BERYL A. HOWELL, District Judge.
Following an eight-day jury trial, defendant Washington Metropolitan Area Transit Authority ("WMATA") was found liable
On February 14, 2006, a WMATA bus traveling southbound on Georgia Avenue in Northwest Washington, D.C. collided with a vehicle driven by Norma Jean Woodson. Trial Tr. (Rough), Sept. 22, 2011 AM, at 8-11.
On November 1, 2008, the plaintiff filed a Complaint against WMATA, asserting negligence on the part of the WMATA bus driver and seeking compensation for the injuries she sustained.
As required by the Court's order, Supplemental Standing Order, ECF No. 53, May 25, 2011, at ¶ 1(b)(ii), WMATA also supplied as part of the JPS, the text of proposed jury instructions. WMATA's proposed jury instructions included a negligence per se instruction based upon D.C. Standardized Civil Jury Instruction § 5.09 and modified with the text of eight traffic regulations, violation of which would trigger the finding of negligence.
In order to clarify portions of the JPS, including any objections among the parties to proposed jury instructions, the Court
At the initial charging conference held on September 27, in the middle of trial, the Court raised the issue of whether the negligence per se jury instruction, D.C. Standardized Civil Jury Instruction § 5.09, as opposed the "evidence of negligence" instruction, D.C. Standardized Civil Jury Instruction § 5.10, was appropriate, considering that WMATA had listed both instructions in its initial proposed jury instructions filed with the JPS. Trial Tr. (Rough), Sept. 27, 2011, at 137-39. The Court revisited this issue at a charging conference held on September 28, and concluded that the negligence per se jury instruction that all three parties had initially requested in the JPS and jointly listed as agreed-to in the supplemental JPS, was appropriate. Trial Tr. (Rough), Sept. 28, 2011 AM pt. 2, at 3-4. WMATA raised no objection to the inclusion of the negligence per se jury instruction. Id. Rather, WMATA reiterated its request to include in the negligence per se instruction 18 DCMR § 2201.7, as it had originally requested in the JPS, and urged the Court to consider including an additional traffic regulation, 18 DCMR § 2201.9, which had not previously been mentioned either in the JPS, Supplemental JPS or orally in discussions concerning the jury instructions. Id. at 4-5. The Court sustained the objection by third-party defendant Woodson and the plaintiff to inclusion of 18 DCMR § 2201.7 in the instructions, finding that regulation inapplicable to the street configuration at issue in the case.
During trial, the jury heard evidence that prior to the accident, the WMATA bus was stopped on the 3800 block of Georgia Ave. N.W. to pick up and drop off passengers. Trial Tr. (Rough), Sept. 27, 2011, at 51-54 (testimony of Dante Dinkins); see also Trial Tr. (Rough), Sept. 21, 2011 PM, at 13. At this stop, the WMATA bus driver, Dante Dinkins, was distracted by attractive women in the vicinity and failed to assess traffic conditions prior to accelerating from his stopped position. Trial Tr. (Rough), Sept. 22, 2011 AM, at 9-16 (testimony of Patricia Shelton); id. at 71 (testimony of plaintiff Margaretta Sibert-Dean). Witnesses stated that had the bus driver looked before moving, he would have noticed that third-party defendant Woodson's car was turning immediately in front of the bus. Id. at 29-32 (testimony of Patricia Shelton); id. at 74-75 (testimony of plaintiff Margaretta Sibert-Dean). Also presented at trial was evidence that third-party defendant Woodson observed that the WMATA bus was moving, or would soon move, and that she nonetheless attempted to cross traffic into the grocery store parking lot before it was safe to do so. Trial Tr. (Rough), Sept. 27, 2011, at 109-112 (testimony of Michael Cooper). On September 30, 2011, the jury returned a verdict against WMATA and third-party defendant Woodson, concluding that both defendants' negligence proximately caused the accident.
On October 7, 2011, WMATA filed the instant motion for a new trial. ECF No. 70. WMATA contends that the Court erred when it included traffic regulations 18 DCMR §§ 2213.4 and 2206.1 among the seven traffic regulations in the Court's negligence per se instruction. Traffic regulation § 2213.4, "Obstruction of Driver's View or Driving Mechanism: Improper Riding," provides that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." Regulation § 2206.1, "Starting, Stopping and Backing," states that "[n]o person shall start a vehicle which is stopped, standing, or parked unless and until the movement can be made with reasonable safety." Although WMATA argued on September 28 that negligence per se is not applicable to any traffic regulations, in its motion for new trial WMATA raises a different argument, asserting that inclusion of only these two traffic regulations, of the seven provided to the jury, was improper. As explained below, however, this argument is without merit. Accordingly, WMATA's motion for new trial is denied.
Pursuant to Federal Rule of Civil Procedure 59, "[t]he court may, on motion, grant a new trial on all or some of the issues ... after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court." FED.R.CIV.P. 59(a)(1)(A). In evaluating a motion for new trial, the court must "be mindful of the jury's special function in our legal system and hesitate to disturb its finding." Long v. Howard Univ., 512 F.Supp.2d 1, 6 (D.D.C.2007) (citation omitted). To preserve the function of the jury, new trials should not be granted unless "the court is convinced that the jury verdict was a `seriously erroneous result' and where denial of the motion will result in a `clear miscarriage of justice.'" In re Lorazepam & Clorazepate Antitrust Litig., 467 F.Supp.2d 74, 87 (D.D.C.2006). "Generally, a new trial may only be granted when a manifest error of law or fact is presented." Id. In a motion for a new trial challenging a jury instruction, "[t]he harmless error rule applies; to warrant reversal, the error must have been prejudicial: It must have affected the outcome of the district court proceedings." Czekalski v. LaHood, 589 F.3d 449, 453 (D.C.Cir.2009) (quotation omitted). "Jury instructions are proper if, when viewed as a whole, they fairly present the applicable legal principles and standards." Id. (quotation omitted). The decision to grant or deny a motion for new trial "lies within the sound discretion of the court." Armenian Assembly of Am., Inc. v. Cafesjian, 783 F.Supp.2d 78, 85 (D.D.C.2011) (quotation omitted).
WMATA raises a single issue in its motion for new trial: that the Court erred
As a preliminary matter, the Court notes that unexplained violations of traffic regulations may constitute negligence per se in the District of Columbia. This Court recently rejected WMATA's contention in Mahnke v. Washington Metropolitan Area Transit Authority, No. 10-cv-21, 2011 WL 5006914 (D.D.C. Oct. 20, 2011), that negligence per se does not apply to statutes governing vehicular traffic. As explained in Mahnke, "D.C. courts have repeatedly held that `the unexplained violation of a traffic regulation enacted ... to ... prevent the type of accident that occurred constitutes negligence per se.'" Id. at *7 (quoting Burns v. Washington Metro. Area Transit Auth., 114 F.3d 219, 223 (D.C.Cir.1997)); see also Stevens v. Hall, 391 A.2d 792, 796 n. 2 (D.C.1978) ("Our Court of Appeals has consistently held in personal injury cases involving vehicles that if an applicable traffic regulation is violated negligence has been established as a matter of law, thus leaving only the question of proximate cause to be decided," quoting Herrell v. Pimsler, 307 F.Supp. 1166, 1168 (D.D.C.1969)); Bauman v. Sragow, 308 A.2d 243, 244 (D.C. 1973) (per curiam) ("Violation of traffic regulations may, of course, constitute negligence per se."); Herrell, 307 F.Supp. at 1168 ("It is firmly established in this jurisdiction that violation of traffic regulations designed to promote safety is negligence as a matter of law where actions of adults are involved."); Abel v. First Sec. Ins. Co. of Am., 120 A.2d 586, 587 (D.C.App.1956) ("[A]lthough violation of traffic regulations may be negligence per se, it is still a question of fact whether or not the regulations were actually violated, and if so
In Burns v. Washington Metropolitan Area Transit Authority, 114 F.3d 219 (D.C.Cir.1997), for example, the D.C. Circuit ordered a new trial after concluding that the magistrate judge, who presided over trial, erred in failing to instruct the jury that the defendant's violation of the applicable traffic speed regulations was negligence per se and not merely "evidence of negligence." Id. at 223. The court stated that "[i]n the District of Columbia, the `unexplained' violation of a traffic regulation enacted ... to ... prevent the type of accident that occurred constitutes negligence per se." Id. (internal quotation omitted). By contrast to its position at the charging conference on September 28, 2011, when WMATA argued that negligence per se does not apply to traffic regulations, WMATA now objects only to the inclusion of two, out of seven, traffic regulations in the negligence per se instruction.
WMATA contends that "traffic regulations in general are less susceptible to a negligence per se analysis because they inherently reflect the common law standards for negligence." WMATA Reply Mot. New Trial, ECF No. 74, at 2. Specifically, WMATA argues that the negligence per se jury instruction, D.C. Standardized Civil Jury Instruction § 5.09, "is limited in scope and should not be given unless the applicable statute or regulation mandates specific guidelines governing a defendant's actions." Mem. Supp. WMATA Mot. New Trial ("WMATA Mem."), ECF No. 70, at 3. Thus, according to WMATA, the instruction is not appropriate where a regulation "merely addresses general principles which mirror the common law standards for a negligence action." Id.
WMATA is correct that in general "a statute or regulation offered to establish a standard for negligence per se purposes must not merely repeat the common law duty of reasonable care, but must set forth `specific guidelines to govern behavior.'" McNeil Pharm. v. Hawkins, 686 A.2d 567, 579 (D.C.1996) (quoting Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549, 558 (D.C.Cir.1993)); Chadbourne v. Kappaz, 779 A.2d 293, 296 (D.C.2001) (same). The regulations objected to in this case, however, are appropriate for a negligence per se instruction.
WMATA asserts that "traffic regulations that only serve `to clarify and define the elements of due care' are not the type of regulations which can support a negligence per se instruction." WMATA Mem., ECF No. 70, at 5. None of the cases WMATA relies on in support of this position, however, involve traffic regulations or even traffic accidents. WMATA cites to Chadbourne v. Kappaz, 779 A.2d 293 (D.C. 2001), but that case involved application of negligence per se to D.C.'s animal leash laws. McNeil Pharmaceutical v. Hawkins, 686 A.2d 567 (D.C.1996), another case relied upon by WMATA, involved a products liability action against a pharmaceutical company; District of Columbia v. Mitchell, 533 A.2d 629 (D.C.1987), was a case involving regulations pertaining to the D.C. Department of Corrections; and Joy v. Bell Helicopter Textron, Inc., 999 F.2d 549 (D.C.Cir.1993), involved application of Federal Aviation regulations. See also Thoma v. Kettler Bros., Inc., 632 A.2d 725, 728-29 n. 8 (D.C.1993) (construction site standards); Lewis v. Washington Metro.
WMATA's reliance on Bowman v. Redding & Co., 449 F.2d 956 (D.C.Cir.1971) is similarly misplaced. In Bowman, the estate of a deceased construction worker brought a wrongful death action against his employer, alleging that the defendant violated workplace safety regulations at a construction site. The district court directed verdict for the defendant on grounds that the plaintiff was contributorily negligent, and thus barred from recovery. On appeal, the D.C. Circuit held that a contributory negligence defense was available to the defendant even if it violated safety regulations, but remanded the case because disputed issues of fact warranted a trial. In its discussion of contributory negligence and workplace safety regulations, the court commented in dicta:
Id. at 966.
In its previous effort to avoid a negligence per se instruction altogether, WMATA urged the Court during the September 28 charging conference to spurn the clear holding in Burns that violation of traffic regulations constitutes negligence per se based on this dicta in Bowman. WMATA now relies on the same dicta in Bowman to argue that two of the charged traffic regulations cannot support a negligence per se instruction. This argument carries no more weight now than WMATA's previous argument. First, Bowman's reference to traffic regulations was in the context of a discussion about the availability of a contributory negligence defense for a defendant who violated applicable regulations, and did not pertain to the scope of negligence per se. Second, even in this dicta, the Court in Bowman recognized that negligence by a "vehicle operator" could be established "by a jury applying... a particular legislative standard." Id. In this respect, the dicta in Bowman is fully consistent with the more recent and clear holding in Burns that "the `unexplained' violation of a traffic regulation enacted to prevent the type of accident that occurred constitutes negligence per se." Burns, 114 F.3d at 223.
Contrary to WMATA's contention, 18 DCMR §§ 2213.4 and 2206.1 prescribe a sufficiently specific standard of care for vehicle operators to warrant a negligence per se instruction. Traffic Regulation 2213.4 states that "[a]n operator shall, when operating a vehicle, give full time and attention to the operation of the vehicle." This regulation does more than simply require a driver to pay attention, but demands "full attention," which, as the plaintiff notes, requires a driver to "not be distracted, and not be engaging in other activities while driving (certainly a problem in these days of multitasking and technology)."
Indeed, the two challenged regulations are just as specific as the other five traffic regulations that WMATA concedes were properly incorporated into the Court's negligence per se jury instruction. In addition to challenged regulations §§ 2213.4 and 2206.1, for example, the Court instructed the jury that violation of 18 DCMR § 2204.2 would constitute negligence per se. The latter regulation provides that "[n]o person shall turn a vehicle to enter a private road or driveway or otherwise turn a vehicle from a direct course or move right or left upon a roadway unless and until such movement can be made with reasonable safety" (emphasis added). Like 18 DCMR § 2206.1, this regulation also prescribes reasonable conduct.
Additionally, the two regulations to which WMATA objects in this case are similar in specificity to the traffic regulations that the D.C. Circuit determined warranted a negligence per se instruction in Burns. Among the regulations addressed in Burns were 18 DCMR § 2200.3, which states, in relevant part, that "no person shall drive a vehicle on a street or highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing;" and § 2200.5, which provides that "[t]he driver of every vehicle shall, consistent with requirements of this section, drive at an appropriate reduced speed when approaching and crossing an intersection ... or by reason of weather...." Burns, 114 F.3d at 223 n. 4. These regulations direct a driver to be "reasonable and prudent" and to drive at "an appropriate reduced speed," which, just like the two regulations at issue in the case before the Court, direct the driver to operate a vehicle after carefully assessing the traffic situation presented.
Finally, WMATA argues that "[t]he highly prejudicial nature of [the negligence per se] instruction was exacerbated by the fact that the instruction required the jury to find WMATA negligent if it found that WMATA violated any of these regulations, as opposed to merely providing evidence of negligence for the jury to weigh." WMATA Mem., ECF No. 70, at 7. A jury should be instructed that the violation of a statute is merely evidence of negligence, pursuant to D.C. Standardized Civil Jury Instruction § 5.10, and not negligence as a matter of law, "[i]f a party charged with statutory or regulatory negligence produces competent evidence tending to explain or excuse his or her violation of the statutory or regulatory standard."
According to WMATA, the bus driver testified that he assessed traffic conditions before accelerating, and that was "clearly adequate to explain any alleged violation of the regulations in issue...." WMATA Reply Mot. New Trial, ECF No. 74, at 4. The testimony WMATA cites does not offer an excuse or explanation for violation of traffic regulations, but rather merely reflects an effort to prove that no violation occurred. In Perkinson v. Gilbert/Robinson, Inc., 821 F.2d 686 (D.C.Cir.1987), the defendant attempted a similar argument, asserting that "its denial that a violation [of a statute] occurred at all should be considered an explanation or excuse for the alleged violation." Id. at 692. The D.C. Circuit found this argument "labored," explaining that "[b]ecause an excuse or explanation can only arise if a violation did occur, a denial is obviously not the sort of `explanation' that [rebuts a negligence per se charge]." Id.
Here, WMATA proffers an argument identical to the one rejected in Perkinson, and one that likewise finds no support before this Court. WMATA did not present evidence or argue that its bus driver's failure to comply with applicable traffic regulations was explainable or should otherwise be excused. On the contrary, WMATA contended that its bus driver fully complied with the regulations. The jury, however, found otherwise. See Bauman v. Sragow, 308 A.2d 243, 244 (D.C. 1973) ("Violation of traffic regulations may, of course, constitute negligence per se. Whether the applicable regulations were violated, however, and whether their violation was the proximate cause of the collision, are questions of fact for the jury unless reasonable persons could draw but one conclusion from the evidence.").
Given the absence of evidence that would excuse or explain the bus driver's violation of the traffic regulations, WMATA's argument that the Court should have instructed the jury that violation of 18 DCMR §§ 2213.4 and 2206.1 was only evidence of negligence, in accordance with
Even assuming, arguendo, that violations of 18 DCMR §§ 2213.4 or 2206.1 do not constitute negligence per se, WMATA's motion for new trial must nonetheless be denied. "It is well established that challenges to jury instructions are subject to the harmless error rule." Bell Helicopter Textron, 999 F.2d at 559. Pursuant to Federal Rule of Civil Procedure 61, reversal is appropriate only if "the trial court's error could have affected the substantial rights of the parties." Id.; FED.R.CIV.P. 61 ("Unless justice requires otherwise, no error ... by the court ... is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party's substantial rights."). This means that the error "must have been prejudicial: It must have affected the outcome of the proceedings." Evans v. Wash. Metro. Area Transit Auth., No. 08-cv-1629, 816 F.Supp.2d 27, 32, 2011 WL 4599788, at *3 (D.D.C. Oct. 6, 2011) (quoting Muldrow ex rel. Estate of Muldrow v. Re-Direct, Inc., 493 F.3d 160, 168 (D.C.Cir.2007)).
Although the verdict sheet did not indicate the precise basis for the jury's conclusion that WMATA was negligent, there is no evidence that inclusion of the two challenged regulations in the negligence per se instruction affected the outcome of the case. WMATA argues that the jury should have been instructed that violation of 18 DCMR §§ 2213.4 or 2206.1 would be evidence of negligence, rather than negligence as a matter of law. Yet, even if the jury had been instructed as WMATA now suggests, and provided with both a negligence and negligence per se instruction that referenced different traffic regulations, the jury still would have been required to find the same predicate facts in order to reach a finding of negligence or of negligence per se. In other words, even if the jury considered the two challenged regulations as evidence of negligence they would most likely have reached the same verdict.
The jury was presented with significant evidence that supported a finding that WMATA's bus driver was negligent. The plaintiff and eyewitness Patricia Shelton both testified that the bus driver was distracted by attractive women at the bus stop and did not assess traffic conditions before moving forward. Trial Tr. (Rough), Sept. 22, 2011 AM, at 9-16 (testimony of Patricia Shelton); id. at 71 (testimony of plaintiff Margaretta Sibert-Dean). Moreover, five eyewitnesses testified that Ms. Woodson's vehicle was in front of the bus when the bus began accelerating. Trial Tr. (Rough), Sept. 22, 2011 (testimony of Patricia Shelton and plaintiff Margaretta Sibert-Dean); Trial Tr. (Rough), Sept. 23, 2011 (testimony of Norma Jean Woodson); Trial Tr. (Rough), Sept. 27, 2011 (testimony of Rochelle Lewis and Michael Cooper). Indeed, the WMATA bus driver was the only witness who could not recall seeing Ms. Woodson's vehicle in front of the bus before the accident. Trial Tr. (Rough),
The Court concludes that the jury in this case was properly instructed, in accordance with D.C. Standardized Civil Jury Instruction § 5.09, that an unexplained violation of 18 DCMR §§ 2213.4 or 2206.1 would constitute negligence per se. Furthermore, even if violation of these two regulations should have been presented to the jury merely as evidence of negligence, any error in the instructions as given was harmless. Accordingly, WMATA's motion for a new trial is denied. An Order consistent with this Memorandum Opinion will be entered.
Trial Tr. (Rough), Sept. 28, 2011 PM, at 4-5. Specifically, this regulation states: "The driver of a vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of the vehicles and the traffic upon and the condition of the roadway." Since the regulation is silent on whether a turn that crosses double yellow lines is prohibited, the jury was not instructed on this regulation. It should be noted, however, that at the September 28 charging conference WMATA sought inclusion of 18 DCMR § 2201.9 in the negligence per se jury instruction despite the fact that, similar to the regulations now challenged by WMATA in its motion for new trial, it directs a driver to conform his or her conduct to a reasonableness standard.
Trial Tr. (Rough), Sept. 28, 2011 PM, at 10-11.
Verdict Sheet, ECF Nos. 67-68 (instructions omitted).
Trial Tr. (Rough), Sept. 28, 2011 PM, at 34-35.
