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04/03/92 WASHINGTON METROPOLITAN AREA TRANSIT

April 3, 1992

WASHINGTON METROPOLITAN AREA TRANSIT AUTHORITY, ET AL., APPELLANTS
v.
RICHARD E. DAVIS, ET AL., APPELLEES



Appeals from the Superior Court of the District of Columbia; (Hon. Nan R. Huhn, Trial Judge)

Before Rogers, Chief Judge, Farrell and King, Associate Judges. Opinion for the court by Chief Judge Rogers. Concurring opinion by Associate Judge Farrell.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge: This case involves a tragic intersection collision between a passenger car and a bus. Washington Metropolitan Area Transit Authority (WMATA and the District of Columbia contend, on appeal from a judgment in favor of the driver of the car and two car passengers, that there was insufficient evidence of proximate cause, with respect to the speed of the bus as to WMATA, and with respect to the failure to trim shrubbery blocking a stop sign as to the District. The District also contends that the trial Judge erred in denying its motions for judgment notwithstanding the verdict since it did not have prior notice that the stop sign at the intersection was obscured by shrubbery. Both appellants contend that the driver of the car was negligent as a matter of law and that the Judge erred by not granting their motions for judgment with regard to the judgment of $15,000 in favor of the driver. Finally, both WMATA and the District contend that the trial Judge erred by admitting expert testimony on speculative earnings projections regarding appellee Davis.

We hold that the trial Judge erred by denying WMATA's motions for judgment notwithstanding the verdict and for a new trial because appellees failed to introduce sufficient evidence of proximate cause. We also hold that the Judge erred by not finding that the driver of the car was negligent as a matter of law. While we find no error by the trial Judge with regard to the District's contention on notice, we hold, in view of the negligence of the driver of the car, that a new trial is required in response to the District's argument concerning proximate cause. Accordingly, we reverse the judgments against WMATA and the judgment for the car driver. We also reverse the judgments against the District of Columbia, but we remand for a new trial. In the event of a new trial, we have further concluded that the District would have been entitled to a new trial on appellee Davis' damages.

I

Constance Brooks was driving her daughter and two other children on her way, eventually, to work in the early afternoon of August 20, 1986. As she drove along Otis Street, Northeast, she collided with a Metrobus at the intersection of 18th and Otis Streets. The bus, moving south on 18th Street, had the right of way and had entered the intersection before Ms. Brooks' car passed a stop sign and entered the intersection without stopping. The car hit the center of the Metrobus, spun around and struck the bus a second time towards the rear of the bus. The car then spun away from the bus, hitting the sidewalk curb. Kimberly Davis and Raichelle Hunter were thrown from the car onto the sidewalk. Kimberly Davis died shortly thereafter. Raichelle Hunter sustained several serious injuries, and required a lengthy hospital stay; she remains disabled and disfigured. Ms. Brooks was not hospitalized.

Lawsuits were filed on behalf of Kimberly Davis and Raichelle Hunter against WMATA for the negligence of its bus driver and the District of Columbia for its failure to trim the leaves of the tree obscuring the stop sign, and also against Ms. Brooks for excessive speed and entering an intersection without exercising due care. *fn1 Ms. Brooks similarly filed suits against WMATA and the District for negligence.

At trial Ms. Brooks testified that she was unaware she was approaching an intersection until it was too late to stop because the trees on the sidewalks and the hedges on private property obscured the intersection. She claimed not to see any traffic control signs, and that, although she had been a Metrobus driver for eleven years and had driven bus routes in the immediate area of the collision, she also claimed that she was unaware that there was a stop sign at 18th and Otis Streets. Other witnesses for appellees testified regarding the trees and shrubbery along Otis Street, as well as the faded intersection lines on Otis Street. *fn2 There was also testimony from the bus driver and bus passengers and a person on the street about the speed of the bus and conduct of the bus driver.

Expert testimony was offered by WMATA regarding whether the accident would have occurred under various assumptions about the speed of the car and the speed of the bus. *fn3 There also was testimony from area residents that other motorists had previously driven through the intersection without stopping, and that three prior accidents at the intersection had been investigated by the police; one witness described a similar accident in which she was involved two months earlier. A vocational counselor testified over objection about the projected pecuniary losses to the estate of Kimberly Davis based on her obtaining a professional degree as a lawyer, doctor, or engineer.

A jury returned verdicts against WMATA and the District of Columbia finding them jointly and severally liable, and awarding $1,160,430 to the estate of Kimberly Davis, and awarding $100,000, individually, and $2,000,000, to Evelyn McAdoo as mother and next friend of Raichelle Hunter. The jury also returned a verdict in favor of Ms. Brooks for $15,000. The trial Judge denied appellants' motions for directed verdict at the close of appellees' case, for judgment notwithstanding the verdict, and for a new trial or remittitur.

II

WMATA contends that because appellees failed to present expert testimony regarding proximate cause, there was insufficient evidence for the jury to find that the speed of the bus was a proximate cause of the accident and, therefore, that the trial Judge erred by denying WMATA's motions for a directed verdict, judgment notwithstanding the verdict, and for a new trial. We agree as to the latter two motions. *fn4

Appellees offered evidence from bus passengers and lay witnesses to portions of the accident that the bus driver was driving at a speed in excess of the speed limit and ignored other safety regulations, including the failure to maintain proper lookout and the failure to slow down as he approached an intersection. WMATA, however, presented the expert opinion evidence of Bruce Enz, an expert in accident reconstruction analysis, that unless the bus had been traveling between five and ten miles per hour when it entered the intersection, the bus driver could not have avoided the collision. In other words, the speed of the bus was not the controlling factor. *fn5 Given the length of the skid marks made by Ms. Brooks' car, it was Mr. Enz's opinion that if Ms. Brooks had been traveling 25 miles an hour, the posted speed limit, then the accident would not have occurred because either the bus would have passed through the intersection before the car had entered the intersection, or Ms. Brooks would have had sufficient time to stop before hitting the bus. *fn6 Had Ms. Brooks been driving 20 miles per hour she also would have had time to stop before reaching the intersection. *fn7 Mr. Enz estimated that Ms. Brooks was driving 35 miles an hour when she applied her brakes, and between 20 and 25 miles an hour when her car hit the middle of the bus. *fn8 In his expert opinion, based on his calculations of the speeds of the vehicles and the tree's blockage of the stop sign (and irrespective of rules of the road), the "but for" cause of the collision was the speed of Ms. Brooks' car; had she started to stop at exactly the same place indicated by the skid marks while traveling 25 miles an hour, there would not have been a collision.

Regarding the speed of the bus, Mr. Enz testified that it was not the controlling factor because at the time of the collision the bus was in the center of the intersection and, hence, there was nothing that the bus driver could have done to avoid the accident, unless the bus had been traveling at five to ten miles an hour. *fn9 Foliage from the trees and hedges along the roadways blocked each driver's view of the other until immediately before entering the intersection. Within a ten miles-per-hour range of his estimate of the speed of the bus, it was his opinion that if the bus had been moving faster, then the car would have hit the bus further to its rear; if the bus had been going slower, the car would have struck the bus in its front or in the front of the side of the bus. *fn10

As Mr. Enz analyzed what happened after the collision, the bus spun in front of the car, moving counterclockwise, and then the bus continued "essentially straight" until it stopped about 200 feet from the point of the collision. The car, following the initial collision, hit the bus a second time, and then spun approximately three-quarters of a spin and came to rest in the southeast corner of the intersection facing back the way the bus had approached the intersection. In Mr. Enz's opinion, the second hit of the bus by the car -- "the secondary slap" -- occurred because the car rotated so fast that, before the bus got past the car, the rear end of the car made contact just behind the rear wheel of the left side of the bus. He opined that the initial impact of the car into the bus ultimately caused the car to become attached to the bus, by becoming entangled in a hollow section of the bus. *fn11 Moreover, Mr. Enz explained that it was the bus speed (which he estimated was within a range of 25 to 30 miles an hour) and the weight of the bus (12 to 13 times that of the car) that caused the car to spin. *fn12

Proximate cause is generally a factual issue to be resolved by the jury. See District of Columbia v. Freeman, 477 A.2d 713, 716 (D.C. 1984). In intersection collisions, the issue of negligence and proximate cause will almost always be questions of fact to be decided by the jury. WMATA v. Jones, 443 A.2d 45, 49-50 (D.C. 1982) (en banc); Spain v. McNeal, 337 A.2d 507 (D.C. 1975). "The question becomes one of law, however, when the evidence adduced at trial will not support a rational finding of proximate cause." District of Columbia v. Freeman, supra, 477 A.2d at 716; District of Columbia v. Cassidy, supra note 4, 465 A.2d at 397-98. Expert testimony is required to establish proximate cause in intersection collision cases when the subject matter at issue is "so distinctly related to some science, profession, business or occupation as to be beyond the ken of the average layman." District of Columbia v. Davis, 386 A.2d 1195, 1200 (D.C. 1978); District of Columbia v. Freeman, supra, 477 A.2d at 719 (quoting District of Columbia v. White, 442 A.2d 159, 164 (D.C. 1982)).

Although a jury is generally permitted to infer proximate cause from a driver's unreasonable speed, see WMATA v. Jones, supra, 443 A.2d at 50-51, once WMATA introduced expert testimony that the accident could not have been avoided by the bus driver, unless the bus driver had been driving five to ten miles an hour, appellees had to offer evidence that the accident would nonetheless have happened in order for WMATA to be held liable. See Waugh v. Suburban Club Ginger Ale Co., 83 U.S. App. D.C. 226, 167 F.2d 758 (1948). There was no such physical evidence; the evidence showed that the collision occurred at a blind intersection where neither driver could see oncoming traffic. Nor was there expert testimony to support a contrary interpretation of the physical evidence relied on by WMATA's expert. Without such rebutting evidence, there was no rational basis on which the jury could find that the bus driver's excessive speed was a proximate cause of the accident. *fn13 Gulf Oil Corp. v. Reed, 118 U.S. App. 212, 334 F.2d 960 (1964). *fn14 Expert testimony was required to interpret the skid marks made by the tires of Ms. Brooks' car and the crush pattern to the front of her car in order to determine the speed of her car. See District of Columbia v. Freeman, supra, 477 A.2d at 719.

The only expert evidence before the jury was that Ms. Brooks was driving between 32 to 37 miles an hour immediately before she began to apply her brakes based on a computation, starting with an analysis of the crush pattern to the front of her car, which indicated that she was moving at a minimum of 20 and a maximum of 26 miles an hour at the time of impact. WMATA's unrebutted expert evidence, that the only way the bus could have avoided the collision was if it had been traveling five to ten miles per hour, well below the posted speed limit, meant that there was no evidence that could support a reasonable finding by a reasonable jury that even if Ms. Brooks had been driving only 20 or 25 miles an hour, the collision still would have occurred. See District of Columbia Transit Sys. v. Simpkins, 367 A.2d 107, 109 (D.C. 1976) (opinion of qualified expert deemed ...


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