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District of Columbia v. Zukerberg

August 11, 2005

DISTRICT OF COLUMBIA, APPELLANT,
v.
PAUL H. ZUKERBERG, APPELLEE.



Appeal from the Superior Court of the District of Columbia (CA-4991-00) (Hon. A. Franklin Burgess, Jr., Trial Judge).

The opinion of the court was delivered by: Washington, Chief Judge

Argued June 14, 2005

Before WASHINGTON, Chief Judge,*fn1 and RUIZ, Associate Judge, and KING, Senior Judge.

After a jury trial, plaintiff-appellee Paul H. Zukerberg ("Zukerberg"), serving as guardian ad litem for minor Jacob Miles-McLean ("Jacob"),*fn2 was awarded a 5 million dollar judgment in his negligence action against appellant-defendant District of Columbia ("District"). The District now appeals the trial court's denial of its motion for judgment as a matter of law, arguing that there was no factual foundation to support the jury's finding that the District's negligence proximately caused Jacob's injuries. We hold that the evidence at trial was sufficient to support the jury's finding of proximate causation, and, thus, we affirm.

I.

On June 18, 1999, Jacob, who was ten years old at the time, attended Family Swim Night with his mother, Robin Miles-McLean ("Ms. Miles-McLean"), and father, Stuart Miles-McLean ("Mr. Miles-McLean") at Wilson High School pool, a public pool operated by the District. That evening, Jacob suffered severe injuries as a result of his losing his balance and falling off the three-meter diving board onto the concrete deck below. The two-count complaint against the District alleged that the District was negligent for failing to "properly and adequately maintain, operate and supervise" the Wilson High School pool and for "failing to properly train" lifeguards at the pool.

At trial, one of appellee's central theories was that the District's failure to secure the three-meter diving board in a safe position violated the standard of care and caused Jacob to fall. Specifically, because the diving board's fulcrum was immovably frozen and rusted in the rearmost position, the diving board was in its most springy and wobbly condition, thus rendering it unsafe for non-competitive divers.

As Jacob was unable to testify regarding the cause of his fall, the only eyewitness to the accident was Ms. Miles-McLean. She testified that her son called out to her to watch as he prepared to jump off the board. Ms. Miles-McLean noted that, after climbing up the stairs, Jacob started to walk down the board. She continued:

And he walked toward the end like he had done before. And as he got toward the water he -- I saw him lose his footing and he tried to catch himself, but he hadn't been holding onto the rail and so he reached for the rail that was right there.

Q: You're indicating with your left hand?

A: My left hand. And he panicked. I mean, he was on a 3 meter board and he was falling. And he was just grasping for that rail. And, you know, it's one of those things where in your mind it goes on forever, but you know it couldn't have. And I just -- I just screamed. He landed on the deck. I think he hit head first. . . . .

Q: At the time Jake fell, he had not yet passed the end of the handrails?

A: No.

Q: And he wasn't holding on?

A: No. If he had been holding on, he wouldn't have fallen.

Q: Was he doing anything, was he running, was he horsing around, was ...


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