Appeal from the Superior Court of the District of Columbia; (Hon. A. Franklin Burgess, Jr., Trial Judge)
Before Ferren and Farrell, Associate Judges, and Gallagher, Senior Judge. Opinion for the court by Senior Judge Gallagher. Concurring opinion by Associate Judge Ferren. Concurring opinion by Associate Judge Farrell.
The opinion of the court was delivered by: Gallagher
GALLAGHER, Senior Judge: The District of Columbia ("the District") appeals from a judgment of $240,000 in favor of the appellee, James Huysman, and a judgment of $20,000 for loss of consortium in favor of appellee's wife and co-plaintiff, Betsy Huysman. The judgment arises from a collision involving appellee and a District employee. On appeal, the District argues that there was no evidence upon which a jury could find that appellant had the last clear chance to avoid the accident, and thus, the trial court should have granted the District's motion for a judgment notwithstanding the verdict. We agree with the District, and therefore, we reverse.
Appellee testified at trial that on June 21, 1989, at approximately 2:30 p.m., the appellee crossed M Street to get to his car, a two-door 1988 Buick Regal, which was parked on M Street, one car back from the corner of M Street and 13th Street. Appellee stood in the street near the car door on the driver's side. After looking to see if any cars were coming, appellee opened the door slightly in order to get a box of literature out of the back seat of his two-door sedan. Appellee noticed several cars about one-half to three-quarters of a block away, and felt it was safe to get into his car.
While the car door rested on his back, appellee leaned over the driver's side of the two-door car to locate the box in the back seat. According to appellee, the car door was only open the width of his body. He testified that he stooped into the car in order to bring the box out. Appellee stated, my left knee was in the door jam . . . I bent down . . . without putting my head in the car . . . ." While bringing the box out of the car, he heard a man scream. *fn1 Appellee stood up and saw a pick-up truck approximately one-half to one car length away. Appellee noticed the passenger of the pick-up truck looking at the driver. The pick-up truck hit the car door which then catapulted and hit the appellee in the back. Appellee suffered injuries to the back, neck, and ribs.
At trial, defense witness Earl Genus, testified that he was riding as a passenger in a pick-up truck driven by a District employee westbound on M Street approximately 10-12 miles per hour. He noted that the traffic was congested due to many parked cars on both sides of the street. All of a sudden, Mr. Genus noticed the driver's side door of a parked car open, and he yelled at the driver to stop. The pick-up truck was "at the rear of the car" when Mr. Genus noticed the car door open. The driver immediately tried to stop but hit the door of the parked car and pinned the appellee between the car door and the pick-up truck.
There were no other witnesses to the incident, and the driver of the pick-up truck could not be found to testify. The appellee presented evidence of his injuries and economic loss through the testimony of a chiropractor, an expert on economics, an expert on rehabilitation, the appellee's wife, and an associate from work. The District relied on the testimony of Mr. Genus and an expert on neurology.
The trial court instructed the jury on contributory negligence, proximate cause, and last clear chance. After deliberating, the jury sent back a note asking, if both parties are found to be negligent, is there still room to award compensation to the plaintiffs?" The trial court reinstructed the jury on last clear chance despite the District's objections. *fn2 The jury then found appellant negligent and the appellee contributorily negligent. Moreover, the jury found that the driver of the pick-up truck had the last clear chance to avoid the accident. The jury awarded the appellee $240,000 and his wife $20,000.
The District filed a motion for a judgment notwithstanding the verdict, asserting that there was no evidence upon which a jury could have found that the driver had the last clear chance to avoid the accident. The trial court denied appellant's motion noting that the jury could have found that the driver was negligent in not seeing the pedestrian as he crossed the street, opened his car door, and stooped into the car to retrieve the box. The trial court stated:
At this juncture, the Court believes it important to focus on the circumstantial evidence favoring the plaintiff. Huysman's testimony saying that he looked down the street and could see one-half to three-quarters of a block affords a reasonable inference that traffic coming toward him had an unobstructed view of him. Genus' testimony did not contradict that evidence; he never said that the view from the driver's point of view was obstructed. Given that distance, the Court is of the opinion that the jury could have reasonably found that a driver . . . should have seen Huysman as he walked to his door, opened it, and stooped down to get his box. It would have been reasonable for a jury to infer that neither Genus nor the driver saw this entire sequence of events, for Genus never saw a person until after the collision and had to yell to get the driver's attention after he saw the door "open". . . .
The trial court noted that it considered the time appellee crossed the street and approached his car to be the time at which the peril began, and that had the driver seen this, he would have been able to prevent the accident. Thus, ruled the court, the driver had the last clear chance to avoid the accident.
Appellant claims the trial court erred in not granting its judgment notwithstanding the verdict because the facts do not support the jury's Conclusion that appellant had the last clear chance to avoid the accident. When reviewing a motion for judgment notwithstanding the verdict, the trial court must consider the evidence in the light most favorable to the non-moving party. Felton v. Wagner, 512 A.2d 291, 295 (D.C. 1986). This court will only reverse a denial of a motion for judgment notwithstanding the verdict if "no reasonable person, viewing the evidence in the light most favorable to the prevailing party, could reach a verdict in favor ...