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04/03/91 DISTRICT COLUMBIA v. MARY C. BROWN

April 3, 1991

DISTRICT OF COLUMBIA, APPELLANT
v.
MARY C. BROWN, APPELLEE



Appeals from the Superior Court of the District of Columbia; Hon. Eugene N. Hamilton, Trial Judge

Belson and Farrell, Associate Judges. Opinion Concurring in part and Dissenting in part by Associate Judge Steadman.

The opinion of the court was delivered by: Belson

Nineteen-year-old Dwight Covington, a 320-pound former football player, intentionally drove his left shoulder against an elevator door in a public housing project. The door gave way and he fell to the bottom of the elevator shaft. Tragically, he suffered serious injuries and died after declining blood transfusions for religious reasons. His mother, appellee Mary C. Brown, was awarded a $300,000 jury verdict against appellant District of Columbia for its negligence in failing to maintain a safe elevator in her ensuing wrongful death and survivor's action law suit. The District of Columbia contends that the trial court erred by failing to grant its motions for directed verdict because 1) Covington's intentional act of hitting the elevator door with his shoulder constituted contributory negligence as a matter of law; and 2) Covington's refusal of blood transfusions due to his faith as a Jehovah's Witness while hospitalized for his injuries was an intervening cause of his death and that therefore the District should not be liable for his death as a matter of law. Because we conclude that Dwight Covington was contributorily negligent as a matter of law, we reverse.

I.

The salient facts involved in this case are not in dispute. On March 7, 1982, Dwight Covington, a 320-pound six foot-three inch; former football player at Chamberlain High School in the District of Columbia, intentionally hit his left shoulder against an elevator door while on the third floor of a District of Columbia-owned Greenleaf Gardens public housing project located at 1200 Delaware Avenue, S.W. (hereinafter "the project"). Michael Gathers, a friend who accompanied Covington to the project the evening of March 7, 1982, witnessed Covington's accident. He testified at trial that there was a visible gap at the right side of the elevator door, big enough that one could see the elevator as it arrived or could look down into the shaft. Covington "took a large step and hit the door and went straight through it." After Covington hit the right side of the elevator door, it yielded to the impact, allowing Covington to fall 40 feet to the bottom of the elevator shaft and to sustain injuries that included multiple fractures of his pelvis, left leg, and hip socket.

Approximately one week prior to hitting the elevator on March 7, 1982, Covington had propelled himself against an elevator door at 203 N Street, S.W., within the Greenleaf public housing project, while demonstrating a football move to his friend Michael Gathers. On that occasion the elevator door did not give way, yet Gathers warned Covington not to hit the elevator door in such a fashion because Gathers was concerned that Covington might knock the door down.

Plaintiff adduced evidence that if the elevator doors had been in conformance with applicable elevator regulations they would not have opened when subjected to the pressure exerted upon them by a contact of the type brought to bear by Covington.

Because we conclude that Covington's contributory negligence requires that the judgment be reversed, we will not state in detail the facts surrounding his hospital treatment and his refusal to accept blood transfusions due to his religious beliefs. Suffice it to say that after losing half of his blood, he was transferred to a medical facility in Chicago for the infusion of an alternative substance, but by then he was physically unable to undergo that procedure and died.

On February 13, 1983, Covington's mother and administratrix of his estate, appellee Mary C. Brown, sued the District of Columbia, among others, *fn1 under the D.C. Survival Act (D.C. Code § 12-101 (1989)) and the D.C. Wrongful Death Act (D.C. Code § 16-2701 (1989)), alleging, inter alia, that negligence in construction, maintenance, installation, and repair of the elevator hoistway door at the project, caused Covington's injuries and death. Brown advanced both a common law negligence theory and a statutory/regulatory theory at trial, alleging that the project elevator involved in Covington's accident failed to comply with the D.C. Elevator Code, 13A DCMR Elevator Code (1984). Following a six-day jury trial, the jury awarded Brown damages of $160,000 under the Survival Act and $140,000 under the Wrongful Death Act.

II.

At the outset, we consider whether under the circumstances the District of Columbia could assert a traditional contributory negligence defense based upon a showing of a lack of ordinary care on the part of decedent that was a proximate cause of his injuries, or instead the District had to show aggravated contributory negligence in order to prevail on that defense. Appellee Brown argues that the Elevator Code was intended to protect persons against the consequences of a lack of ordinary care and that therefore the District could prevail upon a defense of contributory negligence only by establishing that Covington's conduct amounted to aggravated or heightened negligence. We disagree with Brown's position.

In denying the District of Columbia's motions for a directed verdict, the trial court in this case determined that the question of whether Covington was contributorily negligent was for the jury. The jury was instructed on both the ordinary contributory negligence theory and a heightened standard of aggravated contributory negligence under the D.C. Elevator Code. *fn2 The jury was also instructed on assumption of the risk.

The trial Judge left to the jury the question of whether the Elevator Code was a public safety regulation that would excuse ordinary contributory negligence but not aggravated contributory negligence (willful, wanton or reckless conduct). In our view, this was a question of law that the trial Judge should have decided.

The District of Columbia joined in a request that the jury use a special interrogatory verdict form. The trial court declined to do so, and instead used a jury form that did not require the jury to indicate which type of contributory negligence defense it deemed applicable. The form simply contained blanks following references to the Survival Act and the Wrongful Death Act that the jury was to fill in if it found for plaintiff on either. Because of the general nature of the verdict form, it is impossible for us to know whether the jury decided to hold the District to the unduly high standard of aggravated negligence. In the final analysis, this uncertainty will not change the outcome of this appeal because ...


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