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Fisher v. Latney

Court of Appeals of Columbia District

September 1, 2016

Andre V. Fisher, Jr., Appellant,
Gordon L. Latney, Appellee.

          Submitted May 19, 2015

         Appeal from the Superior Court of the District of Columbia Civil Division (CAV-4427-11) (Hon. Michael O'Keefe, Trial Judge)

          Michael L. Smith was on the brief for appellant.

          Maurice Jagne-Shaw and Timothy S. Smith were on the brief for appellee.

          Before THOMPSON and MCLEESE, Associate Judges, and NEBEKER, Senior Judge.


         This 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

         ORDERED and ADJUDGED that the judgment on appeal is affirmed. For the Court:


          Frank Q. Nebeker Senior Judge.

         Appellant 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.


         On July 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 accident.

         At 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.

         Later 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."

         The 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.

         After 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.[1] 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.[2] 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.[3]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.

         This timely appeal follows.


         "'A 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).

         "In 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).

         On the 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 ...

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