Appeal from the Superior Court of the District of Columbia; (Hon. Colleen Kollar-Kotelly, Trial Judge)
Before Steadman, Schwelb, and Farrell, Associate Judges. Opinion for the court by Associate Judge Farrell. Dissenting opinion by Associate Judge Steadman.
The opinion of the court was delivered by: Farrell
FARRELL, Associate Judge: This case is before us a second time following our reversal of a directed verdict in favor of defendant-appellant, the District of Columbia, see Robinson v. District of Columbia, 580 A.2d 1255 (D.C. 1990) (Robinson I), and a subsequent jury verdict in favor of plaintiff-appellee. Plaintiff was injured when she was struck by a police van as she paused in the middle of a two-way street while attempting to cross outside the designated crosswalk.
Although the trial Judge directed a verdict against plaintiff on the issue of contributory negligence (for failure to use the crosswalk), the Judge submitted the case to the jury on the issues of primary negligence of the District's employee and last clear chance. The jury found in favor of plaintiff on both issues. On appeal the District, while not disputing primary negligence, argues that the Judge should have directed a verdict in its favor on last clear chance because the evidence, in its view, established as a matter of law that plaintiff's negligence consisted not just of the initial failure to use the crosswalk, but also of her continuing failure -- up to the point of the accident -- to keep a proper lookout, in violation of District of Columbia traffic and pedestrian regulations. *fn1 Alternatively, the District argues that on this evidence it was entitled to the following jury instruction which it requested, but which the trial Judge declined to give:
If you find that the plaintiff's negligence continued to the moment of the accident and concurred with that of the defendant, then the plaintiff cannot recover under the last clear chance doctrine and you must find for the defendant.
This principle of "concurrent negligence" finds no apparent reflection in the elements of the last clear chance doctrine as formulated in this court's decisions. As set forth most recently in Robinson I, those elements are as follows:
(1) . . . the plaintiff was in a position of danger caused by the negligence of both plaintiff and defendant; (2) . . . the plaintiff was oblivious to the danger, or unable to extricate herself from the position of danger; (3) . . . the defendant was aware, or by the exercise of reasonable care should have been aware, of the plaintiff's danger and of her oblivion to it or her inability to extricate herself from it; and (4) . . . the defendant, with means available to him, could have avoided injuring the plaintiff after becoming aware of the danger and the plaintiff's inability to extricate herself from it, but failed to do so.
580 A.2d at 1258 (quoting Felton v. Wagner, 512 A.2d 291, 296 (D.C. 1986)). *fn2 The District nevertheless describes the concurrent negligence principle as an exception to the doctrine of last clear chance, one that is compatible with the elements stated above and recognized implicitly by decisions in this jurisdiction. *fn3 Equally important, it has the overwhelming support of the commentators and of decisional authority elsewhere as applied to a case, which this concededly is, where the defendant never actually became aware of the plaintiff's perilous condition in time to avert the accident. See Robinson I, 580 A.2d at 1258. For example, as Prosser has stated:
In another group of cases, the plaintiff's situation is not one of true helplessness, and he is still in a position to escape, but his negligence consists in failure to pay attention to his surroundings and discover his own peril.
[In such a case, if] the defendant does not discover the plaintiff's situation, but merely might do so by proper vigilance, it is obvious that neither party can be said to have a "last clear" chance. The plaintiff is still in a position to escape, and his lack of attention continues up to the point of the accident, without the interval of superior opportunity which has been considered so important. The plaintiff may not reasonably demand of the defendant greater care for his own protection than that which he exercises himself. Accordingly, the nearly universal rule is that there can be no recovery.
PROSSER & KEETON, THE LAW OF TORTS § 66, at 466-67 (5th ed. 1984). *fn4
We assume, for the sake of argument in this case, that concurrent negligence is an exception to the doctrine of last clear chance in this jurisdiction. We do so despite the conceptual difficulty of harmonizing the exception with the disjunctive treatment by our decisions of two classes of plaintiffs: the plaintiff who is "oblivious to the danger" in which she finds herself; and the plaintiff who is "unable to extricate herself" from that position of danger. *fn5 The concurrent negligence exception would let the former class of plaintiff recover only if she was "non-negligently oblivious," that is, if her negligence which jointly brought about her condition of peril had somehow terminated or come to a rest. *fn6 As she would then be conceptually indistinguishable from the plaintiff who is "unable to extricate herself" from the danger, one can legitimately ask whether the District's exception does not delete "obliviousness" from our doctrine as a condition permitting recovery if the other requirements of last clear chance are met. Only the en banc court could effect that change. It is unnecessary for us to pursue this Discussion further, however, because even if we recognize application of the concurrent negligence exception to this case, we conclude that we are unable to reverse the judgment in plaintiff's favor.
First, the District is mistaken in contending that, on the evidence presented, no trier of fact reasonably could have found plaintiff to have heeded her duty to keep a proper lookout. Viewing the evidence in the light most favorable to plaintiff, she began crossing the street after she looked to her left and saw that any traffic approaching from that direction had stopped for a red light. She also looked across the street and slightly to her left as she crossed, and saw the police van ascend a ramp leading into the street at the end of which was a flashing red light that would require the van to stop before continuing. She then crossed to the yellow dividing strip in the middle of the street, where she looked to the right to see if traffic was coming from that direction. As she looked to the right she was struck by the police van, which had turned left into the street at a forty-five-degree angle. Plaintiff's admission that she was not "concerned about [the van] as began to walk across the street . . . because of the stop light there" seems to us to present a classic jury issue as to whether she was negligent in not continuing to watch the van rather than (or in addition to) attending to the danger of approaching traffic from the right. See, e.g., Elam v. Ethical Prescription Pharmacy, Inc., 422 A.2d 1288, 1290 (D.C. 1980). The District's argument for judgment as a matter of law is therefore unpersuasive.
Second, assuming that the District was entitled to its requested instruction on concurrent negligence, we are able to say with fair assurance on this record that the omission did not affect the jury's verdict. See R. & G. Orthopedic Appliances & Prosthetics, Inc. v. Curtin, 596 A.2d 530, 540 (D.C. 1991) (setting forth standard for harmless error in civil case). In addition to directing a verdict against plaintiff on contributory negligence for her failure to use the designated crosswalk, the trial Judge instructed the jury at length regarding plaintiff's "continuing duty" to "make reasonable ...