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04/20/93 BETTIE JEAN MOZIE v. SEARS ROEBUCK AND

April 20, 1993

BETTIE JEAN MOZIE, APPELLANT
v.
SEARS ROEBUCK AND COMPANY, APPELLEE



Appeal from the Superior Court of the District of Columbia; (Hon. George H. Goodrich, Trial Judge)

Before Rogers, Chief Judge, and Ferren and Farrell, Associate Judges.

The opinion of the court was delivered by: Rogers

ROGERS, Chief Judge : This is a case in which a successful plaintiff has appealed the verdict as too low because of instructional error and jury compromise and she also challenges an allegedly erroneous credit awarded to the defendant, Sears Roebuck and company. Appellant, Bettie Jean Mozie, appeals from a judgment in her favor in the amount of $37,500 following a jury trial in connection with a car accident, and the denial of her motion for a new trial. She contends that the trial Judge erred in (1) refusing to instruct the jury on the malpractice standard of care of a professional and on the collateral source doctrine, (2) granting a challenge to a juror where the reason for the strike was racial, (3) denying her motion for a directed verdict on liability, (4) allowing a credit against the judgment to appellee Sears Roebuck and company for sums paid in another lawsuit by a settling non-party, and (5) denying a motion for a new trial on the ground that the verdict was the result of a compromise constituting jury misconduct. Only the fourth and fifth contentions need be discussed in any length. Upon examining appellant's compromise verdict contention, we find no error by the trial Judge in denying the motion for a new trial. We agree, however, that the trial Judge erred in allowing a credit against the judgment, contrary to the language of the release entered into by appellant and the settling non-party. Accordingly, we affirm the judgment in appellant's favor and we reverse the denial of the motion for a new trial to the extent that Sears was allowed a credit against the judgment.

I.

On May 4, 1985, appellant was a passenger in a car driven by her friend Janice Bryant, an elementary school counselor in the D.C. public schools, when the power brakes on Ms. Bryant's 1977 Monte Carlo failed -- "the brake pedal went all the way to the floor." The car went down a hill and part way up another one when it jumped the curb and hit a lightpole. Appellant sued appellee Sears Roebuck and Company for negligence and breach of warranty and sought $75,000 damages for "substantial and permanent injuries, ongoing pain and lost wages." *fn1

At the trial Ms. Bryant testified that Sears Roebuck and Company serviced her car four or five times between March 18, 1985, and the day of the accident. On the morning of the accident Ms. Bryant went to Sears to buy a car radio, and while there she informed the service advisor that the brakes were still making a noise; she was told that there was nothing wrong with the brakes. Ms. Bryant testified that had Sears warned her not to drive the car or advised her to get a second opinion, she would not have driven the car.

Appellant, an educational aide for grades four through six in the D.C. public schools, described her daily discomfort as a result of the May 4, 1985 car accident, including pain nearly every day of the week, her depression, her efforts to return to work, her two hospitalizations and her physical therapy that had continued until the end of June 1991. She claimed that prior to 1985 she had been a physically active person, but that since January 1987 she had to wear the back brace most of the time. Appellant introduced evidence that she had lost wages of approximately $16,000 and incurred medical expenses in excess of approximately $16,000. *fn2

Appellant also offered medical evidence that as a result of the accident she had suffered injuries to her neck, wrist, left knee and lower back and had to remain off work for over a year. Dr. Rida Azer, an orthopedic surgeon, testified that as a result of the May 4, 1985, accident appellant had suffered a permanent injury, namely a herniated or slipped disc in the lower back, the lumbar spine, which, after testing and consultation with other physicians, indicated that surgery, involving "a very big operation," would be required in an attempt to relieve the pain. *fn3 Although the injuries to appellant's wrist and knees improved, she continued to have severe pain in her back. The doctor testified that without surgery appellant would continue to suffer future pain in her lower back and also sciatic pain for the rest of her life. *fn4 The doctor's records also described an injury suffered by appellant in a 1981 automobile accident, from which Dr. Azer testified appellant had completely recovered by February 1982; she had not suffered a herniated disc at that time. On cross-examination, the doctor admitted also seeing appellant in connection with a third incident, in October 1989, when appellant had struck her tail bone on a chair while at work and suffered pain in her left hip, tail bone and the same area of her lower back that she had injured in 1985. The doctor also opined that, in view of appellant's injuries, thirteen and one half months was a reasonable time for her to be out of work since she was a teacher who had to deal with children.

In addition, appellant offered the testimony of Bruce D. Wakefield, an expert in the field of automotive mechanics and on the standard of care for mechanics regarding brakes. He testified that the standard of care required a repair mechanic to take the customer's complaints about brakes seriously, conduct a complete inspection, if not several, including a road test, to find the problem, and if unable to identify and allay the problem, to advise the customer not to use the automobile on the street until a remedy or solution could be found. He opined that the minimum standards had not been met in this case, that Sears was negligent, that the noise heard by appellant was related to the failure of the master cylinder and that this failure had caused the brakes to fail on May 4, 1985. *fn5

The defense called Terry Franklin, Jr., as an expert witness in automotive repair of brakes and Sears' representative. He described the standard procedure for checking brakes that a Sears mechanic is taught, which includes checking the master cylinder for fluids. He had personally examined Ms. Bryant's car on April 9, 1985, and testified that he would have used these standard procedures. He claimed that in twenty-one years of working on brakes he had never had a master cylinder failure that was indicated by noise; during that time he had never seen one make noise before. *fn6 He explained that when the brake pedal is all the way down to the floor you would hear a noise, but that it would be more associated with pedal failure and that with power brakes and a failing master cylinder system pumping the pedal would create more resistance. *fn7

A second defense expert, Clyde C. Richard, an expert in mechanical engineering and the sub-specialty of brake systems, testified that a master cylinder which was not functioning would not cause noise in the absence of other symptoms: "there's no noise associated with this system." Thus, if a person consistently pushes down on the brakes and there is a knocking noise, it would not, in his opinion, indicate a possible problem with the master cylinder. In response to a hypothetical question, he testified that replacing the master cylinder would change the pressure put on the brake system at the wheels, but that replacement would not have anything to do with the master cylinder making noise.

The Judge denied the defense motion to dismiss and the plaintiff's motion for a directed verdict on liability, based on the agreement of the plaintiff's expert and the defense expert (Mr. Franklin) on the standard of care. The jury returned a verdict for $37,500.00 in appellant's favor. The Judge denied appellant's motion for a new trial.

II.

Appellant contends that there were several problems with the jury instructions. *fn8 After the trial Judge had given the general instructions to the jury, appellant's counsel identified additional instructions addressing the standard of care in malpractice cases that he requested the Judge to give to the jury. *fn9 The Judge refused. Subsequently, during deliberations, the jury asked several questions relating to liability, *fn10 and the Judge stated that he would reinstruct the jury on ...


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