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CONNER v. UNITED STATES

February 2, 1970

Joyce Marie CONNER and James E. Conner, Plaintiffs,
v.
UNITED STATES of America and District of Columbia, Defendants


Charles F. McLaughlin, Senior District Judge.


The opinion of the court was delivered by: MCLAUGHLIN

CHARLES F. McLAUGHLIN, Senior District Judge.

 This matter is before the Court on the Motion of the Defendant, District of Columbia, for Judgment Notwithstanding the Verdict, or in the Alternative for a New Trial.

 On March 21, 1966, the Female Plaintiff tripped over a rise in the brick portion of the sidewalk on the south side of Pennsylvania Avenue, between 12th and 13th Streets, N.W., sustaining injuries to her knee. She testified that the brick portion of the sidewalk on which she was walking was adjacent to the concrete portion thereof and formed a continuous part of the whole sidewalk. She further testified that she had walked on the brick portion of the sidewalk due to the presence of two trucks owned by the United States which were parked on the concrete sidewalk and partially blocking its use by her and by other pedestrians on their way to work that morning. The suit against the District of Columbia was pursued on the theory that it was negligent in failing to correct the defective condition in the sidewalk after it had actual notice, or in the exercise of reasonable care and caution should have had notice of the condition. The husband of the Female Plaintiff joined the suit and filed a claim for loss of consortium. After the jury returned a verdict in favor of the Female Plaintiff for $7,500.00 and against the Male Plaintiff, the District of Columbia filed the present Motion.

 The basic grounds urged in support of the Motion are as follows: (1) As a matter of law, the United States and not the District of Columbia had the duty to maintain the sidewalk in question in a reasonably safe condition; (2) assuming arguendo that the District had the duty to maintain the sidewalk, there was no showing that they had either actual or constructive notice of the defect; (3) the Court erred in not giving further instructions on contributory negligence proffered by the District of Columbia; and (4) the closing argument of Plaintiff's counsel was so prejudicial as to require a New Trial.

 For the reasons which follow, the Court is of the opinion that none of the grounds urged by the District require either the entering of Judgment Notwithstanding the Verdict or the granting of a New Trial, and the Motion is therefore denied in both respects.

 Grounds two through four urged by the District require no elaborate detail in disposing. The Court concludes that on the basis of the record adduced at trial the evidence is sufficient to raise a jury question as to whether the District had actual or constructive notice of the defective condition of the sidewalk. None of the cases cited by the District on this proposition would justify a different conclusion. Indeed, the Supreme Court case of District of Columbia v. Woodbury, 136 U.S. 450, 10 S. Ct. 990, 34 L. Ed. 472 (1890), states on the question of notice, "Every such case must be determined by its pecular circumstances." *fn1" The question of notice is a factual one and the Court is satisfied that the Plaintiff in the instant case carried its burden on this question.

 In the court's opinion its instructions on contributory negligence were adequate and sufficiently detailed to apprise the jury that they should find the Female Plaintiff to be derelict concerning her own safety she would be precluded from recovery. The proffers of the District of Columbia were cumulative in effect and added nothing new which the Court's own instructions did not cover.

 With regard to the alleged prejudicial nature of the closing argument of Plaintiff's counsel, the Court notes that the case of Klotz v. Sears Roebuck and Co., 267 F.2d 53 (7th Cir. 1959), cited by the District is completely inapposite. In Klotz the comments of counsel as to the price of an eye were so inflammatory and uncalled for as to require remedial action. Here, the Court is convinced that Plaintiff's counsel at no time exceeded the bounds of propriety and professional responsibility. In addition, the Court notes in passing that no objection was made to counsel's approach either during his argument or at any time prior to the filing of this Motion.

 The first ground urged by the District in support of its Motion is not without difficulty. The many cases and authorities cited by both sides necessitate a detailed review of this question in order to effect a responsible disposition.

 The first case relied upon by the District in support of its position that the United States had the primary responsibility for maintaining the area in question is the case of District of Columbia v. Coale, 30 App. D.C. 143 (1907). In Coale the plaintiff was walking on Florida Avenue toward twenty-first street when he struck his leg against a stake which was concededly on "government reservation No. 270", but near the sidewalk. The trial court refused to instruct the jury that if the stake itself was on the government reservation the District would not be liable. From a jury verdict for the plaintiff, the District appealed. On appeal the verdict for the plaintiff was reversed.

 This case does not support the District's position in the instant action however. In Coale the Court said:

 
"* * * [If] the stake was near the apex of this reservation, where pedestrians on the sidewalk might be injured, the District of Columbia would be liable, as in an ordinary case for injuries sustained by one travelling upon the sidewalk. If in fact the stake was upon the government reservation the District was not liable. Whether it was a few inches or a few feet within the reservation was not material. The District is not liable, for it has no jurisdiction over this government reservation No. 270 either at its center or at its boundary." *fn2"

 Thus it can be seen that Coale has no applicability to the present case. If anything Coale militates against the District of Columbia's position in the present case, for it says that if this stake had been on the sidewalk rather than on the government reservation as was conceded, the District would have been liable to the plaintiff ...


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