*1 DOE, Fire John National Union c/o Co., Insurance Travelers c/o Indemnity Appellant, BINKER, al., Appellees. et
Bonnie L. al., BINKER, Appellants,
Bonnie L. et DOE, al., Appellees. et 82-1255, 82-1256,
Nos.
and 82-1632. Appeals.
District of Court of Columbia
Argued 1984. Oct.
Decided Feb. 1985. *2 Jr., Alexandria, Gallagher, E.
Charles Va., Jr., Spellbring, with whom William B. Md., Marlboro, briefs, Upper was on the Doe, Fire In- e/o surance Co. Durbin, D.C., Washington, P.
David with Dwight Murray, Washington, whom D. Doe, brief, It D.C., complaint.2 also returned on the for John e/o plaintiffs Indemnity Travelers Co. under both the The defend- death and survival statutes. Va., Arlington, Freyvogel, T. William ants moved for n.o.v. and then Clifford, Washington, M. with whom John alternative a remittitur. new trial or D.C., briefs, L. Bink- was on Bonnie *3 judg- denied the trial court motions er, et al. a ment It denied the motion for new n.o.v. D.C., Ulmer, Gary Washington, with trial, accept a provided plaintiffs re- Scanlin, Washington, R. whom William mittitur, jury reducing the verdict under D.C., brief, the on for Donald Peden. was wrongful statute from the death $120,000. Plaintiffs the remit- PRYOR, Judge, Before and NEW- Chief cross-appeals titur. These followed. ROGERS, Judges. MAN and Associate PRYOR, Judge: Chief I L. Binker administra- Bonnie as September evening On the husband, estate of her Carl trix the W. Binker, Jr., thirty-seven year Carl W. a old Binker, Jr., brought suit under the D.C. manager by delivery employed route the (D.C.Code Wrongful Death Act newspaper, Washington Star was killed (id. (1981)), the Act D.C. Survival an automobile accident on the Fourteenth § 12-101), against motorist, an unidentified Bridge in Street the District of Columbia. Doe, alleged negligence whose caused accident, Binker At the time of the Mr. was Mr. Binker in the death of an automobile returning Washington building the Star death, collision. At time of his Mr. complet- in the District Columbia by Binker covered two was automobile lia ing newspaper deliveries in Northern his bility policies, by one insurance issued Virginia. driving Mr. Binker was a truck Company National Union Eire Insurance Washington by owned Star was (hereinafter Union) National and one issued year accompanied “jump- a fifteen old (here Indemnity Company the Travelers er,” Leon Towell. Travelers). inafter Both contained unin testimony, According to Mr. Towell’s provisions.1 sured motorist Pursuant bridge approached Mr. Binker and at he provisions, these since John Doe was al raining approximately p.m., was uninsured, 6:30 leged to be unknown Na winds, very hard, high there were visi- tional potentially Union Travelers were bility poor. Because of the weather Accordingly, Mr. they liable to Binker. conditions, Mr. Binker had turned defended John Doe at trial. Travelers filed wipers headlights, windshield against truck’s third-party complaint a Donald E. Peden, defroster, driving a reduced driver of a third automobile bridge, Mr. speed. Upon entering the jury in the involved accident. returned traveling in the second lane third-party for Mr. Peden on the Binker was verdict made, proba- against "the policy insuring the motion is 1. issued a whom Washington employer undisputed Star are and ... reasonable tive facts and driving owner of the vehicle Mr. Binker was from them." draw but one inference minds can the time Travelers had death. Cosmopolitan Agency, 424 A.2d Mills Ins. insuring personally. policy issued a Mr. Binker (D.C.1980) Aylor Intercounty (quoting U.S.App.D.C. Corp., Constr. Following 2. verdict in favor Mr. (1967)). F.2d Peden, judgment Travelers moved n.o.v. light viewing most evidence in the appeal trial asserts on that the court Travelers Peden, to Mr. we find that reason- favorable denying We find Travelers’ erred in its motion. drawing could -reasonable inferences able claim to be without merit. in favor of Mr. Peden. have entered verdict Judgment n.o.v. a motion for a directed like we the denial of motion affirm when, viewing only appropriate verdict is n.o.v. light party evidence in the most favorable bridge’s from the left of the four lanes. measure of under the survival Mr. Towell testified that he saw a are, small they statute and that accordingly, enti- Toyota approximately twenty-five tled to a new trial. Mrs. Binker has cross- stopped feet ahead in their lane of traffic. appealed, seeking to reinstate the full lights The truck did not have on its or death claim. She emergency flashers. Mr. Towell testified the trial grant- asserts that court erred in that he shouted out.” Mr. Binker “watch ing defendant’s motion for a remittitur. immediately swerved his vehicle into the lane, traffic, left which was clear of but he II truck, could not control the which hit the left bridge’s guard side of the concrete rail. A. Mr. Binker’s vehicle traveled some distance trial, At National Union and Travelers along guard rail and then swerved back moved for a directed verdict on the issue of *4 bridge. toward the center lanes of the As pain suffering, and which the trial court swerved, began tip over onto motion, denied. The for their basis and wheels, Traveling two wheels. two appeal, their claim on is that Mrs. Binker traffic, the truck crossed over four lanes of by did not establish substantial evidence fell onto right its left side and slid into the that Mr. Binker endured pain “conscious side bridge. According of the to testimony suffering.” They argue and that it is a trial, at approximately the truck traveled pain well rule that conscious 98 feet point impact from the first suffering opposed just pain as and suf- point at which stop. it came to a Almost fering must jury may be shown before the immediately stopped after the truck at the be allowed to consider this issue as an right guard by rail it was struck an auto- damages element of under the survival by mobile driven Mr. Donald Mr. Peden. statute. apparently Peden’s automobile struck the tank, exposed gas truck’s causing the truck damages wrong The issue of in a to burst into managed flames. Mr. Towell action, ful death or survival as in other to climb out of burning truck but Mr. actions, particularly province is within the Binker, pinned who was underneath the jury. Notwithstanding of the vehicle, escape was unable to and died as a assessing damages, broad discretion in injuries. result of his upon there must be substantial evidence predicated. 2 which the award is S. Kim,
Dr. Deputy Rak Woon Ex- Medical Columbia, per- aminer the District of SPEISER, RECOVERY FOR WRONGFUL DEATH § (1975). substantial, 9:2 To be the evi autopsy. formed the Dr. Kim testified at “scintilla,” dence must be more than a but trial that Mr. Binker died as a result of point entirely it “need not in one direction.” fractures, multiple injuries and internal re- Postom, Baltimore & O.R. Co. v. 85 U.S. sulting from both the fractures and exten- 207, 209, 53, (1949). App.D.C. 177 F.2d 55 body sive burns. He testified that death almost, not, though immediate. pain on the issue of jury $200,000 awarded a total of suffering as an element of under the death statute3 to Mrs. statute, under the survival a directed ver Binker and to Mr. daugh- Binker’s three only proper where evidence dict “the ters. It also awarded Binker’s estate so men could reach clear reasonable $200,000 under the survival statute. Corley one conclusion.” v. BP but Oil 1258, (D.C.1979) appeal, Corp., On 402 A.2d 1263 Union and Travelers 243, allowing (quoting claim that the A.2d Sragow, trial court erred Bauman v. 308 (D.C.1973)). jury pain suffering to consider 244 conflicting as a Where there is award, $176,000 $5,000 Binker, given 3. Under the to Bon- to Michele to Geor- Binker, $3,000 Binker, gia nie L. to Christiana Binker.
861
from the nature of the decedent’s
must be resolved
inferred
that conflict
surrounding
1263;
injuries or the circumstances
Baltimore & O.R.
jury,
id.
Id.;
Navigation
In re Sincere
Postom, supra,
U.S.App.D.C. at
death.
see
85
v.Co.
(E.D.La.1971),
54,
F.Supp.
652
mod
208,
however,
may Corp.,
jury
177 F.2d
(5th
grounds,
S.
14.12.
alter-
Travelers raise
Understanding
that circumstantial
support
grounds to
their contention
native
evidence,
nature,
vary
probative
its
in
improperly denied their
that the trial court
degrees,
dissenting
ing
differ
our
we
with
They alleged
motion for a directed verdict.
colleague
accept
decline
appellant’s
to
court,
Mrs. Binker
the trial
both that
to
insufficiency
assertion of
which in effect
prima
a
facie case of
to
failed
establish
require
would
direct evidence
this issue
driver,
against the unidentified
negligence
to
as contrasted
circumstantial evidence.
Doe,
contri-
and that
Binker was
John
areas,
As in other
circumstantial evidence
law.
butorily negligent as a matter of
may
sufficient to
a
be
establish
case
unsupported.
These
are
claims
fact,
actions,
jury.
in
In
survival
negli
Doe’s
surrounding an
of
On the issue
John
circumstances
accident
Peden
Towell and Donald
preclude
gence,
of direct evi
both Leon
ten
introduction
red
Doe vehicle was
pain
suf
that the
John
dence
consciousness or of
testified
middle
standing in
fering.
supra,
a lane
traffic
Minzer,
M.
21.11[3].
lights
its
on or
Thus,
bridge without its
courts have held that the existence
of the
They further
suffering
warning
flashing.
pain
may
be
devices
of conscious
holding.
v. Ross Island Sand
emphasize
case. See Cook
4. We
the narrowness of our
facts
each
Cir.1980);
(9th
regard
Gaber
jury question
to a
Mrs. Binker
general
that the
rule
porting the traditional common law rule is
apply
plaintiff
should not
where a
plaintiff
seeks to
absent when the
is forced into the
granting
contest the
of remittitur on
position
responding
appeal brought
cross-
of
to an
appeal.
points
courts,
She
many
out that
the defendant. We conclude that where
beginning
Supreme
with the
party
Wisconsin
who benefits from a remittitur
See,
Co.,
173,
e.g.,
(1970);
5.
N.J.Super.
Terry
McCormick v. Alabama Power
863
care,
of
educa-
inter alia the “loss
grounds
consider
appeals
other
tion,
guidance
personal ad-
training,
may contest
party
accepts
who
a remittitur
children.
vice” to Mr. Binker’s
cross-appeal.
the remittitur on
dam-
respect to the first element of
With
B.
ages,
Joseph
Tryon,
Binker’s
Dr.
L.
Mrs.
question
next
to the
of whether
We
turn
economist,
present
that the
expert
in this case
granting
of a remittitur
support Mr.
loss of financial
to
value of the
error.
$118,154.
This
beneficiaries
5.5%,
figure
an inflation rate of
assumed
granting of
for
a motion
remit-
1%,unemploy-
of
productivity increase rate
particularly
within
discretion of
titur
7.05%,
present
value
ment factor of
Gibson,
City
trial
court.
Stores Co.
of
discount rate
7%.
(D.C.1970).
A.2d
Our review is
of
respect
With
the second element
determining
there
limited to
whether
has
statute,
damages under
Taylor
of discretion.
been
abuse
through
of
adduced at trial
U.S.App.
Washington Terminal
daugh-
and his two older
110,
145, 147-48,
Binker’s wife
112-13, 409 F.2d
D.C.
Binker, among other
ters showed that Mr.
93,
denied,
cert.
396 U.S.
90 S.Ct.
things,
care
the children on
took
(1969).
L.Ed.2d
off,
family,
days
prepared meals for his
Mrs. Binker claims that the trial court
sporting
took the children
the doctor and
by ordering
its
abused
discretion
remit-
events,
repairs, grocery
performed home
titur
because the
shopping
other activities. The loss
in light
was not excessive
of all the evi-
quantified with
these services cannot be
dence the
was asked to consider. We
precision. See
mathematical
Sea-Land
agree.
Services,
573, 590,
Gaudet, 414
Inc. v.
U.S.
Two main
form the
elements
basis
(1974);
806, 817,
El
39 L.Ed.2d
S.Ct.
recovery
Wrongful
under
Death
James,
U.S.App.
liott v. Michael
compensates
Act.
first
element
(1977);
138, 145, 559
D.C.
F.2d
pecuniary
loss—calculated as
annual
Homeopathic Hospital,
Hord National
dependents
in the
share
decedent’s
dece
(D.D.C.1952),
F.Supp.
aff'd,
earnings, multiplied by
dent’s
the dece
U.S.App.D.C.
204 F.2d
expectancy,
dent’s work life
and discounted
present
value. The second element com
granting defend
In its order
pensates for the value of the services lost
remittitur,
court
ants’ motion
trial
family
as a
result
decedent’s
stated:
death.
*7
Runyon
See
v. District
Colum
of
$200,000
bia,
228, 231,
U.S.App.D.C.
jury’s
of
463 F.2d
a. The
1319, 1322(1972);
States,
and her children is almost
Mrs. Binker
Graves v. United
$118,154
expert
(D.D.C.1981).
F.Supp.
the sum of
which
99-100
double
Tryon
present
was the
witness
jury
the
was instructed to
Bink-
which Mr.
value of the contribution
first,
award,
in making
consider
their
the
chil-
his wife and
er
have made to
would
beneficiary
financial
each
suf-
loss which
joint
of
during the
their
dren
remainder
fered.
loss
defined as the
Financial
lives.
fur-
support
“financial
which the deceased
in
the evidence
b. There
no basis
expected
or
pro-
nished
could have been
Binker
that Carl
jury’s
for the
conclusion
Second,
beneficiary.”
jury
the
vide each
$200,000
to his wife
would contribute
place
was instructed to
a “reasonable value
children.
minor
the
which
would
service
the deceased
[on]
trial
from the order that
the
provided
beneficiary over their
It is clear
have
each
first
of
only the
element
regard,
jury
life.” In
was told to
court examined
this
the
support
death,
damages
financial
date,
of
de- decedent’s
and not some later
—in
—loss
termining
jury’s
that
the
award
exces- on
of relevant
the basis
factors. See Cole
Moreover,
Moore,
the
sive.
trial court miscon-
F.Supp.
(D.D.
man
purpose
Tryon’s
the
of Dr.
C.1952);
strues
testimo-
see also Blumenthal v. United
Expert
ny.
testimony
economic
in a States,
F.Supp.
(D.Pa.1960);
An
represents only
death ease
a
not,
Tryon’s testimony concerning Mr. Binker’s
ROGERS,
Judge, dissenting
Associate
potential
They argue that
income.
since Part II A:
employer,
Mr. Binker’s
Washington
majority
Binker met
holds
Mrs.
August
Star
went out of
business
proof
her
to show conscious
burden
years
1981—two
Binker’s death—
suffering.
majority opinion
Part
Dr. Tryon should not have been allowed to
II
only
A. The
relevant evidence before
any
project
specific earnings Mr.
Bink
jury
was that after the truck hit the
er after 1981.
distance,
guard
a
rail
traveled
even-
We conclude
properly
trial court
side
tually turned onto its
and skidded
Tryon’s testimony.
previ-
admitted Dr.
As
ninety-eight feet
approximately
halt
stated,
ously
expert
testimony
economic
rail,
guard
deputy
medical
ex-
guideline
for the
and not con-
aminer’s
that Mr.
death
clusive evidence.
See Thomas
Potomac was not instantaneous. No evidence was
Co., supra,
F.Supp.
Electric Power
Binker,
offered that Mr.
who
fallen
Tryon’s
695. We note that Dr.
income
open
an
through
door when
projections
unemploy-
were reduced
an
partly pinned
turned
and was
under-
over
ment factor of
7.05%. National
position,
neath
truck in
face down
Travelers had
opportunity
to inform the
any
time after the truck
was conscious
closing
Washington
about
any
*8
turned over. Nor was there
evidence
1981,
August
Star in
and Travelers did so
prior
any injury
that
had suffered
to
he
closing
argument.
its
The
was then
time,
testimony
and
medical
con-
that
the
free
award
on all
to calculate its
based
any suggestion
Mr. Binker
tradicted
that
facts and circumstances.
was
at the time
fire started. Un-
alive
Moreover,
majority’s opinion, proof
injury
it is
of
a well-settled rule
der the
consti-
that
in a
death action where death was not instantaneous
pain
be
from
date of
tutes
evidence of conscious
should measured
sufficient
suffered);
suffering
being
pain
and
to survive a directed verdict.
that
is
S.
elusion
§
view,
my
possibility-of-life
supra,
this
threshold
at
14:10.
Speiser,
fact,
to
assumes consciousness
and fails
no
of Mr.
Mrs. Binker offered
provide guidance
evaluating
the worth
heavily,
consciousness. She relied
Binker’s
and,
any
pain
of
suffering
conscious
and
exclusively,
testimony
on the
and almost
henc.e,
specula-
invites verdicts based on
deputy
per-
medical examiner who
respectfully
tion.
I
dissent.
autopsy
body
on Mr.
formed
“Conjecture will not
to
suffice”
establish
after the
and
that
day
accident
suffering
pain
conscious
and
of the dece- he
whether
Binker
was “uncertain”
dent. 2 S.
SPEISER,
injuries,
would have survived his serious
FOR WRONG-
RECOVERY
§
(2d
1975).
plain-
14:10
ed.
conceded,
response
question by
FULDeath
but
to a
tiff
burden
showing
has the
conscious
attorney,
Mrs. Binker’s
that had
fire
pain,
although may
and
be
from
wag
inferred
occurred,
not
there
remote chance of
type
injury,
heavy.
burden
deputy
survival. Neither the
medical ex-
Thus,
movement, moaning
“evidence of
and
any
nor
aminer
other witness testified that
groaning,
clenching
unclenching
and
been,
Mr. Binker was or could have
from a
hands by the decedent has been held too
standpoint,
medical
conscious between the
speculative
jury question
to raise
time
sustained
the im-
he
fractures from
suffering.”
(citing
conscious
Id.
Fialkow pact
turning
of the truck
and the
over
Motors, Inc.,
v.
DeVoe
359 Mass.
explosion and fire which occurred almost
(1971)) (evidence
grasping,
N.E.2d 798
immediately after the truck
to a
had come
gurgling, heavy breathing,
very
and a
faint
stop.
deputy
medical examiner testi-
coming
noise
decedent
he
fractures,
multiple
fied Mr. Binker died of
injured);
Little,
Carr
Arthur D.
injuries
and internal
caused
the frac-
348 Mass.
would have been pri- rendered unconscious
or to his Ory final moments. See Liber
sky, Md.App.
(1970)
(mere fact of after an consciousness acci inescapably
dent does not lead to the con- (Alaska generally supra, Sweaney, 1. 2 S. 14:9. Inc. v. 561 P.2d Spkisbr, 1977) Recovery ("Recovery pain barred con- where death was instantane- can be subsequent practically experienced, sciously ous or so be events and no award should any substantially (quot- compensable.") made for are unconsciousness ing not Knotts, (Tex. contemporaneous with death or a inci- S.W.2d mere Burrous Motel, 1972)). Lights Id. App. dence to it. See also Northern Civ.