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Zoerb v. Barton Protective Services

June 10, 2004

MARK ZOERB, ET AL., APPELLANTS,
v.
BARTON PROTECTIVE SERVICES, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA6827-99) (Hon. Herbert B. Dixon, Jr., Trial Judge)

Before Steadman and Schwelb, Associate Judges, and Nebeker, Senior Judge.

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

Argued May 18, 2004

On September 25, 1996, Mark Zoerb, an engineer employed by Carr Real Estate Services, Inc., at Metropolitan Square, a thirteen-story commercial office building in Washington, D.C., was struck on the head by a descending elevator and seriously injured while he was standing on a ladder in the elevator shaft and searching for a lost set of keys. Zoerb and his wife, Linda, subsequently brought this action for negligence*fn1 against Barton Protective Services, Inc., a corporation which provided security services for Carr at Metropolitan Square. *fn2 After discovery had been conducted, a judge of the Superior Court granted partial summary judgment in favor of Barton, ruling as a matter of law that Barton was not responsible for Zoerb's initial injury. The case proceeded to a jury trial on Zoerb's claim that Barton proximately caused an aggravation of Zoerb's injury from the blow to his head by negligently failing to locate Zoerb in the elevator shaft within a reasonable time after the accident, and by thus delaying his rescue.

On January 30, 2003, after the Zoerbs had completed the presentation of their evidence, the trial judge granted Barton's motion for judgment as a matter of law (JMOL). The judge concluded that the plaintiffs had not established the applicable standard of care or its breach. Further, in the judge's view, the plaintiffs had failed to prove that Barton's alleged negligence was the proximate cause of any quantifiable aggravation of Zoerb's injury. Finally, the judge ruled as a matter of law that Zoerb had been contributorily negligent.

The Zoerbs filed a timely notice of appeal. Because we are satisfied that any claimed injury to Mark Zoerb resulting from Barton's alleged negligence was entirely speculative, we affirm the judgment without reaching any other issue.

I. THE TRIAL COURT PROCEEDINGS

A. The events of September 25-26, 1996.

The evidence, viewed in the light most favorable to the Zoerbs, see Pazmino v. WMATA, 638 A.2d 677, 678 (D.C. 1994), reveals that shortly after he arrived at work after 4:00 p.m. on the afternoon of September 15, 1996, Zoerb received a call on his walkie-talkie from Michelle Kiah, an employee of Carr. Ms. Kiah requested that Zoerb retrieve some keys that had accidentally been dropped in an elevator shaft. Zoerb set out to search for the keys. At approximately 5:35 p.m., a security camera maintained by Carr showed Zoerb exiting from a lobby elevator, walking across the lobby, opening an elevator door with a special door key used by engineers, and then disappearing through the open elevator door. Zoerb subsequently failed to respond to radio calls, and a search for Zoerb began.

At approximately 7:00 p.m., a Barton security officer telephoned Linda Zoerb at home and inquired whether she knew where her husband was. Mrs. Zoerb told the security officer that when she had last spoken to her husband, he had told her that he was going to check out some keys that had been dropped in an elevator shaft.

Following this conversation, Mrs. Zoerb, as well as Mark Zoerb's father, Jim Zoerb, made a number of telephone calls to Metropolitan Square, reiterating that Mark Zoerb had gone to search for keys in an elevator shaft. Barton's security officers, however, did not at that time record, or pass on to Barton's Command Center, the information provided by Mrs. Zoerb. The search for Zoerb continued, but Barton's security officers, who had no access to the elevator shafts, made no attempt at this time to contact Otis Elevator Co., which did have access, or to alert the Metropolitan Police or the Fire Department.

Between 8:30 and 8:45 p.m., a Barton security officer contacted Alan Johnson, Carr's acting Chief of Engineers, and advised him that Zoerb had been missing for "quite some time." Carr personnel proceeded to Metropolitan Square and were on the scene by approximately 9:30 p.m. At approximately 11:00 p.m., Zoerb's wife and father arrived to assist in the search, and they urged those searching for Zoerb to direct their efforts to the elevator shaft. Johnson initially declined to follow this suggestion, concluding that if Zoerb had proceeded to the elevator shaft, as Linda and Jim Zoerb believed, he would have requested one of the security guards to assist him.

The police were called at 11:00 p.m., but officers did not arrive for approximately another hour and a half. At 11:47 p.m., Johnson telephoned Otis Elevator Co. An Otis representative arrived at 12:30 a.m. on September 26. Approximately one half-hour later, at 1:00 a.m., Zoerb was found at the bottom of an elevator shaft. He was suffering from head injuries. Zoerb was removed from the shaft at 1:45 a.m., and he was immediately rushed to the George Washington University Hospital emergency room. Zoerb arrived at the hospital at approximately 2:00 a.m. He was finally treated with medication to reduce intercranial pressure at 4:00 a.m., some ten and a half hours after he entered the elevator, and more than four hours after Johnson's call to Otis.

B. Zoerb's injuries and their alleged aggravation as a result of the delays in treatment.

The medical witnesses who testified on behalf of the Zoerbs were Nooreddin Mirmirani, M.D., a psychiatrist, and Peter Bernad, M.D., a neurologist. Dr. Bernad testified that Zoerb sustained a moderate to severe head injury when he was struck by the descending elevator, including a contusion to the frontal parts of the brain, a skull fracture, and brain hemorrhage. Dr. Bernad concluded that Zoerb "must have been hit pretty hard" by the elevator to have sustained such a significant brain injury. Dr. Bernad acknowledged that Zoerb's symptoms at the time of trial *fn3 were "part and parcel of plaintiff's moderate to severe closed head injury," and that Zoerb's closed head injury alone, without delay in medical treatment, was sufficient to cause Zoerb's symptoms as they existed more than six years after the accident. Nevertheless, the Zoerbs claimed that delay in Mr. Zoerb's treatment resulted in the aggravation of his injuries, and they sought damages from Barton for any aggravation attributable to Barton's role in that delay.

Dr. Mirmirani testified that "the sooner that Mr. Zoerb would have been treated, the better off he would have been." According to Dr. Mirmirani, Zoerb's condition "deteriorated continuously." Dr. Mirmirani was prepared to state "with medical certainty" that Zoerb's condition "would be better if he had been discovered earlier." The witness could not, however, "quantify specifically" the level of improvement. Dr. Mirmirani was likewise unable to state what Zoerb's condition was an hour or two hours after the accident.

Dr. Mirmirani also acknowledged that, at his pretrial deposition, he had testified as follows:

QUESTION: Do you have an understanding of how long that delay was?

ANSWER: I think that it was a number of hours. I can't recall the exact time. It was a number of hours he was ...


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