ROSEMARY M. COLLYER, District Judge.
John Antonio Evans was very badly injured after he struck a stopped car while riding his motorcycle on a city street, was thrown forward onto the road, and was then struck by a passing bus operated by the Washington Metropolitan Area Transit Authority ("WMATA"). Mr. Evans presented his case on liability, bifurcated from damages because of the unavailability of certain witnesses, to a jury in the District of Columbia. After deliberating for approximately seven hours, the jury returned a verdict finding that WMATA's driver was negligent and that Mr. Evans was contributorily negligent, but that Mr. Evans had failed to prove two of the four elements of the common law doctrine of "last clear chance." As a result, despite the jury's finding that WMATA was negligent, Mr. Evans collected no damages. Mr. Evans now moves for a new trial. He argues that the "last clear chance" doctrine was improperly applied in this case, the jury's verdict is internally inconsistent, WMATA's counsel made prejudicial statements during closing argument, and the Court wrongly refused to admit evidence that supported his case. None of the arguments made by Mr. Evans is sufficient to warrant a new trial. The motion will be denied.
There is no dispute that the evidence at trial showed the following. On January 4, 2007, Mr. Evans was operating his motorcycle at a higher speed than rush hour traffic would allow in the left southbound lane of Martin Luther King Avenue, S.E. in the District of Columbia. At that time, a vehicle driven by Vincent Fong had been stopped for almost a minute to make a lefthand turn at the intersection of Pomeroy Road. Mr. Evans came up to Mr. Fong's vehicle, was unable to pass it, and collided with the rear of the vehicle. The force of impact ejected him from his motorcycle to the front right side of Mr. Fong's car. A WMATA bus then struck Mr. Evans, very badly injuring him. Plaintiff admits that "[i]t is . . . clear that WMATA's negligence did not cause plaintiff to be put into that position" on the roadway to be struck. Pl.'s Reply to Def.'s Opp'n to Mot. for New Trial [Dkt. # 104] at 5 ("Pl.'s Reply"); see also Pl.'s Mot. for New Trial [Dkt. # 92] ¶ 3 ("Pl.'s Mot.") ("[I]t was clear that the reason that the plaintiff was thrown off his motorcycle had nothing to do with the defendant's negligence . . . [I]t is clear that the defendant's negligence occurred after the plaintiff was already thrown off his motorcycle.").
The jury was presented with the testimony of nine lay witnesses by way of live courtroom testimony, videotape deposition
1. Do you find that plaintiff John Antonio Evans has proven by a preponderance of the evidence that the defendant WMATA was negligent and such negligence proximately caused the plaintiff's injuries?
2. Do you find that defendant WMATA has proven by a preponderance of the evidence that plaintiff John Antonio Evans was contributorily negligent?
3. Do you find that the plaintiff John Antonio Evans has proven by a preponderance of the evidence each of the following:
Because Mr. Evans was found negligent by the jury, under D.C. law, he could only be awarded damages if he proved that WMATA had the last, clear chance to avoid the accident.
A court has discretion to grant a new trial "after a jury trial, for any reason for which a new trial has ... been granted in an action at law in federal court[.]" FED.R.CIV.P. 59(a). Motions for new trial must establish a clear and obvious error of law or fact. Nyman v. Federal Deposit Ins. Corp., 967 F.Supp. 1562, 1569 (D.D.C. 1997). A new trial is appropriate "where the court is convinced the jury verdict was a seriously erroneous result and where denial of the motion will result in a clear miscarriage of justice." Id. (citation omitted).
An error in admitting or excluding evidence that affects a party's substantial rights may also be grounds for granting a new trial. See FED R. CIV. P. 61; Nyman, 967 F.Supp. at 1569. For an error to affect substantial rights, it "`must have been prejudicial: It must have affected the outcome of the ... proceedings.'" Muldrow (ex rel. Estate of Muldrow) v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C.Cir. 2007) (quoting United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). Otherwise, a court may disregard the error. See FED.R.CIV.P. 61 ("At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights.").
Mr. Evans argues that: 1) the law of "last clear chance" was wrongly applied; 2) the jury's answers to verdict form questions Nos. 3c and 3d are inconsistent under the factual scenarios presented by the evidence, and that its answer to No. 3d is inconsistent with its answer to question No. 1; 3) defense counsel made prejudicial statements during closing arguments; 4) and the refusal to allow Mr. Evans to introduce evidence regarding cameras on the bus and refusal to instruct the jury to draw a negative inference against WMATA based upon its "failure to preserve evidence" from such cameras led to an erroneous verdict. Pl.'s Mot. ¶ 9. Each of these arguments will be addressed in turn.
"Last clear chance" is a common law doctrine, developed to mitigate the initial harshness of the common law rules of negligence, particularly the rule that plaintiff's contributory negligence is an absolute bar to recovery in a negligence action, which is the law in the District of Columbia. See Felton v. Wagner, 512 A.2d 291, 296 (D.C.1986). "Last clear chance" provides an avenue to overcome this hurdle. Where both parties were negligent, a defendant may be held liable if the "superior opportunity to avoid the accident" was his. Phillips v. D.C. Transit Sys., Inc., 198 A.2d 740, 741-42 (D.C.1964).
The law of "last clear chance" in the District of Columbia requires proof that:
Belton v. Washington Metro. Area Transit Auth., 20 F.3d 1197, 1199 (D.C.Cir.1994) (quoting Robinson v. Dist. of Columbia, 580 A.2d 1255, 1258 (D.C.1990)) (all emphases deleted). "The District has hewed to this four-requirement formula in a long stream of cases." Id. at 1199-1200 (citing cases). Mr. Evans failed to provide sufficient proof of two of these requirements at trial: 1) that a primary act of negligence by WMATA placed him in a situation of peril; 2) that there was sufficient opportunity for the driver of the bus to avoid striking him. As a result, he could not avail himself of the protection of the "last clear chance" doctrine and could not collect damages because of his own contributory negligence. See Phillips, 198 A.2d at 742.
Mr. Evans would have the law regarding "last clear chance" interpreted differently so that his own negligence, that resulted in his ejection from his motorcycle into the path of the WMATA bus, is ignored. He argues he may recover because the jury found WMATA guilty of negligence that occurred subsequent to his own negligence "severing [his] contributory negligence." Pl.'s Reply at 5; see Pl.'s Mot. ¶ 3. This interpretation is at odds with D.C. law. The jury found that Mr. Evans was in a position of danger due to his own antecedent negligence, that is, no negligence on the part of WMATA initially placed him in peril. Under the D.C. law of "last clear chance," Mr. Evans cannot collect damages because he is the sole party responsible for his initial danger.
Mr. Evans rebuts this precedent, citing Bowman v. Redding & Co., 449 F.2d 956, 970 (D.C.Cir.1971) and Drapaniotis v. Franklin, 504 F.2d 236, 237-38 (D.C.Cir. 1974), both of which rejected any requirement that a defendant be found guilty of antecedent negligence. These cases however were issued "after February 1, 1971, the date on which, by virtue of the District of Columbia Court Reorganization Act, Pub. L. No. 91-358, 84 Stat. 475, 667, [the D.C. Circuit] ceased to an authoritative expositor of District law.... Even if any pre-February 1, 1971 decisions of this circuit supported a tendency to dispense with antecedent negligence, the District's later assertion of the requirement in an en banc decision, WMATA v. Jones, 443 A.2d [45, 51 (D.C. 1982) ] would control." Belton, 20 F.3rd at 1200.
Once the jury found Mr. Evans contributorily negligent, his only opportunity for recovery was under the doctrine of "last clear chance." The doctrine was applied correctly under D.C. law, and he failed to persuade the jury on two points critical to its application.
Mr. Evans claims that the jury's verdict was impossibly inconsistent because, to answer question No. 3c on the verdict form affirmatively, the jury must have found the bus driver to be "in a position in which he could have become aware of the plaintiff's position of danger." Pl.'s Mot. ¶ 4. He contends that having reached such a conclusion under the factual scenarios presented, the jury could not have reasonably found that WMATA did not have sufficient distance and time to avoid striking Mr. Evans on the road in response to question No. 3d. Id. Mr. Evans further argues that the jury's negative answer to No. 3d on the verdict form is inconsistent with its positive answer to question No. 1 to the effect that Defendant was negligent and that such negligence proximately caused Mr. Evans' injuries. Id. ¶ 6.
There are more reasonable interpretations of the trial record than just those posited by Mr. Evans. For instance, the driver testified that he saw the motorcycle lying on the road behind him but did not stop to find out where the driver, Mr. Evans, had landed. Based on this and regardless of conflicting testimony on the bus's speed, the jury might have found that the driver was negligently inattentive but still credited WMATA's expert's testimony that the momentum and weight of the bus prevented the driver from stopping before striking Mr. Evans.
The jury's answers to No. 1 and 3(d) also do not lack consistency as Mr. Evans alleges. Mr. Evans argument that "[a] person is not negligent if there is nothing which that person can or should do to avoid causing an accident," Pl.'s Reply at 2, misinterprets the function of No. 3d and the application of the "last clear chance" doctrine. The doctrine only comes to bear when it has already been established that a defendant was negligent, as the jury clearly found in its answer to No. 1, but, because a plaintiff was also negligent, the defendant was not liable. "Last clear chance" opens the door for recovery to a plaintiff when, the defendant was aware of and could have stopped the injury. See Phillips, 198 A.2d at 742 (describing a scenario where the "last clear chance" doctrine applies). Question No. 3d asked the jury whether avoidance was possible, and, therefore, the doctrine could apply; it was not connected to the question of WMATA's negligence as Mr. Evans argues. As a result, the jury's findings that WMATA was negligent but could not have avoided striking Mr. Evans are not inconsistent.
Regardless of these findings, the disputes surrounding the jury's answers to these questions would still not merit a new trial because the jury's answers to No. 3c and 3d would not materially change the result of trial. The jury found that Mr. Evans was contributorily negligent and that WMATA's negligence did not put Mr. Evans in a position of danger, a fact Mr. Evans acknowledges. These findings alone would bar the application of the "last clear chance" doctrine under D.C. law and any collection of damages by Mr. Evans.
Mr. Evans argues that counsel for WMATA made prejudicial statements during closing argument. First, Mr. Evans attacks references to cameras made by WMATA's counsel because he himself was not able to make arguments regarding the presence of cameras on the bus to the jury. Second, he argues that references to the effect of the accident on the WMATA bus driver created a false impression that the verdict would adversely affect him.
The issue of what arguments could be presented to the jury regarding the bus's camera system was vigorously contested during pretrial proceedings. Over Mr.
During closing argument, WMATA's counsel made a reference to cameras because people are "imperfect recording devices of real time." Def.'s Opp'n to Mot. for New Trial [Dkt. #102] at 15. In rebuttal, counsel for Mr. Evans argued that WMATA did not prove that cameras on the bus did not exist; the Court admonished counsel not to continue that line of argument because it was not consistent with its pretrial ruling.
Mr. Evans claims these statements were prejudicial and led to an erroneous verdict. The Court does not find that these statements were prejudicial in their nature or in their effect on the jury. The reference to people having incomplete memories, unlike cameras, was presumably designed to address the differing testimonies of witnesses as to the sequence of the accident events; given the differing accounts the jury heard, there was nothing untoward about the comment. Its inclusion of a reference to cameras gave it no greater weight. Furthermore, it is not clear how counsel's comment would have had any effect on the jury's determinations regarding the negligence of the parties. Finally, Mr. Evans was not prejudiced by the Court's ruling during both pretrial and trial that he could not make arguments regarding the presence of cameras on the bus. The comment by WMATA's counsel was not related to this issue.
Counsel for WMATA also referenced the impact of this case on the bus driver during closing argument. Counsel for Mr. Evans objected at this time, and the Court instructed the jury that there was no evidence offered on this point. It is assumed the jury followed the Court's instruction. Weeks v. Angelone, 528 U.S. 225, 234, 120 S.Ct. 727, 145 L.Ed.2d 727 (2000). Notably, the jury concluded that the driver negligently operated the bus, indicating no effect on the jury due to counsel's comments.
Neither of the remarks by WMATA's counsel caused prejudice to Mr. Evans because the jury's verdict was not influenced by them. As a result, Mr. Evans' "substantial rights" were not adversely affected within the meaning of Federal Rule of Civil Procedure 61. Any error that may have occurred when the jury heard these statements during closing argument was harmless, and there are no grounds for a new trial.
Finally, Mr. Evans renews his claim that he was entitled to introduce evidence regarding the existence of cameras on the bus and to an adverse inference against WMATA because its personnel allegedly destroyed video footage contained in the DVR system. This contention has twice been rejected, and the Court does not pursue it further.
The motion for a new trial [Dkt. # 92] provides no basis to second guess the jury's verdict and must be denied. A memorializing Order accompanies this Memorandum Opinion.
Transcript of Pretrial Conference at 51-57, Evans v. Washington Metro. Area Transit Auth., No. 8-1629 (D.D.C. May 26, 2011).
