, its own on notice cord, 360 § (Second) Torts of Restatement regularly unbolt and rebolt inmates Katz, (1965); U.S.App. 132 Levine v. see and in the dormitories ventilation covers 1, 303, 1 173, 304 n. 174 n. 407 F.2d D.C. is, continuing accordingly, a dan that there (1968) and Re (citing Pessagno, supra, heavy ceiling covers will not ger that these (1965)). 360 of Torts § (Second) statement that, in securely fastened. It follows be Thus, landlord, by if the exercise of rea against unreason protect order to inmates care, a loose sonable could have discovered harm, physical the administra able risk of ceiling, laundry in a room ventilation cover duty inspect the tion has a ventilation landlord, definition, by would have then the enough, and to secure the covers often notice of that condition had constructive care, sufficient for a reason bolts with injury for an and could be held liable charge ably to conclude that those in have by negligent failure to make that caused un prudent done is reasonable and “what hand, if the safe. On the other condition der the circumstances” to assure that the un could not have discovered landlord Wilson, covers remain secure. 627 P.2d at exercising cover reasonable safe vent while omitted). (emphasis original 628-29 Oth if, example, showed for the evidence care— a third erwise, negligent. the District will be See loosened the cover be party had Co., Pessagno v. Euclid Investment 72 by reasonably frequent inspections tween 577, 141, 143, U.S.App.D.C. 112 F.2d 579 not the landlord would the landlord—then whether, during (jury question snow notice of the have constructive storm, landlord exercised reasonable care notice, and, absent actual risk involved during spreading sand four times twelve failing to negligent in could not found be period driveway hour under its control keep the condition safe.5 guest injured); Nubbe where tenant’s System terms, provides Hardy analysis v. Continental Hotel practical of Minnesota, 225 Minn. 31 N.W.2d present case. We for the a framework (1948)(landlord retained con who note, first, or not that whether stairway of for common use of tenants trol frequently and shakedowns are conducted care, requir duty ordinary had to exercise enough reasonable under carefully to be inspection from time to “reasonable manage- i.e., whether the circumstances — time,” prevent injury caused deterio inspec- negligent ment is careful or —the rating stairway). loose ventilation may not discover a tors falls; depend it that will cover before responsibility Because this case concerns in relation to timing the shakedowns correcting dangerous discovering for and course, the the loose bolts. Of the cause of ongoing con party condition one has when shakedowns, more frequent another, more occupied by our premises trol of inspectors detect likely is the will initial analysis duty of the District’s draws cover; always there will tighten a loose ly on tenant For exam landlord and law. life, dormitory however period of Nubbe, be some ple, Pessagno on which we vigilant prison short, the most even rely, rule that when a reflect the traditional University course, George Washington habitability. analysis, See not address 5. This does (D.C.1983). Weintraub, liability warranty 458 A.2d 43 breach of the landlord management reasonably expect- cannot repair failure to after actual notice of a protect. that, ed to defect, though It follows management even otherwise officials carry reasonably frequent escaped do out liability have because it and careful could not have danger shakedowns but do not dis- discovered the (and cover a exercise of loose ventilation reasonable care. Compare cover are not Re it), otherwise aware of District will not (Second) (Landlord statement PROPERTY 5.5(2) (1977), negligence be liable for with id. § a cover falls Tenant) 17(3). In a case of liability triggered by causing § injury provided, course, — notice, however, actual management’s lia evidence inspectors shows the had left bility negligence, as in the landlord and tightly cover bolted after the last situation, tenant could not arise until hand, shakedown. On the other if the in- management notice received spections are conducted too infrequently or of the defect but also had had “a ‘reason otherwise carelessly too to be reasonable able time’ within which repairs.” to make circumstances, under the the District will George Washington University v. Wein be subject liability negligence be- traub, 43, 50, (D.C.1983)(Fer A.2d cause inspectors presumably could ren, J., dissenting); accord, Restatement have discovered the loose ventilation cover Property (Second) (Landlord of and Ten in the exercise of care.6 reasonable 5.5(4) (1977) (after entry, tenant’s ant) § Given, therefore, that not even the most liability negligent landlord’s for failure to careful policy keep shakedown will ventila- keep leased property repair is condi (since tion covers tightly bolted all the time request tioned by plus tenant reasonable frequently bolts), inmates remove the time defect). within which to correct question turn to the whether an inmate’s sum, In prison authorities do exer- report failure to a loose ventilation cover cise designing reasonable care in imple- bearing has a on the potential District’s menting procedures, only shakedown liability. There are principal possibili- two legal relevance of an inmate’s failure to ties, depending on prison whether the au- report a loose ventilation cover would be a have, not, thorities or have exercised rea- opportunity lost trigger prison to liability sonable care as to shakedowns. for failure to correct a condition First, assume that a ventilation cov inspectors, notice, absent actual fell, causing injury, er between reasonably could not have discovered in the exercise of spaced properly conducted shake circumstances, reasonable care. these downs. inspectors, therefore, Prison could only way prison negligent could be danger not have discovered the in the exer would if report be an inmate were to care, cise of reasonable and thus the Dis danger act; and the authorities failed to trict cannot negligent be held liable otherwise, prison negli- could not be failure to tighten discover and the loose gent whether reports or not an inmate If, however, cover. between these shake danger. Thus, example, unless some- downs an inmate had told prison au provided notice, one actual the District thorities cover, about a loose ventilation subject would not liability be to if an in- that notification trigger potential would mate, Woody, such as created a situation prison liability if the authorities did not with his “shoots” manage- which the respond fell; before it such notice ment, exercising through reasonable care have been tantamount to a landlord’s dis periodic shakedowns, could not have been covery of a hazard which the landlord expected has a to rectify detect and before a duty repair. then, to management, Prison particular injury occurred. The issue area, like a landlord control of a common contributory negligence context, in this can injury therefore, be held liable for an caused would arise if an inmate were to say "presumably" way indicating 6. We negligent, prison as a inspectors could not have dis- that there is room for authorities to ar- particular covered a hazard in the exercise of gue proximate by attempting the lack of cause reasonable care. that, policy to show even if the shakedown (such anyway since it discoverable in the dormitory report a hazard exercise of reasonable care. actions), triggering potential pris- Woody’s carelessly liability, to act but then were specifically, is More when a landlord manage- respect the hazard before portion premises, the in control of a supra, Part III. C. ment corrected it. See does not extend duty tenant’s own of care very duty discovery of assuming — to the other situation: We turn now assigned by hazards in that law area — not exercise reason- prison authorities do if Accordingly, a tenant were landlord. injury caused care. Assume that able contributorily negligent for to be found falling occurs by a ventilation cover be- failing report a hazard a common unreasonably spaced or otherwise tween area, duty would have be breach prison in- careless shakedowns and that fortuitously premised on the tenant’s know correct- spectors could have discovered and danger; a tenant’s ing about the absent danger in ed the the exercise knowledge of a situation the tenant actual these circumstances the Dis- care. Under discover, duty negli did not have a Thus, negligent. question, trict prac As a gent landlord would be liable. procedures prison’s when the shakedown matter, however, danger a tical discover negligent, is an inmate’s fail- are whether by landlord in the exercise of reason able a report heavy ceiling ure to vent cover to a tenant able care will often be evident contributory knew was loose can amount to result, contributory if as well. As a negligence. report negligence defense for failure to Contributory negligence be a de- will dangers known were to available as a tenant, example, knowing fense rule, many ten general then instances a danger, unreasonably premises. give uses the ant’s failure to a hazard would defense, Compare Scoggins, negligent complete 419 A.2d at with the landlord a Dollard, 273-74, 130 N.Y. at N.E. at a landlord has control of the even when 105; dam premises; responsibility effective see Restatement (Second) of PROPER- ages thus 17.3, in the common area would be Com- (Landlord Tenant) § TY significantly from the landlord to shifted f., Note, Reporter’s ment item 10. Indeed, the tenant. the distinction between Thus, continuing property our real dictating liability a rule landlord for an analogy, inquire law is instructive to area a tenant is injury a common when report a whether tenant’s failure to a haz- danger, preclud a rule unaware of the by ard in a common area controlled liability a tenant knows landlord when can, itself, landlord to an unrea- amount it, report could danger of the but fails to premises. sonable use of the Consider the theoretical; largely the latter become landlord could who have discovered might to the former.7 tend swallow laundry loose ventilation cover in the room by By the exercise of reasonable care. sum, alleged In a tenant with definition, the landlord would have had con- held con- knowledge of a hazard could be because, danger structive notice of the failing tributorily negligent simply for to care, the exercise of he or she landlord, reasonable negligent tell a landlord what If care, would have had actual notice. the ten- of reasonable could in the exercise it, own, told there- ant had the landlord about on its then the traditional have known fore, landlords, been le- imposing liability that notification would have on based rule redundant; notice, many cases gally the landlord would be on constructive would purposes repealed.8 danger practical for all be deemed to have known about Furthermore, only negligence liability could be invoked not landlord with defense 7. if the of a report to a hazard but also when a tenant failed contingent, constructive notice of a hazard were report to do so the tenant did it but failed when nonetheless, from a tenant who on actual notice opportu- enough the landlord an soon nity to afford it, pre- personally knew about then the landlord injury. prevent the to only sumably notice would be entitled not to period but also to a reasonable thereafter within Indeed, nonreporting tenant well 8. Thus, contributory repairs. which to make made rea- that the landlord has have assumed applicable opportunity The law to landlords who control reasonable to eliminate it. We conclude, portion premises general rule, of the a would become the therefore as a prisoner contributorily a applicable same as the law to cannot be found landlords negligent simply to when the tenant has because he or she fails assumed exclusive report a possession premises: prison landlord condition which management, through receiving its control of would be liable on actual premises, ex- reasonably could have notice from the tenant and a reasonable pected through regular to repairs. within discover shake- period which to make As In context, procedures. down and maintenance applied present to the short, management normally an inmate can prison that even assume that mean doing job. officials are constructive hazard and their has notice of a it, nothing could does the District inmate, injured hap- if an who be liable general premised This rule is on an as- hazard, pened to had failed know about the sumption prison management both the report injury both to it and to avoid while injured and the inmate have sufficient no- management time for had a reasonable (whether danger tice of the actual or con- making repairs. prepared This court is not structive) that an inmate a may assume permit If a go far. we were management report to would be redundant. defense based however, is, ap- exception There solely report on a failure to hazard which a plies when an inmate who of the knows management responsibility had the to dis- danger reason has to believe the cover, provide we would an incentive for authorities in fact do not know about it. prison management standards to relax its case, such exposed constructive notice is assuring safety statutory it has fiction; an inmate has reason to know responsibility to maintain. would thus We necessary, will despite that actual notice shifting to the risk inmates themselves a presumed the authorities’ awareness based central, legal assuring responsibility for responsibility stay top on a required protect care circumstances, such situation. Under lives in dormitory. their District of conclude that inmate—if not otherwise places responsibility Columbia law duty constrained9 —has public officials. otherwise, danger; that inmate per- cannot Channels, course, pris- are available (because sonally recover the absolute occur, for reporting oners hazards do that contributory negligence) injuries bar of apparently, occasion, and these channels might actions prevented. that his own have But, general proposition, used. as are a exception by this illustrate reference to We report carriers, failure to a hazard should inmate’s applicable to common the law only consequence: have one a failure to frequently defining invoked in a which is trigger prison liability that oc- injuries jailer’s prisoners pas- to duty because both when, prisoners in sengers subject cur the exercise of reasonable are and the care, management dis- normally could not have control of others and thus are not protect E.g., position the hazard and did not have a in a themselves. covered thus circumstances, inspections already pressed aware of a court would be hard sonable and thus is care, repairs. the needed maintenance or say failed an inmate to exercise reasonable contributorily negligent, and thus was because case there is no evidence that inmates 9. unwilling may he or she was to incur what have hazard; report evi- were afraid to a Mitchell’s perceived reasonably greater been as a risk But, contrary. in some in- was to the dence stances, informing on other from inmates. See Doe may good an inmate reason to have 433, 437, City Albuquerque, 96 N.M. P.2d 631 consequences reporting fear 728, (court (1981) refusing did 732 not err in if it was condition created or exacerbated give contributory negligence instruction as to may pres- reporting invite fellow inmate. Such guard inmate’s failure call for a before cell from the authorities the name of sure to reveal jaw, event, and, mates broke his since cellmates threatened perpetrator may any invite in beating long slitting night and him all reprisals who throat from one or more other inmates found, deemed, so). responsible. Under such if he are did

645 (3) Wilson, supra; (Second) Restatement (1) (4).& 314A § Torts Mitchell and Elder testified that reported had the loose cover to Occasionally, question there is whether through Cook, management Officer Lieu in contributorily negligent passenger Krause, Haywood, and Mr. and that tenant immi- failing to warn the driver about an replaced men had the cover maintenance peril. nent only “near the end of June” with two duty may A to warn arise where the however, testified, screws. Officer Cook peril, duty passenger observes a but that “ap that the last shakedown occurred simply passen- because the does not arise proximately a month” before Mitchell’s ordinary ger hazards which observes accident; Cook, squad lead July 2 by the driver. equally are observable er, complaints in inmates’ called 90% duty indi- The arises when circumstances nor management; that neither Mitchell passenger that the has cate to the driver loose spoken Elder had with him about the not in fact noticed the hazard. accident; after the cover until two weeks Anderson, 444, N.J.Super. 27 Lehman v. time, Mitchell, and that at the had blamed 517, 518, (1953), 14 aff'd, 99 A.2d N.J. inmate, Woody, a for the loose venti fellow accord, 340, 102 (1954); A.2d 385 Brooks v. Haywood did not lation cover. and Krause Co., 236, 243-44, 117 Cab Md. Sun therefore, jury, reasonably A testify. (1955); Burling A.2d Ploesser v. (and testimony could infer from Cook’s Co., 133, 142, Rapid Transit Vt. testimony by Hay ton from the absence (1959). Accordingly, Elder) corroborating 149 A.2d and Krause wood Mitchell, Elder, presumably defense of for fail the other only had failed to ure to warn the driver will not be available inmates not channel, Cook, when, care, through the usual the exercise of hazard management hazard, also had aware that particular but driver could have seen a it probably did not know about because except “circumstances indicate” to place shakedown had taken a month last in passenger does not driver accident, Woody had well before before fact see the hazard. If the of contrib law to store his “shoots” unbolted the cover limited, utory negligence not so dormitory system. ventilation would, effect, passenger shift to the vigilant. duty driver’s to be District, therefore, have been entitled, upon request, to an instruction There be situations which Mitchell could find contribu- management, in the exercise of reasonable (1) torily negligent if it found knew care, could of a hazard that have known cover, (2) that the loose ventilation about fact, negli- injury caused but to inform the authori- he had failed it, gence, yet did know about danger, he had ties about that injured inmate not kenw about the did not the authorities reason to believe hazard also had reason to believe that it, though they were like- even know about management nothing it. Un- knew they exercised ly discovered it had to have circumstances, an der such where inmate reasonable care. arguably prevented his or her could have notice, injury by giving may there be however, own remains. In re- problem, A contributory negligence room for instruc- negligence a contributory instruc- questing a supra, note 9. In the report tion. But see loose ventila- on failure to the tion case, therefore, present cover, premised must consider we District’s counsel tion there record from to this request whether evidence to the trial court—and have con- contain jury reasonably which a could an instruction that would court—on Mitch- only cluded that circumstances known to the first two elements outlined above. management proposed did not instruction have vio- ell indicated That finding precluding a eventually general rule know the ventilation cover that lated negligence merely on dangerous. contributory based fell on him loose and danger appear a failure to a does not prejudicial, known let alone a mis- party responsible making condi- carriage justice. It is true that counsel tion safe has constructive notice it. closing for Mitchell and for the District proffer There was no or discussion trial argument, as well as the trial court in its appeal calling —nor is there for a nar- — instructions, jury told the that Mitchell had incorporating instruction the third rower to show the District either or “knew should exception. element that invokes the Ac- dangerous have known” of the ventilation cordingly, the trial court was not afforded it; cover in time to have corrected and the opportunity to consider the case from explicitly acknowledged court that Mitchell only perspective have lent that would Thus, did not have to show actual notice. concern; substance to the District’s coun- jury was informed that Mitchell had the only sel for the District asked for an in- demonstrating burden of either actual or which, rule, general struction under the constructive notice.10 But the issue was court duty-bound deny. trial joined, fundamentally, question on the circumstances, Under such we cannot actual, whether the District had not con- thus, discern trial court as ex error and structive, notice. Mitchell’s witnesses said B., plained only in Part II. reverse yes, (as the District’s said no. That issue if apparent it is from the record that a damages) comprised well as the central “miscarriage justice” has occurred. closing argument thrust for both 947; Corp., 441 Ceco A.2d at Mark Keshis sides. Sons, Washington Square, hian & Inc. v. Inc., (D.C.1980); 414 A.2d 839-40 Counsel for Mitchell stressed the evi- Weisman, 999-1000; 390 A.2d at W W. tending prove dence that Mitchell and Chambers, Audette, Inc. v. 385 A.2d cover, reported Elder had the loose (D.C.1978); Super.Ct.Civ.R. 15-16 see inspectors had climbed into the (party may assign as error the failure June,” system “May ventilation give party an instruction unless the ob days “June is two before ventila- stating jects, distinctly grounds of ob Mitchell,” tion cover fell on Mr. and that jection). testify- even if Officer Cook was correct Woody that Mitchell put had said

On record the trial court’s fail there, up ure instruct on the shoots officials were Specifically, peculiar 10. the court instructed: cided and determined on its own cir- cumstances. duty The District has not violated its to the plaintiff In order for the recover plaintiff unless it is shown that the condition is count, grate, falling first that’s the the evidence dangerous and that either the District had actual by preponderance things. must establish One, four knowledge notice or of the condition in time to dangerous that there was a condition on condition, have corrected the or that it be two, premises; Bobby Lee Mitchell was shown that the condition has remained for such three, injured; Bobby injury Lee Mitchell’s period ought of time that the District to have proximate dangerous was a tion; of the condi- result known of it in time to correct the condition. It four, that the District of Columbia necessary is not to find from the evidence that knew or should have known of the condition in the defendant had actual notice of the condi- time to have corrected it. character, tion. If the condition from its notori- Now, you if find each of these elements is ety ought or continuance to have been known to evidence, by preponderance established defendant, then notice of the condition shall you plaintiff, Bobby should find for the Lee Columbia, imparted to the District of that is Mitchell, proceed on this count and to award presumed. damages, you. him as I will later instruct I'll large If the condition or defect is a one or give you verdict form. On the other conspicuous, authority otherwise should hand, you dangerous find there was no condi- have known of it sooner than with a small tion or there was a condition but the inconspicuous defect or condition. No certain District of Columbia did not know and under required impart duration of time is in order to known, require impossibil- the circumstances should not have or if notice. But the law does not artificial, you Bobby corpo- any person, find that Lee Mitchell was not in- ities of natural or condition, individuals, cities, jured municipalities rate or or as a result of the then, course, parts your impossible be for the whatever. And it is that all verdict should a correctional institution should be under con- District of Columbia. Under those circumstanc- es, inspection. Every you worry damages. be de- stant such case must don’t about sum, argued as the case was tried and the ones who had “unscrewed the ventila- jury, unlikely left it loose.” Mitchell’s tion cover ... and to the we believe it is most pointed jury out to the that counsel never jury that the found for Mitchell on a con his Mitchell could win even if Mitchell or theory. jury structive notice Because reported witnesses had not the loose cover report apparently either found no failure to prison if had not other- or authorities of defec or otherwise found actual notice Indeed, in his wise received actual notice. cover, inspec tively by virtue of the bolted closing argument, Mitchell’s coun- rebuttal presence days tors’ on the scene few sel, effect, jury premise told its injury, the trial court’s before Mitchell’s verdict on the District’s actual notice contributory decision not instruct as cover, loose as evidenced either Mitch- seriously negligence could not have been reports simply by the ell’s and Elder’s prejudicial. Capitol Hospital v. See Hill prison inspectors fact that had removed (D.C.1987). Jones, 532 A.2d 94 n. 17 cover, and thus must have been aware miscarriage justice. There was no condition, “shortly it fell” on its before Mitchell: IV. says Judge going And counsel cross-appeal Mitchell contends on that you tell about actual and constructive granting judgment the trial court erred in ceiling grate. They notice of the are the alleged n.o.v. on count II—the District’s up there, they ones that were whether provide proper follow- failure to treatment up there as a result of Mr. Elder surgery May ruptured 1980 for a saying and Mr. Mitchell this ventilation hernia.

system working, please isn’t do some- know,

thing. Because we and it’s undis- puted, gentlemen, they ladies and that A. grate shortly took the ventilation down trial, jury At the court instructed Mitchell, before it fell on Mr. not for an malpractice II not a medical that count was inspection to wash it out in the tubs. Instead, the court instructed the claim. that, Elder Mr. said Mr. Mitchell said ordinary negligence— jury on the issue of said, that. And no correctional officer adequate provide the failure to and neces- there, hey, up we never went so we are sary treatment —without reference medical talking not about constructive notice testimony to estab- any expert need for They long that it had to be a time. are lish the standard of care. up taking the ones that are there concluded at the end of The court had ventilation cover down. And are plaintiff’s case that Mitchell had not taking it down because other inmates are i.e., there, malpractice, as the court putting up maybe they shoots established then it, resulting ought something locking put “injuries to do from deviation standard” of care [Emphasis bam door. from an established added.] expert testimony. But the court based Focusing issue, on the same counsel for pleadings to allowed Mitchell to amend the argued, referring the District to documen- allege ordinary negligence, premising its evidence, tary there no assumption decision on the showing an inmate told authori- the evidence established cover, [at trial] alleged, ties about the vent nature injury was of such a testimony, thus that Officer Cook’s layperson readily apparent Mitchell’s, should be Counsel for believed. required and that medical attention was testimony the District also alluded to therefore determined gone up [the court] “officials had into the venti- remaining jury to de- issue for the looking cover then lation shoots” but get failure to back, cide was whether the merely had asked the to “think as a result of the needed attention was any testimony relating long is there to how Defendant’s Plaintiff’s refusal or the supposed the screws were to have provide failure to it. loose?” 648 granting

In its the judgment imposed order n.o.v. on from different the one physi II, however, recognized count cians in other We court contexts. conclude that physicians necessarily that count II medical owe the same standard of was a care prisoners malpractice physicians to private owe to properly claim thus con- patients generally. “The fact negli II gone cluded that should count not have gence malpractice alleged are to have an under instruction that did place jail taken in a makes no difference.” recognize not expert need for an Elmira, 510, City v. Fischer 75 Misc.2d Moreover, establish of the standard care.11 of 513, 770, (1973) (citing 347 N.Y.S.2d 774 granted the trial court a judgment n.o.v. York, Pisacano v. State 8 New A.D.2d instead of a new trial because the court of 335, (1959)). 188 N.Y.S.2d 35 See Bowers concluded that expert testimony Dr. Robb’s 945, County Essex, 943, v. 118 Misc.2d required had not established the of standard 959, (1983); 461 N.Y.S.2d Hight care. of State, 926, 35 Misc.2d 231 N.Y.S.2d 361 malpractice claim, therefore, Mitchell’s (1962); Spokane, City Shea v. 17 Wash. of presents question of stan- proper 236, 246, 264, App. (1977), 562 P.2d post-operative dard of care for treatment 43, adopted 90 Wash.2d 578 P.2d aff'd 42 open, draining wound of a (1978) (en banc). granting n.o.v., inmate. In judgment Shea, In Washington Court Ap the court found no evidence that the Lorton peals, Supreme and later the Court of Reformatory infirmary or its had deviated Washington, with a were faced situation from an established care in standard of Mitchell’s; experts similar to medical failing provide additional Ac- treatment. questioned average, as to compe what an cording court, “[although Plaintiffs tent doctor would done under have condi expert objec- testified without [Dr. Robb] tions similar to those in the instant case. tion the District of Columbia failed to argued The defendant Shea standard, meet the appropriate he was ob- plaintiff appropri had failed to establish an viously referring Hospital’s to D.C. General jail physician. ate standard of care physicians he because had not otherwise explained: The court “The standard of care qualified purported nor had he to know the malpractice degree is that medical cases appropriate penal standard for a institution expected average competent of care words, its infirmary.” or In other practitioner in the to which class he [or expert testimony court concluded that belongs, acting same or similar she] circumstances_ necessary, testimony Dr. Robb’s Here, jail physi testify did suffice could not cian, general practitioner, required penal the “appropriate standard for a the same of care of exercise standard infirmary.” institution or its Shea, average, competent doctor.” suggests ques- court’s order two Wash.App. 562 P.2d at 270. We (1) tions: malpractice Does the standard agree “[p]rison owe no physicians less penal care institution differ from the prisoners duty accept must who their required physicians standard private care, private do physicians than to their other settings? institutional If there patients who are choose.” free to Pisaca standards, nois difference did between no, 8 A.D.2d at 188 N.Y.S.2d at 40. testimony Dr. Robb’s establish a standard Indeed, responsible in this case the doctors of care and a breach of that standard? follow-up for Mitchell’s care were function ing Hospital out D.C. General where B. private patients are attended. The fact prem disagree We with the provides court’s prisoner that Mitchell was a no physicians pop ise that who serve a physicians excuse for these to treat him differently ulation be held to a standard of care patients. from other 105-06, Gamble, 11. Estelle v. 429 U.S. about medical care either has a constitution 285, 291-92, (1976), S.Ct. malpractice 50 L.Ed.2d 251 al or a claim. claim medical Mitch Supreme complain- Court that an ruled inmate ell has not raised a claim. constitutional granulo- surgery him to remove a stitch for C. as surgery performed ma. The was not that agree Mitchell We also with scheduled. a testimony established expert Robb’s Dr. stan of that of care a breach judgment standard reviewing grant of a In the that he had exam Robb whether, dard. Dr. testified as a n.o.v., we must determine “ap and that it was ined Mitchell’s records law, the party obtained matter of the who to watch treating physicians propriate” for evidence presented sufficient verdict for several months to see infection site the theory of the under the jury the to consider being “completely ab if were the stitches and all the evidence case. We must “view months, how After the first few sorbed.” light most fa inferences the reasonable ever, gave Mitchell antibiot physicians jury party who obtained vorable to compresses; told him to use hot ics and “only juror if no could and affirm verdict” provided. care not more definitive opponent for the reasonably reach a verdict of the motion.” District Columbia hypothetical presentation After a (D.C.1983) 397-98 Cassidy, 465 A.2d surrounding surgery and Mitchell’s facts curiam) Hair Goods (per (quoting Marcel care, follow-up Dr. was asked he Robb Co., Savings Trust Corp. v. National & upon opinion based had “an (D.C.1979)). 410 A.2d not the certainty as to whether or medical Columbia, defendant, District of used that standard, and on Dr. Focusing on this expected degree and skill is of care District contends the testimony, the Robb’s competent reasonably a institution evidence we was similar evidence Dr. same or similar circumstances?” Robb Shepard, 484 in Meek v. held insufficient “I the level of care was replied, believe (D.C.1984). agree. not We do A.2d 579 expect- competence that could be below “never testified Meek, expert witness explained like this.” He ed a situation care, rather stat the standard of but as to “gone on for that Mitchell’s condition had he do under similar ed what care other years four without definitive Mitchell’s Id. at 581. circumstances.” taking things day just than care of Dr. did not discuss is different. Robb case him giving on sick call and comes patient. have treated the how he would telling him to use hot some antibiotics presented standard of care testimony His a soaks, compresses, hot this [and treatment] According a of that standard. and breach could be is the level of care that below entitled that Mitchell was ly, we conclude expected.” jury malpractice on his claim. go to the open Q. the failure to treat this [I]s area, open sore for four this fistula this D. you saying is that what years, Mitchell, however, is not enti below the level of care? verdict, for two tled to reinstatement him, Well, they did did A. treat trial First, agree reasons. enough after a aggressive not become malpractice II a claim that count was court period of time as far as consider- certain testimony to establish expert required surgery find out a ing exploratory Meek, 484 A.2d at of care. the standard it. reason for post-opera 4. The standard 581 & n. ad- acknowledged, and Mitchell Dr. Robb readily discernible tive treatment mitted, ag- more Mitchell had refused cited). (and cases id. layperson. See gressive treatment on several occasions. require Second, although Mitchell met such added that he had refused Mitchell the time ment, believed at the trial court dates, because, proposed on the treatment jury the case to it could submit hearings and visits sched- he had various negligence theory, without ordinary treatment. uled that conflicted with the testimony to establish expert need thus, care; jury reached standard of for the Gregory testified

Dr. Johnson instructions for Mitchell on verdict explained that he had exam- District. He than it his case easier arguably made May 1984 and scheduled ined Mitchell saulted, report.” should have for the I up to find would have written Estep pro- also Accordingly, favor. as District correct- testified shakedown out, security ly cedures at the Facili- points hope Mitchell Central best could did ty, Major David P. Decatur and appeal for on is a reversal and remand for Eugene A. Finally, Lieutenant Dickinson. new trial on II in- proper count under Sergeant Bailey Becker for the testified structions. that District Mitchell never had told him the assault. V. The District also the asserts trial court B. its abused discretion when it refused to closing argu- In rebuttal of the District’s grant request the District’s to instruct the ment, counsel for Mitchell reminded the

jury that correctional officers to whom jury any that the District did not call cor- “missing counsel in Mitchell’s referred his testify rectional officer he or she to that argument witness” rebuttal on III count Mitchell; had seen the Counsel assault equally were to parties. available both testify noted that the officers who ad- did they mitted not in the were area that A. indicated, further, time. Counsel that the Mitchell testified he had not seen District did not to the call stand four (guard) correctional officer in the area for five correctional officers whom Mitchell ten fifteen minutes before the assault. he testified had told about the assault. Nor he seen any guard during had the time Counsel for Mitchell told the he was him, beating although Moore admit- he making arguments response these in to a ted could he not see whether there were question rhetorical counsel District’s guards guard overlooking in the house closing argu- jury during had asked the area. Mitchell testified further that fifteen pipe?” as- ment: “Where is the Counsel beating, after minutes his two correctional “clearly in his he serts brief that also was officers, Lieutenant Golden and Officer Es- rebutting argument just the District’s that tep, arrived. told them he Mitchell had people two or not see because three did manhole, open fallen in an for he feared he in officers where Mr. area Mitchell placed security would be in maximum assaulted didn’t mean there weren’t offi- safety his if he told them truth. Once cers in the area.” ambulance, however, Mitchell told closing argument, After Mitchell’s one of the medical technical assistants give caution- District asked the court (MTAs),Joe Hagnagy, Moore had bro- ary instruction: leg and, pipe, hospital, ken his with a at the honor, light closing argument, Your Sergeant he told Williams about Moore’s give we ask the Court to a short could assault. Mitchell claimed told also he had fact instruction on the that the witnesses Hamm, Burchett, Sergeant Officer and Ser- equally named rebuttal were available. geant Becker later some time that he had missing It’s not a witness rule because pipe. been assaulted with a lead par- they equally available to both inmates, Two other Robert Burrell ties, just could have [Mitchell] Elder, Bur- Thomas testified Mitchell. equally called them corroborate [his] rell, who had wit- been with Mitchell and testimony as rebut it. [District] assault, nessed the he had testified that I And think that we are entitled guard seen no the area at the time impres- kind of instruction immediately Elder testified thereafter. somebody— was left this is sion immediately that he had arrived after people only these are are our who within guard assault had seen no in the area. control and weren’t. Estep Officer Michael for the J. testified request. The court denied the District he and other correction- three C. al He responded officers had to the scene. Schneider, Stager case, said he had say had heard Mitchell In a recent (D.C.1985), “If as- fallen down. he had said he was 494 A.2d 1312-14

651 Furthermore, relating occasion to review the law to miss for Mitchell to have done so. District, witness instructions in civil cases. says We there is no basis given noted that the instruction assuming “practically these witnesses were premised following on the situation: available” to the District. Dent v. See “ party peculiarly has it within States, (D.C. ‘[I]f 404 A.2d United power produce witnesses whose 1979). [or her] argues that Mitchell’s transaction, testimony would elucidate the counsel, failing permission to seek court the fact that he does not do it [or she] argument, provide op for the did presumption testimony, creates the portunity colloquy for a bench whether ” produced, if would be unfavorable.’ potential still em various witnesses were (quoting A.2d at 1313 Graves v. United and, so, ployed by the District whether States, 118, 121, 14 40, 41, 150 U.S. S.Ct. employer-employee relationship, under (1893)). peculiarly L.Ed. “To be avail circumstances, implied for the bias able, (1) par a witness: must be within employer that would have made these wit ty’s particular ability produce to locate and peculiarly nesses available to the District. (2) legal and must such a or have factual Thomas, (citing 447 See A.2d at 58 Milton respect party status with to the as to make States, U.S.App.D.C. 110 v. United expect party it natural to have (1940)). F.2d 556 (citing called the witness.” Id. Thomas v. States, (D.C.1982)). 447 A.2d United note, first, We the District elucidating In order to meet the test for legitimate neutralizing had no basis for a transaction, “testimony must be both respect catego instruction with to the first issue, disputed material and relevant to a officers, ry missing any, if witnesses: noncumulative, ... must be ... and must who had seen the assault. Mitchell had important part constitute an of the case of himself, called three witnesses—Mitchell party against whom the inference is Burrell, they and Elder—who testified that (citations omitted). Also, drawn.” Id. any guard had not seen in the area where party intending argue stated that a Thus, Mitchell was assaulted. for Mitchell missing “required witness inference is guards testify called various as have prior ruling seek and obtain a from the they present to whether had been court; finding[s] the court must state its cumulative; pro have been the burden of underpin ruling.” its Id. Fur duction had shifted to District. thermore, closing the District’s counsel D. argument had stressed: “There no tes prior Counsel for Mitchell did not obtain guards timony there were no there. approval from the court. Nor did counsel only testimony that or There was one two object argu- for the District to counsel’s particular point in witnesses at a time at Instead, ment. the District’s counsel later guards. particular spot any did not see requested an instruction that the witnesses establish, gentle That does not ladies and argu- to whom counsel referred in rebuttal men, guards no there.” The were equally ment were available to both sides. District, therefore, making came close to dealing categories We are two argument its missing witness own. (1) officers, missing any, witnesses: who Thus, argument that the counsel’s rebuttal assault, saw the four of the five testify District had called no one to officers whom Mitchell testified he had told guards in the area was not unfair. argues the assault. The District comment on the Dis Counsel’s that these witnesses as would have been trict’s failure to call four of the five offi corroborating relevant material for he had told cers Mitchell testified whom they Mitchell’s case as would have assault, however, District’s; thus, is more trou although about the these wit- The District had called one of the blesome. nesses could have elucidated the transac- Becker, tion, five, Sergeant had testified who it would have been no more “natural” had not told him about the for the District to have called them than that Mitchell Accordingly, assault. it would trial. The have been before District asserts that Dr. Seipel, as who treated Mitchell at Lorton Infir “natural” for Mitchell to call the other Johnson, (Hamm, Burchett, mary, Dr. Williams, who treated Mitch Hagnagy) four Hospital, ell at D.C. General were not listed testimony to corroborate his own —and experts pretrial on the District’s state thus to isolate the witness the District did being ment because called as were not call—as it would have been for the District “experts.” Morton, In 494 A.2d Adkins v. im- to call the other four to reinforce the (D.C.1985) (quoting Super.Ct. pression that Mitchell had lied. The failure 26(b)(4)) Civ.R. after trial of permit to call these witnesses does not — decided 26(b)(4) ap this case—we held that Rule more one side than inference favorable to plies only opinions ‘acquired to “facts and to the other. or developed anticipation litigation or however, say, We cannot ” apply for trial.’ The rule does not denying trial court abused its discretion professionals practitioners acquire or who place, request. the District’s the first develop opinions information and as “ac object the District did not to counsel’s ar in the course of treat tor[s] viewer[s]” gument; joined issue it could have before patient. Although Id. at 657. Second, damage done. real therefore, court, trial have erred when proposed District’s instruction did not dis physicians’ testimony, any it excluded the tinguish categories between the two error is irrelevant since we have held that references, missing witness one of Mitchell is entitled to a new on count trial justified request. the District’s II, not to reinstatment of the verdict. Ad Third, itself, per the District without court guide parties kins is and available mission, missing had made both a evidence the court on retrial. (the (offi pipe) missing lead and a witness alleged As to the exclusion of Salanda scene) argument. Finally, cers on the argu- testimony, Whitfield’s the District’s testimony trial court had heard all the and misplaced. ment is Counsel for the District position was in a to decide whether counsel testify told the trial court Whitfield would prejudice for Mitchell had created such investiga- that there would have been an neutralizing necessary. instruction was officials he tion Mitchell had told sum, perceive In no reversible error addition, had In been assaulted. Whitfield here. explain policies procedures and at testify the institution. He would also VI. prison jargon, how he about relevant about The protective District contends its Mitchell, he knew of knew and about what cross-appeal on count II that the trial court leg injury The District also incident. erred when it refused to allow District testify Mitchell wanted Whitfield to employees, Seipel medical Dr. and Dr. read, though Mitchell had was able to even Johnson, testify personal their about testified he could not read. knowledge of Mitchell’s medical condition Whitfield, pretrial questioning were not listed in After the court say expert pursuant statement as concluded that Whitfield could not witnesses 26(b)(4). Super.CtCiv.R. In The court there- appeal its on Mitchell was able to read. III, prohibited question- I from counts and the District makes an fore the District complaint more identical about the court’s al- Whitfield on this issue. After leged discussion, including question testimony by exclusion of the Admin- the court’s Facility, trying qualify istrator of Lorton’s Salan- the District was Central whether Whitfield, (to “security expert da about and shake- Whitfield as an which counsel not”), replied, “I'm downs.” the court allowed question District to continue to Whitfield. 26(b)(4)requires party Rule that a who expert questioned for the District then rely opinions intends to must Counsel provide opposing knowledge his of the as- party with the sub- Whitfield about expert’s expected testimony stance of the sault and what Whitfield would have clarify alleged him if Mitchell told he had been would have been able done had Corporation did not ask assaulted. counsel inconsistency. security and shakedown

Whitfield about argues The District that Golden’s testi- Moreover, procedures as the court such. mony credibility and his was material question the District to Mr. allowed at issue. The District bolsters Dickinson, Cook, Estep, Officer Lieutenant that, argument noting during closing security shake- Major Decatur on argument, focused on Mitchell’s counsel sum, procedures. Whitfield’s tes- down among purported inconsistencies Gold- limited, timony as the District report, testimony of an- en’s incident claims, 26(b)(4). by reference to Rule officer, testimony other corrections stipulation.12

VII. argues agree with the trial court that Golden The District also that the We refusing trial court its discretion in As acknowl- abused was not a critical witness. grant request trial, the District’s for a contin edged by the District’s counsel at Golden, a uance Lieutenant material pin- Golden would not have been able to III, shortly witness for count became ill point the locations the officers who proffered before trial. The District the time of should have been the area at only official Golden was corrections The the assault. District indicated testify who could about the location of vari explained could have where Golden allegedly ous officers at the time Mitchell pa- supposed the officers were to have assaulted, had been and that he was one of Moreover, inconsistency be- troled. the first officers to reach Mitchell after the Estep’s testimony and Officer tween incident. Mitchell’s counsel offered to de material. Both officers was not arrived pose hospital, Golden at the but the had occurred. the scene after the assault objected. suggested then court that a important; first was not their Who arrived stipulation testimony pre of Golden’s testimony was consistent all other re- trial, pared in continuing lieu of but the spects. Both said that no inmates were on again objected. District The court then just scene and that Mitchell was stand- physician learned from Golden’s that Gold ing holding a chair. Both said Mitch- there deposition. en would available for a The ell told them he had fallen. Counsel requested court denied the continuance be inconsistency Mitchell mentioned the be- concluded, cause the court after the Dis during testimony officers’ tween the two proffer, testimony trict’s that Golden’s was argued, closing argument, but he fur- credibility not critical and that his was not ther, it not matter which officer did however, day, at issue. The next the Dis first neither one had had arrived because notified trict the court that Golden had had Mitchell was in the area at the time been emergency longer surgery and no would be injured. deposition. again available for The District continuance, requested grant deny the court a continu The decision to denied. is the trial court’s sound discre ance within unless subject is not to reversal tion and summarizing stipulation prepared A arbitrarily. discretion is exercised anticipated testimony. Golden’s Counsel 21, States, 28 399 A.2d O’Conner v. United portion for Mitchell noted that a (D.C.1979); Feaster, A.2d v. 359 Feaster Estep, stipulation impeached Officer a wit- case, 272, (D.C.1976). In the instant 273 testimony ness for the District. Their dif- witness, his not a material Lt. Golden was fered on the issue of which Officer of a testimony presented the form the first to at the scene. The arrive testified, credibility was not a stipulation, if and his District said that Golden had says Estep running leg. During closing argument down his “He Officer 12. counsel for Mitch- prepared Hagnagy an ambulance. and MTA arrived in ell described the Lt. Golden had course, And, Estep there Officer said he was of the incident. He noted that Golden claimed get together.” standing They up can’t even he had found a resident with blood first. 654

real issue. There preme was no abuse trial legis Court has never insisted that a court discretion. body lative articulate its reasons for enact 179, 101 a statute. 449 Id. U.S. at S.Ct.

VIII. 461; accord, at Nestor, Flemming v. 363 603, 612, 1367, 1373, argues U.S. 80 4 Mitchell S.Ct. L.Ed.2d D.C.Code (1987 (1960); 1435 28-3302(b) Supp.), which Allied Stores Ohio v. Bow allows § 4% ers, 522, 529, 437, 442, 358 judgments against interest on U.S. 79 S.Ct. 3 (1959); L.Ed.2d permitting while 480 prevailing Harrington, interest at the 116 Ill. App.3d 139, 452 judgments, rate on all other violates N.E.2d at 28. equal guarantee protection pro in the due case, present the District cess clause of the fifth amendment. See legislature may submits that the well have Bolling 497, Sharpe, v. 347 U.S. 74 S.Ct. set the interest rate at in order to 4% 693, (1954). 98 884 L.Ed. District re lessen the financial burden on District tax plies in “may its brief that the Council well payers ultimately pay judg who for the have concluded” the interest rate should be ments against rendered the District. See judgments against District, lower on dispari id. That is a rational basis for the order to lessen taxpayers, the burden on ty rates, though interest even one in any but that event the “Council was not question whether the Council “struck a constitutionally required to state a ratio proper saving” balance” between “tax nale retained the rate for the 4% for District residents and the “burden im judg District but altered the rate other posed” judgment obliged on a creditor ment debtors.”13 judgment collect less on the because a Dis trict entity injury. caused the right

Since no fundamental Id. Accord or sus ingly, pect here, we must conclude class is involved our the chal standard of lenged statute does not offend review is the rational basis test. the Consti United (Illinois providing tution. Id. statute States Railroad Retirement Board v. Fritz, 166, 175, 101 459, judgments 453, per 449 U.S. interest at rate of S.Ct. 9% or, (1980); judgment govern 66 annum L.Ed.2d 368 debtor McNeal v. Police Firefighters’ entity, per mental at rate of annum has Retirement & 6% Relief Board, 931, (D.C.1985); 488 A.2d rational basis and thus does not 935 n. 4 violate equal clause); protection Harrington City City Holt v. Chicago, 116 Ill. 137, 179, 186-87, Ind.App. App.3d (1983). Bloomington, N.E.2d (1979)(Indiana “If the N.E.2d 833-34 stat classification has some ‘reasonable basis,’ providing judgments ute that interest on it does not offend the Constitution against governmental begin simply entity shall not the classification ‘is not days to accrue until after 180 nicety made with from final mathematical or because ” rationally right in decision is on practice it results in based state’s inequality.’ some Fritz, 175, sovereign immunity to limit waiver of at U.S. S.Ct. at 459 (quoting Williams, equal protection thus does not violate Dandridge v. 397 U.S. clause). 471, 485-86, 1153, 1161, 90 S.Ct. 25 L.Ed.2d (1970)). Fritz, Supreme In the Court IX. that, plausible added where there are rea action, legislative

sons for the judgments the court’s The on counts I and III are end,” inquiry is “at an judgment because the Su- affirmed. The II on count is 13. legislative Both paid sides concede there is no United States should accrue at the rate on history why explain imposed Treasury Act, Improvement the District a bills. Federal Courts 97-164, judgments against 302(b), lower rate of interest on it- Pub.L. No. 96 Stat. § (1982). year, self. Mitchell notes that in when the 55-56 In the same the Council of paid judgments United States one-half of all the District of Columbia amended D.C.Code District, against Congress provided 28-3302(c) provide the that in- § that the rate interest 4%, judgments paid judgments terest on such shall be at on shall be of the rate of 70% interest paid judgments against by Secretary Treasury pursuant the same rate set of the 1982, however, Congress pro- except judgment United States. § 26 U.S.C. against when the is judgments against vided that interest on the District. reversed, dangerous is remanded for and that case a mate of a known condition that, recognize by stating trial. The trial court’s denial of Mitch- new should this fact isolation, judgment responsibility ell’s motion for on the in a to re- interest viewed rate, 4%, prevailing port instead of is af- existence reason to turns in prison firmed. authorities are not believe danger they fact aware of a should be ordered. So Indeed, any of. such instruction aware should also make clear the distinction be- STEADMAN, Judge, Associate may tween the two roles that such a notice concurring: serve, as discussed above. Belson, Judge join Judge Like I in all of hand, agree On the other I insightful opinion, Ferren’s careful and ex- Judge give notice However, Belson failure cept portions my of Part III. prison dangerous officials of a known analysis different ends somewhat me at a in condition could have a wider relevance in concurrence the result to which Part III the context of a leads. Judge opinion might claim that Ferren’s difficulty I in believe this case arises go I opinions astray indicate. think both in part

in purposes because of the dual that a focusing giv solely question on the of the dangerous potentially notice of a condition notice, ing of and do so too a by prison an inmate to officials can serve. ready of the dismissal relevance of other hand, may On the one it be the event that aspects of the conduct of an inmate faced triggers any duty of care at all to the dangerous potentially with a known condi inmate, such as where the condition arises tion. in period prison between reasonable (In I, inspections. sense, opinions, agree Both as do in a this in this sense, only, dangerous prisoner sense notice of macro “no choice in condition has environment,” the inmate “legally arranging ordinary is their irrelevant” when the condition should already assumption analysis inappropri- have dis- of risk prison covered had the officials made a ate. But I do not think it in follows that inspection.) hand, assessing possibility contributory On the other may prison alert the negligence, officials to a condi- conduct of the inmate tion that should in gave have known of but that is relevant is whether he notice. not; sense, course, fact did (Judge opinion, recog- the notice does Ferren’s trigger duty already participation by plain- of care—that nizes that active may injury aggravation existed—but rather forestall tiff the creation or may dangerous grounds otherwise occur because of condition prison negligence failing negligence.) officials’ contributory to dis- Even within the environment, danger. prisoner may cover and correct the In this lat- be able sense, or, give ter particular dangerous failure to notice is rele- to avoid a area it, not to the duty using may vant existence vel non of a be able to limit his use to a reasonably necessary on the officials but instead to a extent. avail- possible contributory negligence. ability options may claim of use of these well bearing on the of his have reasonableness agree proposition We all on the that a rely solely upon assumption decision duty of care arises as to condi- knowledge in prison of officials’ lieu of inspection tions would giving notice himself. and, addition, in uncover as to conditions of difference, prison thus, which the officials actual notice There could be á be- have by reports. nonreporting leaning reason of inmate For essential- tween a inmate over a ly Judge Ferren, using writing sitting, by the reasons set forth I desk while it for agree long normally using place also that an inmate can and it as a favorite to take Or, prison doing naps. perhaps assume that officials their to take another far- are job any example suppose point, and that instruction as to the effect fetched to make the prison up spring gun of nonnotice to an in- inmate has set officials another reasonably trap. thing knowing expected for of to dis- It is one one have trap pass by through regular to that area at smart cover shakedown and regularly pace, quite another to continue to procedures. maintenance sitting directly potential in the watch TV Judge opinion p. Perren’s at 644. That (While analogies line of fire. I think to concept statement is at odds with the basic prison situations must be viewed with cau- plaintiff that a tort must exercise reason- tion, Scoggins, I note that in the tenant safety. his able care for own Because removing fur- the time of the accident was Judge only in the result Steadman concurs dangerous ceiling under the niture located III, of Part the resolution of the issue leaking, in an effort from which water was in jurisdic- whether such a rule exists protect damage.) In the furniture from tion must another case. await short, right the inmate has the while Judge opinion Ferren’s observes that prison know or assume that officials will prison jury where a concludes that authori- condition, dangerous of a come to know inspections, ties have not made reasonable possible report failure to can effect with the result that fail to discover a totality pris- of the be assessed dangerous prisoners, condition the Dis- light conduct in the of the known oner’s chargeable knowledge trict is with of what dangerous condition. inspection a reasonable would have re- Judge analy- difficulty The with Perren’s indisputable, and vealed. This much is it sis, it, it, I under inmate see is that important bearing on whether a has an knowing dangerous go of a condition could negligent. prison will find authorities The (until exactly his business as before about however, opinion, relying analogies and unless he had reason to believe the law, goes property and common carrier law prison in officials did not fact know of the plaintiff if the inmate on to state that even dangerous although they condition should condition, he had no knew have). Judge difficulty with Belson’s duty report prison it to officials unless analysis open is that it leaves too the con- “it clear to ... [him] [was] tributory negligence issue without suffi- in fact not know about it” authorities [did] regard importance cient to the of channel- permit prison- approach Such an would Id. jury’s analysis as discussed above. damages injuries caused ers to recover negligence. part by their own say pur- There is no need to more for poses disposing appeal. of this As helpful to consider how the It be indicates, Judge Perren the District operate hypotheti- in a proposed rule would presented refined to the trial court no such prisoner situation. If a should learn cal proposal. I instructional concur with his cover his that an overhead ventilation that on the trial as view record of this loose, dangerously dormitory room is conducted, actually the trial court’s failure long how it has been taht does not learn to instruct on does prison officials had condition or whether appear unduly prejudicial, let alone a it, not be “clear” to been told would Hence, miscarriage justice. I concur in did not him that authorities judgment I. the affirmance Count danger his head. Ac- about the over know cording suggested approach, to the BELSON, Statement of Associate go his would be free to business Judge, concurring dissenting: even under this sword of Damocles without join Judge opinion except I Ferren’s prison personnel of advising appropriate 111(D). part agree I do not its with condition, if the cover should fall statement that there is a him, damages injure his action rule, not met a defense of contrib-

general prisoner that a cannot be could anomalous, negligence. for it negligent simply utory This is contributorily found be- danger- that he not have is incontestable cause he or she fails safety, prison management, taken reasonable care for own ous condition which might trier of fact conclude that through premises, control of the could and the its

657 injury by giving seems proximate cause avoided notice. It his failure to do so was a injury. inappropriate unnecessary and to weave a of his limiting new fiction-based doctrine the de- in Undeniably, there are situations in fense of avoiding prisoners have no means of because, submit, area of notice I the usual Thus, the dangerous physical conditions. application of that in cases like this defense generally is assumption of risk doctrine in produces one results that are fair and prisoners in situations which unavailable keeping public policy.2 with sound confronting they injured upon are risks addition, powerless to avoid. Invoking long-recognized defense application prison nature of life affects the (without limitation), prison suggested negligence. contributory of the doctrine of be to make out a authorities would able therefore, Ferren, Judge agree I with prima contributory negli- case facie found contrib- appellee could not have been (1) gence they produced evidence that the utorily negligent merely by reason of his (2) prisoner danger, of the that he knew leaning being present in his room and over authorities, report prison it to failed to Judge Fer- a desk under the ventilator. report proximately that his failure to it agree, opinion pp. ren’s at 639-640. I also (or causing) injury caused concurred however, Judge pris that a with Steadman damages complains. of which he contributory negligence potentially oner’s cause, prove proximate To the element of many can take forms and is not limited to prison authorities would have estab- dangerous give failure to notice of a condi given prisoner lish that if the them Steadman, Judge con tion. Statement of condition, notice it have made would ante at 655. As curring, Judge Steadman words, a crucial difference. In other suggests, lingering danger beneath such a prison would be the authorities’ burden contributory ous condition could amount to prove preponderance of the evidence by a negligence, id., amalgam or an of contrib prisoner’s a failure warn was negligence utory assumption of risk. prison- proximate cause of the substantial Ferren, ante at 639. opinion Judge See injury. prisoner could rebut this er’s aspect But the of Mitchell’s conduct to generally by he had defense evidence that par which the District of Columbia draws dangerous He not known of the condition. give ticular attention is his failure to notice offer on the issue of could also evidence dangerous An condition. inmate’s proximate tending cause to show that even imprisonment normally prevent does not given notice to if he had known of it and giving him from of a the authorities notice authorities, his notice would not prison endangers him condition that or his fellow remedying of the have led to the suggested approach prisoners.1 And the condition. simply reality it relies on “an blinks Here, a appellant was entitled to assumption” by prisoner that notice contributory negligence instruc- standard “redundant” in cases authori where tion, suggested the limited instruction not ties have not actual mere constructive opinion, it Judge Ferren’s follows legal danger. By making notice of the denying appellant’s court erred in the trial fiction of notice the determin constructive I an instruction. cannot factor, request for such approach assure that would colleagues’ agree my conclusion plaintiffs future could in in with recover even give which, fact, the trial court to stances in could have the failure of finding prison support agree Judge 1. I Ferren’s view that different evidence present plaintiff protection considerations where inmates from failed to seek er do reprisals a condition because of fear of danger against particular of at authorities Judge from other Ferren’s inmates. See, e.g., inmates. Walker tacks other 644, opinion page n. 9. 1081, States, (D.Or. F.Supp. 1083 United 1977); 437 State, N.J.Super. Harris v. practice permitting 2. The to consider State, (App.1972); Parker v. A.2d contributory negligence has fre- the defense of (La.App.1972). So.2d 370-71 recognized quently in which the in cases I, respect instruction was not reversible error. The tled to a trial new Count jury fully instructed on appellee’s personal injuries constructive claim result- notice, and could theory have used that being by falling from his struck venti- guilty conclude that the District was lator cover.

primary negligence. heard evi- ample

dence that was to sustain the de- contributory negligence,

fense of but did

not have the benefit of the District’s re- instruction,

quested and did not have the

issue of before it. Columbia, therefore,

The District of is enti-

Case Details

Case Name: District of Columbia v. Mitchell

Court Name: District of Columbia Court of Appeals

Date Published: Nov 16, 1987

Citation: 533 A.2d 629

Docket Number: 84-1299, 84-1471

Court Abbreviation: D.C.