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09/20/91 WILLIAM A. GRANT v. DISTRICT COLUMBIA

September 20, 1991

WILLIAM A. GRANT, IN RE ESTATE OF KYLISHA AND CHARLIE HALFACRE, JR., APPELLANT
v.
DISTRICT OF COLUMBIA, APPELLEE



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

Steadman, Farrell and Wagner, Associate Judges.

The opinion of the court was delivered by: Steadman

This appeal arises out of the deaths of two young children in a fire in a public housing building owned by the District. A survival action was brought against the District on the theory of negligence with respect to the fire alarm system in the complex. In a general verdict, *fn1 the jury found for the District and against the plaintiff, the personal representative of the estates of the two children.

The District's defense was based in part on the assertion that, notwithstanding any fault of the District, the negligence of the parents was a superseding cause of the children's deaths. The principal issue on appeal is whether the trial court erred in denying plaintiff's motion for a directed verdict on this issue. We affirm.

I. THE FACTS *fn2

A.

On November 12, 1982, the day of the fatal fire, Kylisha and Charlie Halfacre, Jr., aged 5 years and 14 months respectively, lived with their parents Charles and Alice Halfacre and their three older sisters (Kim 13, Kathy 10, and Karen 8) in an apartment in a six-unit public housing building. The smoke detector in the Halfacre apartment was wired into the electric circuit for the apartment. Each apartment was metered for electricity separately, and it was the tenant's responsibility to make the monthly payment.

On the day of the fire, Mr. Halfacre left home and arrived at work by 7 a.m. Mrs. Halfacre sent three of the girls off to school while Kim, who did not feel well, remained at home. Mrs. Halfacre left the apartment but returned later that morning to take Charlie Jr. to visit a friend. About noon, while Mrs. Halfacre was out, an employee of the local electric company arrived and cut off electrical service to the apartment for failure to make payment. *fn3 Mrs. Halfacre returned home in the afternoon to find that the electricity had been disconnected but she did not contact her husband or take any steps toward having service restored. She then took Kylisha and Charlie Jr. to the home of a friend, Dorothy Lewis, left Kim at home, and then "went out" with "a friend" for the rest of the day and evening. Her whereabouts and doings were a subject of some mystery, *fn4 but in any event she did not check on events at home at any time.

Mr. Halfacre returned home from work sometime after 4:30. Kim and Karen were there; Kathy was at a friend's house. He realized that the electricity had been turned off, but also took no steps to have it restored. He picked up Kylisha and Charlie Jr. from Ms. Lewis, returned home, and prepared dinner for the four children.

Mr. Halfacre left for the evening about 6 p.m., leaving the children a flashlight which had been in use since 4:30 that afternoon to supply light for the apartment. Although he testified that he was helping a friend move furniture, this testimony was impeached by a police officer who said Mr. Halfacre told him he was drinking with friends. In any event, he did not check with home or return there at any time until after the fire.

Before leaving he asked a neighbor, Josephine Ross, "to keep an eye on Kim in case of an emergency" and asked whether Kim could come up there if she had any problem. He did not tell Ms. Ross that Kim had been ill that day, that she was in charge of her younger siblings, or that the electricity was off. Ms. Ross did not check on Kim or the other children during the evening.

Exactly what occurred during the rest of the evening with the Halfacre children was not entirely clear. There was testimony that Kim remained outside with her sisters and others much of the evening. In any event, there came a point when Kylisha and Charlie Jr. were taken back to the apartment and put on the living room sofa to sleep. Because the flashlight battery had worn out, Kim lit candles for illumination and mounted them in sconces above the sofa. She then went outside again.

Ten or fifteen minutes later, Kim saw smoke and flames coming from the apartment, so intense that she could not get into the apartment. She went to another apartment and called the fire department, which responded rapidly but too late to save the two children, who died of smoke inhalation. The ...


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