Appeal from the Superior Court of the District of Columbia (CA 5050-01) (Hon. Melvin R. Wright, Trial Judge).
The opinion of the court was delivered by: Blackburne-rigsby, Associate Judge
Argued September 26, 2007
Before FISHER and BLACKBURNE-RIGSBY, Associate Judges, and NEBEKER, Senior Judge.
Appellant Joseph Juvenalis appeals a judgment on the verdict denying his recovery for injuries he sustained as a pedestrian in an automobile accident involving a Metropolitan Police Department ("MPD") van. The jury found that he assumed the risk of the accident despite determining that the MPD officer driving the van was negligent. The issue before us on appeal is whether the jury should have been given the assumption of risk jury instruction. We conclude that it was reversible error to give the jury the assumption of risk jury instruction. By basing its verdict on the determination that Mr. Juvenalis assumed the risk, the jury failed to consider whether Mr. Juvenalis was contributorily negligent or whether the MPD officer had the last clear chance to avoid the accident, which would have potentially permitted Mr. Juvenalis to recover damages despite his own negligence. Accordingly, we reverse the verdict and remand the case for a new trial.*fn1
On July 13, 1998, Mr. Juvenalis walked out from an alley in the 1500 block of U Street, NW and attempted to cross the middle of the street without using the crosswalk. Several witnesses including Joyce Bryant, Ali Abdi, Bernie Huber, and Officer Wayne Sullivan, who was driving the MPD van that hit Mr. Juvenalis, saw him in the street standing on the double yellow line. Ms. Bryant testified that she slowed down and ultimately stopped her car because she saw Mr. Juvenalis in the street, and he appeared to be disoriented "turning backwards and forwards and twisting and turning, as if he did not know what to do." Mr. Abdi, a restaurant owner sitting outside at his sidewalk café, saw the MPD van and said it was speeding right before it hit Mr. Juvenalis.
Officer Sullivan testified that he saw Mr. Juvenalis standing in the street from three to five car lengths away.He also stated that he lost sight of Mr. Juvenalis and assumed that he had crossed the street.Then, suddenly, he heard the sound of his vehicle hitting Mr. Juvenalis. The impact of the collision caused Mr. Juvenalis's body to be thrown into oncoming traffic, and he landed on the hood of Ms. Bryant's car before sliding to the ground. As a result of the collision, Mr. Juvenalis sustained permanent bodily injury and incurred medical expenses.
Mr. Juvenalis's medical records indicated that his blood alcohol level was greater than 0.28 grams/100 ml on the night of the accident. The District of Columbia's ("the District") expert witness in toxicology and pharmacology testified that such an impaired individual would not be able to appreciate or "know" the danger he was actually in. According to the expert, a person in that condition would have a decreased ability, as compared to an unimpaired individual, to "appropriately make reasoned decisions" and to process and rationally interpret multiple sensory inputs, such as sight and sound. He went so far to say that most people with the same blood alcohol level as Mr. Juvenalis would be unconscious.
After the close of all evidence, the parties discussed applicable jury instructions. The District requested that the trial court give jury instructions on both assumption of risk and contributory negligence. Mr. Juvenalis objected to the assumption of risk jury instruction. When the court asked the basis for his objection, Mr. Juvenalis's counsel argued that giving both contributory negligence and assumption of risk instructions would be duplicative, "like wearing both a belt and suspenders," and therefore, both should not be submitted to the jury. The trial court overruled the objection stating, "at first I did not think assumption of risk applied" but then concluded that "anytime someone stands in the middle of the street trying to cross . . . a jury could find that [assumption of the risk applied]." Then, the parties discussed the "last clear chance" doctrine, and the court stated, "[Mr. Juvenalis,] I figured you would [want the 'last clear chance' jury instruction]. If I'm giving assumption of risk, I think last clear chance. Any objection?" Neither party objected to the instruction.
The court provided the parties with a copy of the jury verdict form, to which neither objected, with the following questions: (1) Was the police officer negligent?; (2) Was his negligence the cause of the injuries?; (3) Did Mr. Juvenalis contribute to his injury?; and (4) Did Mr. Juvenalis assume the risk? The verdict form further instructed: "Only if the jury finds that assumption of risk is involved," should they answer question (5) Did the officer have the last clear chance to avoid the incident?*fn2 Finally, the verdict form instructed the jury to indicate the amount, if any, of an award.
Both parties gave their closing arguments. Mr. Juvenalis's counsel focused on the "last clear chance" doctrine and explained to the jury, "you will notice from these [jury] instructions even if [Mr. Juvenalis] assumed [the] risk of being in harms way and was contributor[ily] negligent, the District of Columbia still is liable if the officer had a last clear chance to avoid the accident." He laid out the reasons why the officer had the last clear chance to avoid the accident. The District, in its closing argument contended the officer was not negligent, but even if he was, then Mr. Juvenalis was contributorily negligent or alternatively assumed the risk. Then, the District argued, "now we get to . . . the Doctrine of Last Clear Chance as [Mr. Juvenalis's] counsel has introduced to you." The District went on to argue that the requirements of the doctrine had not been met. Neither party made clear in their closing argument that the "last clear chance" theory was not applicable if the jury found Mr. Juvenalis had assumed the risk of his injuries. See Johnson, supra note 2,726 A.2d at 175-76.
After closing arguments, the trial judge gave jury instructions explaining the applicable traffic regulations in the District, the assumption of risk doctrine, the contributory negligence doctrine, and the "last clear chance" doctrine. The judge then gave the jury a revised jury verdict form.*fn3 In responding to the questions on the revised verdict form, the jury determined that Officer Sullivan was negligent in operating the MPD van, by answering "yes" to Question #1. The jury also answered "yes" to Question #2 regarding whether Mr. Juvenalis had assumed the risk of the accident. Following the instructions on the revised jury verdict form, the jury did not go on to answer questions #3 and #4 regarding contributory negligence and "last clear chance," respectively. Mr. Juvenalis filed a motion for a judgment notwithstanding the verdict, or in the alternative, a new trial, which the trial court denied. This appeal followed.
On appeal, Mr. Juvenalis argues that the trial court erred in giving the assumption of risk jury instruction because, at the time of the accident, he was undisputedly intoxicated and therefore could not have voluntarily exposed himself to danger. Mr. Juvenalis, however, did not make this objection at trial. Generally, we are reluctant to reverse a trial court on issues not squarely raised or to which objections were not made, because the purpose of Super. Ct. Civ. R. 51 is to allow a trial judge the opportunity to reconsider and, if necessary, correct the instructions. Ceco Corp. v. Coleman, 441 A.2d 940, 947 (D.C. 1982) (citations omitted). However, we may reverse a judgment on the basis of an incorrect instruction, notwithstanding the lack of a sufficient objection, under the plain error standard "where it is apparent from the face of the record that a miscarriage of justice has occurred." District of Columbia v. Banks, 646 A.2d 972, 978 (D.C. 1994)(quoting Weisman v. Middleton, 390 A.2d 996, 1000 (D.C. 1978) (citations and internal quotation marks omitted)); see also Super. Ct. Civ. R. 51 (d) (court may consider plain error in instructions affecting substantial rights even when the error has not been preserved). On a plain error review, an appellant must demonstrate that the objectionable action was "(1) error, (2) that [was] plain, (3) that affect[ed] substantial rights, and (4) the error seriously affect[ed] the fairness, integrity, or public reputation of the ...