Appeal from the Superior Court of the District of Columbia (CAB4258-03) (Hon. Geoffrey M. Alprin, Trial Judge).
The opinion of the court was delivered by: Fisher, Associate Judge
Before FISHER and THOMPSON, Associate Judges, and NEBEKER, Senior Judge.
Sylvester Whiting sued the District of Columbia Housing Authority ("DCHA") for personal injuries he suffered when he fell while stepping off of a malfunctioning elevator in a facility managed by DCHA. The jury rendered a verdict in his favor in the amount of $239,883.00. DCHA contends that we should vacate that judgment and instead enter judgment for DCHA, or grant it a new trial, because (1) it is protected by governmental immunity, (2) appellee failed to establish that DCHA had notice of a potential defect relating to misleveling incidents, (3) appellee failed to establish the applicable standard of care, (4) the trial court erred in instructing the jury on the theory of res ipsa loquitur, and (5) the verdict finding DCHA liable cannot stand because the same jury found DCHA's agent not to be liable. We affirm.
In February 2002, Mr. Sylvester Whiting lived at the Arthur Capper Senior Center ("Capper Center"), a public housing facility operated by DCHA and located at 601 L Street, S.E., in the District of Columbia. The Capper Center consisted of approximately three hundred housing units. Seventy-five per cent of the residents were elderly and twenty-five per cent were disabled. Mr. Whiting was 77 years old at the time; he did not use a cane to walk. On the evening of February 10, 2002, Mr. Whiting spent time in the Capper Center recreation room. When he left at approximately 7:30 p.m., Mr. Whiting boarded the nearest elevator, Elevator Number 2, on his way to his apartment on the second floor.*fn2 Due to problems with his heart, Mr. Whiting was unable to take the stairs.
When the elevator reached the second floor, it stopped and the door opened. Mr. Whiting had placed his left foot outside when the cab shook and the elevator moved so that there were "2 or 3 inches" between the elevator and the floor. Mr. Whiting's right foot "got hung up in the door" and he tripped and fell forward. He landed on his right knee and remained in that position until the ambulance arrived. Mr. Whiting sustained a hip fracture and injuries to his knee that required him to use a walker and cane at all times and to take prescription pain medication.
DCHA had contracted with Quality Elevator to repair its elevators, and it monitored the status of the elevators by reviewing service tickets generated by Quality. These service tickets indicate that, prior to Mr. Whiting's fall, there were problems with Elevator Number 2's relays, which are sophisticated, multifaceted switches that help control an elevator's signals, its stopping points, and the opening of the elevator cab door. The service tickets also reported problems with Elevator Number 2's selector and commutator, which are additional components of the controller system. In August 2001, Quality Elevator found the controller systems "in poor condition" and, in a report to DCHA, recommended that "replacement should be budgeted for the near future." Nevertheless, Quality Elevator assured DCHA that it could keep the elevators running in their present condition even if they had outlasted their useful lives.
Although DCHA considered replacing the elevators, its five-year plan for that period did not contemplate upgrading them. The DCHA personnel responsible for making that decision were not aware that the controller system in Elevator Number 2 chronically malfunctioned.
II. Procedural Background
On May 27, 2003, Mr. Whiting filed a complaint alleging that he was injured because DCHA had negligently maintained the elevators at the Capper Center. DCHA in turn filed a third-party complaint against Quality Elevator, its elevator service contractor. Thereafter, Mr. Whiting amended his complaint to add a claim against Quality Elevator. In May 2005, Mr. Whiting was replaced as plaintiff by his daughter, Donna Pinkney, the personal representative of his estate.
At the end of the seven-day trial, the jury returned a special verdict form finding that DCHA had knowledge of Elevator No. 2's mechanical problems. The jury found DCHA negligent and awarded the plaintiff $239,833.00. It also found that Quality Elevator was not negligent. Following the trial court's denial of DCHA's Motion for Judgment as a Matter of Law and/or New Trial, DCHA appealed to this court on November 3, 2005.
III. DCHA Is Not Protected by Governmental Immunity
A. The Doctrine of Governmental (or Sovereign) Immunity
"The principles of sovereign immunity are well established in the District. Under this doctrine, the District is immune from suit in tort if the act complained of was committed in the exercise of a discretionary function. But where the District's conduct arises out of the exercise of ministerial powers, 'there is a duty to act in a reasonably safe and skillful manner.'" District of Columbia v. Pace, 498 A.2d 226, 228 (D.C. 1985) (citations omitted); see id. at 228-30 (distinguishing the discretionary functions of planning and design from negligence in maintaining a structure, and holding that a suit involving the latter would not be barred by sovereign immunity);*fn3 accord, Tucci v. District of Columbia, 956 A.2d 684, 697 (D.C. 2008) (The District is "protected by sovereign immunity if the  acts [at issue] are discretionary, but subject to liability if the acts were ministerial in character.") (citation and punctuation omitted). "Generally, discretionary acts involve the formulation of policy, while ministerial acts involve the execution of policy." Nealon v. District of Columbia, 669 A.2d 685, 690 (D.C. 1995).*fn4
"The inquiry into whether an action is discretionary goes beyond whether the act entailed a choice among alternatives. It seeks to ascertain whether the governmental action at issue allows significant enough application of choice to justify official immunity, in order to ensure fearless, vigorous and effective decision making." Casco Marina Development, L.L.C. v. District of Columbia Redevelopment Land Agency,834 A.2d 77, 81 (D.C. 2003) (citation and internal punctuation omitted). In a roughly comparable situation involving the grounds of a public school, the United States Court of Appeals for the District of Columbia Circuit was "not persuaded . . . that the function of repairing broken guardrails imposes upon the District determinations of such delicacy and difficulty that its ability to furnish public education will be ponderably impaired by liability for neglect in failing to make such repairs." Elgin v. District of Columbia, 119 U.S. App. D.C. 116, 120-21, 337 F.2d 152, 156-57 (1964).
We review a trial court's determination regarding the applicability of sovereign immunity de novo. Aguehounde v. District of Columbia, 666 A.2d 443, 447 (D.C. 1995) (whether sovereign immunity applies is "a determination to be made by the trial judge, not the jury, and this court conducts a de novo review of the trial court's determination") (citations omitted).
B. DCHA's Decision to Keep the Capper Center Elevators Running
DCHA contends that it made a budget-driven policy decision to maintain the Capper Center's elevators, rather than replace them, and that this choice was a discretionary function immunized from tort liability. More specifically, DCHA argues that: (1) "a governmental entity is entitled to absolute immunity for its discretionary decisions relating to the allocation of resources"; (2) DCHA evaluated needs and weighed priorities in determining how to spend its budget; and (3) in light of its annual capital improvements budget of $20 million, DCHA was "fiscally unable" to address all of the needs of its facilities, which would have cost $200 million.*fn5 We reject appellant's claim to discretionary-function immunity.
In November 2001, DCHA received a HOPE VI award from HUD to replace the Capper Center. In light of this good news, DCHA decided that it would not undertake "major rehabilitation in that community. We would only spend dollars to make sure that the building remains viable for the period leading up to the demolition." It would cost between $125,000 and $150,000 to replace each elevator in the Capper Center. Several projects -- including replacement of the elevators -- were "suspended." Demolition of the Capper Center was completed on December 26, 2007.
At trial, Christopher Arthur Stennett, the Director of Development and Modernization for DCHA, explained that, although no money would be spent on "capital improvements" at the Capper Center, the DCHA would "[m]ost definitely" still meet the critical and emergency needs of the residents. No "policy decision" was made barring repairs and, if the elevators were unsafe, DCHA "would make them safe, most definitely." The budgeting process did not create any exception to DCHA's mandate to provide safe dwellings. "In no condition" would DCHA "leave residents in a building where it's unsafe." While there were "discussions along the line of replacing the elevators," no one had ever informed Mr. Stennett that Quality Elevator had found that the Capper Center elevators had outlasted their useful lives. The person DCHA ...