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Washington Lawyer

Legal Spectator: 18th and Res Ipsa Loquitur NW

From Washington Lawyer, February 2005

By Jacob A. Stein

Legal Spectator

Does your desk have too many papers on it? Are you wondering if you are involved in work for which you have no real aptitude? Are you concerned that you are losing your individuality and drifting toward conformity?

I recommend you take a walk. Take a walk up Connecticut Avenue toward Dupont Circle. Stroll the park and then continue up the avenue. You will see on your left a used book store. You may be lucky enough to find a book as interesting as the one I found there.

In a copy of Paddy Chayefsky’s play, The Tenth Man, a self-satisfied young man asks an old man why he is reading and rereading the words in an old religious tract. The answer:

Dear young man, one does not read the Book of Zohar, leaf through its pages and make marginal notes. I have entombed myself in this slim volume for fifty years, raw with vulnerability to its hidden mysteries, and have sensed only a glimpse of its passion. Behind every letter of every word lies a locked image and behind every image a sparkle of light of the ineffable brilliance of Infinity. But the concept of the Inexpressible of the Unknown is inconceivable to you. For you are a man possessed by the Tangible. If you cannot touch it with your fingers, does it not exist? Indeed that will be the epithet of your generation—that you took everything for granted and believed in nothing. It is a very little piece of life that you know. . . .

Take that, you philistine worshipers of the bottom line.

Across the street is Kramerbooks. Drop in and take a look to see whether W. Somerset Maugham’s book, The Summing Up, is on the shelves. Maugham’s father was a lawyer attached to the British embassy in Paris. Maugham’s brother, Frederic, reached the top of the legal profession in London with his appointment as lord chancellor.

Maugham would have been a good lawyer. He was disciplined, smart, detached, and analytical. But Maugham had a stammer. He decided to study medicine. When his first novel was published, he left medicine and took up full-time writing of plays, novels, and essays, many of which are still in print.

Maugham, when he was 60, wrote The Summing Up. He used that title because the words are those an English judge uses to give the jury a summary of the case and the judge’s comments on the evidence. In Maugham’s Summing Up he says he is trying to work out his thoughts on the subjects that have chiefly interested him in the course of his life: “It has seemed to me that if I set them down in some sort of order I should see for myself more distinctly what they really were and so I might get some kind of coherence into them.” It has also seemed to me that we all might try doing our own Summing Up. It takes courage.

Connecticut Avenue eventually connects with Columbia Road. Connecticut Avenue goes left. Columbia Road goes right. Stick to the right. Stay on Columbia until it reaches 18th Street. There you will see a drive-in bank on the southeast corner. Across the street is a McDonald’s. On January 18, 1922, an elegant theater, the Knickerbocker, was on the corner where the bank is now.

On that day in January there was a big snowstorm. It started in the morning and kept going. Despite the storm, a silent movie called Get Rich Quick Wallingford, a cheerful comedy, attracted a large evening audience who liked the idea of being cozy and warm inside while the weather outside was frightful. Then tragedy struck. The snow that silently collected on the roof of the theater became too heavy for the roof. It collapsed. The ceiling fell on the audience. Ninety-seven people were killed right there in the theater. A lawsuit was brought against Knickerbocker by the executor of the estate of David Lyman, who was one of those killed.

The plaintiff’s lawyer in a negligence case must prove a specific act of negligence as the cause of the injury. Just proving an accident happened will not do it. There is an exception called the doctrine of res ipsa loquitur, “the thing speaks for itself.” It is a shorthand way of saying that the circumstances connected with the accident are such that a jury would be justified in finding that the accident had to be caused by the defendant’s negligence.

The plaintiff’s lawyer in the Knickerbocker case hoped to convince the trial judge that res ipsa applied and that all he needed to prove was that the roof fell in and David Lyman got killed. Then it was up to Knickerbocker to prove it was not to blame. The judge gave such a ruling. A victory for the plaintiff. When the plaintiff rested his case, Knickerbocker put on its defense. It contended that the huge, unforeseeable snowstorm was to blame and, furthermore, that Knickerbocker had complied with all the relevant building regulations.

Confronted with this evidence, the plaintiff wanted to reopen the case to show bad design and bad workmanship in the construction of the theater. The judge said no. Too late. That evidence should have been presented in the plaintiff’s case. You elected to rely on res ipsa and you are stuck with it. The jury sided with Knickerbocker. Was the trial judge correct? The court of appeals thought so, in Lyman v. Knickerbocker Theatre Co., 5 F.2d 538 (1925).

If you have taken this walk, you should return to Dupont Circle by way of 18th Street. It is the most interesting few blocks in the city. Ethnic food, some good and some downright dangerous; a small second-floor theater; secondhand bookstores; secondhand furniture stores; secondhand hardware stores. And you will see well-dressed men in secondhand clothes holding hands with secondhand Rose.

Jacob A. Stein can be reached by e-mail at jstein@steinmitchell.com.