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Sullivan v. AboveNet Communs., Inc.

Court of Appeals of Columbia District

March 26, 2015


Argued February 24, 2015.

Page 348

[Copyrighted Material Omitted]

Page 349

Editorial Note:

This is an unpublished decision under D.C.App. R. 28 (h) and is of no precedential value except when used under res judicata, collateral estoppel, in a criminal action against same defendant or in a disciplinary action against the same respondent.

Appeal from the Superior Court of the District of Columbia Civil Division. (CAB-2045-12). (Hon. Laura A. Cordero, Trial Judge).

Gregory S. Smith, with whom Lawrence S. Lapidus was on the brief, for appellant.

Robert B. Hetherington, with whom Amy Leete Leone was on the brief, for appellee.

Before BLACKBURNE-RIGSBY and MCLEESE, Associate Judges, and KING, Senior Judge.


Page 350

Blackburne-Rigsby, Associate Judge :

Appellant Stephen Sullivan filed a negligence action against appellee AboveNet Communications, Inc. (" AboveNet" ) and the District of Columbia (" District" ), alleging that he sustained serious injuries after he lost his footing on the uneven surface surrounding a manhole cover that was installed by AboveNet. The jury concluded that the District was not negligent, but rendered a verdict against AboveNet and awarded Sullivan $300,000 in damages.[1] Notwithstanding the jury's award to Sullivan, the trial court thereafter granted AboveNet's pending motion for judgment as a matter of law made at the close of Sullivan's case[2] because it concluded that Sullivan failed to establish: (1) AboveNet was responsible for the condition; (2) AboveNet had constructive notice of the defect; and (3) the appropriate standard of care for restoring road surfaces after construction. Each failure individually was fatal to Sullivan's claim of negligence.

Based on the forthcoming reasons, we hold to the contrary that Sullivan presented enough evidence to allow a jury to decide whether AboveNet was negligent in failing to keep the area surrounding the manhole cover level, and therefore reverse the trial court's decision granting AboveNet's motion for judgment as a matter of law. Accordingly, on remand, the trial court is to reinstate the jury verdict and award.

I. Factual Background

At approximately 4:55 p.m. on March 4, 2009, Sullivan left his place of work located at 50 F Street, Northwest, Washington, D.C. and took his normal route home by heading eastbound toward North Capitol Street for Union Station. He stopped at the intersection point between F Street, North Capitol Street, and Massachusetts Avenue, and waited for the crosswalk sign to change. As he proceeded to cross the intersection, Sullivan felt his right foot " catch on something." As he stumbled to balance himself, his right foot encountered a second obstruction and caused him to fall, with his right shoulder taking the brunt of the impact by striking the curb of North Capitol Street. Although Sullivan did not initially see what had tripped him, as he was lying on the street, he could " clearly" see that his foot had first gotten caught on the " edge of [a] manhole cover," and that his foot then tripped on the " depression surrounding the manhole." Sullivan believed that absent the depression he would have been able to regain his balance.

Passing individuals helped Sullivan stand back up and although he immediately felt pain that was " somewhat severe," he nonetheless believed that he was healthy enough to continue to Union Station to go home. On the train ride, however, Sullivan began to feel " pain, a lot of pain . . . [that] was very, very excruciating at times." And after returning home, Sullivan was taken to the emergency clinic and then an orthopedic surgeon,[3] who diagnosed

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Sullivan with a " pretty complex fracture" of his right shoulder, whereby the socket and ball have " completely dislocated." Sullivan thereafter underwent intensive surgery, missed thirteen days of work, and attended numerous physical therapy and follow-up sessions for about one year after the initial fall. He filed suit against AboveNet for negligently creating the condition around the manhole cover that caused his fall, and against the District for its failure to monitor and inspect the work.

At trial, Sullivan did not call any employees or representatives of AboveNet as witnesses to prove that AboveNet was actually the party responsible for the condition. Instead, Sullivan relied almost exclusively on a set of permits issued by the District of Columbia Department of Transportation (" DDOT" ) to AboveNet for the purpose of excavating and installing electrical conduits, a telecom connection, and a new manhole at the location of " 50 F Street, [N.W.], Washington, D.C. 20001," from December 1, 2008 through May 5, 2009. The claimed inference being that AboveNet had installed the manhole ...

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