BLACKBURNE-RIGSBY, Associate Judge:
This appeal arises from an accident in which appellant Charles Presley ("Presley"), a construction worker renovating the main United States Department of State ("State Department") building, was injured after falling from a twenty-foot high cooling tower assembly. Appellants Charles and Victoria Presley brought suit against both the operator of the crane, CMR,
Appellants raise several issues on appeal. Appellants' principal contention is that the trial court erred in granting judgment as a matter of law to appellee CRSS on the basis that, as a consultant to the State Department, it owed no legal duty to the construction workers, such as Presley, employed by the general contractor, Grimberg Engineering Company ("Grimberg"), to ensure that safety precautions were followed at the construction site. Specifically, appellants argue that CRSS, which was not a party to the construction contract, nonetheless owed Presley either a statutory duty arising under the District of Columbia Industrial Safety Act ("ISA"),
In 1991, the State Department contracted with Grimberg to perform renovation and construction on the main State Department building. Presley, a pipefitter with thirty-eight years of experience, was employed by Grimberg as a foreman to facilitate the assembly of eight giant cooling towers for installation on the roof of the building. Grimberg was responsible for directing the assembly of the tower components on a nearby athletic field before they were airlifted to the building's roof. Grimberg contracted with CMR to truck the tower parts to the athletic field, and to provide a crane at that location to hoist and assemble the tower parts.
The State Department, via the General Services Administration ("GSA"), entered into a separate Construction Quality Manager contract ("CQM contract") with CRSS to serve as a contract compliance consultant. Generally, CRSS' main responsibility was to assist the GSA with ensuring that the project was completed according to specifications, on time, and within budget. The CQM contract provided:
More specifically, the CQM contract required CRSS "to anticipate problems and immediately act to preclude or mitigate any negative effects on the construction project(s)." The CQM contract also provided that CRSS would employ inspectors who were "responsible for scheduling, coordinating, and performing the actual specialized field inspection work commensurate with their designated adjectival discipline." These inspectors were also required to:
The CQM contract further provided that:
The CQM contract contained a general disclaimer:
The record contains several safety reports authored by CRSS employees pertaining to the project. These safety reports detail safety violations observed by CRSS inspectors, as well as any subsequent action taken by the inspectors. As the CQM contract directs and the safety reports indicate, CRSS inspectors authored the reports and sent them to CRSS superiors. The reports were then forwarded to the GSA for review, and GSA would in turn forward the reports to Grimberg.
(emphasis added). The reports indicate that, in several instances, CRSS inspectors observed employees violating safety procedures. The reports also indicate that work was stopped until the proper safety equipment was put into use and that supervisors were "cautioned on the process" or "notified for correction." The reports, do not, however, indicate who directed that work be stopped.
On January 7, 2000, Presley was one of several workers who were assembling the components for each of the eight cooling towers—a base cube, a top cube, and a fan shroud
At the time of the accident, Presley and his crew were placing the fan shroud on the seventh cooling tower. Presley placed the ladder on the south side of the cooling tower and climbed to the top. After observing that the crane operator had already lowered the fan shroud in place above the cooling tower, Presley directed the operator to swing the fan shroud away to the east. Presley planned to walk to the north side of the tower while crew members climbed the ladder on the south side of the tower. From those positions, they would work together to direct the placement of the fan shroud and bolt it down. The top of the cooling tower was rectangular with a circular opening in the center. To move from the south side to the north side of the tower, Presley had to walk across the expanse of the tower along a four-inch-wide ledge between the circular opening and the edge of the cooling tower.
However, Daniel Presley, Charles Presley's brother, was also on site during the accident and testified that Charles was knocked off the tower by the fan shroud. Presley fractured his right ankle and left heel.
Appellants filed suit in Superior Court on October 24, 2002, against CRSS and CMR for negligence and loss of consortium, and later filed an amended complaint on January 6, 2003. CRSS then filed a third-party complaint against the GSA for indemnification, and the GSA removed the case to the United States District Court for the District of Columbia. The District Court dismissed the case against the GSA and remanded the case to the Superior Court. At the close of evidence, the trial court found that CRSS did not owe a duty to Charles Presley and entered judgment as a matter of law in favor of CRSS. The jury considered appellants' remaining claims of negligence and loss of consortium against CMR, and returned a verdict in favor of CMR. The trial court then denied appellants' motion for judgment notwithstanding the verdict. This appeal followed.
At trial, Presley attempted to recover damages from CRSS under a negligence theory, alleging that CRSS owed him a duty of care, CRSS breached that duty of care, and CRSS' breach of that duty was the proximate cause of his injuries. See Haynesworth v. D.H. Stevens Co., 645 A.2d 1095, 1097-98 (D.C.1994) (citing Powell v. District of Columbia, 634 A.2d 403, 406 (D.C.1993); Levy v. Schnabel Found. Co., 584 A.2d 1251, 1255 (D.C.1991)). In support of his argument that CRSS owed him a duty of care, Presley attempted to establish that CRSS exercised control over the work of the general contractor, Grimberg, regarding safety matters by focusing on CRSS' responsibility to "monitor labor and safety requirements," as outlined in the CQM contract, and CRSS' "authority to `stop work' for imminent danger situations observed," as noted in the safety reports. Gary Menefee, a Grimberg foreman,
Presley also attempted to establish that CRSS had a duty, which it breached, as a "controlling employer." This duty, he argued, was related to CRSS contractual obligation "to anticipate problems and immediately act to preclude or mitigate any negative effects on the construction project(s)." In addition, Presley relied on the expert testimony of Terry Lane, a former OSHA Area Director. Lane testified that CRSS had "the standard of care" to "anticipate, plan for and monitor expected [safety] hazards," including those falling under the cooling tower placement project. In reaching this conclusion, Lane relied on the American National Standards Institute ("ANSI") standard governing safety programs for multi-employer worksites. Lane explained that the industry use of the ANSI standards did not rely solely upon contracts as the basis of duties because the safety business recognizes the obligation of "controlling employers." He then stated that "[c]ontrolling employers are those people such as CRSS who are the boss of the site." However, CRSS' counsel objected because Lane's testimony
Lane testified that based on this last duty arising from the ANSI standard, CRSS failed to "anticipate, plan for and monitor expected [safety] hazards." In particular, Lane testified that it was "obvious that work was going to be done well above six feet and CRSS did not anticipate it," and "CRSS did not plan for it and [CRSS] certainly did not monitor it." Lane further stated that had CRSS met its standard of care, he believed that Presley would not have been injured "because a properly planned construction of these towers would not have resulted in the fall."
Presley attempted to establish that CRSS had a duty of due care stemming from its contractual obligation "to anticipate problems and immediately act to preclude or mitigate any negative effects on the construction project(s)." CRSS' Project Manager Wear admitted that in order to anticipate, CRSS "had to be able to foresee there might be a problem if the code requirements were not complied with." Wear stated that, at the meetings regarding the assembly of the cooling towers, "there w[as] no [discussion of] safety requirements for people like Mr. Presley going up on top of the towers." He noted that neither Presley nor Grimberg consulted with him in advance about how to do the work at the site. Wear further stated that on the day of the incident, no CRSS employees were on site, and thus did not see anyone at the site working in a situation that required fall protection.
Appellants contend that the trial court erroneously granted judgment as to CRSS on the basis that CRSS owed no legal duty of care to Presley. We review the grant of a motion for judgment as a matter of law de novo. Carleton v. Winter, 901 A.2d 174, 178 (D.C.2006); Brown v. Nat'l Acad. of Scis., 844 A.2d 1113, 1117 (D.C.2004). "Judgment as a matter of law
Appellants contend that CRSS owed a duty to Charles Presley to ensure that proper safety procedures were in place at the worksite to protect him and other workers, and that CRSS' breach of that duty caused Presley's fall and resulting injuries. In support of this contention, appellants raise two arguments: first, that a statutory duty existed under the obligations imposed by the ISA, and second, that CRSS assumed a common-law duty of care to Presley by undertaking to monitor safety conditions in the CQM contract. We conclude that appellants' claims fail because they have not established that CRSS owed Presley a legal duty under either theory.
Appellants look to the ISA to support their argument that CRSS had a statutory duty of care to Presley. The ISA requires that "[e]very employer shall furnish a place of employment which shall be reasonably safe for employees, [and] shall furnish and use safety devices and safeguards. . . ." D.C.Code § 32-808(a). The ISA defines an "employer" as someone "having control or custody of any place of employment or of any employee." D.C.Code § 32-802(1). An examination of our existing case law interpreting the meaning of "custody or control," which we undertake below, demonstrates why appellants' reliance on the ISA to argue that CRSS was an "employer," and thus had a duty to Presley, is misplaced. Appellants nonetheless assert that CRSS exercised the necessary "control or custody" over the workplace or of "any employee" to be considered an "employer" under the ISA because: 1) there is "compelling evidence" demonstrating that CRSS exercised the requisite "control or custody"; 2) their expert witness testified that CRSS had "the standard of care" to "anticipate, plan for and monitor expected [safety] hazards," including those falling under the cooling tower placement project, notwithstanding its contractual obligations; and 3) CRSS assisted the State Department in acquiring the permit for use of the athletic fields where the cooling towers were assembled. However, we conclude that each of these arguments is without merit.
To determine whether CRSS was an "employer" such that the statutory duty to provide a safe workplace under the ISA was triggered, an examination of our existing case law interpreting the meaning of "control or custody" of the worksite is illustrative. In particular, when an employer does not have direct "custody or control" over the employee, as in the present case, we have emphasized ownership of the worksite and authority with respect to safety rules in finding that an entity is an "employer" under the ISA. In Traudt v.
Similarly, we determined that the defendant was an "employer" under the ISA in Velásquez v. Essex Condominium Ass'n, 759 A.2d 676 (D.C.2000), where we reviewed the grant of summary judgment and affirmed. 759 A.2d at 678. Essex Condominium Association, the owner of Essex Condominiums, and the property manager (together, "Essex") contracted with an independent contractor, Ev-Air-Tight, to renovate the concrete facade of its building. Id. Velásquez was employed by Ev-Air-Tight and was injured in a fall from a scaffold being used in the renovation project. Id. We emphasized that the contract between Essex and Ev-Air-Tight required Ev-Air-Tight to "obey . . . the rules and regulations which may from time to time during [its] work be promulgated by [Essex] for various reasons such as safety, health, preservation of property or maintenance of a good and orderly appearance to the area." Id. at 679 (alteration in original) (internal quotation marks omitted). Thus, we held that Essex constituted an "employer" within the meaning of the ISA because Essex owned the property where the work was performed and retained authority to promulgate rules and regulations and monitor the work performed by Ev-Air-Tight. Id. at 681.
Our decisions in Traudt and Velásquez reflect the principle that the ISA—particularly its definition of "employer"—is to be read broadly. See Martin v. George Hyman Constr. Co., 395 A.2d 63, 70 (D.C. 1978). However, even with broad interpretations, Traudt and Velásquez do not support a determination that CRSS was an "employer" under the ISA. CRSS did not,
More importantly, CRSS did not maintain the same degree of authority with respect to safety rules as the employers did in Traudt and Velásquez. Although appellants place much emphasis on the CQM contract language requiring CRSS to "monitor" and "report" on various safety violations, CRSS did not have the authority to rectify safety violations directly under the CQM contract. Rather, the CQM contract required CRSS to "inspect," "review," "monitor," and "report," and then submit the reports to the GSA, which in turn submitted them to Grimberg to take the appropriate actions.
Nonetheless, appellants argue that "the most compelling evidence one can imagine to demonstrate control over the safety aspects of the employment and the place of employment" is the "draft notices" that Grimberg proposed to send to its subcontractors, which Grimberg sent to CRSS in advance for approval. However, the draft
In support of their contention that CRSS nevertheless exercised "custody and control" over the workplace in a manner sufficient to bring CRSS within the ambit of the ISA, appellants point to the expert testimony of Terry Lane, a former OSHA Area Director. Lane testified that CRSS had "the standard of care" to "anticipate, plan for and monitor expected [safety] hazards," including those falling under the cooling tower placement project, notwithstanding its limited contractual obligations. Relying on the applicable ANSI standard, Lane testified that CRSS had to conduct and implement a hazard analysis describing potential hazards and actions required to provide a safe and healthful workplace, which was to be undertaken at the initiation of a construction project and for the critical stages of work. Lane further testified that based on this duty, CRSS failed to "anticipate, plan for, and monitor expected [safety] hazards." However, this duty falls well short of the expansive type of obligations with respect to safety that we held amounted to the requisite "custody or control" to be deemed an "employer" in Traudt and Velásquez, as there is no evidence that CRSS promulgated safety regulations or breached an obligation to maintain a constant presence at the workplace to oversee safety requirements. Angsten's testimony that CRSS inspectors' responsibilities with respect to monitoring compliance with safety regulations included walking the site on a daily basis and bringing any problems to the attention of Grimberg does not amount to an obligation to promulgate safety regulations or maintain a constant presence at the workplace to oversee safety requirements. It is undisputed that no CRSS investigators were on site on the day that Presley was injured. The evidence (or permissible inferences from evidence) that CRSS had some authority to stop work and perhaps, at times, might have "intervened" with Grimberg to remind them of safety requirements, shows, at most, limited and infrequent interactions that are insufficient to establish that CRSS had the requisite control, in fact, over the workplace when Presley was injured. Particularly where an entity does not own the workplace, liability under the ISA must be grounded on facts showing authority and actual control. See Velásquez, supra, 759 A.2d at 681 (noting that "an employer's responsibility under the [ISA] for a particular injury
Appellants also contend that CRSS' role in assisting the State Department in the acquisition of the permit to use the athletic fields was evidence that CRSS exercised control and custody of the workplace, thus demonstrating that it was an employer pursuant to § 32-802(1) of the ISA. However, the acquisition of the permit to use the athletic fields does little to bolster appellants' claim that CRSS was an employer under the ISA. Although CRSS assisted in the acquisition of the permit to use the athletic fields, the permit was issued to the State Department and does not mention CRSS. We cannot say that such limited involvement indicates that CRSS had control or custody over the workplace.
In conclusion, CRSS lacked the requisite "control or custody" over the workplace to be considered an "employer" under the ISA. See D.C.Code § 32-802(1). CRSS' principal role was as a consultant to the State Department. CRSS did not own the worksite, did not promulgate safety regulations, had only limited authority to stop work, did not normally act directly to rectify safety violations, and was not required to maintain a constant presence at the workplace. Therefore, CRSS had no duty to Presley under the ISA to ensure that safety procedures were followed.
Appellants next contend that CRSS, by virtue of the services it undertook and performed under the CQM contract, assumed a duty of care to Presley under a common-law tort theory.
"[A] defendant is liable to a plaintiff for negligence only when the defendant owes the plaintiff some duty of care." Youssef v. 3636 Corp., 777 A.2d 787, 792 (D.C.2001) (citing Kerrigan v. Britches of Georgetowne, Inc., 705 A.2d 624, 628 (D.C.1997)). "[A] determination of whether a duty exists is the result of a variety of considerations and not solely the relationship between the parties." Bd. of Trs. of Univ. of District of Columbia v. DiSalvo, 974 A.2d 868, 871 (D.C.2009). In the absence of contractual privity with an unrelated third party, whether a party should have foreseen that its contractual undertaking was necessary for the protection of the third party is important. See Haynesworth, supra, 645 A.2d at 1098-99. Thus, even in the absence of contractual privity, we still look to the contract to determine the scope of the undertaking as it relates to the protection of the third party. See id. at 1098; Caldwell v. Bechtel, Inc., 203 U.S.App.D.C. 407, 418-19, 631 F.2d 989, 1000-01 (1980). In addition, "[t]he existence of a duty is also shaped by considerations of fairness and `results ultimately from policy decisions made by the courts and the legislatures.'" DiSalvo, supra, 974 A.2d at 871 n. 2 (quoting Williams v. Baker, 572 A.2d 1062, 1064 (D.C.1990) (en banc)).
In our jurisdiction, we have acknowledged that a legal duty arises when a party undertakes to "render[ ] services to another which he should recognize as necessary for the protection of a third person
§ 324A, RESTATEMENT (SECOND) OF TORTS. In Haynesworth, we determined that a plumber who contracted with the owner to repair a broken pipe in a common area of a building did not assume a duty to warn the management company or the public of the dangerous condition—ice in a nearby alley—caused by the broken pipe. 645 A.2d at 1099. We reasoned that neither the contract nor the practice in the plumbing industry extended the plumber's legal obligation beyond repairing the faulty plumbing. Id. at 1098-99. Thus, the plumber could not have foreseen that his undertaking, the fixing of a broken pipe, was necessary for the protection of a passerby such that a legal duty of care would arise to warn third parties. Id. at 1099.
In the present case, finding a common-law duty depends primarily on whether CRSS should have recognized that its undertakings pursuant to the CQM contract were necessary for the protection of Presley. See id. at 1098-99. Though appellants' claim is premised upon a tort theory, the CQM contract nevertheless remains central to our analysis of duty, as it defines the scope of the undertaking and the services rendered by CRSS. See id. at 1098; Caldwell, supra, 203 U.S.App.D.C. at 418-19, 631 F.2d at 1000-01. By examining the scope of CRSS' undertaking and services pursuant to the CQM contract, we can then determine whether CRSS assumed a duty to exercise reasonable care in carrying out its contractual obligations that extended to workers such as Presley on the site.
We are not persuaded that any evidence shows CRSS should have foreseen that its obligation under the CQM contract to "anticipate problems" and to "monitor" safety compliance was "necessary for the protection" of Presley. See Haynesworth, supra, 645 A.2d at 1097 (emphasis added) (quoting RESTATEMENT (SECOND) OF TORTS § 324A) (internal quotation marks omitted). The renovation of the main State Department building was a significant undertaking with a broad scope, spanning several years and involving numerous contracting parties to ensure that the contracts were being performed on time and according to specifications. The GSA, through Grimberg, a skilled construction contractor, implemented safety standards and procedures that were to be followed by the construction workers and contractors on the site at all times. In contrast, CRSS undertook to perform only the limited duties of a contract compliance consultant, not the more extensive duties of a
Furthermore, policy considerations of fairness counsel against imposing a duty on CRSS where doing so would effectively restructure the contractual relationships and obligations undertaken by the parties. See DiSalvo, supra, 974 A.2d at 871 n. 2. The GSA hired CRSS not as a guarantor, but to monitor the projects and report to the GSA. CRSS' CQM contract with GSA made clear that it was not intended to supplant the obligations of Grimberg, as general contractor, and the other contractors that had operational charge of construction. ("[CRSS] is not responsible for and will not have control or charge of construction means, methods, techniques, sequences or procedures; safety programs or procedures; or for acts or omissions of other contractors, agents or employees, or any other persons performing any of the work."). The GSA and CRSS also made clear in the CQM contract that the GSA was not delegating, and CRSS was not assuming, any of the duties of the architect-engineer or construction contractors.
In sum, we are not persuaded that CRSS owed a common-law duty to Presley by virtue of CRSS' obligations under, or as a result of its performance of, the CQM contract. Although imposition of a duty may be appropriate in other cases, with different contractual arrangements, or where the actual performance of the contract indicates a measure of control of the worksite, it is not appropriate to do so based upon the facts in this case. Thus, we discern no error in the trial court's granting of judgment as a matter of law on the basis that CRSS owed no duty to appellants on the facts of this case.
The remaining claims made by appellants relate only to appellee CMR. Appellants assert that the trial court made four evidentiary errors that warrant reversal. First, appellants contend that the trial court abused its discretion by excluding an accident report authored by Grimberg's quality control manager, Joseph Angsten. Second, appellants contend that the trial court abused its discretion by allowing portions of an unauthenticated pre-trial interview of Daniel Presley, appellant Charles Presley's brother, as conducted by workers' compensation insurance investigator Sharon Poole, to be used for impeachment. Third, appellants argue that the trial court abused its discretion by
First, appellants assert that the trial court abused its discretion in excluding the First Report of Injury Form prepared by Joseph Angsten as inadmissible hearsay. The trial court excluded the report, over appellants' objection, because Angsten did not witness the accident and could not recall from whom he obtained the information that he included in his second-hand report, thus making the report inadmissible hearsay. Appellants argue that the accident report was not hearsay, as it was admitted only to bolster Presley's credibility. However, we fail to see the distinction. "Hearsay is an out-of-court assertion of fact offered into evidence to prove the truth of the matter asserted." Jones v. United States, 17 A.3d 628, 632 (D.C.2011) (citing Mercer v. United States, 864 A.2d 110, 117 (D.C.2004)). The report was prepared by Angsten shortly after the accident and indicated that the fan shroud had struck Presley. The report would bolster Presley's credibility only if the information contained within the report was admitted for the truth of the matter asserted. Thus, we cannot say that the trial court abused its discretion in concluding that the report was inadmissible hearsay.
Nor are we persuaded by appellants' argument that the accident report should have been admitted to rebut the theory that Charles Presley had fabricated the story about his fall in order to recover on his negligence claim. The trial court rejected this argument and excluded the report because Presley did not make the statements in the report. A witness' prior consistent statement "used in rebuttal to overcome a charge of recent fabrication, [is admissible] if the statements were made before the motive to fabricate arose. . . ." Ventura v. United States, 927 A.2d 1090, 1103 (D.C.2007) (citing Daye v. United States, 733 A.2d 321, 325 (D.C.1999)); see also D.C.Code § 14-102(b)(2) (2001). However, appellants cannot avail themselves of this exception because the statement they sought to admit was not made by Presley, but rather, as appellants concede, by one of three other workers. Neither the report, nor any of the alleged statements upon which the report was based, is a prior consistent statement made by Presley. Therefore, none of the statements would be admissible under the fabrication rebuttal exception. See Ventura, supra, 927 A.2d at 1103. Thus, we conclude that the trial court did not abuse its discretion in excluding the accident report.
We also reject appellants' contention that the report should have been admitted during the testimony of their safety and accident reconstruction expert. The trial court ruled that the expert could rely on the report as a basis for his opinion, but could not disclose the content of the report to the jury because it contained
Daniel Presley testified at trial that he heard "contact," that he saw his brother's "hard hat go off," and that "out of the corner of [his] eye," he saw his brother get knocked off the tower by the fan shroud. CMR then sought to impeach Daniel Presley's trial testimony with what it contends was his prior inconsistent statement made during a workers' compensation claim interview conducted in March 2002 by Poole. In the interview, Daniel Presley stated that he had his back to the crane operator at the time of the accident. He then "noticed out of the corner of [his] eye [that his] brother had lost his footing due to whatever reason, and he . . . fell over the side of the tower and caught himself on the edge of the lip of the top of the cooling tower momentarily, and couldn't hang on and then fell." Daniel Presley also stated, "I mean I could sit here, I could sit right here and tell you that yea, the dude definitely done it, he swung it, but I'd be lying like hell you know what I'm saying?" When asked to confirm that he made the prior statements, Daniel Presley testified at trial:
On redirect examination, appellants sought to rehabilitate Daniel Presley by having him explain the portions of the interview with which CMR sought to impeach him. CMR objected, however, arguing that Daniel Presley did not adopt the statements and thus could not put into context statements that he did not remember making. Appellants then abandoned that line of questioning, and sought to have
Ultimately, however, the trial court allowed appellants to use the interview to refresh Daniel Presley's recollection about what his brother had said about the accident. Daniel Presley eventually testified that his brother told him "that he would hate to think that the crane operator intentionally knocked him off the tower." During deliberations, the jury requested to see a copy of Poole's report on the interview containing Daniel Presley's statement. In response, the trial court, with the agreement of the parties, fashioned a note which read:
Appellants argue that the workers' compensation interview should not have been used to impeach Daniel Presley because it was inadmissible hearsay and did not actually contradict his testimony. With respect to the hearsay argument, we have largely adopted the traditional common-law rule that "a prior inconsistent statement can be used to impeach a witness when the witness testifies at trial in a manner contrary to that [prior] statement; however, the substance of the prior statement cannot be used as evidence of its truth." Johnson v. United States, 820 A.2d 551, 556 (D.C.2003). Here, the record indicates that CMR did not seek the admission of the statements as substantive "evidence of its truth," but rather to impeach Daniel Presley. Because the trial court declined to admit the statements as substantive evidence, it is immaterial whether the statement was hearsay. Thus, we reject appellants' contention that Daniel Presley's statements during the worker's compensation interview should have been excluded as inadmissible hearsay.
Although the statements were not admitted as substantive evidence, we still need to address appellants' arguments that the prior statements could not be used for impeachment purposes because they were not authenticated and did not actually contradict Daniel Presley's testimony at trial. The trial court addressed both of these issues during final instructions to the jury, as both issues were within the jury's purview. See Standardized Civil Jury Instructions for the District of Columbia, No. 3-8 (2010 ed. rev.); see also Georgetown Univ. v. District of Columbia Dep't of Emp't Servs., 862 A.2d 387, 392 (D.C.2004). The trial court instructed the jury "to decide whether a witness made a statement on an earlier occasion and whether it was, in fact, inconsistent with the witness' testimony here in court." The trial court further instructed that:
The trial court's instructions were appropriate and conformed to the Standardized
Appellants further argue that the trial court erred in refusing their request to give an immediate limiting instruction to the jury regarding the evaluation of impeachment evidence. We have held that "[w]here there has been a request for a limiting instruction following the impeachment of a witness or the presentation of impeaching testimony and the use of the impeaching testimony as substantive evidence is potentially prejudicial, it is error for a trial court to refuse to give such an instruction." Brooks v. United States, 448 A.2d 253, 259 (D.C.1982) (citing Towles v. United States, 428 A.2d 836 (D.C.1981); Johnson v. United States, 387 A.2d 1084 (1978) (en banc)); see also Gilliam v. United States, 707 A.2d 784, 785 (D.C.1998). Arguably, the trial court erred in refusing appellants' request for a contemporaneous limiting instruction because Daniel Presley's prior statements during his interview with Poole were introduced for impeachment only, and the use of such statements as substantive evidence was potentially prejudicial to appellants' case because they tended to support CMR's version of events. However, assuming without finding error, we nevertheless conclude that the trial court's refusal to give the limiting instruction immediately was harmless because the court gave the requested instruction at the close of the evidence.
We review the failure to give a requested limiting instruction "to ascertain whether we can say with fair assurance that the verdict was not substantially swayed by the error." Gordon v. United States, 466 A.2d 1226, 1231 (D.C.1983) (citing Lucas v. United States, 436 A.2d 1282, 1284-85 (D.C.1981)). Appellants point to the jury's request for the interview transcript during deliberations as evidence that the jury thought the substance of Daniel Presley's prior statements "was important." However, in light of the proceedings in this case, we can say here that the verdict was not "substantially swayed" by the error. Although it would have been preferable for the trial court to give the limiting instruction immediately when it was requested during trial, this error was mitigated when the court later gave a final jury instruction before deliberations serving the same purpose: the jury was to consider the prior statements solely to evaluate the credibility of Daniel Presley's testimony. See Byers v. United States, 649 A.2d 279, 285-86 (D.C.1994); cf. Mercer, supra, 864 A.2d at 118 (noting that we generally presume that the jury will follow the trial court's limiting instructions); Weeda v. District of Columbia, 521 A.2d 1156, 1163 (D.C.1987) (same). Moreover, the point was made again when the trial court responded to the jury's request for the transcript, emphasizing that Poole's interview with Daniel Presley "was not evidence." Finally, CMR made no reference to Daniel Presley's statements during its closing arguments. Thus, we can say that the trial court's failure to give an immediate limiting instruction was harmless error.
Appellants also argue that they were improperly barred from introducing other portions of Poole's interview with Daniel Presley in order to place the
Under the circumstances, the rule of completeness did not require the trial court to permit appellants to introduce portions of the interview that did not relate to Daniel Presley's impeachment or place those portions in context. As discussed above, CMR introduced the statements that Daniel Presley made to Poole during the interview for the purpose of impeaching his trial testimony. On redirect examination, the trial court permitted appellants' counsel to question Daniel Presley about other related statements from the interview in order to place the potentially impeaching statements in context and thus rehabilitate him. The trial court subsequently barred appellants from introducing other portions of the interview with Poole that neither related to the impeaching statements nor served to rehabilitate Daniel Presley's testimony. Nevertheless, the trial court did permit appellants to use Daniel Presley's statement from the interview regarding what his brother told him about the accident to refresh his memory. Daniel Presley subsequently testified that his brother told him "that he would hate to think that the crane operator intentionally knocked him off the tower." Appellants did not seek to introduce any other portion of the Poole interview. Thus, we cannot say that the court abused its discretion in refusing to allow appellants to introduce the other portions of Poole's interview of Daniel Presley that did not relate to his impeachment or place it in context.
In conclusion, the evidentiary issues raised by appellants do not warrant reversal. The accident report itself was properly excluded as inadmissible hearsay. Furthermore, the impeachment of Daniel Presley with a statement that he made to Poole was conducted properly. Although the trial court erred by not providing an immediate limiting instruction on the use of impeachment evidence, such error was harmless. In addition, the other portions of Poole's interview were not necessary to place Daniel Presley's prior statements in context beyond the examination that the trial court allowed.
Appellants contend that the trial court erred by denying their motion for judgment notwithstanding the verdict after the jury returned a verdict in favor of CMR. The trial court's denial of the motion for judgment notwithstanding the verdict "must be affirmed unless the evidence, viewed in the light most favorable to the non-movant, would permit reasonable persons to return a verdict only in favor of the moving party." District of Columbia v. Minor, 740 A.2d 523, 529 (D.C.1999) (quoting Bernstein v. Fernandez, 649 A.2d 1064, 1070 (D.C.1991)) (internal
We are unpersuaded by appellants' argument that the trial court erred by denying their motion for judgment notwithstanding the verdict. In support of their argument, appellants assert that the verdict was against the weight of the evidence because the testimony of the CMR crane operator was completely lacking in credibility. The crane operator provided an eyewitness account that Presley slipped and fell of his own accord. The crane operator's testimony alone, if found credible by the jury, was enough to support the verdict. See Minor, supra, 740 A.2d at 529; cf. Frye v. United States, 926 A.2d 1085, 1094 (D.C.2005) (noting that the testimony of a single witness, if credited by the trial court, "can be sufficient to prove beyond a reasonable doubt the charged offense"). Moreover, "[t]he determination of credibility is for the finder of fact, and is entitled to substantial deference." Bouknight v. United States, 867 A.2d 245, 251 (D.C.2005) (citing Byrd v. United States, 614 A.2d 25, 30 (D.C.1992)). Therefore, we must affirm the trial court's denial of appellants' motion for judgment notwithstanding the verdict.
Finally, we turn to appellants' claim that the trial court erred by rejecting a jury instruction proposed by appellants. Appellants assert that "[t]he fact that another entity may also be liable to plaintiff for the injury sustained is no defense," and that the jury should have been instructed accordingly. However, neither the record nor appellants' brief makes clear what specific proposed instruction the trial court rejected, or whether appellants raised any objection to a specific instruction that was given.
Although not entirely clear what specific instruction the trial court rejected, it appears from appellants' brief that appellants wanted the jury to be instructed that, regardless of the possible negligence of Grimberg, CMR and CRSS could still be found liable. The trial court did, in fact, instruct the jury that "[i]t is no defense that some other person who [i]s not a defendant in the case participated in causing the injuries even if it should appear to you that the negligence of the other person was greater than the negligence of the [d]efendant." As the instruction given by the trial court appears to have adequately addressed the principle that appellants wanted to convey, we cannot say that its failure to give the instruction appellants requested was in error, that it was clear error, and that it affected the substantial rights of appellants. See Pérez, supra, 968 A.2d at 92.
For the foregoing reasons, we affirm the trial court's judgment. CRSS owed no legal duty—statutory or common-law—to Presley. Therefore, the trial court did not err in granting judgment as a matter of law for CRSS. Further, the evidentiary issues raised by appellants do not merit reversal. While the trial court should have given a limiting instruction on the proper use of impeachment evidence immediately as requested, instead of at the close of the case, the failure to do so was harmless error. Finally, the trial court did not err in denying appellants' motion for judgment notwithstanding the verdict or in instructing the jury. Accordingly, we affirm.
Affirmed.
The trial court rejected the additional language. Even under the standard of review that would have applied had appellants raised an objection to the instructions rejected or given, appellants' argument does not warrant reversal. "In reviewing a challenge to a jury instruction that was preserved at trial, the central question for this court is whether it is an adequate statement of the law, and whether it is supported by evidence in the case." Wheeler v. United States, 930 A.2d 232, 238 (D.C.2007) (citing Leftwitch v. United States, 251 A.2d 646, 649 (D.C.1969); Spade v. United States, 277 A.2d 654, 656 (D.C.1971)). We consider the instructions as a whole in reviewing the trial court's decision for abuse of discretion. Id. Appellants' reliance upon Ceco Corp. v. Coleman, 441 A.2d 940 (D.C.1982), to support their argument is misplaced. In Ceco, we approved of the trial court's use of Civil Jury Instruction 5.13, but were critical of additional language that suggested that "the jury was not permitted to find the negligence of [a party not included in the suit] to have been the sole proximate cause of [the plaintiff's] injury." 441 A.2d at 948. As discussed below, the trial court's instructions as a whole adequately addressed the principle that CMR could still be liable even if Grimberg was negligent, and they were supported by the evidence in this case. Accordingly, we cannot say that the trial court abused its discretion in excluding the additional language proposed by appellants.