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05/08/90 BARBARA ROBINSON v. DISTRICT COLUMBIA

May 8, 1990

BARBARA ROBINSON, APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



Appeal from the Superior Court of the District of Columbia; Hon. Stephen F. Eilperin, Trial Judge

Newman and Farrell, Associate Judges, and Mack, Senior Judge.

The opinion of the court was delivered by: Mack

This case arises from an action by appellant against the District of Columbia ("the District") for damages sustained when she was struck by a vehicle owned and operated by the District. On appeal from a directed verdict in favor of the District, appellant claims that the trial court erred in concluding that she was contributorily negligent as a matter of law and thus barred from recovery. She also challenges the trial court's ruling that the doctrine of last clear chance, which would allow appellant to recover even if she were contributorily negligent, did not apply to this case.

On the morning of December 14, 1983, appellant parked her car in the parking garage at the Department of Labor building located at Third and C Streets, N.W. She walked out of the garage and stood at a curb just north of the parking lot exit ramp, waiting for an opportunity to cross Third Street. On the other side of the street there was a vehicle exit ramp for the District of Columbia Municipal Building. Appellant noticed a police van coming up this ramp but she was not concerned about the vehicle because she assumed that the driver would see her. She then attempted to cross Third Street without using a crosswalk, although there were two marked crosswalks with "Walk/Don't Walk" devices within view on either side of the location. After she reached the double yellow lines separating the north and southbound lanes of the street, she was struck by the police van. Appellant did not see the van before it struck her because she was looking to her right to be sure that the southbound lane of the street was free from traffic.

The trial court in granting the District's motion for a directed verdict, concluded that appellant violated traffic regulations by failing to use a crosswalk to cross Third Street, that this violation was a proximate cause of the accident, and that therefore no reasonable juror could find anything other than that appellant was contributorily negligent, and thus barred from recovery under District of Columbia law. See Felton v. Wagner, 512 A.2d 291, 296 (D.C. 1986). In holding that the doctrine of last clear chance did not apply to this case, the court concluded that no reasonable juror could find that the van driver could have avoided the accident once he saw appellant.

I.

In this court, appellant first challenges the trial court's Conclusion that she was contributorily negligent as a matter of law. Where a party violates a statute, and the violation is a proximate cause of an injury which the statute was designed to prevent, there is a rebuttable presumption of negligence on the part of the violator. Lewis v. Washington Metropolitan Area Transit Authority, 463 A.2d 666, 674 (D.C. 1983). If the violator demonstrates that she did everything a reasonably prudent person would have done to comply with the law, then her violation merely constitutes evidence of negligence rather than negligence per se. Leiken v. Wilson, 445 A.2d 993, 1003 (D.C. 1982).

Appellant argues that in ruling on the directed verdict motion, the trial court improperly refused to consider evidence of the common practice of pedestrians at the location of the accident. She argues that such evidence is relevant to support her contention that she did not in fact violate any traffic regulation. While acknowledging that a pedestrian who crosses a roadway outside of a crosswalk thereby violates Title 18 of the District of Columbia Municipal Regulations governing pedestrians ("traffic regulations"), 18 DCMR § 2304.1 (1987), *fn1 appellant argues that custom and usage had established a de facto crosswalk at the location where she crossed.

We reject appellant's contention. A rule providing that the common practice of pedestrians can establish a crosswalk would ignore the interests of motorists who, in the absence of a marked crosswalk or an intersection, have no warning that pedestrians may be entering the roadway. Our holding is consistent with the law in other jurisdictions. See, e.g., Seymour v. State Farm Mutual Insurance Co., 508 S.W.2d 572, 574 (Ky. 1974); Wells v. Alderman, 117 Ga. App. 724, , 162 S.E.2d 18, 23-24 (1968); Van v. McPartland, 242 Md. 543, 219 A.2d 815, 817 (1966).

In the alternative, appellant contends that evidence of the common practice of pedestrians would have been relevant to support her contention that she acted reasonably under the circumstances. Citing Leiken, supra, 445 A.2d at 1002-03, she argues that even if she violated the traffic regulations, because her actions were reasonable, the violation is only evidence of negligence rather than negligence per se. *fn2

Appellant's argument misconstrues the standard set out in Leiken, supra, 445 A.2d at 1003. The Leiken standard does not excuse violations of the law where II such violations are common practice, or even where a reasonable person might commit a similar violation. Id. Rather, Leiken requires that the defendant make a reasonable attempt to comply with the law. Id. The defendant in Leiken was held not to be liable for an accident resulting from the failure of his brakes, which were not in compliance with applicable regulations. The Leiken court affirmed a judgment in favor of the defendant because he had done everything a reasonable person would do to ensure that his brakes complied with the regulations. Here, appellant made no attempt to comply with the law; she disregarded two designated crosswalks which were a short distance from the location of the accident.

II.

Appellant next argues that the evidence which was admitted at trial was sufficient to warrant denial of the District's motion for a directed verdict. She contends that evidence of the layout of the point where she attempted to cross established that there was a de facto crosswalk at that location. She notes that there are blinking traffic control lights at the end of both parking ramps, and two lights governing the traffic on Third Street. In addition, there is a stop line painted across the southbound lane of the street, which is the lane closest to the Municipal Building exit ramp.

Contrary to appellant's assertions, the physical characteristics of the accident location are not sufficient to create a de facto crosswalk. Appellant's argument is inconsistent with the traffic ...


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