• Spring Newsletter
• Summer Series Program
• Volunteers Needed!
• Recent D.C. Tort Law Decisions
• Mini Reports

Christopher H. Mitchell, Co-Chair
Catherine A. Hanrahan, Co-Chair
Paul J. Cornoni
Kelly J. Fisher
Denis C. Mitchell
Thomas Mugavero
Scott M. Perry

Our liason from the D.C. Bar Board of Governors is Ankur J. Goel.

The Tort Law Section exists to facilitate your practice, and the Steering Committee invites your feedback and input. Contact a Steering Committee member with questions, concerns, issues, or topics you’d like to see addressed, or if you are interested in helping with any activities. If you want to join the Steering Committee, which meets monthly, let us know so that your name can be added to the ballot for the next election.

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1. Advice and Referral Clinic
Volunteer lawyers from the Tort Law Section are needed at the D.C. Bar Pro Bono Program's Advice & Referral Clinic. Once a month, volunteer attorneys provide local residents with basic legal information and referrals to legal and social services providers. Volunteering is easy, direct, and rewarding. No volunteer is expected to take on any case for representation. The clinic is held 9:30-1:00 on the 2nd Saturday of each month at Bread for the City, 1525 Seventh Street, NW. Please contact Kelly Fisher by email or at 202-822-1892 if you can help on any of the following dates: June 13, July 11, August 8, September 12, October 10, November 14, and December 12…please join us – you will be glad you did!

2. City Year DC
The Tort Law Section continues its commitment to City Year DC, an AmeriCorps group providing crucial services to some of D.C.'s most underserved kids. City Year delivers substance abuse and HIV/AIDS prevention education, provides literacy tutoring and academic support, organizes and implements leadership development opportunities for middle school students, and engages children and adults in transformative community service projects to renovate schools, community centers, and homeless shelters. We will be assisting City Year again this year in their community outreach project, and we need your help. If you can donate a few hours of your time to this effort please contact Kelly Fisher by email or at 202-822-1892.

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1. Burden of Proof: Plaintiff Must Prove Notice of Risk of Harm and Needs Expert to Establish Standard of Care in FELA Case Arising Out of Negligent Assignment of Employee to Task Exposing Her to Unreasonable Risk of Harm.
Jones v. National Railroad Passenger Corporation, 06-CV-1437, 942 A.2d 1103 (D.C. App., January 30, 2008). Opinion by Reid, joined by Fisher and Belson. Trial Judge: Fisher.

Facts: Amtrak employee sued rail carrier for negligently exposing her to unreasonable risk of harm by requiring her to vacuum rail cars while she had an injured arm. Plaintiff alleged that Amtrak breached its duty by “negligently assigning [her] to perform work beyond [her] capacity.” Defendant argued that plaintiff failed to prove that Amtrak was on notice that her duties exacerbated her arm injury, and sought summary judgment on grounds that plaintiff needed expert testimony to establish applicable standard of care. Trial court granted summary judgment.

Outcome/Reasoning: Judgment for defendant affirmed.
(1) Jury question was whether defendant knew or should have known of plaintiff’s diminished work capacity and, despite such knowledge, unreasonably continued assigning tasks that aggravated her physical condition. Notice is key component of this burden of proof. Appellate court rejected plaintiff’s argument that notice was established by her asking supervisors to stop vacuuming duty because arm hurt. Plaintiff never made a more specific request and never requested re-assignment from work as cleaner. Also, plaintiff admitted in deposition that she never told Amtrak she could no longer vacuum or that cleaning duties made pain worse, undercutting her claim that defendant had notice of job duties exacerbating her injuries.

(2) Plaintiff also claimed Amtrak had a duty to evaluate her physical capacity and refer her for medical treatment, but she produced no expert testimony to support this theory. While Amtrak’s internal procedures were relevant to whether Amtrak had such a duty, they did not obviate the need for expert testimony to establish that internal policies embodied the national standard of care. Plaintiff failed to present an expert on how Amtrak should have handled her situation differently.

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Outcome/Reasoning: Dismissal affirmed on forum selection clause only. Modern trend is to enforce forum selection clauses, unless party seeking to avoid it can prove the clause is unreasonable, i.e., induced by fraud, or chosen forum deprives plaintiff of a remedy, or enforcement contravenes strong public policy. Plaintiff made no such showing, so forum selection clause is enforceable despite defendant not being party to the contract. Thus, defendant may simultaneously disavow a contract and seek enforcement of its forum selection clause.

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Outcome/Reasoning: Judgment for defendant affirmed. Plaintiff provided no proof that defendant placed ads in D.C. media, and defendant’s use of its affiliate’s office was insufficient. Plaintiff argued that D.C. affiliate placing ads was defendant’s alter ego, but court rejected that argument, ruling that in the absence of alleged fraud or deception the corporate veil cannot be pierced, and observing that appellant could have sued parent company (with greater contacts) in D.C., or sued in Virginia. Court also affirmed ruling below that plaintiff had neither alleged nor proven defendant had a right to control its D.C. affiliate, precluding an agency relationship to support jurisdiction.

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Facts: Commercial real estate owner sued WASA for property damage caused by pinhole leaks allegedly due to corrosive water. Plaintiff’s expert gave deposition testimony somewhat favoring WASA. After WASA moved for summary judgment plaintiff submitted expert’s affidavit (sworn but not notarized) expanding on deposition testimony. Trial judge declined to consider affidavit because it was not notarized, and granted summary judgment (1) because damages were not quantified with specificity, and (2) on limitations grounds as to some of plaintiff’s claimed damages because plaintiff had complained about corrosive water in a letter to WASA more than three years before filing suit.

Outcome/Reasoning: Judgment affirmed in part and reversed in part. Appellate court found reversible error in the trial court’s refusal to consider sworn but non-notarized affidavit. Federal statute giving requirements for affidavit does not specify notarization, and no principled basis exists for distinguishing D.C. from federal practice. Trial court’s ruling on damages also reversed because “in order to survive..summary judgment..plaintiff need not show the amount of damages..but need only show that they exist and are not entirely speculative.” Court of Appeals affirmed partial summary judgment on limitations grounds based on plaintiff’s letter to WASA. Plaintiff argued for expansion of Brin v. S.E.W. Investors, 903 A.2d 784 (D.C. 2006), in which limitations accrual date was deemed a jury question because plaintiff (aware of her injury) had received conflicting information from doctors regarding its cause. Plaintiff also argued that his claim survived statute of limitations based on continuing tort rule, but trial court rejected that argument, ruling that “once the plaintiff has been placed on notice of an injury and the role of defendant’s wrongful conduct in causing it, the policy disfavoring stale claims makes application of the continuous tort doctrine inappropriate.” The Court of Appeals adopted trial judge’s analysis.

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Outcome/Reasoning: Judgment for plaintiff reversed. Judgment as a matter of law entered for defendant.
(1) There is no difference between D.C. and Maryland law on “lent employee” doctrine. Although Section 184 of Restatement (Second) of Conflicts sets forth choice of law rule applicable to employer’s claim of immunity through worker’s comp statutes, there is no conflict of law here because MD and D.C. laws produce same result.

(2) The lent employee doctrine applies when “a general employer lends an employee to a special employer.” The “special employer” becomes liable for workman’s comp only if (a) employee has an express or implied contract of hire with employer; (b) work being done is essentially that of the special employer; and (c) special employer has right to control the details of work. There is no dispute that the second two elements were satisfied here, as defendant had a right to control plaintiff and trash hauling was work of special employer. The first element of the lent employee doctrine was also satisfied, as there was an implied contract of hire between plaintiff and defendant because plaintiff knowingly and voluntarily accepted his assignment to work for defendant, accepted defendant’s supervision, and was in reality paid by defendant (with staffing company as a pass-through). Court focused not on whether plaintiff gave “subjective consent” to this relationship, but rather whether the parties “objectively manifested consent to the employee relationship as that relationship is understood by the worker’s comp statute.” Under this objective standard, plaintiff was an employee because of the “inescapable conclusion that he voluntarily submitted to defendant’s control.” Court rejected plaintiff’s argument that the contract between trash hauler and staffing company disclaimed expressly an employment relationship between plaintiff and defendant. The Court noted that “under worker’s compensation law, the company’s characterization of their temporary staffing arrangement cannot be allowed to override its reality.”

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Facts: Plaintiff, an intoxicated pedestrian, was struck by policeman outside crosswalk and sued D.C. Defendant produced expert testimony that plaintiff had blood alcohol content sufficient for lost consciousness and would not have been able to appreciate or “know” the danger he was in. Striking police officer testified that he saw plaintiff 3-5 car lengths away. Witnesses said MPD van was speeding, but at least one had seen pedestrian staggering in street and been able to stop. At close of evidence, defense sought jury instruction on assumption of risk and contributory negligence. Assumption of risk instruction was given over plaintiff’s objection. Last clear chance instruction was given without objection. After closing arguments and jury instructions, judge revised verdict form to reflect that assumption of risk completely bars recovery. Neither party objected to the revised verdict form. Jury answered “yes” as to defendant’s negligence and assumption of risk, without reaching questions of contributory negligence or last clear chance. Plaintiff argued for first time on appeal that assumption of risk did not apply because plaintiff’s intoxication prevented any voluntary exposure to danger.

Outcome/Reasoning: Judgment for the defendant reversed. New trial.
(1) Appellate court forgave plaintiff’s failure to make proper objection at trial. Under “plain error standard,” appellant who fails to raise an issue before trial court may still litigate it on appeal if the objectionable action was error that was plain, affected substantial rights, and seriously affected the fairness, integrity, or public reputation of judicial proceedings.

(2) Trial court’s decision to instruct on assumption of the risk was plain error. Assumption of risk means plaintiff “elects to proceed in the face of a known danger” and thus “consciously relieves the defendant of any duty.” But D.C. traffic regulations establish “that a driver may not fail to exercise ordinary care even when a pedestrian fails to do so.” This is a duty plaintiff cannot be held to waive under assumption of risk doctrine. Thus, trial court erred by giving assumption of risk instruction on which jury based its defense verdict.

(3) Trial court’s error was prejudicial because jury’s finding that plaintiff assumed the risk precluded it from reaching issue of last clear chance. Record contained sufficient evidence to justify last clear chance instruction, as multiple witnesses testified to seeing plaintiff and being able to avoid him, including one witness who came to a stop. Striking police officer said he saw plaintiff 3-5 car lengths before impact, allowing inference that officer could have stopped.

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Facts: Plaintiff sought long-term disability benefits from insurer, and hired attorney after disability claim was denied. Nearly three years after being retained, attorney filed suit in federal court for benefits under long-term disability policy. Insurer moved to dismiss the claim as time-barred under a policy provision specifying that an action to recover benefits must be brought within two years. Federal district court granted insurer’s motion and case was dismissed. Plaintiff then fired attorney and retained new counsel, who moved for reconsideration but was denied. On January 5, 2007, plaintiff sued disability attorney, three years and five months after federal district court had granted insurer’s motion to dismiss underlying disability claim as time-barred. Defendant moved to dismiss on grounds that three-year limitations period began on July 29, 2003 with dismissal of underlying disability benefits suit. Plaintiff countered that statute triggered by denial of Rule 59 motion in January 2004. Trial court granted defendant’s motion and dismissed legal malpractice suit. Plaintiff appealed.

Outcome/Reasoning: Judgment for defendant affirmed. Under discovery rule, cause of action for legal malpractice accrues when plaintiff has knowledge of (1) some injury, (2) the cause of injury, and (3) some evidence of wrongdoing. Also, D.C.’s “continuous representation rule” tolls limitations period for legal malpractice claim until attorney’s representation in matter at issue terminates. Injury here occurred when attorney missed insurance contract’s deadline for filing suit to obtain long-term disability benefits, and plaintiff was aware of injury and its cause by August 2003 when she fired defendant attorney and hired new counsel to try to reverse the damage done by missed deadline. D.C. does not recognize broad “exhaustion of appeal” rule. Statute is not tolled during period when client – through new counsel – tries to appeal or otherwise reverse damage done by prior attorney. There are cases where it is unknown if plaintiff will suffer injury until trial or appeal is exhausted, and limitations period does not begin to run until the plaintiff suffered injury. But in this case, when filing deadline in insurance contract was missed, damage was done.

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Facts: Plaintiff filed federal class action against WASA (his employer) for discrimination under Title VII of Civil Rights Act. Two years later plaintiff alleged in this Superior Court case that his WASA supervisor assaulted him while he was getting coffee at work. Plaintiff complained about this assault and told other supervisors, “I don’t know what I’ll do if the supervisor assaults me again.” WASA placed plaintiff on administrative leave for “reasonable suspicion” of making threats against an employee. Plaintiff then filed suit alleging battery, violation of the D.C. HRA, intentional/negligent infliction of emotional distress, and prima facie tort. The defendants were WASA and several employees, including the alleged assailant. Defendants filed partial motion to dismiss. Motion was granted as to the count for “prima facie tort.” The battery count was also dismissed as to the defendants other than the alleged batterer. The D.C. HRA claim and the claim for intentional infliction of emotional distress survived the motion to dismiss. In response to the Court’s ruling on the motion to dismiss, plaintiff sought leave to amend his complaint to add a battery claim against WASA, a claim for breach of duty to provide a reasonably safe workplace, and a claim for racial discrimination under the D.C. HRA. The Court denied plaintiff’s motion for leave to amend. Later the Court granted defendant’s motion for summary judgment and dismissed the case in its entirety. Plaintiff appealed.

Outcome/Reasoning: Judgment reversed in part and affirmed in part. Remanded for further proceedings.
(1) The trial court erred in dismissing the count for “prima facie tort.” Although the trial court accurately recognized that a cause of action for prima facie tort does not exist in D.C., plaintiff’s allegations were sufficient to plead a cause of action for breach of defendant’s duty to provide a safe workplace.

(2) The trial court did not abuse discretion in denying plaintiff’s motion for leave to amend complaint to add a battery claim against WASA and to amend its D.C. HRA count to add a claim for racial discrimination. Prior actions by plaintiff provided sufficient grounds for denying the motion to amend. The plaintiff had stated in a previous court filing that the only party guilty of battery was the WASA employee who attacked him. As such, the trial court did not abuse its discretion in denying leave to amend the battery claim against WASA. Likewise, because the plaintiff had alleged racial discrimination in violation of Title VII and the D.C. HRA in his federal class action complaint, it was not an abuse of discretion to deny leave to amend his Superior Court complaint to add the D.C. HRA count.

(3) Trial court abused its discretion in denying the motion for leave to amend plaintiff’s complaint to convert its “prima facie tort” count to a count for failure to provide a reasonably safe workplace. The substance of the allegations in these two counts was the same. There was no prejudice, no bad faith, and no undue delay. As such, the rule favoring liberal amendment to the pleadings required granting leave to amend.

(4) The trial court erroneously dismissed plaintiff’s common law claims on the grounds that they were barred by the Worker’s Compensation Act (WCA). The trial court should have stayed the claims and sought guidance from the Department of Employee Services as to whether those claims were covered by the WCA. The trial court, however, properly granted defendant’s motion for summary judgment on the retaliation claim, as plaintiff had failed to show that his alleged mistreatment in 2004 had any causal connection to his filing of the class-action complaint in 2001.

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Facts: Plaintiff was insured homeowner whose leaky radiator flooded his house. He made insurance claim for variety of property damage, hotel expenses, and mold remediation expenses. After State Farm’s failed to pay most losses, plaintiff sued for breach of contract, fraud, bad faith handling of insurance claim, conversion, negligent misrepresentation, assumpsit, and replevin. Trial court granted State Farm’s motion to dismiss tort claims. State Farm then made an offer of judgment for contract-based claims, which plaintiff accepted while reserving right to appeal dismissal of tort claims.

Outcome/Reasoning: Judgment for the defendant affirmed. D.C. does not recognize tort of first-party bad faith in handling insurance claims. Creation of added protection for policyholders is an issue best left for legislature. “Disputes relating to an insurance contract should generally be addressed within the principles of law relating to contracts, and bad faith can be compensated within those principles.” Court reached similar conclusion on tort claims, tort claim arises only when there is (1) a duty other than the duty to perform the contract and (2) an injury other than defendant’s failure to provide a contracted-for benefit.

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Facts: Plaintiff was badly injured by live electrical wire dangling from ceiling at her workplace, and she filed worker’s comp claim and obtained award. More than seven months later she filed negligence action against landlord at her workplace. Trial court granted landlord’s motion for summary judgment on basis that plaintiff failed to meet six-month third-party filing deadline under D.C. Code § 32-1535(b).

Outcome/Reasoning: Judgment for the defendant affirmed. Statute’s plain language establishes six-month window for filing third-party claims after worker’s comp claimant receives “an award in a compensation order.” Plaintiff’s acceptance of award in comp order—not her receipt of the final payment—triggered six-month limitations period.

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Facts: Plaintiff sued family practitioner, gynecologist, and surgeon for delay in diagnosing breast cancer. Four days into trial, after two of plaintiff’s retained experts had testified, trial judge granted defendant’s motion for judgment on grounds that plaintiff could not, with remaining witnesses, make out a prima facie case against any defendants. Plaintiff’s counsel had moved multiple times for recusal of the trial judge on the grounds that the judge’s husband was a physician whose financial interest may be affected by the adverse impact of a judgment on his malpractice premiums. Trial judge granted motion for judgment by all defendants on the grounds that trial and/or deposition testimony of plaintiff’s experts was insufficient to establish national standard of care. Plaintiff appealed, raising numerous issues.

Outcome/Reasoning: Judgment for two defendants affirmed. Judgment for defendant surgeon reversed. Case remanded. Court of Appeals’ opinion covers wide variety of issues, only some of which are reported here.
(1) Fact that trial judge’s spouse is a physician who may participate in the same malpractice insurance system as defendants is not grounds for recusal.

(2) Trial judge did not show partisan conduct in favor of defendant, but rather properly allowed defense to use leading questions when cross-examining his own client who was called as adverse witness by plaintiff.

(3) Trial judge did now show bias, but rather properly exercised discretion in declining to strike a prospective juror who had admitted during voir dire that she had concerns about the need for a cap on damages in malpractice cases and admitted she might not be fair if plaintiff sought “excessive” damages.

(4) Trial judge’s order denying leave to amend complaint to add allegations of sexual misconduct constituting malpractice was not abuse of discretion, as motion was untimely, would be prejudicial by necessitating new discovery, and would taint trial by mixing issues of standard of care with sexual allegations.

(5) Plaintiff’s failure to elicit testimony from experts at trial or deposition regarding basis for knowledge of national standard of care resulted in their being barred from testifying about standard of care.

(6) Court of Appeals stated in dicta that testimony by an expert that he “attends interdisciplinary conferences where practitioners in various medical specialties present all of the new or current cases of breast cancer and all the cases are discussed among the different specialties to promote effective management” arguably was minimally sufficient to give national standard of care testimony.

(7) Trial court erred in granting judgment to defendant surgeon before giving plaintiff a chance to call her surgery expert, who testified at deposition that she was not going to opine that defendant surgeon “breached the standard of care.” Same expert did testify to what the standard of care was, and plaintiff established through defendant’s testimony that his conduct did not comply with it. Plaintiff was entitled to call surgery expert at trial even though she would not use magic words “breached the standard of care,” and such testimony may suffice to establish a breach.

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