Andre V. Fisher, Jr., Appellant,
Gordon L. Latney, Appellee.
Submitted May 19, 2015
from the Superior Court of the District of Columbia Civil
Division (CAV-4427-11) (Hon. Michael O'Keefe, Trial
Michael L. Smith was on the brief for appellant.
Maurice Jagne-Shaw and Timothy S. Smith were on the brief for
THOMPSON and MCLEESE, Associate Judges, and NEBEKER, Senior
case was submitted to the court on the transcript of record
and the briefs filed, and without presentation of oral
argument. On consideration whereof, and for the reasons set
forth in the opinion filed this date, it is now hereby
and ADJUDGED that the judgment on appeal is affirmed. For the
Q. Nebeker Senior Judge.
Andre V. Fisher, Jr., contends a trial court's
determination that the injuries he sustained in a July 22,
2008 automobile accident were the partial result of his own
negligence-barring his recovery under the laws of the
District of Columbia-should be reversed. He argues that the
trial court erred: 1) by refusing to instruct the jury on the
last clear chance doctrine; 2) by denying his multiple
motions for mistrial after a jury poll revealed the verdict
was not unanimous; and 3) by dismissing the jury after
ordering further deliberations and entering judgment as a
matter of law in appellee's favor. Finding no reversible
error, we affirm.
22, 2008, at approximately 9 P.M., appellee was driving
approximately 25 miles per hour on Irving Street-a three-lane
road-near the Washington Hospital Center in Washington, D.C.
He noticed a car-driven by appellant-in front of him driving
erratically and moving from one lane to the next. Appellee
observed this car make multiple moves to the center lane in
an effort to pass a car ahead of it in the right lane. While
travelling in the center lane, appellant was less than a full
car length ahead of appellee, who was travelling in the left
lane. Then, all of a sudden, appellant moved from the right
lane, "skipped over" the center lane "because
that car was going too slow, " and "c[a]me all the
way over" into the left lane (appellee's lane) to
"squeeze in between" appellee's car and the
vehicle in front of it, at which point appellant's left
rear bumper made contact with appellee's right front
bumper. This caused appellant's car to fishtail and spin
out of control. Appellant's car finally came to rest when
it collided with a lamppost in the median strip between
opposite directions of traffic. Appellee stopped to check on
appellant. When appellee came upon him he said "my bad[,
]" and "I'm sorry this had to happen."
Appellant suffered two broken legs as a result of the
close of evidence, appellee's counsel moved for a
directed verdict. The trial court denied that motion in light
of appellee's "my bad" comment, from which it
found a reasonable juror could infer appellee admitted fault
at the scene.
when discussing the instructions, appellant's counsel
requested the trial court include the last clear chance
doctrine instruction, arguing that appellee observed
appellant driving erratically and therefore should have known
to avoid driving near him. Appellee's counsel objected,
arguing there was no evidence that appellant was oblivious to
the danger his driving created. Ultimately the trial court
denied the request claiming, "I don't think this is
a last clear chance kind of case."
trial judge instructed the jury on the law they were required
to apply in evaluating the case. Specifically, he instructed
them that they were required to decide whether they believed
appellee's negligence was the proximate cause of the
accident and, if so, whether they also believed that
appellant's negligence was a proximate cause. He also
instructed the jury that their verdict required unanimity.
hearing the instructions and counsels' closing arguments,
the jury deliberated and returned their verdict, which was
that appellee's negligence was not the proximate cause of
the accident. Appellant's counsel immediately
requested a poll, which revealed that one juror did not agree
with the announced verdict. Without prompting by either
counsel or the trial court, the dissenting juror exclaimed
"[b]ut everybody else is a yes[.]" Appellant's
counsel moved for a mistrial, arguing the dissenting juror
revealed the split. The trial court denied that request and
ordered the jury to continue deliberating, eventually with
the aid of further instruction in light of their impasse on
the question of appellee's liability.Following the
instruction, the jury sent a note to the trial court which
stated, "it seems we agree not to agree. If the
questions were reversed we all agree that both were at fault,
per unanimous decision. . . . [W]e seem to agree it's
mostly Mr. Fisher." Appellant's counsel again moved
for a mistrial, to which the trial court responded that
"there's no dispute that Mr. Fisher was
negligent." Despite appellant's objection, the trial
court dismissed the jury and entered judgment as a matter of
law in appellee's favor.
timely appeal follows.
trial court has broad discretion in fashioning appropriate
jury instructions, and its refusal to grant a request for a
particular instruction is not a ground for reversal if the
court's charge, considered as a whole, fairly and
accurately states the applicable law.'" Howard
Univ. v. Robert Williams, 37 A.3d 896, 905-06 (D.C.
2012) (quoting Psychiatric Inst. of Wash. v. Allen,
509 A.2d 619, 625 (D.C. 1986)). When deciding on potential
instructions, a judge's decision must be based on a
"'firm factual foundation.'" Nelson v.
McCreary, 694 A.2d 897, 901 (D.C. 1997) (quoting
Johnson v. United States, 398 A.2d 354, 364 (D.C.
1979)). Thus while a party is entitled to instructions
supported by the evidence, Washington Inv. Partners of
Del., LLC. v. Securities House, K.S.C.C., 28 A.3d 566,
577 (D.C. 2011) (quoting George Washington Univ. v.
Waas, 648 A.2d 178, 183 (D.C. 1994)), a trial court does
not abuse discretion unless its reasons for denying a
requested instruction lack a "[sufficient] factual
predicate." Howard Univ., supra, 37
A.3d at 906 (alteration in original) (citation omitted).
"In reviewing the trial court's denial of a
requested instruction on a party's theory of the case, we
view the evidence in 'the light most favorable' to
the appellant." Id. (quoting Nelson,
supra, 694 A.2d at 901).
the District of Columbia, a plaintiff in a negligence action
generally cannot recover when he is found contributorily
negligent." Washington Metro. Area Trans. Auth. v.
Young, 731 A.2d 389, 394 (D.C. 1999) (citing Felton
v. Wagner, 512 A.2d 291, 296 (D.C. 1986)). An exception
to this rule applies where a plaintiff can demonstrate that
"the defendant had a superior opportunity to avoid the
accident." Id. at 394 (quoting Phillips v.
District of Columbia Tran. Sys., Inc., 198 A.2d 740,
741-42 (D.C. 1964)). This theory, known as the last clear
chance doctrine, "'presupposes a perilous situation
caused by the negligence of both the plaintiff and the
defendant; it assumes that after the situation had been
created there was a time when the defendant could, and the
plaintiff could not, avoid the accident.'"
Id. (quoting Griffin v. Anderson, 148 A.2d
713, 714 (D.C. 1959)). Proof of the following is required to
garner the instruction:
(1) that the plaintiff was in a position of danger caused by
the negligence of both plaintiff and defendant; (2) that the
plaintiff was oblivious to the danger, or unable to extricate
[himself] from the position of danger; (3) that the defendant
was aware, or by the exercise of reasonable case should have
been aware, of the plaintiff's danger and of [his]
oblivion to it or [his] inability to extricate [himself] from
it; and (4) that the defendant, with means available to him,
could have avoided injuring the plaintiff after becoming
aware of the danger and the plaintiff's inability to
extricate [himself] from it, but failed to do so.
Felton, supra, 512 A.2d at 296 (citing
Byrd v. Hawkins, 404 A.2d 941, 942 (D.C. 1979)). Not
every injured party is entitled to claim the doctrine, and
the burden to establish its applicability rests with the
plaintiff. Id. Moreover, last clear chance does not
apply where "the emergency is so sudden that there is no
time to avoid the collision, for the defendant is not
required to act instantaneously." Id. (citing
Phillips, supra, 198 A.2d at 742).
basis of the record before us, we are satisfied that the
trial court did not abuse discretion by refusing the
plaintiff's request to instruct the jury on the last
clear chance doctrine. Appellant was, at all times, in
control of his vehicle and was responsible for its operation.
This included his hurried and sudden maneuvers between
traffic. There was no evidence appellant was incapable of
avoiding the risks that accompanies such behavior.
Furthermore, we are reluctant to say that appellant was
oblivious to any danger posed by appellee's car because
changing lanes across multiple lanes (which is what the
evidence showed appellant did just before the collision)
always presents some danger. Thus, he failed to make the
requisite showing under the second prong of Felton
such that the trial ...