Before Schwelb and Reid, Associate Judges, and King, Senior Judge.
The opinion of the court was delivered by: Reid, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Frederick H. Weisberg, Trial Judge)
After a jury trial, this case resulted in a verdict in favor of appellee Washington Gas & Light Company ("Washington Gas") due to a finding that appellant Albert Westbrook voluntarily assumed a known risk that was the proximate cause of his injury. During trial, Mr. Westbrook requested an instruction on the last clear chance doctrine. The trial court declined to give the instruction. On appeal, Mr. Westbrook contends that the trial court erred by refusing to give the requested instruction. We conclude that Mr. Westbrook was not entitled to a last clear chance instruction, and affirm the trial court's judgment.
Testimony presented at trial showed that on February 13, 1994, customers dining at the Chef's Table restaurant told Mr. Westbrook, the proprietor of the restaurant, that they smelled gas. Investigation revealed a gas leak in the sidewalk area in front of the restaurant. Washington Gas was notified and within several minutes personnel from both Washington Gas and the District of Columbia Fire Department ("the Fire Department") arrived on the scene. Everyone was evacuated from the restaurant, and Mr. Westbrook locked the doors.
Minutes after the evacuation, John Reginald Hammond, II, a Washington Gas employee, asked Mr. Westbrook to return to the restaurant with him and "show [him] some of the meters." Mr. Westbrook took Mr. Hammond inside the restaurant, showed him the room where the meters were, and walked back toward the entrance of the restaurant. Mr. Hammond soon emerged from the room, moving at a rapid pace. He suggested that Mr. Westbrook leave the restaurant "quickly." Mr. Westbrook left and again locked the door.
According to Mr. Westbrook's trial testimony, shortly after his second exit from the restaurant, a "fireman tapped [him] on the shoulder" and "told [him] the gas man wanted [him] to go back in again." Another fireman "led [Mr. Westbrook] to the [restaurant] where [Mr. Hammond] was . . . [waiting]." Mr. Westbrook "offered [Mr. Hammond] the keys." Mr. Hammond "said he would not accept them, that [Mr. Westbrook] had to show him the meters." Mr. Westbrook maintained that Mr. Hammond threatened him with arrest if he did not comply. So, he unlocked the restaurant door and reentered with Mr. Hammond and a fireman. The fireman asked where the electric room was, and Mr. Hammond stated that he needed to turn the gas off. While Mr. Hammond and the fireman went about their tasks, Mr. Westbrook "just walked around the kitchen realizing that [he] wanted to get out of there." He said he "was very afraid." He decided to ask the fireman if he could leave. On cross examination, counsel for the District of Columbia asked Mr. Westbrook: "Now this fire official who went into the building with you, he never instructed you that you had to remain in the building, did he?" Mr. Westbrook answered: "No."
On his way to seek permission from the fireman to leave, Mr. Westbrook walked toward the cocktail lounge and stopped to put out a burning candle. Then he proceeded toward the electric room in search of the fireman. As he approached the electric room door, he called out to the fireman three times and then opened the door. *fn1 An explosion took place, and he "was thrown all over the room, hit several things, [and] wound up on the floor." Despite the pain, smoke and his "sizzling skin," Mr. Westbrook managed to get out of the restaurant, and others soon came to his aid.
Other testimony provided a different account of the second re-entry into the restaurant, or supported, at least in part, Mr. Westbrook's account. Mr. Hammond testified that when he first went into the restaurant, he did not have the proper tools with which to turn off the gas. After getting his tools, he found the restaurant door locked and told the Fire Department that he needed to get into the restaurant. He stated that he never asked Mr. Westbrook to re-enter, and in fact informed Mr. Westbrook "that it was unsafe, that he was not allowed to go in there, that he was not allowed to stay in there." Mr. Hammond said that he was outside the restaurant when he heard the explosion and eventually witnessed Mr. Westbrook coming out of the restaurant. When he asked Mr. Westbrook what happened, Mr. Westbrook "said he hit an electric switch." On cross-examination, Mr. Hammond gave an explanation regarding a written statement he had given after the incident which seemed to suggest that Mr. Westbrook had entered the restaurant with him.
Steven Smith, the fireman, testified that he spoke with Mr. Westbrook while they were awaiting an ambulance. According to his testimony, Mr. Westbrook stated that "as he was leaving the building, he cut the lights off." He also asserted that prior to the second re-entry, Mr. Hammond and Mr. Westbrook engaged in a "heated argument" and that "both of them walked into the building together." James Bielaski, a Washington Gas safety specialist, testified that during his post-incident conversation with Mr. Hammond, Mr. Hammond declared that: "[H]e was very surprised to see Mr. Westbrook when he came out of the meter room standing in the kitchen"; and "[Mr. Hammond] saw [Mr. Westbrook] in the kitchen after he had turned the meters off."
After all of the testimony had been presented and closing and rebuttal arguments were made, the jury was instructed by the trial judge and began deliberating. The jury verdict form posed questions as to whether Washington Gas and the Fire Department were negligent, and whether Mr. Westbrook was contributorily negligent and assumed the risk. During its deliberations, the jury sent a note to the trial judge asking whether it had to determine both the contributory negligence and the assumption of risk issues. The trial judge instructed the jury that if it made a determination as to either contributory negligence or assumption of risk, it did not have to resolve the other. Subsequently, the jury found Washington Gas negligent, but not the Fire Department. ...