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District of Columbia v. Murtaugh

May 13, 1999

DISTRICT OF COLUMBIA, APPELLANT,
v.
ELSA MURTAUGH AND EBONE, INC., APPELLEES AND EBONE, INC., CROSS APPELLANT,
v.
DISTRICT OF COLUMBIA, CROSS APPELLEE



Before Wagner, Chief Judge, and Schwelb and Reid, Associate Judges.

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

Notice: This opinion is subject to formal revision before publication in the Atlantic and Maryland Reporters. Users are requested to notify the Clerk of the Court of any formal errors so that corrections may be made before the bound volumes go to press.

Appeals from the Superior Court of the District of Columbia (Hon. Linda Turner-Hamilton, Trial Judge)

Argued January 12, 1999

In No. 97-CV-908, appellant, the District of Columbia ("the District"), appeals the judgments of the trial court (1) denying its motion for judgment as a matter of law, new trial or remittitur after a jury verdict awarding appellee Elsa Murtaugh judgment in the amount of $250,000 in her personal injury lawsuit charging the District and appellee, Ebone, Inc. ("Ebone"), with negligence in the repair and maintenance of an alley, and (2) entering judgment in favor of Ebone on the District's cross claim for indemnification and contribution. In No. 97-CV-1035, Ebone appeals the judgment of the trial court granting the District's motion to vacate and re-enter its judgment on the District's cross claim against Ebone. We affirm the $250,000 entry of judgment in favor of Ms. Murtaugh in No. 97-CV-908. In No. 97-CV-1035, we affirm the trial court's judgment vacating and re-entering judgment against the District. Finally, we affirm the trial court's judgment on the District's contribution and indemnity cross claim in No. 97-CV-908.

FACTUAL SUMMARY

Trial Testimony and Verdict

During the trial on her complaint, Ms. Murtaugh testified that on December 4, 1992, she fell when she stepped into an unprotected depression in an alley on Bank Street in the Georgetown section of Washington, D.C., and fractured her right wrist. According to Ms. Murtaugh, she noticed a wooden "saw-horse" type barrier with orange tape on it. As a result, she focused her attention on the barrier because she believed that it was a warning of a dangerous condition on the street's surface. As she attempted to pass the barrier, she fell. She described her injuries in part as follows: "I was bleeding in my head. My hips were hurting . . . my hand . . . looked terrible." The hospital informed her that she had "an open fracture" of the hand. Photographs taken the day after Ms. Murtaugh's fall showed that the wooden saw-horse barrier was positioned directly over the pothole.

During trial, a portion of the videotape deposition of Officer Peter A. Cooke of the Metropolitan Police Department was read to the jury. Officer Cooke testified that while he was on routine patrol around 6 p.m. on November 17, 1992, he noticed an area of wet cement containing "imprints" in the Bank Street Alley. The wet cement was surrounded by three saw-horse wooden barriers, connected by tape. Later that same evening, he contacted the Mayor's Command Post, and informed a Mr. Robinson about the condition. During his deposition, Cooke reviewed photographs of the Bank Street Alley taken at Ms. Murtaugh's direction after her fall. He stated that the pictures appeared to show the same pothole or same general area and condition that he had observed on November 17, 1992 and had reported to the Mayor's Command Post.

According to the District's responses to interrogatories, during 1992, Ebone, a construction contractor, entered into a contract with the District for repair of streets and roads. Under the contract, Ebone performed work in the Bank Street Alley near the 1200 block of Bank Street, N.W. However, Ms. Belle Vee Gentry, the president of Ebone, testified that Ebone repaired a cut made by Bell Atlantic in a section of the Bank Street Alley on November 17, 1992, but not in the area where Ms. Murtaugh fell. Ms. Gentry further testified that Ebone did not repair the area depicted in the photographs because the repairs were made with a different type of cement which had a different color than that authorized for use by Ebone. Moreover, she stated, the barricade was not of the type used by Ebone in 1992; the cement was not raked or edged like other Ebone jobs; and the depth of the cement was different from other work performed by Ebone. She asserted that Fort Meyer Construction also had a contract to do similar work for the District during the 1992 time period.

Before charging the jury on October 18, 1995, the trial court granted Ebone's motion for a directed verdict on the ground that Ebone put in affirmative evidence to show that it did not perform work in the area where Ms. Murtaugh fell. Immediately after the court's ruling, counsel for Ms. Murtaugh stated: "The District has a cross claim against Ebone." The trial Judge responded, inter alia: "They can fight it out later. They could put on evidence . . . and hopefully keep Ebone in the case."

The jury rendered a $250,000 verdict in favor of Ms. Murtaugh.

Post-Trial Rulings

On November 8, 1995, the District filed a post-trial motion for judgment as a matter of law, a new trial or remittitur. After reviewing the evidence in the light most favorable to Ms. Murtaugh, the trial court denied the District's motion on December 1, 1995. The court determined that: (1) judgment n.o.v. was not warranted because "the verdict was entirely consistent with the evidence as well as plaintiff's theory of the case"; (2) no new trial would be granted because, inter alia, "[t]he verdict was not against the weight of the evidence"; and (3) remittitur was not appropriate because the verdict was not excessive "[g]iven the severity of plaintiff's injury and the claim of permanence growing out of it." The District filed a notice of appeal on January 11, 1996.*fn1

In response to the District's motion for an evidentiary hearing on its cross claim, the trial court requested a proffer. At a hearing on July 16, 1996, the court concluded that the District was not entitled to contribution or indemnity from Ebone. Nonetheless, "for appellate purposes" the trial court permitted the District "to make an evidentiary proffer." After the evidentiary proffer on August 5, 1996, the trial court orally entered judgment in behalf of Ebone on the District's cross claim. Judgment was entered in open court in the presence of counsel for Ebone and the District, and was docketed on September 9, 1996. The docket entry stated in relevant part: "Judgment entered for def Ebone, Inc. on the District[']s cross-claim . . . reasons articulated on the record orally . . . ."

On March 4, 1997, the District filed a motion requesting that the court enter final judgment or vacate and re-enter judgment on its cross claim against Ebone. The District contended, inter alia, that no "separate document" had been entered as required by Super. Ct. Civ. R. 58, and that the requirements of D.C. App. R. 4 (a)(3) had not been met. On April 30, 1997, the trial court granted the District's motion to vacate and re-enter judgment. As grounds for its decision, the trial court stated: "Notice from the Clerk's Office even by way of computer printout seems to be required under D.C. App. R. 4." The "re-entered" judgment was docketed on May 7, 1997, and ...


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