Nixon v. Ippolito ( 2024 )

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DISTRICT OF COLUMBIA COURT OF APPEALS
No. 22-CV-0595
FRENNIEJO D. NIXON, APPELLANT,
v.
GIOVANNI IPPOLITO, et al., APPELLEES.
Appeal from the Superior Court of the
District of Columbia
(2021-CA-001757-V)
(Hon. Hiram E. Puig-Lugo, Trial Judge)
(Argued December 6, 2023 Decided August 22, 2024)
Shaketta A. Denson, with whom Michael D. Reiter was on the brief, for
appellant.
Diana Kobrin was on the brief and argued the case for appellee Gustave K.
Etile. After argument, Yosef Kuperman was substituted as counsel.
Michael J. Carita for appellee National General Assurance Company.
Jack D. Lapidus was on the brief and argued the case for appellee Geico
Casualty Insurance Company. After argument, James M. Brault was substituted as
counsel.
Alane Tempchin, with whom Anne K. Howard was on the brief, for appellee
Abron Deer.
Jennifer L. Servary for appellee Giovanni Ippolito.
2
Tyrese White, pro se.
Donnita Bennett, pro se.
Before EASTERLY, HOWARD, and SHANKER, Associate Judges. *
SHANKER, Associate Judge: In 2018, appellant Frenniejo Nixon was riding as
a passenger in a car driven by appellee Gustave Etile when their car was struck from
behind in a multiple-vehicle collision. The four cars involved were traveling in the
same lane on Interstate 295, with Mr. Etile leading the line. The cars behind
Mr. Etile were driven by, in the following order, appellees Tyrese White, Abron
Deer, and Giovanni Ippolito. Ms. Nixon sought to recover damages for personal
injuries from the accident and filed a negligence claim against Messrs. Etile, Deer,
and Ippolito, and a breach-of-contract claim against Geico and National General
Assurance for uninsured motorist benefits on account of Mr. White’s negligence.
The trial court granted summary judgment for the defendants against Ms. Nixon,
concluding that Ms. Nixon’s interpretations of the evidence were too speculative as
a matter of law to support a determination that Messrs. Etile, Deer, White, and
Ippolito were negligent. We affirm in part and reverse in part.
*
Associate Judge AliKhan was originally assigned to this case. Following
Judge AliKhan’s appointment to the U.S. District Court for the District of Columbia,
effective December 12, 2023, Judge Easterly has been assigned to take her place on
the panel.
3
I. Background
A. Factual Background
The following facts are derived from the trial court’s order or appear to be
undisputed. 1 On the evening of July 4, 2018, a four-car chain of collisions occurred
on Interstate 295. The drivers involved were traveling in the same lane in the
following order: (1) Mr. Etile, (2) Mr. White, (3) Mr. Deer, and (4) Mr. Ippolito.
Mr. Etile had been driving, with Ms. Nixon in the passenger seat, toward
Washington, D.C., to watch the Independence Day fireworks at the National Mall.
A car in an adjacent lane abruptly cut in front of Mr. Etile, prompting Mr. Etile to
begin braking. In response to Mr. Etile’s deceleration, Mr. White began braking.
Mr. Deer saw Mr. White’s brake lights turn on but failed to stop his car in time and
consequently rear-ended Mr. White. After Mr. Deer rear-ended Mr. White,
Mr. Ippolito immediately rear-ended Mr. Deer. Ms. Nixon had no personal
knowledge as to the order or number of collisions behind her but felt one impact to
1
The trial court did not specifically identify the undisputed facts on which it
relied when granting summary judgment. The appellate record, however, is
sufficiently developed for our review and we proceed with our independent
assessment of the record, see infra Part III.
4
the rear of the car she was in (presumably from Mr. White’s car, although Mr. White
disputes that), which resulted in her alleged injury.
B. Procedural History
In 2021, Ms. Nixon filed a negligence action against Messrs. Etile, Deer, and
Ippolito. 2 She did not file an action against Mr. White, who was uninsured at the
time. Instead, Ms. Nixon included a breach-of-contract claim against Geico and
National General, claiming that they failed to provide her benefits under her
uninsured motorist coverage policy for losses she suffered because of Mr. White’s
negligence. 3
Messrs. Etile, Deer, and Ippolito moved for summary judgment pursuant to
Super. Ct. Civ. R. 56, each arguing that Ms. Nixon failed to establish proximate
cause. Geico also moved for summary judgment, arguing that because the record
2
In the same complaint, Ms. Nixon filed a claim against Anna Chayka for
negligently entrusting Mr. Ippolito to drive her vehicle. We dismissed Ms. Chayka
as an appellee after Ms. Nixon “failed to raise any error as to her dismissal by the
trial court.” Nixon v. Ippolito, No. 22-CV-0595 (D.C. Jan. 13, 2023) (order).
3
Geico, in accordance with Super. Ct. Civ. R. 14, brought a third-party
complaint against Mr. White, asserting that if Ms. Nixon recovered uninsured
motorist benefits from Geico due to the negligence of Mr. White, then Geico was
entitled to compensation from him for any benefits that Geico was required to pay.
Geico filed the same claim against the owner of the car that Mr. White drove,
appellee Donnita Bennett. Mr. White and Ms. Bennett did not submit a brief in this
court.
5
did not support an inference that Mr. White was driving negligently, Ms. Nixon’s
uninsured motorist claim against Geico failed as a matter of law. National General
filed in support of Geico’s motion, stating that if the trial court dismissed the claim
against Geico, it would have to dismiss Ms. Nixon’s claim against National General
on the same ground.
Ms. Nixon opposed, arguing that disputed issues of material fact resulting
from conflicting deposition testimony concerning how many impacts occurred and
in what order precluded summary judgment.
In a written order, the trial court granted each summary judgment motion. 4
The court stated that Ms. Nixon’s inability to “point to any specific evidence of
responsibility” and lack of “personal knowledge as to the order of impacts that
occurred behind her” meant that she could not prevail as a matter of law. The court
noted that Ms. Nixon “only provided speculative testimony of the possibility of
number and order of impacts” leading to her injury and determined that this
testimony “provide[s] no information at all about who may or may not have been
negligent.” Thus, the trial court ruled that Ms. Nixon failed to demonstrate genuine
disputes of material fact regarding her negligence claims against Messrs. Etile, Deer,
4
Mr. Ippolito and Ms. Nixon requested a hearing, but the trial court decided
the motions on the briefs.
6
and Ippolito, and granted their summary judgment motions. Finding that there was
no evidence supporting an inference of Mr. White’s negligence, the court also
granted summary judgment for Geico and National General.
Ms. Nixon filed a motion to alter or amend the judgment under Super. Ct. Civ.
R. 59(e), arguing that the court committed an error of law in dismissing her
complaint. The court denied Ms. Nixon’s motion.
This appeal followed.
II. Standard of Review
We review a grant of summary judgment de novo and apply the same standard
used by the trial court. Mancuso v. Chapel Valley Landscape Co., No. 22-CV-0298,
2024 WL 3448356, at *3 (D.C. July 18, 2024). “Under this standard, ‘the moving
party has the burden of demonstrating that there is no genuine issue of material fact,
after the evidence and all inferences from the evidence are drawn in favor of the non-
moving party.’” Id. (alteration omitted) (quoting Onyeoziri v. Spivok, 44 A.3d 279,
284 (D.C. 2012)). “[T]he role of this court is not to resolve factual issues as
factfinder, ‘but rather to review the record to determine if there is a genuine issue of
material fact on which a jury could find for the non-moving party.’” Id. (quoting
Holland v. Hannan, 456 A.2d 807, 814-15 (D.C. 1983)). Thus, “we will reverse the
7
grant of summary judgment ‘if an impartial trier of fact, crediting the non-moving
party’s evidence, and viewing the record in the light most favorable to the
non-moving party, may reasonably find in favor of that party.’” Id. (quoting Tolu v.
Ayodeji, 945 A.2d 596, 601 (D.C. 2008)).
III. Analysis
Ms. Nixon argues that the trial court improperly granted summary judgment
against her because (1) there are genuine disputes of material fact concerning the
collision chain and (2) several theories of causation are reasonably supported by the
record. 5
We mostly agree. The basis for the trial court’s ruling was that Ms. Nixon
failed to establish that any driver had proximately caused her injuries, because she
could not point to any specific evidence of responsibility and did not have any
personal knowledge as to the sequence of the collisions that occurred behind her.
But the absence of such direct personal knowledge is not surprising, or dispositive,
5
Ms. Nixon’s opening brief mentions the trial court’s denial of her Rule 59(e)
motion to alter or amend the judgment but does not develop an argument that the
trial court erred in denying the motion. Accordingly, we do not address the issue.
See Wagner v. Georgetown Univ. Med. Ctr., 768 A.2d 546, 554 n.9 (D.C. 2001)
(“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at
developed argumentation, are deemed waived.” (quoting United States v. Zannino,
895 F.2d 1, 16 (1st Cir. 1990)).
8
in a rear-end collision and, on this record as we view it, Ms. Nixon is entitled to a
determination of the facts by a factfinder. Based on our review of the record, we
conclude that genuine issues of material fact exist concerning whether negligence
by Messrs. White, Deer, and/or Ippolito proximately caused Ms. Nixon’s injuries.
We conclude, however, that Mr. Etile did not breach his duty of care as a matter of
law; therefore, we do not reach the issue of proximate cause as to him. Accordingly,
we reverse the grant of summary judgment as to all appellees except for Mr. Etile
and remand for further proceedings.
A. Legal Background
“To establish a negligence claim in the District of Columbia, a plaintiff must
demonstrate that: (1) the defendant owed a duty of care to the plaintiff, (2) the
defendant breached that duty, and (3) the breach of duty proximately caused damage
to the plaintiff.” Mancuso v. Chapel Valley Landscape Co., No. 22-CV-0298, 2024
WL 3448356, at *3 (D.C. July 18, 2024) (internal quotation omitted).
As a general rule, “the primary duty to avoid collision as between motorist
ahead and the motorist following lies with the motorist behind.” Pazmino v.
Washington Metro. Area Transit Auth., 638 A.2d 677, 679 (D.C. 1994) (internal
quotation omitted). This principle, however, “does not warrant a finding of liability
as a matter of law and a duty of care rests of course on both motorists.” Id. The
9
driver of a following car must “exercise reasonable care to avoid injuries” and “has
a duty to keep a lookout and to observe the movements of vehicles ahead” and “shall
not follow another vehicle more closely than is reasonable and prudent.” Id. (internal
quotation omitted). To establish a prima facie case of negligence, the plaintiff must
present evidence that the following driver breached their duty to exercise reasonable
care or otherwise violated District of Columbia traffic regulations. See id. at 679-81
(noting that a motorist’s duties on the road “are reflected in the District’s traffic
regulations”).
Our negligence cases have described proximate cause as having two
components: a cause-in-fact element and a foreseeability element. Mancuso, 2024
WL 3448356, at *3. A negligent act or omission is the cause-in-fact of harm if it
“‘is a substantial factor in bringing about the harm.’” Id. at *4 (quoting Restatement
(Second) of Torts § 431 (Am. L. Inst. 1965)); Majeska v. District of Columbia, 812
A.2d 948, 951 (D.C. 2002). Under the foreseeability element of proximate cause,
“a defendant may not be held liable for harm actually caused where the chain of
events leading to the injury appears ‘highly extraordinary in retrospect.’” Mancuso,
2024 WL 3448356, at *4 (quoting Majeska, 812 A.2d at 951). Intervening
negligence by a third party “does not by itself make the injury unforeseeable,” and
a defendant will be liable “despite the intervention of another’s act in the chain of
10
causation” if the intervening negligence “should have been reasonably anticipated
and protected against.” Majeska, 812 A.2d at 951 (internal quotations omitted).
This court has recognized that “in the absence of . . . emergency or unusual
conditions, the following driver is negligent if he collides with the forward vehicle.”
Fisher v. Best, 661 A.2d 1095, 1099 (D.C. 1995) (internal quotation and alteration
omitted). “Where a lawfully stopped vehicle is struck by another car from the rear,
there is a rebuttable presumption that the approaching vehicle was negligently
operated.” Id. (citing Dornton v. Darby, 373 F.2d 619, 621 (5th Cir. 1967)); Warrick
v. Walker, 814 A.2d 932, 933 (D.C. 2003) (citing Fisher, 661 A.2d at 1099). Thus,
“[w]here a party proves the basic facts giving rise to a presumption [of negligence],
it will have satisfied its burden of proving evidence with regard to the presumed
fact,” and the case is then best decided by a jury. See Warrick, 814 A.2d at 934
(“Because no evidence was presented at trial that unusual circumstances caused [the
defendant] to rear-end the stationary vehicle, such as a bike rider suddenly swerving
into his path in the roadway, the trial court erred in taking the case from the jury by
directing a verdict for the [defendant] . . . .”).
11
B. Discussion
1. Mr. Etile
Ms. Nixon argues that Mr. Etile could be found negligent by a trier of fact
because the fact that Mr. Etile had to brake abruptly shows that he failed to “keep[ ]
a proper lookout and to react to the changing traffic in a way to avoid a chain
collision.” Specifically, she contends that Mr. Etile’s braking caused Mr. White to
slow down, which, in turn, caused Mr. White to be rear-ended by Mr. Deer,
ultimately suggesting that Mr. Etile’s negligence precipitated the accident. We
disagree. Even when viewed in the light most favorable to Ms. Nixon, the evidence
would not support a finding by a reasonable factfinder that Mr. Etile breached his
duty of care.
The undisputed evidence indicates that Mr. Etile was driving at around
fifty-five miles-per-hour, keeping pace with traffic and maintaining about “two car
lengths” of distance from the car ahead, when another car, traveling faster than him
in an adjacent lane, “suddenly” cut in front of him. To avoid a collision, Mr. Etile
began braking to reduce his speed. It is disputed whether Mr. Etile’s car simply
12
slowed or came to a complete stop when it was rear-ended. 6 While he was driving,
Mr. Etile was not listening to the radio and was not talking on the phone or to any of
the passengers in the car.
As an initial matter, the fact that a chain of collisions occurred behind
Mr. Etile is not evidence of his negligence. See Evans v. Byers, 331 A.2d 138, 140
(D.C. 1975) (“It is fundamental that the mere happening of an accident . . . does not
prove negligence . . . .”); Pazmino, 638 A.2d at 679 (“[T]he primary duty to avoid
collision as between motorist ahead and the motorist following lies with the motorist
behind.” (internal quotation omitted)). Moreover, we are unpersuaded that
Mr. Etile’s braking—in response to a car that had “suddenly” cut him off—supports
a finding of negligence when Mr. Etile had been maintaining about two car-lengths
of distance behind the car ahead, safely avoided rear-ending the car that
unexpectedly sped into his lane, and had not been (as far as the record indicates)
distracted while driving.
Ms. Nixon correctly observes that Mr. Etile had a duty to abide by the
District’s traffic regulations and to “keep a lookout and to observe the movements
6
Although Mr. White maintains that he never struck Mr. Etile’s car, it is
undisputed that Mr. White was directly behind Mr. Etile in the line of traffic and was
unconscious when a car rear-ended Mr. Etile. Drawing all reasonable inferences in
favor of Ms. Nixon, the evidence supports a finding that Mr. Etile was rear-ended
by Mr. White.
13
of vehicles ahead.” Pazmino, 638 A.2d at 679. Under these circumstances, however,
there is no basis to conclude that Mr. Etile was at fault for not anticipating another
driver’s hasty lane change or for rapidly decelerating. For example, there is no
testimony that the car in the adjacent lane had its signal on and that Mr. Etile failed
to observe it. Absent any evidence that Mr. Etile had to brake sharply because he
had been distracted or inattentive, his sudden braking raises no reasonable inference
of negligence. See Evans, 331 A.2d at 140 (evidence was insufficient to establish a
prima facie case of negligence where there was no evidence that defendant who
rear-ended another car “was driving at excessive speed, was inattentive to the traffic
in front of him, or doing any of the myriad things not expected of a prudent driver”);
Rahimi v. Manhattan & Bronx Surface Transit Operating Auth., 43 A.D.3d 802,
803-04 (N.Y. App. Div. 2007) (holding that bus driver was not negligent where it
was uncontroverted that another car had cut in front of the bus “at a high rate of
speed” and where there was “no evidence that the bus driver created the emergency
or could have avoided a collision by taking some action other than stepping hard on
his brakes”).
Relatedly, the dispute concerning whether Mr. Etile had braked to a complete
stop or had simply slowed down is immaterial in this case. Even if Mr. Etile stopped,
there is no evidence to support an inference that his stop was unlawful or negligent
so as to rebut the presumption that the collision occurred because of the following
14
driver (Mr. White). See Fisher, 661 A.2d at 1099 (“Where a lawfully stopped
vehicle is struck by another car from the rear, there is a rebuttable presumption that
the approaching vehicle was negligently operated.” (citing Dornton, 373 F.2d at
621)); Dornton, 373 F.2d at 621 (a car is lawfully stopped when it “has stopped . . .
to avoid a collision with a car ahead”); 18 D.C.M.R. § 9901.1 (defining a prohibited
stopping as “halting a vehicle except to avoid conflict with other traffic”).
And even if Mr. Etile’s stop was sudden, “a claim that the leading vehicle
came to a sudden stop, standing alone, is [generally] insufficient to rebut the
inference of negligence caused by the rear-end collision.” Byrne v. Calogero, 96
A.D.3d 704, 706 (N.Y. App. Div. 2012); see, e.g., Clampitt v. D.J. Spencer Sales,
786 So.2d 570, 574 (Fla. 2001) (an abrupt stop by the leading driver does not rebut
the presumption of the rear driver’s negligence unless it is “at a time and place where
it could not reasonably be expected by the following driver” (internal quotation
omitted)); Huntoon v. TCI Cablevision of Colorado, Inc., 969 P.2d 681, 687 (Colo.
1998) (en banc) (“A sudden stop may be unwarranted if the evidence suggests it was
made without reason, or in an unexpected and uncalled-for location.”). 7
7
Under 18 D.C.M.R. § 2206.2, a driver has a duty to not “stop or suddenly
decrease the speed of a vehicle without first giving an appropriate signal . . . to the
driver of any vehicle immediately to the rear when there is opportunity to give such
15
There is no evidence to suggest that Mr. Etile’s stop was arbitrary.
Furthermore, the evidence shows that the stop occurred “at a place and time where
it was reasonably expected”—on a highway during a holiday with, at the very least,
moderately-congested traffic. See Kao v. Lauredo, 617 So.2d 775, 777 (Fla. Dist.
Ct. App. 1993) (plaintiff’s sudden stop was reasonably expected “on a heavily
congested city street during rush hour in stop and go traffic”); Taing v. Drewery, 100
A.D.3d 740, 741 (N.Y. App. Div. 2012) (driver of leading car who was rear-ended
entitled to judgment as a matter of law because a sudden stop, without more, failed
to raise a triable issue of fact when such stops are foreseeable under prevailing traffic
conditions). Thus, Mr. Etile’s sudden stop does not rebut the presumption that the
rear driver was negligent, and there is no genuine dispute as to whether Mr. Etile
was negligent. See Hill v. Wilson, 531 N.W.2d 744, 746 (Mich. Ct. App. 1995)
(question “concerning whether [leading motorist] stopped or merely slowed” was
“of no import” where the evidence failed to support a reasonable inference that
leading motorist had been comparatively negligent).
signal.” The evidence does not establish that Mr. Etile failed to comply with this
duty: Mr. White testified that he had noticed that Mr. Etile’s car had been slowing
down and even described Mr. Etile’s deceleration as the kind one might expect in
“slow, steady traffic” during “rush hour.”
16
Accordingly, we conclude that Ms. Nixon failed to establish a prima facie
case of Mr. Etile’s negligence, and we affirm the grant of summary judgment as to
Mr. Etile.
2. Mr. White
Ms. Nixon argues that the trial court erred in granting summary judgment for
Geico and National General—both of which may be liable to pay uninsured
motorists benefits to Ms. Nixon if Mr. White was negligent—because the facts gave
rise to a rebuttable presumption of Mr. White’s negligence. In response, Geico
contends that there is no evidence that Mr. White breached his duty of care and that
the normal presumption of negligence is inapplicable because of an “unusual
condition[ ]”—the accident was caused by Mr. Deer. Similarly, National General
argues that Mr. Deer striking Mr. White’s car from the rear broke the causal chain
between Mr. White’s negligence and Ms. Nixon’s injury and relieves Mr. White of
liability as a matter of law. We are not persuaded by the arguments set forth by
Geico and National General.
Although Geico contended at oral argument that we need not reach the
proximate cause issue because there is no evidence that Mr. White breached a duty
of care, we disagree. Mr. White testified that, in response to the traffic ahead, he
began slowing down and left “about a feet [sic] or two” between his car and
17
Mr. Etile’s car. Mr. White maintained that he left enough room between the cars,
but a jury could reasonably infer that Mr. White failed to maintain a reasonable
following distance. See 18 D.C.M.R. § 2201.9 (“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.”). As outlined above, there also is a rebuttable presumption of
Mr. White’s negligence because the evidence reasonably supports an inference that
Mr. White rear-ended Mr. Etile, who was lawfully stopped or slowing down. See
Fisher, 661 A.2d at 1099.
The question remains whether Ms. Nixon failed to demonstrate proximate
cause as a matter of law. National General and Geico argue that Mr. Deer’s
negligent act broke the causal connection between Mr. White’s negligence and
Ms. Nixon’s injury. We hold that a reasonable factfinder could find both elements
of proximate cause satisfied.
First, there is evidence in the record to support a finding that Mr. White’s
negligence was the cause-in-fact of Ms. Nixon’s injury. A factfinder could infer that
Mr. White’s failure to maintain a reasonable following distance placed his car in a
dangerous position with respect to Mr. Etile’s car and was a “substantial factor in
bringing about the harm.” Mancuso, 2024 WL 3448356, at *4 (quoting Restatement
18
(Second) of Torts § 431). In other words, a reasonable factfinder could conclude
that Mr. Etile’s car would not have been rear-ended but for the insufficient space
that Mr. White left between their cars. We disagree with National General that this
inference relies on “impermissible guesswork and speculation.”
Second, the negligence of Mr. Deer was not so unforeseeable as to cut off
Mr. White’s liability as a matter of law. National General in essence argues that the
negligence of Mr. Deer was a superseding cause. We disagree, as our case law is
clear that the intervening negligence of a third party breaks the chain of causation
only “if it is not reasonably foreseeable” or “when the sequence of events . . . is
highly extraordinary in retrospect.” McKethean v. Washington Metro. Area Transit
Auth., 588 A.2d 708, 716 (D.C. 1991) (internal quotations omitted); Mancuso, 2024
WL 3448356, at *4.
This court has recognized superseding causes in cases when the third party’s
negligence was “too attenuated” from the defendant’s negligence and had “such a
predominant effect . . . as to make the effect of the [defendant’s] negligence
insignificant.” See Mancuso, 2024 WL 3448356, at *4 (quoting Restatement
(Second) of Torts § 443, cmt. d.) (although contractors’ negligence created the need
to rebuild the garage, they were not involved in the reconstruction, and third party’s
19
redesign, which reduced the size of plaintiffs’ parking space, prevented defendant’s
negligence from being a substantial factor).
To determine whether the defendant’s negligence was a substantial factor in
causing the plaintiff’s injury, this court has also recognized as factors the proximity
of time and space of the initial negligence to the injury. See Sanders v. Wright, 642
A.2d 847, 849-50 (D.C. 1994) (although defendant’s negligence caused the first
collision, it was “too remote” from plaintiff’s subsequent injury, where after the
initial collision, plaintiff had moved completely off the roadway and had stood by
his car without harm for five-to-ten minutes before a different car, excessively
speeding, sped off the road and struck plaintiff).
Here, construing the facts in the light most favorable to Ms. Nixon, a trier of
fact could find that the ongoing negligence of Mr. White—failing to maintain a
reasonable following distance—was not “too attenuated” or “too remote” to the
ultimate collision with Mr. Etile. Indeed, this case is unlike Sanders, where it was
clear that the defendant’s “initial negligence had come to rest” by the time “an
independent intervening cause”—the negligence of another driver—“had taken
dominion over the action.” Id. at 851 (internal quotation omitted).
Accordingly, we are unconvinced that there is anything “highly
extraordinary” about collision that occurred here as to deem Mr. Deer’s negligence
20
a superseding cause and absolve Mr. White of liability as a matter of law. See
Restatement (Second) § 442A (“Where the negligent conduct of the actor creates or
increases the foreseeable risk of harm through the intervention of another force, and
is a substantial factor in causing the harm, such intervention is not a superseding
cause.”). We hold, therefore, that the issue of proximate cause is more appropriate
for resolution by a trier of fact and reverse the grant of summary judgment in favor
of Geico and National General.
3. Mr. Deer
Ms. Nixon appears to set forth two theories of negligence against Mr. Deer:
res ipsa loquitur and specific acts of negligence. Mr. Deer contends that res ipsa
loquitur is inapplicable because Ms. Nixon cannot establish the doctrine’s
exclusive-control requirement and also argues that Ms. Nixon’s negligence claim
against him fails because she cannot establish proximate cause. We hold that res
ipsa loquitur does not apply but nonetheless reverse the grant of summary judgment
because there is a genuine issue of disputed fact concerning whether Mr. Deer
proximately caused Ms. Nixon’s injury. 8
8
Ms. Nixon cites the doctrine of res ipsa loquitur in her arguments pertaining
to Messrs. Etile and Deer but raises a res ipsa loquitur argument against Mr. Ippolito
21
a. Res Ipsa Loquitur
Res ipsa loquitur permits a jury to infer negligence from the mere occurrence
of the accident. See Evans, 331 A.2d at 140 (where no witnesses testified that
defendant was excessively speeding, inattentive, or not otherwise driving prudently,
“any inference of tortious conduct on his part would have to depend on the principle
of res ipsa loquitur”). “For that reason, it is a powerful doctrine which should be
applied with caution in a negligence action . . . .” Jones v. NYLife Real Est.
Holdings, LLC, 252 A.3d 490, 501 (D.C. 2021) (internal quotations omitted). A
plaintiff may invoke the doctrine if the undisputed facts establish the following:
(1) the accident is of a kind that ordinarily does not occur without negligence; (2) the
instrumentality causing the injury was within the defendant’s exclusive control; and
(3) the plaintiff did not contribute to or cause the accident. Sullivan v. Snyder, 374
A.2d 866, 867-68 (D.C. 1977); see Evans, 331 A.2d at 141 (“[T]he principle of res
ipsa loquitur can be invoked only if a plaintiff’s case establishes certain
uncontroverted facts which indicate negligent conduct by a particular party.”).
only in her reply brief. “It is the longstanding policy of this court not to consider
arguments raised for the first time in a reply brief.” Stockard v. Moss, 706 A.2d 561,
566 (D.C. 1997). We also do not address the application of res ipsa loquitur as to
Mr. Etile given our conclusion that he was not negligent, see supra Part III.B.1, and
only discuss res ipsa loquitur in the context of Mr. Deer.
22
This court has long recognized that a rear-end automobile collision is a kind
of accident that is unlikely to occur without negligence, see, e.g., Sullivan, 397 A.2d
at 867-68; Andrews v. Forness, 272 A.2d 672, 674 (D.C. 1971), and it is undisputed
that Ms. Nixon did not contribute to the accident. Ms. Nixon may not invoke res
ipsa loquitur, however, because the injury-causing instrumentality (Mr. Deer’s car)
was not necessarily under Mr. Deer’s exclusive control.
The exclusive-control requirement serves to ensure a clear connection
between the defendant and the harm suffered by the plaintiff. See Quin v. George
Washington Univ., 407 A.2d 580, 585 (D.C. 1979); 65A Corpus Juris Secundum
Negligence § 826 (“The concept of exclusive control . . . eliminate[s], within reason,
all explanations for the injurious event other than the defendant’s negligence.”).
Exclusive control does not necessarily require a showing that no one other than the
defendant interacted with the instrument or that there were no other potential causes
of the plaintiff’s injury. See Avis Rent-A-Car Sys., Inc. v. Standard Meat Co., 288
A.2d 243, 246 (D.C. 1972). The facts must demonstrate that the defendant had
“some reasonably current, if not continuous control over the instrumentality” at the
time of the injury, id., and that the plaintiff’s injury was probably caused by the
instrumentality under the defendant’s control.
23
An intervening factor, such as third-party interference or an external
condition, that contributed “more probably” to the injury prevents a finding that the
defendant had exclusive control. See District of Columbia v. Singleton, 41 A.3d 717,
723 (Md. 2012). Because the existence of an intervening factor supplies an
alternative explanation for the plaintiff’s injury and therefore weakens the likelihood
that the accident was solely due to the defendant’s negligence, res ipsa loquitur is
inapplicable in such a case. See Rajabi v. Potomac Elec. Power Co., 650 A.2d 1319,
1323 (D.C. 1994) (“[I]ntervening causes such as weather and traffic made it
impossible for appellants to prove that the District had exclusive control over the
street lights.” (internal quotation omitted)); Marshall v. Townsend, 464 A.2d 144,
146 n.1 (D.C. 1983) (noting that a second plumbing leak was “an even less likely
candidate for treatment under res ipsa loquitur,” because intervention by a plumber
to fix a first leak “remove[d] the upstairs apartments from appellees’ exclusive
control”).
Although it is undisputed that Mr. Deer rear-ended Mr. White first and then
Mr. Ippolito rear-ended Mr. Deer afterward, the facts reasonably support two
possible causes of Ms. Nixon’s injury—one where Mr. Deer was in exclusive
control of his vehicle and another where he was not. In the first scenario, Mr. Deer
began the chain of collisions. He rear-ended Mr. White, who then rear-ended
Mr. Etile, injuring Ms. Nixon. Mr. Ippolito may have rear-ended Mr. Deer, but this
24
had no bearing on the chain of collisions that had already occurred. In the second
scenario, Mr. Deer rear-ended Mr. White but this impact did not cause Mr. White to
rear-end Mr. Etile. Instead, when Mr. Ippolito rear-ended Mr. Deer, whose car was
still in contact with Mr. White’s car, that impact from Mr. Ippolito provided enough
force to propel Mr. White’s car into Mr. Etile’s car. Thus, the undisputed facts fail
to establish that Mr. Deer necessarily had exclusive control over his car.
Because “res ipsa loquitur can be invoked only if a plaintiff's case establishes
certain uncontroverted facts which indicate negligent conduct by a particular party,”
Evans, 331 A.2d at 141, and, here, the record supports two conflicting accounts
regarding who was negligent, we hold that Ms. Nixon may not invoke the principle
of res ipsa loquitur. See id. at 140-41 (holding that res ipsa loquitur could not be
invoked against driver of another car who collided with the car in which plaintiff
was a passenger because the evidence showed two conflicting accounts concerning
which of the two drivers was negligent); Marshall, 464 A.2d at 145 (The “plaintiff
must establish certain uncontroverted facts in support of the elements of res ipsa
loquitur.” (citing Evans, 331 A.2d at 141)).
25
Having concluded that res ipsa loquitur does not apply, 9 we turn to whether
the evidence supports finding a specific act of negligence as to Mr. Deer that
proximately caused Ms. Nixon’s injury.
“This court permits the plaintiff in a proper case to rely upon both res ipsa
loquitur and proof of specific acts of negligence.” Quin v. George Washington
Univ., 407 A.2d 580, 582 (D.C. 1979). “[T]he introduction of some evidence which
tends to show specific acts of negligence on the part of the defendant, but which
does not purport to furnish a full and complete explanation of the occurrence . . .
does not deprive the plaintiff of the benefit of res ipsa loquitur.” Sullivan, 374 A.2d
at 867 n.1 (D.C. 1977) (quoting W. Prosser, Handbook of the Law of Torts § 40, at
9
There appears to be confusion among the parties about the applicability of
res ipsa loquitur when multiple defendants are involved. It is well-recognized that
the exclusive-control requirement does not always require control by a single person;
res ipsa loquitur may be invoked against multiple defendants who shared joint
control over the injury-causing instrumentality. Greet v. Otis Elevator Co., 187 A.2d
896, 898 (D.C. 1963). The concept of joint control recognizes that multiple parties
can share the duty to exercise reasonable care over the same instrumentality. See id.(res ipsa loquitur applicable against building owner and elevator company because
either or both could have had responsibility and control of the elevator at the time of
the accident). Thus, res ipsa loquitur may apply against multiple defendants, and “it
is for the jury to say whether either or both had control.” Id.In any event, contrary to Mr. Deer’s contention, joint control is inapplicable
here. Although Messrs. Deer and Ippolito each had a duty of care, they did not share
control over the alleged injury-causing instrumentality, Mr. Deer’s car. As
explained above, Mr. Ippolito’s rear-end collision into Mr. Deer was an intervening
factor that precludes satisfaction of the exclusivity requirement. See Singleton, 41
A.3d at 724 (recognizing the negligence of another vehicle as an “intervening act”).
26
232 (4th ed. 1971)). “Res ipsa loquitur becomes irrelevant only when the manner in
which the defendant was allegedly negligent is completely elucidated . . . and there
is nothing left for the jury to infer regarding the cause of the accident.” D.C. Hous.
Auth. v. Pinkney, 970 A.2d 854, 868 (D.C. 2009) (internal quotation omitted).
b. Specific Act of Negligence
Mr. Deer was driving behind Mr. White and “was attempting to maintain, at
least, a car length” of distance from the car ahead but admitted it was a “little bit
closer than that.” Seeking to change lanes, Mr. Deer “checked [his] right-hand
mirror,” and then re-focused his sights ahead when he saw that Mr. White’s brake
lights were on. Mr. Deer “slammed on [his] brakes” but could not avoid colliding
with Mr. White’s car.
As preliminary matter, the record supports a reasonable inference that
Mr. Deer breached his duty of care. Mr. Deer’s own testimony that he was traveling
at a distance less than a car length from Mr. White’s vehicle raises a disputed issue
as to whether he had been following too closely or had failed to react to an
emergency within a reasonable time. See Pazmino, 638 A.2d at 681 (reasonable jury
could find driver of the trailing vehicle negligent because he “should have been at a
reasonable and prudent distance” behind the leading vehicle, which had been
lawfully slowing down, but failed to take “particular caution” to avoid an accident);
27
Sullivan, 374 A.2d at 867 & n.1 (evidence establishing that rear driver had been
traveling at thirty miles per hour and was only about seven yards away before
braking could support a finding of a specific act of negligence).
Mr. Deer’s central argument is that Ms. Nixon failed to establish the
“cause-in-fact” component of proximate cause as to him, because no one has direct
knowledge that Mr. Deer’s rear-impact to Mr. Etile actually caused Ms. Nixon’s
injury. Mr. Deer overlooks, however, that Ms. Nixon “is not required to prove
causation to a certainty” and needs only to present sufficient evidence that
Mr. Deer’s negligence was a “substantial factor” in bringing about harm to
Ms. Nixon. See Majeska, 812 A.2d at 951.
Viewing the evidence in the light most favorable to Ms. Nixon, we conclude
that there is record evidence to support a finding of cause-in-fact by a reasonable
factfinder. That no one has direct knowledge as to whether Mr. White rear-ended
Mr. Etile after Mr. Deer rear-ended Mr. White is not fatal to Ms. Nixon’s negligence
claim. Even though Mr. White lost consciousness after the rear-impact and denies
ever striking Mr. Etile’s car, because Mr. White’s car was only one or two feet away
from Mr. Etile’s car, a reasonable factfinder could conclude that Mr. Deer’s
rear-ending of Mr. White caused Mr. White to rear-end Mr. Etile. Alternatively,
even if Mr. Deer’s initial rear-end impact to Mr. White’s car did not precipitate
28
Ms. Nixon’s injury and it was Mr. Ippolito’s rear-end impact that provided the
additional force necessary to push the cars forward and cause the ultimate impact
injuring Ms. Nixon, we think that a reasonable factfinder could find that Mr. Deer’s
negligence was still a substantial factor in causing the accident.
Thus, there is a disputed issue as to whether the one impact that Ms. Nixon
felt was caused by Mr. Deer, and we reverse the grant of summary judgment in his
favor.
4. Mr. Ippolito
At oral argument, Mr. Ippolito conceded that he breached a duty of care, but
he argues, similarly to Mr. Deer, that proximate cause could not be established
because no witness knows whether Mr. White’s car collided with Mr. Etile’s car due
to the negligence of Mr. Deer or of Mr. Ippolito. We disagree with Mr. Ippolito that
a jury would have to “draw impermissible inferences” to find Mr. Ippolito negligent.
As we explained above, the evidence establishes that Mr. Deer was still in contact
with Mr. White’s vehicle when Mr. Ippolito rear-ended him. A reasonable
factfinder could infer that Mr. Ippolito’s rear-end impact into Mr. Deer’s car
provided the force necessary to propel Mr. White’s car into Mr. Etile’s, making
Mr. Ippolito’s negligence a substantial factor in causing Ms. Nixon’s injury.
Accordingly, we reverse the grant of summary judgment as to Mr. Ippolito.
29
IV. Conclusion
For all of the foregoing reasons, we (1) affirm the grant of summary judgment
in favor of Mr. Etile; and (2) reverse the grants of summary judgment as to
Messrs. Deer and Ippolito and Geico and National General.
So ordered.