Stеphen M. SULLIVAN, Appellant, v. ABOVENET COMMUNICATIONS, INC., Appellee.
No. 14-CV-431.
District of Columbia Court of Appeals.
Argued Feb. 24, 2015. Decided March 26, 2015.
112 A.3d 347
IV. Conclusion
For the foregoing reasons, we conclude that the parties were bound by an enforceable agreement to negotiate in good faith toward the signing of a written construction agreement within the framework agreed to at the parties’ December 22, 2010, meeting. We remand the matter for additional findings as to whеther UHP breached that agreement by refusing to negotiate in good faith and, if so, whether the parties would have reached an agreement but for UHP‘s bad faith. See Ross v. Hacienda Coop., 686 A.2d 186, 187, 192 (D.C.1996). The trial court may, in its discretion, reopen the record for additional evidence. See id. at 192. Any award of damages should be determined in a manner consistent with this opinion.
So ordered.
Robert B. Hetherington, with whom Amy Leete Leone, Rockville, MD, was on the brief, for appellee.
BLACKBURNE–RIGSBY, Associate Judge:
Appellant Stephen Sullivan filed a negligence action against appellee AboveNet Communications, Inc. (“AboveNеt“) and the District of Columbia (“District“), alleging that he sustained serious injuries after he lost his footing on the uneven surface surrounding a manhole cover that was installed by AboveNet. The jury concluded that the District was not negligent, but rendered a verdict against AboveNet and awarded Sullivan $300,000 in damages.1 Notwithstanding the jury‘s award to Sullivan, the trial court thereafter granted AboveNet‘s pending motion for judgment as a matter of law made at the close of Sullivan‘s case2 because it concluded that Sullivan failed to establish: (1) AboveNet was responsible for the condition; (2) AboveNet had constructive notice of the defect; and (3) the appropriate standard of care for restoring road surfaces аfter construction. Each failure individually was fatal to Sullivan‘s claim of negligence.
Based on the forthcoming reasons, we hold to the contrary that Sullivan presented enough evidence to allow a jury to decide whether AboveNet was negligent in failing to keep the area surrounding the manhole cover level, and therefore reverse the trial court‘s decision granting AboveNet‘s motion for judgment as a matter of law. Accordingly, on remand, the trial court is to reinstate the jury verdict and award.
I. Factual Background
At approximately 4:55 p.m. on March 4, 2009, Sullivan left his place of work located at 50 F Street, Northwest, Washington, D.C. and took his normal route home by heading eastbound toward North Capitol Street fоr Union Station. He stopped at the intersection point between F Street, North Capitol Street, and Massachusetts Avenue, and waited for the crosswalk sign to change. As he proceeded to cross the intersection, Sullivan felt his right foot “catch on something.” As he stumbled to balance himself, his right foot encountered a second obstruction and caused him to fall, with his right shoulder taking the brunt of the impact by striking the curb of North Capitol Street. Although Sullivan did not initially see what had tripped him, as he was lying on the street, he could “clearly” see that his foot had first gotten caught on the “edge of [a] manhole cover,” and that his foot then tripped on the “depression surrounding the manhole.” Sullivan believed thаt absent the depression he would have been able to regain his balance.
Passing individuals helped Sullivan stand back up and although he immediately felt pain that was “somewhat severe,” he nonetheless believed that he was healthy enough to continue to Union Station to go home. On the train ride, however, Sullivan began to feel “pain, a lot of pain ... [that] was very, very excruciating at times.” And after returning home, Sullivan was taken to the emergency clinic and then an orthopedic surgeon,3 who diag
At trial, Sullivan did not call any employees or representatives of AboveNet as witnesses to prove that AboveNet was actually the party responsible for the condition. Instead, Sullivan relied almost exclusively on a set of permits issued by the District of Columbia Department of Transportation (“DDOT“) to AboveNet for the purpose of excavating and installing electrical conduits, a telecom connection, and a new manhole at the location of “50 F Street, [N.W.], Washington, D.C. 20001,” from December 1, 2008 through May 5, 2009. The claimed inference being that AboveNet had installed the manhole cover at the intersection of F Street and North Capitol Street based on these permits, and had caused a depression to form around it.4
To demonstrate that AboveNet had notice of the depression, Sullivan called his former co-worker Jennie Lam-Nagata, who took pictures of the manhole cover and depression approximately two weeks after Sullivan‘s fall and testified that she had tripped on the same “uneven repair road” herself a “couple of times” “less than” two weeks before Sullivan‘s accident. Lam-Nagata also maintained that there were no changes to the area from the times she tripped to when she took the photographs.5
Sullivan also presented Richard Balgowan as an expert witness on highway municipal engineering and asphalt pavement to testify that AboveNet had failed to maintain the proper standard of care during the pavement “backfilling” process after installing the new manhole, and that this caused the depressed surrounding surface area.6 Balgowan first testified as to his methodology. He stated that an asphalt expert can determine the cause of sinking pavement even after construction was complete because:
The American Association of State Highway and Transportation Officials ha[ve] manuals ... with regard[] to construction backfilling, using hot mix asphalt or asphalt to concrete. And if those standards are not complied with, there will be settlement that occurs in
almost every single case. I‘m going to say in every case....
Balgowan also maintained that he could make a nationally recognized and accepted determination as to whether backfilling was improperly completed based solely on photographs of the condition, because the photographs constitute a “visual assessment of what has been the outcome оf some previous work[,]” and that photos have been used at national conferences and seminars to diagnose like-problems. Based on Balgowan‘s credentials and his testimony regarding his methodology, the trial court qualified him as an expert. In particular, the trial court noted that Balgowan had demonstrated that the use of photographs for diagnosing roadwork issues was an established technique, and therefore presumptively reliable.
Balgowan next testified to the cause of the depression in this case. After reviewing the permits issued by DDOT to AboveNet and Lam-Nagata‘s photographs, Balgowan opined that the backfilling work performed by AboveNet after installing the new manhole was improper because if AboveNet had “follow[ed] established standards and guidelines for backfilling and compacting, you will not get that kind of settlement [i.e., depression].” He elaborated that, in order to avoid “settlement” of the type found here, once a company finishes backfilling the pavement, it must then “compact it” to eliminate the “air voids between the little particles.” Otherwise, vibrations caused by vehicles driving past will cause depressions in the surface area to start forming. Balgowan dismissed the possibility that this depression would meet the acceptable standard even for “temporary” patches, as opposed to a more permanеnt restoration, or that a recent snow storm could have caused the problem. Balgowan maintained that a “shortcut” was taken here, and that “maybe another hour[‘s]” worth of work was needed to avoid this kind of settlement. However, Balgowan admitted that he never actually visited the location of the incident or conducted any additional investigation other than a review of the photographs, but maintained that “[n]o additional investigation was required.” During cross-examination, Balgowan also conceded that—based on his understanding—AboveNet did not do the actual roadwork.
At the end of Sullivan‘s case, the District and AboveNet filed
As part of its defense, the District called James T. Henry, a DDOT supervisory engineering technician, to tеstify about the city‘s permit and inspection process, and the obligations of the permit holder. Henry noted that in 2010, he conducted an inspection of the intersection between F Street and North Capitol Street after a claim was filed that someone had been injured while crossing and observed that a new manhole was installed at the intersection “labeled AboveNet.” In addition, later on, in response to AboveNet‘s counsel‘s question as to whether Henry believed “AboveNet did the work,” Henry stated: “That‘s correct.”
The jury subsequently returned a verdict in favor of the District, but against AboveNet, and awarded Sullivan $300,000 in damages. After the trial court dismissed the jury, the trial court took to the issue of resolving the pending
However, even assuming that there was constructive notice, the trial court took extensive issue with Sullivan‘s lack of evidence that AboveNet was the party actually responsible for installing the manhole and backfilling the pavement. Sullivan‘s evidence on this point relied almost exclusively on the DDOT permits, and the court questioned “how we get from 50 F Street, Northwest [(the work location listed on the permits)] to the intersection of North Capitol and F Street [(the location of the accident)].” The court also noted that Sullivan‘s expert Balgowan explicitly said “no” in response to AboveNet‘s question asking whether it was his understanding that AboveNet did the work. Lastly, the trial court concluded that Balgowan also failed to identify “any concrete standards upon which a finding of negligence could be based.” The court noted that, while Balgowan referenced many standards, there was “never any effort to elicit what those standards exactly were, and how the conduct of ... AboveNet deviated from those specific standards.”
Sullivan‘s counsel objected, observing that the court appeared to have granted a
This court is obliged to respect the jury‘s prerogatives. NCRIC, Inc. v. Columbia Hosp. for Women Med. Ctr., Inc., 957 A.2d 890, 902 (D.C.2008). Therefore, “[o]ur review of the trial court‘s grant of a [m]otion fоr [j]udgment as a [m]atter of [l]aw is de novo[.]” Hill v. Medlantic Health Care Grp., 933 A.2d 314, 322 (D.C. 2007). “A trial court may grant a motion for judgment as a matter of law only if no reasonable juror, viewing the evidence in the light most favorable to the prevailing party, could have reached the verdict in that party‘s favor.” NCRIC, Inc., supra, 957 A.2d at 902 (citation and internal quotation marks omitted). Accordingly, “[a]s long as there is some evidence from which jurors could find that the party has met its burden, a trial judge must not grant a [motion for judgment as a matter of law].” Scott v. James, 731 A.2d 399, 403 (D.C. 1999) (citation and internal quotation marks omitted). Further, “[i]f it is possible to derive conflicting inferences from the evidence, the trial judge should allow the case to go to the jury.” Majeska v. District of Columbia, 812 A.2d 948, 950 (D.C.2002) (citations and internal quotation marks omitted). The trial court‘s grаnt of a motion for judgment as a matter of law is appropriate, however, “when the jury has no evidentiary foundation on which to predicate intelligent deliberation and reach a reliable verdict.” Scott, supra, 731 A.2d at 403 (citations and internal quotation marks omitted). In order to prove negligence, Sullivan must provide evidence that: “(1) [AboveNet] owed a duty of care to [Sullivan], (2) [AboveNet] breached that duty, and (3) the breach of duty proximately caused damages to [Sullivan].” Tolu v. Ayodeji, 945 A.2d 596, 601 (D.C.2008) (citations and internal quotation marks omitted).
On appeal, Sullivan challenges all three bases on which the trial court granted AboveNet‘s motion for judgment as a matter of law. The issues of party responsibility and constructive notice pertain to whether AboveNet owed Sullivan a duty of care, while the adequacy of the expert‘s testimony concerns whether AboveNet breached the pertinent standard of care assuming it had such a duty. See, e.g., Youssef v. 3636 Corp., 777 A.2d 787, 794 (D.C.2001); see also Snyder v. George Wash. Univ., 890 A.2d 237, 244 (D.C.2006). We review each issue in turn.
A. Evidence of Party Responsibility
Sullivan first argues that the trial court erred in concluding that there was insufficient evidence to prove that AboveNet actually did the work alleged in this case. He claims that the full record definitely included evidence that the “work had been performed under AboveNet‘s permit and direction.” We agree.
At the end of trial, the following evidence was presented to the jury for deliberation. First, Sullivan had proffered into evidence DDOT permits establishing that between December 1, 2008 and May 5, 2009, AboveNet was granted a permit by the city to perform work at “50 F Street, [N.W.], Washington, D.C. 20001.” AboveNet was to excavate the road and construct a trench to install electrical conduits and a telecom connection, and install a new manhole. Second, during the District‘s defense, the District called DDOT supervisor Henry, who testified that the manhole cover bore AboveNet‘s name, and confirmed that “AboveNet did the work.” Third, the District also read into evidence AboveNet‘s own interrogatory responses stating that the DDOT permits covered the excavation of North Capitol Street and F Street, and that AboveNet had contracted Jones Utilities Construction to do
However, this was not one of those normal circumstances because it appears the trial court expressly limited its decision to grant AboveNet‘s motion for judgment as a matter of law to the evidence produced at the end of Sullivan‘s case (i.e., solely to the permits), even though it had waited until after the jury rendered a verdict to make its decision. AboveNet counters that the trial court had the authority to make this decision but cites to no direct or persuasive case law. Based on its brief, it also seems that AboveNet believes that this court‘s rеview should similarly be limited to the evidence presented as of the close of Sullivan‘s case. Both assessments are incorrect.
First, we are not bound by the trial court‘s decision to limit its ruling to the evidence presented by Sullivan. See, e.g., Silva v. Worden, 130 F.3d 26, 30 (1st Cir.1997) (We consider all evidence offered during trial, including evidence introduced by the defendants. We do this notwithstanding the defendants’ motion for directed verdict at the end of [the plaintiff‘s] case and the court‘s statement that it would rule, although at the close of all evidence, only on the plaintiff‘s evidence.). On appeal, this court conducts a de novo review of the record, viewing all of the evidence in the light most favorable to the non-moving party in deciding whether a motion for judgment as a matter of law was appropriate. See, e.g., Scott, supra, 731 A.2d at 403; see also Boyrie v. E & G Prop. Servs., 58 A.3d 475, 477 (D.C.2013). Here, our review of the record indicates that there was evidence that AboveNet did the work.
Second, although we do not dispute that the trial court may reserve ruling on a
[
Rule 50(a) ] does not authorize a trial judge, after the defense has presented its case (in whole or in part), to revisit, and grant, a defense motion for judgment as a matter of law madе at the close of the plaintiff‘s case without considering, in addition to the evidence presented in the plaintiff‘s case, the evidence presented by the defense.
(quoting Johnson Enters. of Jacksonville, Inc. v. FPL Grp., Inc., 162 F.3d 1290, 1305 n. 31 (11th Cir.1998)). We are persuaded by the federal interpretation of
B. Constructive Notice
“To make out a prima facie case of liability predicated upon the existence of a dangerous condition it is necessary to show that the party against whom negligence is claimed had actual notice of the dangerous condition or that the condition had existed for such length of time that, in the exercise of reasonable care, its existence should have become known and corrected.” Anderson v. Woodward & Lothrop, 244 A.2d 918, 918-19 (D.C.1968) (per curiam). In deciding this issue, we reemphasize that, on appeal from the grant of a motion for judgment as а matter of law, this court will view the evidence in the light most favorable to the non-moving party and will give that party the benefit of every permissible inference from the evidence. See Majeska, supra, 812 A.2d at 950. Further, “we recognize that an issue
Here, Sullivan concedes that AboveNet did not have actual notice of the depression, but argues that Lam-Nagata‘s testimony that she had herself tripped on the same surface area a couple of times about “two weeks” prior to Sullivan‘s fall was sufficient to infer constructive notice, and therefore was an issue for the jury to decide. Assuming without deciding whether Sullivan even needed to prove constructive notice and contrary to the trial court‘s conclusion that Lam-Nagata‘s testimony was insufficient to establish a reasonable timeframe, this court is of the opinion that, viewed in the light most favorable, her statement, coupled with her verification that the depression had not changed between the times that she fell and her photographs of the depression taken approximately two weeks after Sullivan fell (which Sullivan himself also confirmed looked the same), permitted the inference that the depression had existed for at least two weeks before the accident. See, e.g., Wilson v. Wash. Metro. Area Transit Auth., 912 A.2d 1186, 1190 (D.C.2006) (“Although each case has its own peculiar circumstances, the duration of the alleged hazard is an important factor in establishing constructive notice.“). The fact that no specific dates were given by Lam-Nagata does not render, in and of itself, her testimony insufficient. Compare Bostic, supra note 10, 748 A.2d at 426-27 (holding Bostic‘s testimony that the dangerous walkway had existed for “[s]everal months” sufficient to establish constructive notice) with Wilson, supra, 912 A.2d at 1190-91 (concluding that Wilson‘s testimony that she was on the bus for thirty minutes before she slipped on “dry and sticky” soda was insufficient to establish how long the hazard existed). Consequently, Lam-Nagata‘s testimony, together with the fact that the defect was located at a major intersection, and the DDOT permits and other evidence establishing that AboveNet was actively working in the area from December 2008 to May 2009,11 was enough evidence to let the jury decide whether AboveNet should have known about the depression in time to correct it. Cf. Briscoe v. District of Columbia, 62 A.3d 1275, 1279-80 (D.C. 2013) (concluding that the District lacked notice even if the defective curbstone existed for as long as two years because it was not located at a busy or conspicuous location).
C. Expert Testimony
Lastly, Sullivan takes issue with the trial court‘s finding that his expert‘s testimony failed to establish a concrete standard of care under which a claim of negligence can be maintained. Preliminarily, he claims that Balgowan‘s testimony was not even necessary because a tripping hazard was “within the realm of common knowledge and everyday experience[.]” Bostic, supra note 10, 748 A.2d at 425. Without deciding whether Balgowan‘s testimony was necessary, we conclude that Balgowan‘s testimony was sufficient to establish an applicable standard of care by which AboveNet‘s work could be measured.
“When an expert‘s testimony is required, the expert must articulate and refer to a standard of care by which the
For example, in Carmichael, we concluded that appellees’ expert witness on prison security failed to establish an adequate standard of care to determine whether the District was negligent in controlling contraband weapons within its prison. 577 A.2d at 314-15. Specifically, his conclusion that there were “too many shanks” was based primarily on his own experiences, and his references to national and District of Columbia standards were generalized, without mentioning a specific standard or regulation that the District had breaсhed. Id. In contrast, in District of Columbia v. Price, 759 A.2d 181, 183-84 (D.C.2000), this court concluded that appellee‘s expert on police practices sufficiently established the standard of care assigned to police when a prisoner in custody is ill or intoxicated. Specifically, the expert testified that, under both the national standard of care and specific District municipal regulations, the police were required to obtain immediate medical attention for the prisoner under such circumstances, and that the District‘s response in this case had been a deviation from those standards because the officer failed to call an ambulance “immediately upon coming at the scene of the accident.” Id. at 184.
Bаlgowan‘s testimony leans closer to the expert‘s testimony in Price than the one in Carmichael. Despite the fact that Balgowan only referenced “generally” to the standards set forth by the American Association of State Highway and Transportation Officials and did not appear to give a specific provision that he believed AboveNet had breached, Balgowan at the very least did explain that under the “established standards and guidelines for backfilling and compacting,” the material must be compacted during the backfilling process to avoid air pockets from forming and depressions from occurring. He further opined that there was a clear deviation from that practice in this case beсause, if those standards had been complied with, there would be no depression that was evident in the photographs that he had reviewed. This testimony, although still arguably rather broad, is different from the testimony of the Carmichael expert because Balgowan, at the very least, specified “as to what standards were violated” (the backfilling process during restoration) and “how they were violated” (the failure to compact the pavement to prevent air bubbles causing the settlement). Carmichael, supra, 577 A.2d at 315.
The fact that Balgowan was unsure whether AboveNet actually did the roadwork is unimportant because, as an expert witness on road repair, his purpose was to establish the baseline standard of care and whether the roadwork deviated from that standard. The full record already provided sufficient evidence that AboveNet did the work and, therefore, had such a duty of care. Likewise, it is also inconsequential that Balgowan did not know exactly how the backfilling was actually performed in this case because he explained that the use of photographs alone was a nationally accepted form of diagnosis for roadwork and the trial court accepted his methodolo
III. Conclusion
There was evidence in the full record establishing еach element of negligence. Accordingly, the trial court erred in granting AboveNet‘s reserved motion for judgment as a matter of law. We therefore reverse the trial court‘s order and remand the case for the trial court to reinstate the jury verdict and award.
So ordered.