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Twyman v. Johnson

March 13, 1995

MARY TWYMAN, APPELLANT,
v.
NAOMI JOHNSON, APPELLEE, NAOMI JOHNSON, CROSS-APPELLANT, V. MARY TWYMAN, CROSS-APPELLEE.



Appeals from the Superior Court of the District of Columbia. (Hon. Steffen W. Graae, Trial Judge).

Before Terry, Farrell, and Ruiz, Associate Judges.

The opinion of the court was delivered by: Farrell

FARRELL, Associate Judge: On this appeal from a jury verdict that, among other things, awarded the plaintiff-appellant damages for retaliation under the Rental Housing Act of 1985 (the Act), the primary issues are whether the trial Judge erred in directing a verdict against plaintiff on her claim for negligence and whether an independent cause of action for retaliation may be maintained under the Act. We answer both questions in the negative, and therefore affirm in part and reverse in part the judgment of the trial court.

I.

Plaintiff Mary Twyman has been the tenant of defendant Naomi Johnson since 1974, when the Twymans moved into their apartment pursuant to an oral lease between Mr. Twyman and Mr. Johnson, both since deceased. When Mrs. Johnson took over management of the rental property in 1988, Mrs. Twyman pointed out to her several problems with the residence, including defects in the rear porch and steps leading to the ground from the porch. On November 1, 1989, Mrs. Twyman was carrying trash down the rear steps to the back alley when she fell on the second or third step and sustained injuries to her left wrist and hand. In August 1991, she filed suit against Johnson in Superior Court for negligence resulting in that injury and for breach of the implied warranty of habitability. *fn1 Meanwhile, in June 1991 the District of Columbia responded to a complaint by Twyman and issued a Housing Deficiency Notice to Johnson regarding the conditions at the Twyman residence. At that time, Twyman began withholding rent.

In November and December of 1991, Johnson filed two consecutive complaints for possession in Superior Court based on Twyman's non-payment of rent, each indicating, incorrectly, that statutory notice had been waived in writing. As the complaints were also defective in the identity of the person verifying them, Johnson voluntarily dismissed both, and the trial court awarded sanctions against Johnson's then-counsel, Kane, for attorney's fees. Twyman then amended her civil complaint to add claims for abuse of process and retaliation, alleging that the possessory actions had been motivated by her recourse to legal action. After serving Twyman with the proper 30-day notice to vacate, Johnson filed a third landlord and tenant complaint based on non-payment of rent. Besides answering the complaint, Twyman counterclaimed both for a rent abatement dating back three years because of the housing code violations and for damages for retaliation. The landlord and tenant action was consolidated with the civil action for trial.

At trial, Twyman's expert, Gregory Harrison, a consulting engineer, testified about the sub-standard conditions of the back steps, stating that they lacked dimensional uniformity of the risers and treads, were not slip resistant, and were not protected by a handrail, only a "guardrail." According to Harrison, the step on which Twyman said she fell - the second or third depending on how the steps were counted - was unsafe and violated the housing code. Other than Twyman, however, no one had personally witnessed the fall and could testify how it had happened. *fn2 Twyman, for her part, was frank in testifying that she did not know what had caused her to fall. On direct examination she recalled the approximate step from which she had fallen ("the second or third step - I don't know which one of the two"), but stated: "I was just going down the steps and I just fell - that's all I remember." On cross-examination she again stated. "I don't know what caused me to fall," and in response to the question whether she had "any explanation as to why fell down the steps," answered "No." *fn3

At the end of Twyman's case the trial Judge directed a verdict for Johnson on the negligence count, concluding that Twyman, though she had fallen from steps conceded by Johnson to be defective, had presented no evidence to establish that the condition of the steps caused her fall. The breach of warranty, abuse of process, and retaliation claims were later submitted to the jury, which awarded Twyman damages (in the form of a rent abatement) for the warranty claim and separate damages of $10,000 for retaliation, while rejecting the claim of abuse of process.

II.

Twyman appeals from the directed verdict on negligence, and also attacks evidentiary rulings which she contends weakened her presentation of the abuse of process claim to the jury. Johnson in turn challenges the trial court's ruling which allowed the retaliation claim to go to the jury both as a defense to the suit for possession and back rent and as an independent claim and counterclaim.

A.

We sustain the directed verdict on negligence. Although we view the evidence on appeal in the light most favorable to the party that prevailed in the trial court, Jackson v. Condor Management Group, Inc., 587 A.2d 222, 224 (D.C. 1991), a directed verdict is proper when the jury has "no evidentiary foundation on which to predicate intelligent deliberation and reach a reliable verdict." Papanicolas v. Group Hospitalization, Inc., 434 A.2d 403, 404 (D.C. 1981). We assume for the sake of argument that Johnson's failure to maintain the steps in accordance with the housing code was per se a breach of the duty she owed Twyman as her tenant. See Ross v. Hartman, 78 U.S. App. D.C. 217, 218, 139 F.2d 14, 15 (1943). Nevertheless, "whether or not the negligence caused the injury is a separate question .... A simple breach of duty having no causal connection with the injury cannot produce legal responsibility." Richardson v. Gregory, 108 U.S. App. D.C. 263, 266, 281 F.2d 626, 629 (1960). A plaintiff must prove both negligence and causation. Id.; see also H.R.H. Constr. Corp. v. Conroy, 134 U.S. App. D.C. 7, 411 F.2d 722, 9, 411 F.2d 722, 724 (1969). In St. Paul Fire & Marine Ins. Co v. James G. Davis Constr. Corp., 350 A.2d 751 (D.C. 1976), we similarly held that even if the regulations in question (police traffic regulations) applied and had been violated, "they would establish negligence only. Appellants would still bear the burden of showing that the negligence proximately caused the damage." Id. at 754. See also Rong Yao Zhou v. Jennifer Mall Rest., 534 A.2d 1268, 1277 (D.C. 1987) ("Plaintiffs must prove that the statutory violation was the proximate cause of their injuries"); Otis Elevator Co. v. Tuerr, 616 A.2d 1254, 1259 (D.C. 1992) (plaintiff must prove that "injury resulted from the risk against which the statute was designed to protect"). *fn4

Twyman was required to present evidence sufficient to persuade a reasonable jury by a preponderance of the evidence that "the breach of duty had a substantial and direct causal link to injury." Freeman, supra note 4, 477 A.2d at 716. *fn5 She failed to do so. Since Twyman was the only witness to the accident and she admitted that she did not know what had caused her fall, the jury could not reasonably have decided that she fell, for example, because she stepped on a slippery or uneven stair tread - and not simply because she missed a step or lost her balance while not holding the guardrail (she was carrying a bag of trash at the time). In Rich v. District of Columbia, 410 A.2d 528 (D.C. 1979), upon which Twyman relies, the plaintiff did not know which depression in the sidewalk had caused her to fall, but she did testify that as she was walking "'one leg went into a depression and the other foot hit something metal .... I just flew through the air above this hole ... and I landed ... on the ground ....'" Id. at 533. She was able, therefore, at least to link her accident causally to a defect in the pavement. Similarly, in Washington v. District of Columbia 429 A.2d 1362 (D.C. 1981) (en banc), the plaintiff testified that she had reached out for the handrail to steady herself, but fell because no handrail existed ("'that's when I lost my balance, when I tried to grab for a rail,'"). Id. at 1368. Unlike in these cases, Twyman gave no testimony tying her fall to a defective condition of the stairs other than her bare statement that she set her foot down on the second or third step and fell.

Twyman also relies on McCoy v. Quadrangle Dev. Corp., 470 A.2d 1256 (D.C. 1983), an elevator accident (fatality) case in which we reversed a grant of summary judgment and held there was a triable issue as to causation even though "no one knew with any degree of certainty how decedent got to the bottom of the elevator shaft . . . ." Id. at 1259. But we did so partly because "to force appellants in this case to allege just how and by what means decedent's accident occurred 'would do violence to the principle of res ipsa loquitur,'" id. at 1259-60 n.7 (citation omitted), and partly because the death of the victim meant that "there no eyewitnesses to accident . . . ." Id. at 1259. Neither aspect of that reasoning applies here. Elevator (and escalator) accident cases are perhaps the paradigm application of res ipsa loquitur. See, e.g., Otis Elevator Co. v. Tuerr, 616 A.2d at 1258; Otis Elevator Co. v. Henderson, 514 A.2d 784, 785-86 (D.C. 1986); Bell v. Westinghouse Elec. Corp., 483 A.2d 324, 329 (D.C. 1984). *fn6 That principle was neither pled nor presented to the jury in this case, and our holding that Twyman failed to link her fall on the steps to Johnson's negligence does no violence to it. See Tuerr, ...


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