intersection after it is known to be hazardous is not lessened merely because of their fortuitous presence before repairs can be completed. The Court therefore finds that the District had a duty to warn approaching motorists of the danger, and negligently failed to do so.
In addition, the Court finds in its role as fact finder that the subsequent collision between Johnson and Strouse was a natural and foreseeable result of such failure to warn, and therefore a proximate cause. See Wagshal v. District of Columbia, 216 A.2d at 175 (jury could find that District's failure to repair stop sign was proximate cause of subsequent collision). The fact that the District had already determined the intersection required traffic signals is by itself evidence of proximate cause; the fact they were out with morning rush hour traffic approaching, and lighting conditions and visibility around the intersection far from ideal, leaves no doubt.
The remaining problem, which is somewhat knotty, is to determine what amount of damages the Strouses are entitled to receive from the District, in light of their settlement for $ 15,000 with PEPCO. The problem is complicated by the fact that the disposition of this case leaves undetermined the number of tort-feasors, and thus undetermined whether in principal the Strouses should be liable for one-half the Johnsons' damages, or one-third.
There appears to be no local case law on point. However, there is substantial guidance as to how much the Johnsons would have been entitled to from the Strouses and the District had they taken the case to trial after dismissing PEPCO for a $ 15,000 settlement, and this should give some indication as to the right result here.
First, it seems fair to assume that the Johnsons' total damages would have been assessed at $ 100,000 by a jury had their case gone to trial, since all parties to this action (plus PEPCO) agree that the Johnsons settlement for that amount from the Strouses was "fair and reasonable." Further, to assume any other figure would likely lead to an inequitable result as between the Strouses and the District, since $ 100,000 was the figure actually paid by the Strouses to the Johnsons.
Therefore assuming the Johnsons had been awarded $ 100,000 by a jury against the Strouses and the District of Columbia, the two tort-feasors would have been entitled to a reduction based on the Johnsons' hypothetical dismissal of PEPCO in exchange for a $ 15,000 settlement. Snowden v. D.C. Transit System, Inc., 147 U.S. App. D.C. 204, 454 F.2d 1047, 1049 (D.C. Cir. 1971). Further, since PEPCO's liability was not determined, the reduction would be $ 15,000 rather than one-third of total damages or $ 33,333.33. 454 F.2d at 1049. Thus, the Strouses and the District would be assessed $ 85,000, with each liable for a one-half of that or $ 42,500. Early Settlers Insurance Co. v. Schweid, 221 A.2d 920, 923 (D.C. 1966). In summary, the Strouses and the District of Columbia would have contributed $ 42,500 each, and PEPCO $ 15,000, to the $ 100,000 awarded to the Johnsons.
There is no apparent reason to change this result here. The District contends it should pay the Strouses only $ 35,000 in contribution, reasoning that since the Strouses brought this lawsuit against it and PEPCO for contribution, and settled with PEPCO, then the District should be entitled to a credit for the amount of the settlement under Snowden. The District goes on to argue that such credit should be $ 15,000 applied to one-half the Strouses' settlement with the Johnsons, or $ 50,000.
But the Snowden doctrine, based on preventing unjust enrichment to plaintiffs who bring suit against multiple tortfeasors, and than settle with one before trial, does not apply so directly here. The Snowden doctrine assumes the plaintiff's total damages are determined at trial, thus providing a ceiling above which plaintiff's damage award plus settlement may not go. Here, no such ceiling can be determined for the Strouses' claim in contribution, since it remains undetermined how many tortfeasors there are. The District simply has no basis for saying that an award of $ 42,500 to the Strouses results in their unjust enrichment.
If the District for some reason had been prevented by the Strouses' settlement with PEPCO from suing PEPCO itself, there might be some force to arguing that requiring the District to contribute more than one-third unfairly penalizes it. See Brightheart v. McKay, 136 U.S. App. D.C. 400, 420 F.2d 242, 244 (D.C. Cir. 1969). However, this does not appear to be the case here, and was not so argued by the District. Thus, by seeking to pay the Strouses only $ 35,000 in contribution, the District seeks to reap the full benefit of the Strouses' settlement with PEPCO on the one hand, while apparently having determined not to pursue a claim of its own against the utility on the other. See Hall v. General Motors Corp., 207 U.S. App. D.C. 350, 647 F.2d 175, 185 (D.C. Cir. 1980) ("GM had an opportunity to cross-claim [against the settling defendants] and passed it by. GM is therefore not comfortably situated to urge that we chart new law regarding reduction of judgments when an alleged joint tortfeasor settles. . . . In summary, GM presents no convincing justification for withholding from the [plaintiffs] full compensation for their injuries.") (citation omitted). It strikes the Court that the District of Columbia presents justification no more convincing for allowing either of the two proven tort-feasors here to pay less in damages than the other.
It shall therefore be the judgment of the Court that the third party defendant shall pay $ 42,500 in contribution to the third party plaintiffs.
ORDER - September 2, 1988, Filed
It is the judgment of the Court that the third party defendant, the District of Columbia, is hereby ordered to pay the sum of $ 42,500 in contribution to the third party plaintiffs, Ernest Albert Strouse and Ernest Herbert Strouse.