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District of Columbia v. Tulin

May 13, 2010


Appeal from the Superior Court of the District of Columbia (CAB8557-05) (Hon. Jeanette Jackson Clark, Trial Judge)

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

Argued February 25, 2010

Before FISHER, Associate Judge, and BELSON and SCHWELB, Senior Judges.

On the morning of October 22, 2004, Steven Tulin was arrested for reckless driving following an automobile accident in which his silver Porsche automobile was "rear-ended" by Detective Barbara Rauf of the District of Columbia Metropolitan Police Department ("MPD"), driving a green Honda. Mr. Tulin was handcuffed, taken to the central lock-up in a police van, and held in custody for approximately fourteen hours until his release at 11:20 p.m. The following April, Mr. Tulin was tried on the reckless driving charge and found not guilty.

On October 26, 2005, Mr. Tulin brought suit against Detective Rauf and the arresting officer, Leticia McKoy, for false arrest, malicious prosecution, and intentional infliction of emotional distress, and against the District of Columbia ("the District") for negligent supervision. The jury found Detective Rauf liable for intentional infliction of emotional distress, but not for false arrest or malicious prosecution. It found the District liable for negligently supervising Officer McKoy, but in favor of Officer McKoy on all of the claims against her. The jury awarded Mr. Tulin $450,000 in compensatory damages against both Detective Rauf and the District. The trial judge denied a motion to set aside the verdict, and judgment was entered accordingly.

On appeal, the District contends that the evidence was insufficient as a matter of law to establish negligent supervision. The District and Detective Rauf also assert that the verdicts against them were inconsistent with certain of the jury's other findings unfavorable to Mr. Tulin. We are not persuaded by any of these contentions. Accordingly, we affirm.


A. The Collision

The traffic accident which led to this litigation was described by the trial judge as "a minor traffic stop," but it apparently generated a significant measure of road rage. On the morning of the incident, which occurred during the rush hour, Mr. Tulin, a clinical psychologist at Walter Reed Hospital, had been travelling north on Fourteenth Street, N.W., and he was preparing to make a left turn onto Newton Street. Detective Rauf, who was driving her son to school, was in the vehicle immediately behind Mr. Tulin.

The versions of the accident provided by the two principals differed markedly from one another. Mr. Tulin and Detective Rauf each blamed the other for the collision and for what followed. It is undisputed, however, that after some less than friendly looks and gestures by both drivers, Detective Rauf's right front bumper struck Mr. Tulin's rear left bumper. Explaining the collision, Detective Rauf claimed that after she honked her horn at Mr. Tulin for failing to make a left turn in front of her when there was no oncoming southbound traffic, Mr. Tulin engaged in a series of provocative acts, twice slamming his brakes and suddenly stopping, and then speeding off in front of her, with his tires screeching. Detective Rauf testified that when Mr. Tulin's car finally stopped for a third time, "on a dime," it was impossible for Detective Rauf, who said she was at least one car length behind Mr. Tulin, to avoid a collision. According to Detective Rauf, it was "the [reckless] manner in which [Mr. Tulin] was operating his vehicle which caused me to crash into him."*fn1

Mr. Tulin testified that, as he was edging out into the intersection of Fourteenth and Newton Streets to make a left turn, he heard the honking of a horn behind him. He looked in his left side-mirror and saw Detective Rauf apparently trying to go around him in order to make the left turn before he could do so. Concluding that the driver behind him was "in a big hurry," he completed his left turn, and he then stopped his car on Newton Street to allow Detective Rauf to pass. To Mr. Tulin's astonishment, however, Detective Rauf stopped her vehicle next to his and appeared to be gesturing in a scolding manner. Mr. Tulin testified that when Detective Rauf resumed driving, she lurched forward, an event which "would happen if you put your foot down hard."*fn2 Thinking that he "just wanted to get ahead of this person," Mr. Tulin accelerated. He stopped accelerating when he reached the speed of twenty-five miles per hour. As he shifted to second gear, however, he felt his car being struck from behind by Detective Rauf's vehicle. According to Mr. Tulin, the damage to his vehicle caused by the collision included a "ripped bumper," as well as sufficient damage to the exhaust system to require its replacement. He testified that his repair bill was $3500.*fn3

B. The Police Investigation

Following the accident, Detective Rauf and Mr. Tulin had a "hostile interaction," during which both of them were apparently extremely angry. Detective Rauf acknowledged that she was upset and cursing and using all kinds of profanity,*fn4 because her "level of pissitivity" was fairly high. Detective Rauf called the police operator and requested assistance; she called a second time "because they didn't come" and because "it seemed like forever." Soon thereafter Officer McKoy arrived on the scene. Officer McKoy testified that she had responded to a call for an officer in trouble. She interviewed Detective Rauf,*fn5 Mr. Tulin,*fn6 and two witnesses to the accident. Officer McKoy stated that, in her view, Detective Rauf's version was more credible, and that it was corroborated by the disinterested witnesses.*fn7 She acknowledged, however, that she looked for skid marks which would suggest that a car's brakes had been slammed, but she found none.

While or soon after Officer McKoy was conducting her interviews, Sergeant Johnnie Lee McLean and Sergeant Jackson*fn8 also arrived on the scene. Sergeant McLean testified that he had responded to a "priority" call, which meant that somebody's life was in danger.

Officer McKoy told Sergeant McLean that she had interviewed the "two uninvolved witnesses who had [seen] the accident from beginning to end." She asserted that, according to these witnesses, Mr. Tulin had been driving his car in a "careless" manner, and kept "pulling off, hitting his brakes, pulling off, hitting his brakes." Id. During a withering cross-examination, however, Sergeant McLean made a number of telling admissions regarding the shortcomings of the investigation that led to Mr. Tulin's arrest.

After she had completed her interviews of the witnesses, Officer McKoy told Detective Rauf that she could leave. Mr. Tulin testified that, as Detective Rauf was returning to her car, she said to Officer McKoy: "That's an automatic lock-up, isn't it?" According to Mr. Tulin, Officer McKoy responded: "Yes." Detective Rauf acknowledged that she inquired whether Mr. Tulin would be arrested.

C. The Jury's Verdict

After the presentation of evidence had been completed, and following the closing arguments of counsel, the trial judge submitted the case to the jury with a detailed verdict form. The form contained a separate interrogatory for each claim against each of the defendants. The jury returned a verdict in favor of Officer McKoy with respect to all of Mr. Tulin's claims against her. The jury found that Detective Rauf was not liable for false arrest or malicious prosecution, but that she had intentionally inflicted emotional distress. Id. The jury also found that the District had negligently supervised Officer McKoy, but not Detective Rauf.

Before the jury was discharged, counsel for the District moved to resubmit the case to the jury with an instruction that the verdict was inconsistent. Counsel argued that the verdict in favor of Officer McKoy on all counts was inconsistent with the jury's finding that the District was negligent in its supervision of Officer McKoy. Counsel also contended that the jury's finding that Detective Rauf was liable to Mr. Tulin for intentional infliction of emotional distress was inconsistent with its verdict in Detective Rauf's favor with respect to the claims of false arrest and malicious prosecution. The trial judge denied the District's request and discharged the jury.

The District and Detective Rauf submitted a timely post-trial motion for judgment as a matter of law, or in the alternative, for a new trial or a remittitur. After hearing argument, the trial judge denied the motion from the bench. This appeal followed.


On appeal, the District contends that the evidence was insufficient to warrant imposition of liability for negligent supervision, and that judgment as a matter of law should have been entered in the District's favor. In the alternative, the District asserts that it is entitled, at a minimum, to a new trial, because the verdict against the District for negligent supervision was fatally inconsistent with the jury's finding in favor of Officer McKoy with respect to all of the allegations of tortious conduct on her part. Detective Rauf claims that she is entitled to a new trial because, according to her, the jury's finding that she was not liable for false arrest or malicious prosecution cannot be reconciled with the verdict against her for intentional infliction of emotional distress. We address each of these contentions in turn.

A. The Sufficiency of the Evidence of Negligent Supervision

(1) Standard of Review

The question whether the evidence was sufficient to go to the jury is one of law, and we review de novo the trial court's refusal to direct a verdict or to grant judgment as a matter of law. Washington Metro. Area Transit Auth. v. Jeanty, 718 A.2d 172, 174 (D.C. 1998). In resolving this question, we apply the same standard as does the trial court in ruling on a motion for a directed verdict. District of Columbia v. Billingsley, 667 A.2d 837, 840 (D.C. 1995). We must view the evidence in the light most favorable to Mr. Tulin, as the non-moving party, and Mr. Tulin is entitled to every reasonable inference from the evidence. Washington v. Washington Hosp. Ctr., 579 A.2d 177, 181 (D.C. 1990). In Etheredge v. District of Columbia, 635 A.2d 908 (D.C. 1993), we further elaborated on the applicable standard as follows:

It is only in the unusual case, in which only one conclusion could reasonably be drawn from the evidence, that the court may properly grant judgment notwithstanding the verdict. Levy v. Schnabel Found. Co., 584 A.2d 1251, 1254-55 (D.C. 1991); Rich v. District of Columbia, 410 A.2d 528, 532 (D.C. 1979). Moreover, it is the responsibility of the jury (and not the judge) to weigh the evidence and to pass upon the credibility of the witnesses. Rich, supra, 410 A.2d at 534 (citations omitted). If impartial triers of fact could reasonably find the plaintiff's evidence sufficient, the case may not be taken from the jury.

Finkelstein v. District of Columbia, 593 A.2d 591, 594 (D.C. 1991) (en banc).

Id. at 915-16.

B. Negligent Supervision

The trial judge instructed the jury, without objection, that to establish a cause of action for negligent supervision, a plaintiff must show, number one, that the employer knew or should have known [that] its employee behaved in a dangerous or otherwise incompetent manner; number two, that the employer armed with ...

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