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DOE v. GEORGETOWN CENTER (II)

March 5, 1998

JANE DOE, APPELLANT/CROSS-APPELLEE,
V.
GEORGETOWN CENTER (II), INC., ET AL., APPELLEES/CROSS-APPELLANTS.



APPEAL FROM THE SUPERIOR COURT, RICHARD S. SALZMAN, J.

Before Farrell and Ruiz, Associate Judges, and Kern, Senior Judge.

The opinion of the court was delivered by: Farrell, Associate Judge:

Before us are an appeal and cross-appeals stemming from a jury verdict in favor of plaintiff-appellant, denominated Jane Doe, for injuries suffered in an assault by a third party for which she sought to hold liable in negligence the three defendants, who are owners or managers of the building and surrounding area where the assault took place. Doe contends that the jury's award of damages was inadequate as a matter of law and that the trial court erroneously instructed the jury, as to two defendants found not liable, that the test of liability was gross negligence rather than ordinary negligence. We reject the first contention and conclude that we need not reach the second. We also reject the argument on cross-appeal of defendant the Observatory of Georgetown that the evidence was legally insufficient to support [708 A2d Page 256]

the finding of liability as to it. We therefore affirm the judgment of the Superior Court. *fn1

I.

Doe was the owner, with her parents, of a residential condominium at the Observatory, a condominium building on Wisconsin Avenue, N.W. In May 1991 she was assaulted by an unknown person in the elevator lobby adjoining the fourth level (G4) of an underground parking garage beneath the Observatory. She sued the condominium unit owners' association (hereafter the Observatory) for negligence, alleging that it had failed to maintain proper security in the G4 parking level over which it had exclusive control under an easement from the garage owner. She also sued the owner of the garage, Georgetown Center (II), Inc., and its property manager, K & M Properties, Inc., for negligence in allowing a garage door at the G2 level to remain open and inoperable for an extended length of time. Doe's theory was that the assailant had entered the building through the G2 level garage door and made his way into the G4 level possibly through a stairway and doors that the Observatory had left unsecured.

The easement from Georgetown Center (II) to the Observatory gave the latter exclusive use of the G4 parking level for residents of the condominium. In return, the easement limited the liability of Georgetown Center (II) "for any injury, loss or damage resulting from the exercise of [the] easement" to conduct that amounted to "gross negligence or willful disregard for the safety of others." As to Georgetown Center (II) and K & M, therefore, the trial judge instructed the jury that the standard of liability was gross negligence; as to the Observatory, it was ordinary negligence. With respect to damages, the jury was told, inter alia, that Doe could "be made whole only once. You must determine what amount will fairly and reasonably compensate [Doe] for her damages, and return a verdict in that amount." The jury found Georgetown Center (II) and K & M not liable. It found the Observatory liable and awarded damages of $10,000.

II.

At trial, Doe presented evidence that, over a twenty-minute period, the assailant seized and dragged her from the elevator lobby into the garage where he beat her repeatedly, used a knife to push up her dress, attempted to force her to commit sexual acts, and threatened to kill her before she was able to escape. As a result, she received several fractured teeth and a broken nose which required cosmetic dentistry and two sinus operations, and suffered enduring emotional injuries. Following the verdict, she moved for a new trial on the ground that the jury's award of damages was inadequate as a matter of law. She argued that "[t]he only plausible explanation for the extremely inadequate verdict was that the jury engaged in an impermissible comparative negligence analysis," apportioning damages between the Observatory and the two defendants found not liable. The trial court denied the motion, and Doe renews her challenge to the damage award on appeal.

Doe's burden is a formidable one:

[I]n reviewing the denial of a motion for a new trial based on a claimed inadequate verdict, this court will reverse only when the amount of the award evidences prejudice, passion or partiality on the part of the jury or where the verdict appears to be an oversight, mistake, or [the result of] consideration of an improper element. An appellate court should order a new trial only when the award is contrary to all reason.

Prins-Stairs v. The Anden Group, 655 A.2d 842, 843 (D.C. 1995) (citations omitted; emphasis in original). As our decisions point out, this "very restricted review of such [denials]" stems from a twofold deference:

The first . . . is the deference due the trial judge, who has had the opportunity to observe the witnesses and to consider the evidence in the context of a living trial rather than upon a cold record. The second . . . is the deference properly given to [708 A2d Page 257]

the jury's determination of such matters of fact as the weight of the evidence and the quantum of damages. This second factor is further weighted by the constitutional ...


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